                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                   F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                  December 2, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                               Charles R. Fulbruge III
                                                                                       Clerk
                                 _________________________

                                        No. 04-70017
                                 _________________________

GREGORY LYNN SUMMERS,
                                                                           Petitioner-Appellant,
versus

DOUG DRETKE,
                                                                          Respondent-Appellee.

                  __________________________________________________

                         Appeal from the United States District Court
                              for the Northern District of Texas
                                      (No. 6:01-CV-139)
                  __________________________________________________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

         Petitioner-Appellant Gregory Lynn Summers (“Summers”) appeals from the district court’s

denial of his application for a writ of habeas corpus. Summers also seeks a Certificate of

Appealability (“COA”) for claims not certified by the district court. Because Summers has failed

to carry his burden in both, we affirm the judgment of the district court and deny Summers’s

application.

                               I. FACTS AND PROCEEDINGS

A.       Underlying Crime and Involved Persons

         Mandell Eugene Summers, Helen Summers, and Billy Mack Summers were fatally stabbed

and left in a burning building. Evidence at trial revealed that Summers hired Andrew Cantu to


                                              -1-
murder Summers’s relatives—father, mother, and uncle, respectively—for financial gain.1 For this

crime, Texas tried, convicted, and sentenced Summers to death in 1991.

          Cantu enlisted the aid of Raymond Gonzales and Paul Flores to carry out the act. (Cantu had

solicited another, Max Aguirre, but Aguirre declined to join the conspiracy.) Cantu’s payment was

to be from money found in the house. Among others, Aguirre, Flores, and Gonzales each testified

in Summers’s trial to statements made by Cantu regarding Summers.

          After the publication of news reports on the crime, Keenan Wilcox contacted the police and

described how Summers had approached him to perform the same acts, i.e., the murder of

Summers’s relatives and the burning of their house. Wilcox reported that Summers offered to pay

for the crime with money found in the house and from insurance proceeds. Wilcox testified about

Summers’s solicitation.

          While in custody, Summers befriended William Spaulding, another inmate. Spaulding

assisted Summers with legal work and prepared documents for Summers. When Spaulding realized

that Summers was using documents prepared by Spaulding as false evidence, Spaulding contacted

prison officials and told them of his encounter with Summers. During their interactions, Summers

told Spaulding o f Summers’s part in the murders. Spaulding testified as to those events at

Summers’s trial.

B.        Procedural History

          The Texas Court of Criminal Appeals affirmed Summers’s conviction on June 8, 1994. On

October 7, 1996, the United States Supreme Court denied Summers’s petition for a writ of certiorari.

On October 1, 1997, Summers filed a habeas petition with the district court in Taylor County. The


1
    Texas executed Cantu in 1999 for his part in the crime.


                                                 -2-
Texas Court of Criminal Appeals denied this application for state post-conviction relief on March

28, 2001.2

       On April 4, 2001, Summers filed an application for a writ of habeas corpus in the United

States District Court for the Eastern District of Texas. He filed an amended application on

November 15, 2001. Summers asserted ten claims for relief. The application was opposed by

Appellee-Respondent Doug Dretke, Director, Texas Department of Criminal Justice (the

“Director”).

       On March 4, 2004, the district court released a Memorandum Opinion and Order granting

the Director’s motion for summary judgment. No such motion had been filed. In response to

Summers’s Motion to Alter and Amend Judgment, the district court issued an Amended Judgment

on March 24, 2004. The Amended Judgment read: “The Court, having considered the allegations

in the petition, the authorities and exhibits in the application, answer, and reply, and the evidence

in the record, finds that the application is not well-taken and it will be denied.” The district court

then entered judgment “for the Director on all claims in Summers’ [sic] application.”

       Summers filed a Notice of Appeal on April 23, 2004. On May 10, 2004, the district court

granted a COA for three of Summers’s original ten claims—the second, fourth, and fifth. The three

claims included in the COA are: (1) the trial court violated Summers’s constitutional rights by

admitting Cantu’s statements into evidence; (2) the state violated Summers’s constitutional rights

by withholding exculpatory evidence relevant to the credibility of certain witnesses; and (3) the trial

court violated Summers’s constitutional rights by giving jurors misleading and constitutionally


2
 According to Summers, the Court of Criminal Appeals Order was dated March 28, 2001, but was
mailed to counsel o n March 26. Dretke cites the date as March 28, 2001 in his reply brief. The
district court opinion cites the date as March 29, 2001.


                                                 -3-
defective instructions which prevented them from considering mitigating evidence at sentencing.

The district court declined to issue a COA as to seven of Summers’s claims. The parties have fully

briefed the three certified issues, and the appeal currently pends before this court.

         On August 3, 2004, Summers filed an Application for Additional Certificate of Appealability

with this court, which raised four arguments: (1) this court should grant COA for all ten claims

presented before the district court; (2) this court should grant COA for Summers’s first, seventh,

eight, ninth, and tenth claims; (3) reasonable jurists could disagree about whether Spaulding’s

testimony was admissible; and (4) reasonable jurists could disagree about the materiality of the

testimony of Dr. Grigson, a witness for the state, and whether or not the state knowingly presented

false evidence. The parties have fully briefed the application, which is currently pending before this

court.

                                       II. STANDARD OF REVIEW

         Summers filed his petition for a writ of habeas corpus after the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). As a result, the petition is subject to

the procedures and standards imposed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).



A.       Appeal from a Denial of a Habeas Corpus Petition

         “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and

review its conclusions of law de novo, applying the same standard of review to the state court’s

decision as the district court.” Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting

Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)). “A federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal system.”



                                                  -4-
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). As a result, whether at the district court or the

circuit court, a federal court’s review of a claim adjudicated in a state court is deferential:

                Under § 2254(d), a federal court cannot grant habeas corpus relief
                with respect to any claim that was adjudicated on the merits in state
                court proceedings unless the adjudication of that claim either (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.


Hughes v. Dretke, 412 F.3d 582, 588–89 (5th Cir. 2005) (citing 28 U.S.C. § 2254(d)). Moreover,

this court has held that “a federal habeas court is authorized by Section 2254(d) to review only a

state court’s ‘decision,’ and not the written opinion explaining that decision.” Pondexter v. Dretke,

346 F.3d 142, 148 (5th Cir. 2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en

banc)). See also Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“The statute compels

federal co urts to review for reasonableness the state court’s ultimate decision, not every jot of its

reasoning.”).

(1)     Findings of Fact

        A state court’s factual findings are “presumed to be correct.” Hughes, 412 F.3d at 589

(citing 28 U.S.C. § 2254(e)(1)). Before a federal court, “a petitioner has the burden of rebutting this

presumption with clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)).

(2)     Conclusions of Law

        Under AEDPA, a federal court’s assessment of a state court’s conclusions of law is similarly

deferential. The Supreme Court has determined that section 2254(d)(1) affords a petitioner two

avenues, “contrary to” and “unreasonable application,” to attack a state court application of law.



                                                  -5-
See Williams v. Taylor, 529 U.S. 362, 405 (2000) (noting the clauses have “independent meaning”).

Under the first clause:

               a state court decision is “contrary to . . . clearly established Federal
               law, as determined by the Supreme Court” if: (1) “the state court
               applies a rule that contradicts the governing law set forth in [the
               Supreme Court’s] cases,” or (2) “the state court confronts a set of
               facts that are materially indistinguishable from a decision of [the
               Supreme] Court and nevertheless arrives at a result different from
               [Supreme Court] precedent.”

Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002) (quoting Williams, 529 U.S. at 405–06).

       Under the second clause, “a state court decision is ‘an unreasonable application of clearly

established’ Supreme Court precedent if the state court ‘correctly identifies the governing legal rule

but applies it unreasonably to the facts of a particular prisoner’s case.’” Id. (quoting Williams, 529

U.S. at 407–08). The Supreme Court provided further guidance:

               First, the Court indicated that the inquiry into unreasonableness is an
               objective one. Second, t he Court emphasized that “unreasonable”
               does not mean merely “incorrect”: an application of clearly
               established Supreme Court precedent must be incorrect and
               unreasonable to warrant federal habeas relief.

Id. (citing Williams, 529 U.S. at 409–12) (internal citations omitted). See also Morrow v. Dretke,

367 F.3d 309, 313 (5th Cir. 2004) (“[F]ederal habeas relief is only merited where the state court

decision is both incorrect and objectively unreasonable.”). Only if a state court’s application of

federal constitutional law fits within this paradigm may this court grant relief.

B.     Application for Additional COA

       This court will grant a COA only if the petitioner makes “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must

“demonstrate[e] that jurists of reason could disagree with the district court’s resolution of his



                                                 -6-
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. The Supreme Court instructs that

the “question is the debatability of the underlying constitutional claim, not the resolution of that

debate.” Id. at 342. Finally, “[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). This court may not grant a COA if there is no doubt that

reasonable jurists would agree with the district court’s resolution and that the issues presented are

not adequate to deserve encouragement.

                                        III. DISCUSSION

       This is a case in two parts: the appeal, pursuant to the COA issued by the district court, and

the application for an additional COA. We take the second part first and address the additional COA

before reaching the substance of the appeal.

A.     Application for Additional COA

       Under AEDPA, a petitioner must obtain a COA, from either a district court judge or a circuit

court judge before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c).

See also Miller-El, 537 U.S. at 336 (“[U]ntil a COA has been issued federal courts of appeals lack

jurisdiction to rule on the merits of appeals from habeas petitioners.”). To determ ine whether a

COA sho uld be granted requires an overview of the claims in the habeas petition and a general

assessment of their merits. This court looks to the district court’s resolution of the petitioner’s

constitutional claims and asks whether it was debatable amongst jurists of reason. “This threshold

inquiry does not require full consideration of the factual or legal bases adduced in support of the

claims. In fact, the statute forbids it.” Brown v. Dretke, 419 F.3d 365, 370 (5th Cir. 2005) (citing



                                                 -7-
Miller-El, 537 U.S. at 336).

       After the district court refused to issue a COA as to all of his claims, Summers filed an

Application for Additional Certificate of Appealability with this court. In the application, Summers

raised four arguments: (1) this court should grant COA for all ten claims presented before the

district court; (2) this court should grant COA for Summers’s first, seventh, eight, ninth, and tenth

claims; (3) reasonable jurists could disagree about whether Spaulding’s testimony was admissible;

and (4) reasonable jurists could disagree about the materiality of Dr. Grigson’s testimony and

whether the state knowingly presented false evidence.

(1)    COA for all Ten Claims

       Because the district court approached the issues presented as though the Director had filed

a summary judgment, Summers believes that the entire analysis is invalid and that this court should

grant a COA with respect to all of the issues raised before the district court. We disagree.

       It is true that the original judgment in favor of the Di rector was based, in part, on the

summary judgment standard. To the extent that the dist rict court’s use of the summary judgment

standard for the standard of review under AEDPA altered its analysis, the effect was to make finding

in favor of the Director more difficult, not less. Nevertheless, the district court granted Summers’s

motion to alter or amend the judgment. As a result, the district court’s final judgment, the judgment

under consideration for the additional COA, was entered without using the summary judgment

standard.

       Summers does not cite authority for the proposition that application of the summary

judgment standard mandates the grant of a COA. Finally, and conclusively, because Summers has

not even alleged that a “denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), resulted from the



                                                -8-
complained-of actions, a COA is not merited for all ten issues raised before the district court.

(2)     COA for Summers’s First, Seventh, Eighth, Ninth, and Tenth Claims

        Summers maintains that the first, seventh, eighth, ninth, and tenth claims raised before the

district court cannot be briefed because of page limitations. Rather, Summers directs this court to

the briefing before the district court for support of his request for a COA as to these claims. We

decline this request. By failing to adequately brief these issues, Summers has waived them. See

Hughes, 412 F.3d at 597; Lookingbill v. Cockrell, 293 F.3d 256, 263 & n.11 (5th Cir. 2002).

(3)     COA for the Admissibility of Spaulding’s Testimony

        Spaulding made Summers’s acquaintance while they were both inmates at the Taylor County

Jail.   Spaulding’s testimony is corroborating evidence of a conspiracy and therefore was

instrumental to the entry of testimony under the co-conspirator exception. Summers claims that

reasonable jurists could disagree about whether Spaulding’s testimony was admissible. The district

court denied habeas relief and a COA on this claim. Summers now seeks a COA from this court.



        With respect to Spaulding’s testimony, Summers asserts three sub-claims:             (1) that

Spaulding, acting as an agent of the state, questioned him in violation of Massiah v. United States,

377 U.S. 201 (1964); (2) that the state knowingly sponsored Spaulding’s false testimony in violation

of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972); and (3)

that the state failed t o disclose Spaulding’s relationship with authorities in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Each of these claims depends on Summers’s presumption that

Spaulding lied when he testified at trial to the following facts: (1) that Summers approached

Spaulding (and not vice versa); (2) that Spaulding testified as to information gained before contact



                                                -9-
with authorities; and (3) that the state had not offered Spaulding anything in exchange for his

testimony.

       In support of his position, Summers relies exclusively on a 1997 affidavit from Spaulding,

which was introduced at Summers’s habeas proceedings. In that affidavit, Spaulding said, contrary

to his trial testimony, that Taylor County detectives contacted him before Summers confided in him.

Also, Summers claims that the detectives asked Spaulding to obtain incriminating information from

Summers.     Finally, Summers describes some benefits Spaulding received as a result of his

testimony. If these statements could be taken as true, Summers would, likely, merit a COA.

However, under AEDPA, the COA must be denied.

       The state habeas court has had the opportunity to address the same issue presented here and

made specific findings that directly controvert Summers’s position:

               William Spaulding was not an agent of the State when [Summers]
               told him of [Summers]’s involvement in the murder for hire of his
               parents and uncle. William Spaulding did not question or solicit
               information from [Summers] at the State’s request. The State’s
               agents did not approach Mr. Spaulding to testify against [Summers];
               instead, Mr. Spaulding approached law enforcement personnel. Mr.
               Spaulding testified at trial only about [Summers]’s statements to him
               before Mr. Spaulding contacted law enforcement officers. Mr.
               Spaulding’s testimony at trial was not false, misleading, or
               incomplete.

       AEDPA mandates that these findings are “presumed to be correct.” Hughes, 412 F.3d at 589

(citing 28 U.S.C. § 2254(e)(1)). Moreover, Summers “has the burden of rebutting this presumption

with clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)). Finally, where, as here,

the state habeas court has made a credibility determination, that finding is also afforded deference




                                               - 10 -
under AEDPA.3 Guidry v. Dretke, 397 F.3d 306, 326 (5th Cir. 2005) (noting that a federal habeas

court “may not substitute its own credibility determinations for those of the state court simply

because it disagrees with the state court’s findings”); id. at 333 (Garza, J., dissenting) (same);

Pondexter, 346 F.3d at 149–50.

       The district court concluded that Spaulding’s 1997 affidavit failed to rebut the presumption

in favor of state courts’ factual findings. We agree. This circuit has long viewed recanting

affidavits with “extreme suspicion.” Baldree v. Johnson, 99 F.3d 659, 663 (5th Cir. 1996). See also

Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir. 2003); Spence v. Johnson, 80 F.3d 989, 1003 (5th

Cir. 1996); United States v. Adi, 759 F.2d 404, 408 (5th Cir. 1985). This affidavit is no different;

it stands alone, uncorroborated, and unsupported.4 With such scant support, this court is in no

position to disturb the factual findings of a state court. Because all of the claims relating to the COA

for the Spaulding t estimony are dispensed with once the factual findings of the state court are

accepted, we need not discuss the sub-claims in detail. Finding the point beyond debate, we deny

a COA as to the Spaulding testimony’s admissibility.

(4)    COA for the Admissibility of Dr. Grigson’s Testimony

       Dr. Grigson testified as a witness for the state in the penalty phase. Dr. Grigson testified that



3
 This deference existed even before AEDPA. See Carter v. Johnson, 131 F.3d 452, 463 (5th Cir.
1997) (“[W]e are required to accept, as conclusive, both the factual findings and the credibility
choices of the state courts.”).

4
 Summers looks to Guy v. Cockrell, 343 F.3d 348 (5th Cir. 2003), in support of his position that this
court should accept the 1997 affidavit as true. However, the Guy court expressly limited its ruling
to the circumstances of that case. In Guy, because the state had waived its exhaustion defense, there
was no state habeas record and no findings of fact to which the court was required to defer under
AEDPA. See id. at 351–52. Guy cannot be read as an endorsement of this circuit’s preference for
post-trial affidavits over state courts’ factual findings.


                                                 - 11 -
Summers represented a future danger. Summers contends that reasonable jurists could disagree

about whether Dr. Grigson’s testimony was admissible. With respect to Dr. Grigson’s testimony,

Summers asserts two sub-claims: (1) that the state knowingly sponsored Dr. Grigson’s false

testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405

U.S. 150 (1972), and (2) that the state withheld exculpatory evidence regarding Dr. Grigson’s

history as a witness in violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court denied

habeas relief and a COA on this claim. Summers now seeks a COA from this court.

a.      The Napue/Giglio Claim

        For Summers to prevail under Napue/Giglio, he must prove that Dr. Grigson’s testimony was

(1) false, (2) known to be so by the state, and (3) material. See United States v. Mason, 293 F.3d

826, 828 (5th Cir. 2002) (“To prove a due process violation, the appellants must establish that (1)

[the witness] testified falsely; (2) the government knew the testimony was false; and (3) the

testimony was material.”). In the context of an application for the COA, Summers must show that

the district court’s disposition of the claim is debatable. We find it is not.

        The district court found that Summers had rebutted the state habeas court’s presumption of

correctness with respect to the first two of three elements of Napue/Giglio. However, the district

court denied relief when it determined t hat Dr. Grigson’s testimony was immaterial as to the final

outcome in the penalty phase. Summers, in his application for an additional COA, contends that

“the District Court’s holdings and the evidence presented by Mr. Summers indicate that the issue

of materiality in this instance is debatable.” Leaving aside the correctness of the district court’s




                                                 - 12 -
resolution of the first two elements of Napue/Giglio,5 Summers fails to appreciate that an affirmative

answer on those first two elements has no effect on the materiality inquiry.

       Where a state habeas court has made express findings on the issue o f materiality, we are

precluded from affording habeas relief under AEDPA unless the state court’s decision “was contrary

to, 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). Here, the state habeas court made

express findings, unchallenged by Summers, that foreclose relief under AEDPA: “The evidence to

support [Summers]’s future dangerousness was overwhelming even without the testimony of Dr.

Grigson. Dr. Clay Griffith testified in a manner that virtually echoed Dr. Grigson’s testimony. Dr.

Griffith’s testimony is not attacked.” In response, Summers cites, inter alia, Gardner v. Johnson,

247 F.3d 551 (5th Cir. 2001), and argues that psychiatric testimony is especially prejudicial.

Summers overlooks the fact that, contrary to Gardner, where the psychiatric testimony “was the

centerpiece of the evidence presented by the State during the punishment phase,” id. at 562, the

testimony in question here was mirrored by another psychiatrist whose testimony remains

unchallenged. In addition to the psychiatric testimony, the state presented numerous witnesses in

support of its future dangerousness claim.

       Summers also relies on an affidavit from a juror, in which the juror states that Dr. Grigson’s

testimony made up part of the “most influential testimony” from the penalty phase. Leaving aside




5
  The state habeas court made express factual findings on this issue. Summers produced evidence
which, in the opinion of the district court, contradicted those findings. Because it does not alter the
outcome of this appeal, we make no comment on the district court’s rejection of a portion of the
state court’s findings, except to note that the clear and convincing standard is a high one. See Crowe
v. Smith, 261 F.3d 558, 563 (5th Cir. 2001).


                                                - 13 -
the point that the juror identifies Dr. Grigson’s testimony as only a part of the influential testimony,6

this portion of the affidavit is inadmissible and cannot be considered. Under Rule 606(b) of the

Federal Rules of Evidence, jurors’ affidavits are inadmissible “regarding the following four topics:

(1) the method or arguments of the jury’s deliberations, (2) the effect of any particular thing upon

an outcome in the deliberations, (3) the mindset or emotions of any juror during deliberation, and

(4) the testifying juror’s own mental process during the deliberations.” Pyles v. Johnson, 136 F.3d

986, 991 (5th Cir. 1998) (citing United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991)). Indeed,

in matters involving a death sentence, this circuit has noted that “we are convinced that Rule 606(b)

does not harm but helps guarantee the reliability of jury determinations in death penalty cases.”

United States v. Jones, 132 F.3d 232, 246 (5th Cir. 1998) (citing Lockett v. Ohio, 438 U.S. 586, 604

(1978)).

        As to the materiality prong, Summers’s argument is unavailing. The state habeas court, the

district court, and this court all agree that Dr. Grigson’s testimony contributed little in light of the

wealth of future dangerousness evidence presented by the state. Summers has failed to show that

reasonable jurists could disagree with the district court’s resolution of this Napue/Giglio claim.

b.      The Brady Claim

        Summers’s Brady sub-claim with respect to Dr. Grigson’s testimony relies on a letter written

by Norman Kinne, a Dallas County assistant district attorney, to Dr. Grigson. The letter, referred

to as the “Kinne Report,” enclosed a report on inmates in Dallas County with commuted death

sentences. According to Summers, the letter is exculpatory evidence of “the extent of Dr. Grigson’s



6
  The juror identified the combination of both Dr. Grigson’s testimony and Darrell Shirlls’s
testimony as “the most influential testimony” from the penalty phase.


                                                 - 14 -
inaccurate prior predictions.” Summers alleges that the prosecution withheld this evidence in

violation of Brady.

       To make a Brady claim, Summers must prove: (1) that the “evidence at issue [is] favorable

to the accused, either because it is exculpatory, or because it is impeaching;” (2) that the “evidence

[has] been suppressed by the State, either willfully or inadvertently;” and (3) that “prejudice [has]

ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Before a Brady claim can arise,

Summers must show that the prosecution team had access to the evidence. See United States v.

Webster, 392 F.3d 787, 798 n.20 (5th Cir. 2004) (discussing the imputation of knowledge within the

prosecution team). He has made no such claim. Indeed, the state habeas court concluded just the

opposite: “No person connected with [Summers]’s case as a prosecutor, prosecutorial staff, or law

enforcement officer had knowledge of the ‘Kinne letter’ or the information contained in the letter.”



       The district court ruled t hat Summers failed to establish that the prosecution knew of the

Kinne Report. This ruling misstates the law. Under AEDPA, the question is not whether or not the

petitioner proved his claim, but whether or not the state court’s findings to that effect were

sufficiently rebutted. AEDPA places the burden on the petitioner to rebut the presumption of

correctness of the state court’s findings. Because he offered no evidence of knowledge of the Kinne

Report on the part of the prosecution, Summers cannot overcome the presumption of correctness.



       Moreover, the lack of materiality of Dr. Grigson’s testimony is as damaging to Summers’s

Brady claim as it was to his Napue/Giglio claim. Because of the relative insignificance of Dr.

Grigson’s testimony, Summers cannot show prejudice. As Summers cannot satisfy any aspect of



                                                - 15 -
Brady, the district court’s rejection of this claim is beyond debate. No COA will issue.

B.     Appeal from a Denial of a Habeas Corpus Petition

       Having addressed the application for additional COA, we now turn to the three issues for

which the district court granted a COA. They are: (1) the trial court violated Summers’s

constitutional rights by admitting Cantu’s statements into evidence; (2) the state violated Summers’s

constitutional rights by withholding exculpatory evidence relevant to the credibility of certain

witnesses; and (3) the trial court violated Summers’s constitutional rights by giving jurors

misleading and constitutionally defective instructions which prevented them from considering

mitigating evidence at sentencing. We address each seriatim.

(1)    The Admissibility of Cantu’s Statements

       On behalf of the state, Paul Flores and Raymond Gonzales testified as to statements about

Summers made out-of-court by Andrew Cantu, now deceased. Summers asserts that the admission

of the statements violated his constitutional right to confront witnesses against him. With respect

to the admission of Cantu’s out-of-court statements, Summers raises three sub-claims: (1) that there

was insufficient independent evidence of a conspiracy; (2) that the trial court should have conducted

a James hearing; and (3) that the trial court should have admitted another of Cantu’s out-of-court

statements perceived by Summers as impeaching Cantu’s credibility. The district court denied

habeas relief, but granted a COA on this issue.

a.     Independent Evidence of a Conspiracy

       Summers maintains that, aside from the statements themselves, the state produced

insufficient independent evidence to support the admission of those statements under the co-

conspirator exception. While it may be true that this circuit and many others have required



                                               - 16 -
independent evidence in support of a conspiracy, see, e.g., United States v. Narviz-Guerra, 148 F.3d

530, 536 (5th Cir. 1998), that is not the question before this court. We need not reach the issue. The

doctrine of federalism, as embodied in AEDPA, precludes the result Summers urges. Under

AEDPA, the state courts are bound, not by our jurisprudence or the jurisprudence of our sister

circuits, but by “clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1).

       The Supreme Court has not mandated a requirement for independent evidence in support of

a conspiracy finding under the Confrontation Clause. See Bourjaily v. United States, 483 U.S. 171,

182 (1987) (ho lding that “independent indicia of reliability [are] . . . not mandated by the

Constitution.”). Indeed, just the opposite is true: “Bourjaily declined to decide whether there must

be any evidence independent of coconspirator statements to determine that a conspiracy has been

established by a preponderance of the evidence.” United States v. Fragoso, 978 F.2d 896, 901 (5th

Cir. 1992) (citing Bourjaily, 483 U.S. at 179, 181). Because the Supreme Court does not require it,

Summers’s demand for independent evidence of a conspiracy fails. The state court’s application

of law accords with the mandates of the Supreme Court. Whether we agree or not, it is not contrary

to, nor an unreasonable application of, the Confrontation Clause as announced by the Supreme

Court. We cannot grant habeas relief.

       Moreover, the state habeas court identified two items that corroborated the conspiracy

finding: Spaulding’s testimony regarding Summers’s confession and a letter from Summers to

Spaulding.7 Summers takes issue with the admissibility of the state’s corroborating evidence as a


7
 In his brief the Director identified more evidence corroborating the conspiracy finding, e.g., the
testimony of both Aguirre (circumstances of meetings between Summers and Cantu) and Wilcox
(prior attempts at hiring someone to murder his parents).


                                                - 17 -
general matter, but the Constitution does not prevent a state court from considering possibly

inadmissible evidence to determine the admissibility of other evidence. See Bourjaily, 483 U.S. at

178 (holding that a court may determine admissibility by “considering any evidence it wishes,

unhindered by considerations of admissibility”) (applying FED. R. EVID. 104(a)).

        In addition, Summers claims that Aguirre’s testimony does not prove the conspiracy.

However, even if the Aguirre testimony alone is insufficient, the Supreme Court has been clear that

the testimony can make up part of the admissibility analysis. See Bourjaily, 483 U.S. at 180

(“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation

prove it.”). The state court fo und the supporting evidence, in conjunction with the statements,

sufficient to prove the statements’ reliability, and we are in no position to upset that finding where,

as here, it is not unreasonable.

b.      James Hearing & Express Findings

        Summers argues that the state court’s refusal to grant his motion for a James hearing—an

independent hearing to determine the existence of a conspiracy—violated his due process rights.

The Director points us to the record which indicates that, in response to Sum mers’s motion for a

James hearing, the state trial judge looked to the results of the trial of the co-conspirator, Cantu, in

lieu of an independent hearing. As before, AEDPA bars Summers’s claim because a James hearing

is a product of Fifth Circuit jurisprudence, not the Supreme Court’s.

        While a James hearing is not mandated, Supreme Court precedent does require that “a court

must be satisfied that the [co-conspirator’s] statement actually falls within the definition of the

Rule.” Bourjaily, 843 U.S. at 175. Summers’s appeal could be read to articulate a claim demanding

such a finding. However, this claim must also fail:



                                                 - 18 -
               As a federal habeas court, we are bound by the state habeas court’s
               factual findings, both implicit and explicit. Under AEDPA, “a
               determination of a factual issue made by a State court shall be
               presumed to be correct.” 28 U.S.C. § 2254(e)(1). “The presumption
               of correctness not only applies to explicit findings of fact, but it also
               applies to those unarticulated findings which are necessary to the
               state court’s conclusions of mixed law and fact.” Valdez v. Cockrell,
               274 F.3d 941, 948 n.11 (5th Cir. 2001).

Young v. Dretke, 356 F.3d 616, 629 (5t h Cir. 2004). As the state habeas court concluded, “The

issues relating to [the co-conspirator statements] were raised, considered, and rejected on direct

appeal. Because the state trial court admitted Cantu’s out-of-court statements under the co-

conspirator exception and, later, denied Summers’s motion for a directed verdict, the state trial court

must have concluded that the conspiracy existed. See Fragoso, 978 F.2d at 900–01. Under AEDPA,

the state court need do no more.

c.     Cantu’s Impeachment

       Summers asserts that the state trial court’s refusal to admit Cantu’s purportedly impeaching

statement deprived Summers of the ability to attack Cantu’s credibility. This, according to

Summers, violated his right to confront witnesses against him. In retort, the Director contends that

Summers present ed this claim, not as a constitutional claim, but as a violation of state evidentiary

law. The Director is part ially correct. On direct appeal, the issue was decided exclusively on the

basis of state law. Ho wever, Summers resists this argument and urges this court to recognize his

citations to Delaware v. Van Arsdall, 475 U.S. 673 (1986), Davis v. Alaska, 415 U.S. 308 (1974),

Pointer v. Texas, 380 U.S. 400 (1965), and Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988), as

stating a constitutional claim. Because of the gravity of the matter, we will assume a constitutional

claim was raised.

       Of the cases Summers cites, only Smith pronounces a rule that supports his claim. See Smith,


                                                - 19 -
862 F.2d at 638 (“[P]rior inconsistent statements of a hearsay declarant . . . were analogous to

‘otherwise appropriate cross-examination. . . .’”). Under AEDPA, reliance on Smith is not enough.

Because it is derived from a circuit court, not the Supreme Court, the rule in Smith is irrelevant for

the purposes of our habeas review. The only question is whether or not the state trial court’s

exclusion of Cantu’s statement was contrary to, or involved an unreasonable application of clearly

established constitutional law, as announced by the Supreme Court. We hold it did not.

       No doubt a hearsay declarant may be subjected to impeachment, in the same manner as a live

witness.   See United States v. Moody, 903 F.2d 321, 328 (5th Cir. 1990).             However, the

confrontation clause “does not guarantee ‘cross-examination that is effective in whatever way, and

to whatever extent, the defense might wish.’” United States v. Smith, 930 F.2d 1081, 1088 (5th Cir.

1991) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). The rules of evidence,

to the extent they do not violate the Constitution, bind the prosecution and defense alike. Moreover,

trial judges “’retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits’ on cross-examination.” Id. (quoting Van Arsdall, 475 U.S. at 679). The state trial

court determined that the impeachment evidence was inadmissible. The limitation imposed by the

state trial court in this instance was not unreasonable.

       Summers also invokes Crawford v. Washington, 541 U.S. 36 (2004), where the Supreme

Court established “a categorical rule barring the admission of out-of-court testimonial statements

against the accused absent opportunity for cross-examination.” United States v. Holmes, 406 F.3d

337, 347 (5th Cir. 2005) (di scussing Crawford). The Director counters by pointing out that

Crawford is of no use to Summers because it is not retroactive. Whether retroactive or not, an issue

unresolved in this circuit, see Lave v. Dretke, 416 F.3d 372, 378-79 (5th Cir. 2005) (granting COA



                                                - 20 -
on the issue), and which we decline to reach, Crawford does not control here.

       The rule in Crawford addressed only testimonial evidence, see id. at 68, and “[t]here is

nothing in Crawford to suggest that ‘testimonial evidence’ includes spontaneous out-of-court

statements made outside any arguably judicial or investigatory context.” Ramirez v. Dretke, 398

F.3d 691, 965 n.3 (5th Cir. 2005). As an example of “statements that by their nature were not

testimonial,” the Supreme Court specifically listed “statements in furtherance of a conspiracy.”

Crawford, 541 U.S. at 55. See also id. at 74 (Rehnquist, C.J., concurring in judgment); United

States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005). With respect to the statements at issue

here—nontestimonial out-of-court statements in furtherance of a conspiracy—it is clear that Ohio

v. Roberts, 448 U.S. 56 (1980), continues to control. See Crawford, 541 U.S. at 68; Holmes, 406

F.3d at 348. The state courts’ treatment of Summers’s confrontation clause rights was not

unreasonable.

(2)    The Brady Claims

       As detailed above:

                the Supreme Court framed “the three components or essential
                elements of a Brady prosecutorial misconduct claim: ‘The evidence
                at issue must be favorable to the accused, either because it is
                exculpatory, or because it is impeaching; that evidence must have
                been suppressed by the State, either willfully or inadvertently; and
                prejudice must have ensued.’”

Medellin v. Dretke, 371 F.3d 270, 280–81 (5th Cir. 2004) (quoting Banks v. Dretke, 540 U.S. 668,

691 (2004))).

       “Evidence is ‘material’ if there is a reasonable probability that, had the evidence been

disclosed, the result at the trial would have been different; a reasonable probability is one that

undermines confidence in the outcome of the trial.” Duncan v. Cain, 278 F.3d 537, 539–40 (5th Cir.


                                               - 21 -
2002) (citing United States v. Bagley, 473 U.S. 667, 682, 685 (1985)). Whether evidence is material

under Brady is a mixed question of law and fact. Trevino v. Johnson, 168 F.3d 173, 185 (5th Cir.

1999).

a.       Keenan Wilcox—Rewards for Testimony

         Summers claims that Wilcox received a reward for his testimony and, while testifying on the

state’s behalf, was a drug addict and dealer.8 Further, Summers says that the state failed to disclose

these facts to the defendant in violation of Brady. The Director counters by referring to Wilcox’s

trial testimony and the state habeas court’s findings. We deny habeas relief on this claim.

         At Summers’s trial, Wilcox testified that he was not expecting a reward for his testimony

and that he was not promised anything to cooperate with the prosecution. In response to this

testimony, Summers offers an affidavit, sworn to by Summers’s attorney, regarding a conversation

with Wilcox in 1997. The affidavit contains contentions that (1) Wilcox “sought, received, [sic] a

reward for the information he provided to the prosecution” and (2) Wilcox “had been treated very

well by the District Attorney’s office,” i.e., “he had not been charged with any drug offenses.” With

respect to this affidavit, the state habeas court specifically found that the affidavit “does not show

that Keenan Wilcox gave false testimony at [Summers]’s trial, nor that deals were made between

the State and Mr. Wilcox in exchange for his testimony.” The state habeas court went on to find

“insufficient evidence” for both of the contentions in the affidavit.

         Under AEDPA, the state habeas court’s resolution is entitled to a presumption of correctness,


8
  Summers proposes that Wilcox was t he beneficiary of some quid pro quo for his testimony. To
the extent that Summers argues that the drug involvement was relevant to Wilcox’s credibility, we
also deny relief. Both the Director and the district court identified several references to drug use and
culture during Wilcox’s testimony. Therefore, the jury members were aware of this aspect of his
character when they determined Wilcox’s credibility.


                                                 - 22 -
unless rebutted by clear and convincing evidence. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.

2005) (citing 28 U.S.C. § 2254(e)(1)). However, this affidavit stands alone, and Summers offers no

corroboration for it. Further, the evidence offered is less reliable than the recanting 1997 affidavit

discussed above.9 As we did then, we view recanting affidavits with “extreme suspicion.” Baldree

v. Johnson, 99 F.3d 659, 663 (5th Cir. 1996). See also Graves v. Cockrell, 351 F.3d 143, 153 (5th

Cir. 2003); Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996); United States v. Adi, 759 F.2d

404, 408 (5th Cir. 1985). The allegations in the affidavit, even if true, prove too little to carry

Summers’s burden. Absent is any contention that a reward came before Wilcox’s testimony or that

Wilcox was actually promised any special treatment.

       Under AEDPA, this affidavit fails to upset the factual findings of the state habeas court.

Because the state habeas court concluded that Wilcox’s testimony did not involve a quid pro quo,

there was nothing for the prosecution to disclose and, ultimately, no Brady violation. The state

habeas court’s conclusion that “[t]he affidavit does not undermine confidence in Mr. Wilcox’s

testimony, nor the verdict” is not unreasonable.

b.     William Spaulding

       According to Summers, the prosecution withheld two pieces of information, pertaining to

Spaulding, in violation of Brady.      Summers claims: (1) that law enforcement officials had

threatened Spaulding and caused him to reverse his testimony and (2) that the prosecution withheld

Spaulding’s prison records, which indicate he had been involved with acts of deceit in prison. The

district court denied habeas relief. We agree.


9
 We note that Wilcox did not make the declaration on which Summers relies. The affidavit is that
of Summers’s attorney recounting a conversation with Wilcox. The additional link in the chain
makes the affidavit even less reliable.


                                                 - 23 -
(i)    Spaulding’s “Relationship” with the Prosecution

       Summers supports his claim that law enfo rcement officials forced Spaulding to change his

story and testify for the prosecution by reference to the 1997 affidavit discussed above. See supra

Part III.A.3. In Summers’s view, the involvement between law enforcement and the witness should

have been disclosed to the defense. The same deficiencies with the 1997 affidavit that undermined

Summers’s earlier claim are fatal to this Brady claim. As discussed above, the state habeas court

concluded that “Spaulding’s testimony at trial was not false, misleading, or incomplete,” and that

there was “insufficient evidence to support a finding that Mr. Spaulding was coerced or threatened

or otherwise made or improperly caused to give testimony at trial against [Summers].”

       Under AEDPA, we must accept as true all reasonable fact findings of the state courts unless

the petitioner disproves them by clear and convincing evidence. See Ramirez v. Dretke, 398 F.3d

691, 965 (5th Cir. 2005); 28 U.S.C. § 2254(e)(1). As before, the 1997 affidavit fails to carry this

burden. As a result, we must presume that the prosecution did not coerce Spaulding, leaving nothing

for the prosecution to disclose under Brady.

(ii)   Spaulding’s Prison Records

       Summers contends that the State withheld Spaulding’s prison records, which purportedly

contain impeachment evidence of prison discipline for forgery. The Director responds by asserting

a procedural bar to this claim. According to the Director, because the claim was not properly

presented to the state court on direct appeal or on collateral review, Summers cannot assert it in a

federal habeas proceeding. The Director is correct.

       Because of “the principles of comity, finality, and federalism” imbued in AEDPA, a federal

habeas court must be “careful to limit the scope of federal intrusion into state criminal adjudications



                                                - 24 -
and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings.”

Williams v. Taylor, 529 U.S. 420, 436 (2000). See also 28 U.S.C. § 2254(b)(1)(A). Accordingly,

a federal habeas court, considering the claims of a state prisoner, cannot grant relief on a claim

unless it has been fairly presented to or diligently pursued before the state courts. Williams, 529

U.S. at 437 (“For state courts to have their rightful opportunity to adjudicate federal rights, the

prisoner must be diligent in developing the record and presenting, if possible, all claims of

constitutional error.”). See also Duncan v. Henry, 513 U.S. 364, 365 (1995) (“[E]xhaustion of state

remedies requires that petitioners fairly presen[t] federal claims to the state courts in order to give

the State the opportunity to pass upon and correct alleged violations of its prisoners federal rights.

. . .” (quoting Picard v. Connor, 404 U.S. 270, 275 (1971))) (alteration in original) (internal

quotations omitted).

       The Director identifies a claim in the state habeas proceeding wherein Summers posited that

“it is possible that, upon disclosure, further instances of the failure to disclose exculpatory

information might be found.” Our review of the record does not reveal any other claims before the

state courts that fit the issue now presented. For his part, Summers identifies no portion of the

record wherein he presented this claim to the various st ate courts that have considered his case.

Rather he merely states that he “did allege the claim and ask[ed] the state court for the opportunity

to further develop” the issue. This is not enough.

       “To exhaust, the applicant must fairly present the substance of his claims to the state court.”

Neville v. Dretke, 423 F.3d 474, 478 (5th Cir. 2005) (citing Picard, 404 U.S. at 275). The only

passage identified in the state proceedings that may have been related to this claim fails in this

regard. We find no argument to the state court that can be said to have presented this claim, and



                                                - 25 -
Summers identifies none. Because Summers failed to exhaust this alleged constitutional violation

before the state courts, we cannot reach it now.10

c.     Darrell Shirlls—Additional Pending Charges

       During the penalty phase, Shirlls testified on behalf of the state that Summers had threatened

to have another witness killed if that witness testified against Summers. Summers brings a Brady

challenge claiming that the state withheld information of pending charges against Shirlls. According

to Summers, this evidence co uld have been used to impeach Shirlls and would have resulted in a

different outcome in the penalty phase. Brady requires that the prosecution disclose evidence even

if its only use is to impeach prosecution witnesses. See Felder v. Johnson, 180 F.3d 206, 212 (5th

Cir. 1999) (citing Bagley, 473 U.S. at 676).

       The Director contends that the evidence o f pending charges, which the state purportedly

suppressed, is inadmissible even as impeachment evidence and, therefore, cannot be material under

Brady. In support of this contention, the Director cites Wood v. Bartholomew, 516 U.S. 1, 6 (1995),

where the Supreme Court found that the suppression of polygraph evidence was “not ‘evidence’ at

all” because it was “inadmissible under state law, even for impeachment purposes.” In sum, the

Court concluded that “[d]isclosure of the polygraph results, then, could have had no direct effect on



10
   Even if Summers’s version of events is believed, he failed to exercise diligence in pursuing his
claim. He contends that he asked the prosecutor’s office for Spaulding’s prison records, but, when
denied, Summers failed to enforce his perceived rights and obtain a court order. See, e.g., Williams,
529 U.S. at 436 (finding that petitioner did not pursue a Brady claim with due diligence where “it
appear[ed] counsel made no further efforts to find the specific report” after the prosecutor refused
to produce it). In addition, in Summers’s motion to reconsider the denial of his habeas corpus
application and request for evidentiary hearing, Summers failed to mention this claim or the need
for an evidentiary hearing to advance or resolve it. He cannot do so now. Moreover, were we to
reach the merits of this claim under 28 U.S.C. § 2254(b)(2), we would deny the claim for the reasons
stated by the district court.


                                               - 26 -
the outcome of trial, because respondent could have made no mention of them either during

argument or while questioning witnesses.” Id.

       We need not decide whether Wood controls here11 because on “the general question whether

the disclosure of the evidence would have created a reasonable probability that the result of the

proceeding would have been different,” Felder, 180 F.3d at 212, the answer is clear. It would not.

The burden falls on Summers to convince this court “that there is a reasonable probability that the

result of the trial would have been different if the suppressed documents had been disclosed to the

defense.” Strickler v.Greene, 527 U.S. 263, 289 (1999) (internal quotations omitted). See also

Martin v. Cain, 246 F.3d 471, 477 (5th Cir. 2001) (quoting Bagley, 473 U.S. at 682).

       As the district court observed, the state presented a wealt h of evidence regarding future

dangerousness during the penalty phase. Moreover, the jury and the parties were aware both that

Shirlls was in prison during the time the events about which he testified took place and that he faced

criminal prosecut ion during the time of his testimony. Whatever the effect of any nondisclosure

about additional pending charges on the jury and the trial, “there [was] never a real ‘Brady

violation’” because any nondisclosure was not “so serious that there is a reasonable probability that

the suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at 281. The

state habeas court’s rejection of this claim was not unreasonable.

(3)    Jury Instructions

       Summers contends that the jury instructions used in the penalty phase of his trial failed to




11
  We also do not reach the issue of whether inadmissible evidence is material for Brady purposes
in light of Wood. Accord Felder, 180 F.3d at 212.


                                                - 27 -
meet the constitutional requirements of the Sixth, Eighth, and Fourteenth Amendments.12 Texas’s

use of special issues as a vehicle for giving effect to mitigating evidence is well established. See

Coble v. Dretke, 417 F.3d 508, 523 (5th Cir. 2005) (citing Jurek v. Texas, 428 U.S. 262, 276 (1976)

(plurality opinion) for the proposition that “the Supreme Court expressly upheld the constitutionality

of the manner in which mitigating evidence is considered under the ‘special issues’ submitted to

juries in Texas capital cases”). Summers’s specific argument is that the jury instructions used in his

trial fail because they did not give the jury a mechanism to give effect to the mitigating evidence

offered by the defense in the penalty phase. See Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(“Penry I”); Penry v. Johnson, 532 U.S. 782, 797 (2001) (“Penry II”) (“[T]he key under Penry I is

that the jury be able to ‘consider and give effect to [a defendant’s mitigating] evidence in imposing

sentence.’”) (alteration in original).

        Regarding the mitigating evidence, the instructions provided:       “[Y]ou may consider in

answering the special issues, facts and circumstances, if any, presented in evidence in aggravation,

extenuation or mitigation thereof.” These instructions direct the effect of any mitigation evidence




12
   Summers also referenced a series of claims brought before the district court with respect to his
sentence of death. However, Summers only briefed the solitary issue of whether or not the jury
instructions allowed the jury to give effect to evidence presented in mitigation during the penalty
phase of his trial. Summers abandoned his other claims by failing t brief t hem. See, e.g., Yohey
                                                                       o
v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993) (holding that appellant who sought to incorporate
previously filed arguments by reference “has abandoned these arguments by failing to argue them
in the body of his brief”). Appellants are required under Rule 28(a)(4) of the Federal Rules of
Appellate Procedure to include “the reasons he deserves the requested rel ief with citation to the
authorities, statutes and parts of the record relied on.” Weaver v. Puckett, 896 F.2d 126, 128 (5th
Cir. 1990) (internal citations and quotations omitted); Fed. R. App. P. 28(a)(4)(B). See also Hughes,
412 F.3d at 597; Lookingbill, 293 F.3d at 263 & n.11.


                                                - 28 -
back into the special issues deliberations.13      As a result, the constitutionality of these jury

instructions may be det ermined by answering the question of whether or not the special issues

provided the jury with a vehicle to consider and give effect to Summers’s mitigating evidence. See

Penry II, 532 U.S. at 797. If the special issues fail to adequately encompass the mitigating evidence,

the instructions are unconstitutional. Id.

       Summers did not present the type of evidence that gave rise to the Penry cases (child abuse

and mental retardation), Tennard v. Dretke, 542 U.S. 274, 277 (2004) (low IQ), or Smith v. Texas,

543 U.S. 37, —, 125 S. Ct. 400, 403 (2004) (low IQ and parental issues). Unlike the evidence in

these cases, which could no t be given effect under the special issues, the evidence Summers

presented during the penalty phase was self-styled as “evidence of good character and good

conduct.”    Summers’s evidence in mitigation included testimony describing, inter alia, his

nonviolent nature and general good character, his grief for his parents’ death, and his ability to

conform to prison life.

       The district court denied Summers’s claim citing both Boyd v. Johnson, 167 F.3d 907, 912

(5th Cir. 1999), and Barnard v. Collins, 958 F.2d 634, 640 (5th Cir. 1992), for the proposition that,

in this circuit, the special issues do allow the jury to consider and give effect to mitigating evidence

of a defendant’s good character. Summers’s contention is plain: he asserts that those cases were

overruled by both Penry II and Smith. However, since the Supreme Court handed down Penry II

and Smith, our circuit has continued to look to Boyd and Barnard as support for the holding that we



13
  Because these instructions do not require the jury to change otherwise “yes” answers to “no,” they
are not nullification instructions as that term is used. As a result, they do not give rise to the
additional issues relating to nullification instructions discussed in Penry II, 532 U.S. at 798–804.



                                                 - 29 -
rely on here. In Coble v. Dretke, we held:

               “Evidence of good character tends to show that the crime was an
               aberration, which may support a negative answer to the special issue
               regarding the future dangerousness of the defendant.” Therefore, as
               this court has previously held, “[go od character] evidence can find
               adequate expression under [the] second special issue.”

417 F.3d at 525 (quoting both Boyd, 167 F.3d at 912, and Barnard, 958 F.2d at 640, post-Smith and

post-Penry II) (internal citations omitted) (alterations in original). See also Newton v. Dretke, 371

F.3d 250, 256-57 (5th Cir. 2004) (holding that mitigating evidence relating to good character may

be adequately considered under the special issues post-Penry II) (citing cases). To the extent that

they hold that the Texas special issues allow juries to consider and give effect to mitigating evidence

of good character, Boyd and Barnard remain sound. Indeed, the Supreme Court’s analysis of this

issue compels our present jurisprudence:

               [W]e are not convinced that Penry could be extended to cover the
               sorts of mitigating evidence [Petitioner] suggests without a wholesale
               abandonment of Jurek and perhaps also of Franklin v. Lynaugh[,487
               U.S. 164 (1988) (plurality opinion)]. As we have noted, Jurek is
               reasonably read as holding that the circumstance of youth is given
               constitutionally adequate consideration in deciding the special issues.
               We see no reason to regard the circumstances of [Petitioner]’s family
               background and positive character traits in a different light.
               [Petitioner]’s evidence of transient upbringing and otherwise
               nonviolent character more closely resembles Jurek’s evidence of age,
               employment history, and familial ties than it does Penry’s evidence
               of mental retardation and harsh physical abuse. As the dissent in
               Franklin made clear, virtually any mitigating evidence is capable of
               being viewed as having some bearing on the defendant’s “moral
               culpability” apart from its relevance to the particular concerns
               embodied in the Texas special issues. It seems to us, however, that
               reading Penry as petitioner urges—and thereby holding that a
               defendant is entitled to special instructions whenever he can offer
               mitigating evidence that has some arguable relevance beyond the
               special issues—would be to require in all cases that a fourth “special
               issue” be put to the jury: “‘Does any mitigating evidence before you,
               whether or not relevant to the above [three] questions, lead you to


                                                - 30 -
                believe that the death penalty should not be imposed?’” The
                Franklin plurality rejected precisely this contention, finding it
                irreconcilable with the Court’s holding in Jurek, and we affirm that
                conclusion today.

Graham v. Collins, 506 U.S. 461, 476-77 (1993) (internal citations omitted).

        Summers o nly contends that his evidence of good character could not be considered and

given effect under the jury instructions used in his penalty phase. His position is foreclosed under

our precedent in both Boyd and Barnard, which remain sound, and Coble, which relies on those

cases. In light of this authority, habeas relief is denied.

                                         IV. CONCLUSION

        For the reasons stated above, the application for additional COAs is DENIED and the district

court’s denial of habeas relief is AFFIRMED.




                                                 - 31 -
