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

                                                                            FILED
                                                                        November 16, 2007

                                       No. 06-70006                   Charles R. Fulbruge III
                                                                              Clerk

KHRISTIAN OLIVER

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
               for the Eastern District of Texas, Beaumont Division
                              No. 1:04-cv-00041-RHC


Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Khristian Oliver (“Oliver”) seeks habeas corpus relief from his conviction
and sentence of death for the murder of Joe Collins (“Collins”). After denying
habeas relief on all claims, the district court granted Oliver a certificate of
appealability (“COA”) on two issues: (1) whether he suffered a denial of his right
to an impartial jury under the Sixth Amendment when jurors consulted Biblical
scripture that called for death as the punishment for murder, and (2) whether


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-70006

Oliver suffered a denial of his right to a punishment determination based upon
discretion carefully guided by law under the Eighth Amendment because several
jurors consulted the Bible during deliberations. Oliver appeals the denial of a
COA for three of his claims and the denial of habeas relief for the claims in
which he received a COA. He also seeks either a stay and abatement of the
federal proceeding so that he may go back to state court for an evidentiary
hearing or a federal evidentiary hearing regarding his Bible-related claims.
After reviewing the record, we DENY Oliver’s request for a COA on his three
additional claims. We also DENY Oliver’s request for a stay and abatement for
a state hearing and his request for a federal evidentiary hearing on his Bible-
related claims. Finally, we set this case for oral argument regarding the
remaining claims and direct the parties to focus on specific issues, as discussed
below.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The district court recounted the facts as follows:
             Oliver began a crime spree about a year and [a] half before the
      incident which resulted in his conviction in this case. There were
      over a dozen burglaries and many of them involved the use of
      weapons. On March 17, 1998, Oliver, his girlfriend Sonya Reed,
      Bennie Rubalcaba (age 16) and his brother, Lonny Rubalcaba (age
      15), stopped at the house of the victim, Joe Collins, in rural
      Nagcodoches County. Oliver and Lonny Rubalcaba went to
      burglarize the house, carrying Oliver’s .380 caliber pistol, a handful
      of bullets and bolt cutters. Reed and Bennie Rubalcaba stayed in
      the truck. While the two were in the house, Collins came home.
      Collins shot Lonny Rubalcaba in the leg as he and Oliver were
      trying to escape. Oliver then shot Collins five times. At least two
      of the shots were fired while the victim lay on his back on the
      ground outside his house. As Bennie Rubalcaba helped his brother
      Lonny back to the truck he turned and saw Oliver striking Collins
      several times in the head with a rifle butt, while Collins was lying
      on the ground. Collins’s skull was severely fractured and his face
      was disfigured nearly beyond recognition.



                                        2
                                  No. 06-70006

             Oliver then joined the group in the truck. The group took
      Lonny Rubalcaba to the hospital and went to the Sheriff’s office and
      filed reports saying that someone had driven by and shot Lonny
      while they were all at a farm. The next day, deputies picked up
      Bennie Rubalcaba and questioned him. Bennie then gave a written
      statement admitting what had actually happened. The same
      morning, police questioned Lonny Rubalcaba, who, after originally
      repeating the story about the farm, gave a second written statement
      coinciding with his brother’s second statement. Police located Oliver
      and Reed at a Houston motel and arrested them.
A jury convicted Oliver of capital murder based on his killing of Collins during
the commission of a burglary. The Texas Court of Criminal Appeals (“TCCA”)
affirmed Oliver’s conviction and sentence of death. Oliver v. State, No. 73,837,
slip op. (Tex. Crim. App. April 17, 2002) (unpublished). The United States
Supreme Court denied his petition for a writ of certiorari. Oliver v. Texas, 537
U.S. 1161 (2003). The TCCA denied Oliver’s petition for post-conviction relief,
and the United States Supreme Court again denied his petition for a writ of
certiorari. Oliver v. Texas, 538 U.S. 1001 (2003). On January 21, 2004, Oliver
filed an application for a writ of habeas corpus with the district court. The
Appellee Nathaniel Quarterman (the “Director”) moved for summary judgment
on all of Oliver’s claims. The district court granted the Director’s motions in two
separate orders on September 29, 2005, and November 9, 2005. The court
granted a COA for two issues but denied a COA for the remaining claims.
                                  II. Analysis
A.    Oliver’s requests for a COA
      1.    Standard for issuing a COA
      Because Oliver filed his habeas petition in the district court after the
effective date of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254, AEDPA governs his petition. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, Oliver must obtain a COA
from either the district court or appellate court before he can appeal the denial

                                        3
                                  No. 06-70006

of habeas relief. See 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To obtain a COA, Oliver must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, if Oliver can
show that the district court’s application of AEDPA to his constitutional claims
is debatable among reasonable jurists, we will issue a COA. Miller-El, 537 U.S.
at 336.
      In deciding whether to grant a COA, we are limited “to a threshold inquiry
into the underlying merit of [the petitioner’s] claims.” Miller-El, 537 U.S. at 327
(citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). Our analysis “requires an
overview of the claims in the habeas petition and a general assessment of their
merits” rather than a “full consideration of the factual or legal bases adduced in
support of the claims.” Id. at 336. “Because the present case involves the death
penalty, any doubts as to whether a COA should issue must be resolved in [the
petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
      In deciding whether to grant a COA, we recognize that AEDPA imposes
a deferential standard of review on a federal habeas court with respect to claims
adjudicated on the merits in state court. A federal court cannot grant habeas
relief unless the state court 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.
28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S. 510, 520 (2003). A decision
is contrary to clearly established federal law if “the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law”
or “confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to [that precedent].”


                                        4
                                  No. 06-70006

(Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision involves an
unreasonable application of Supreme Court precedent if it “unreasonably
extends a legal principle from [Supreme Court precedent] to a new context where
it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Id. at 407. We presume the facts of the case to
be correct unless Oliver meets his burden of rebutting that presumption by clear
and convincing evidence. See 28 U.S.C. § 2254(e)(1).
      2.    Reasonable jurists would not debate that Apprendi is inapplicable
            to the mitigation special question
      Oliver argues that the trial court erred in failing to instruct the jury that
the State had the burden of proof beyond a reasonable doubt on the issue of
mitigation during the punishment phase of the trial. He contends that the
Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002), extend the requirement of proof beyond a
reasonable doubt to a jury’s determination of mitigating factors that would
warrant a sentence of life imprisonment instead of death. In Apprendi, the
Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S.
at 490. Oliver contends that Texas’s capital murder statute provides for life
imprisonment as the maximum penalty, and that death is the penalty only if the
jury answers both “special issues” questions in the proscribed way. Therefore,
Oliver claims, Texas’s statute violates Apprendi because it allows a jury to
“increase” the maximum penalty to death without the State showing the absence
of mitigating factors beyond a reasonable doubt.
      Texas law regarding the death penalty first requires a jury to find the
defendant guilty of a capital felony. See TEX. CODE CRIM. PROC. ANN. art. 37.071
§ 1 (Vernon 2006). If the state seeks the death penalty, then the trial court must


                                        5
                                  No. 06-70006

conduct a second punishment proceeding. Id. § 2(a)(1). During deliberations on
whether to impose the death penalty, the jury must answer two “special issues”
questions: First, “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to
society,” and second, “whether . . . there is a sufficient mitigating circumstance
or circumstances to warrant that a sentence of life imprisonment without parole
rather than a death sentence be imposed.” Id. §§ 2(b)(1), (2)(e)(1). The court will
impose the death penalty only if the jury unanimously answers the first question
“yes” and the second question “no.” Id. That is, the jury must find that there are
aggravating factors and insufficient mitigating factors.
      Reasonable jurists would not debate that Apprendi is inapplicable to the
jury’s determination of mitigating factors. In Apprendi, the Supreme Court
specifically distinguished between “facts in aggravation of punishment and facts
in mitigation,” stating that burden-of-proof requirements are “absent” from a
scheme that allows a judge to impose a sentence below the maximum penalty
based on mitigating factors. Apprendi, 530 U.S. at 490 n.16 (noting that in
reducing a sentence based on mitigating factors, a judge is “neither exposing the
defendant to a deprivation of liberty greater than that authorized by the verdict
according to statute, nor is the judge imposing upon the defendant a greater
stigma than that accompanying the jury verdict alone”); see also Ring, 536 U.S.
at 597 n.4 (noting that its decision that a sentencing judge may not, sitting
alone, determine the presence or absence of aggravating factors does not extend
to the finding of mitigating circumstances); Rowell v. Dretke, 398 F.3d 370, 376-
77 (5th Cir. 2005) (noting that Ring did not apply to the burden of proof for
mitigating factors because the Court “focused exclusively on certain judicial
findings regarding aggravating factors”). Similarly, in Walton v. Arizona, the
Court stated that “[s]o long as a State’s method of allocating the burdens of proof
does not lessen the State’s burden to prove every element of the offense charged,

                                        6
                                  No. 06-70006

or in this case to prove the existence of aggravating circumstances, a defendant’s
constitutional rights are not violated by placing on him the burden of proving
mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S.
639, 650 (1990), overruled on other grounds, Ring, 536 U.S. at 584. More
recently, the Supreme Court upheld Kansas’s death penalty scheme that placed
the burden of proving the existence of aggravating factors on the state but
required the defendant to offer any mitigating evidence. Kansas v. Marsh, 126
S. Ct. 2516, 2524 (2006); see id. at 2527 (“Significantly, although the defendant
appropriately bears the burden of proffering mitigating circumstances—a burden
of production—he never bears the burden of demonstrating that mitigating
circumstances outweigh aggravating circumstances.”). Plainly, therefore, if a
state’s scheme is constitutional when it places the burden of production for
mitigating factors on the defendant, then Texas’s death penalty statute also
comports with Supreme Court precedent because it leaves open who has the
burden of proof for mitigating factors.
      This court’s cases also have upheld Texas’s scheme of not instructing the
jury on who has the burden of proof for mitigating factors. See Granados v.
Quarterman, 455 F.3d 529, 537 (5th Cir.), cert denied, 127 S. Ct. 732 (2006). In
Granados, the court granted a COA to a death penalty habeas applicant on this
very same claim and subsequently rejected the applicant’s argument after
additional briefing. Id. In so doing, the court noted that death—not life
imprisonment—is the maximum sentence for a capital conviction under Texas
law. Id. “Put another way, a finding of mitigating circumstances reduces a
sentence from death, rather than increasing it to death.” Id. Similarly, this
court noted that “[n]o Supreme Court or Circuit precedent constitutionally
requires that Texas’s mitigation special issue be assigned a burden of proof.”
Rowell, 398 F.3d at 378; see also Ortiz v. Quarterman, No. 06-70020, 2007 WL
2936244, at *10 (5th Cir. Oct. 10, 2007) (rejecting a COA for this exact same

                                          7
                                  No. 06-70006

claim); Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007) (same).
Given the extensive Supreme Court and circuit precedent, reasonable jurists
would not debate that Apprendi has no application to Texas’s scheme of leaving
open who has the burden of proof for the mitigation special issue. We therefore
DENY Oliver’s request for a COA on this claim.
      3.    Reasonable jurists would not debate that Penry II does not apply to
            the lack of jury instructions regarding mitigation
      Oliver contends that Texas’s “special issues” questions—which place the
burden of proof on the State to show aggravating but not mitigating
factors—sends “mixed signals” to the jury in violation of Penry v. Johnson (Penry
II), 532 U.S. 782, 802 (2001). Oliver argues that failing to assign a burden of
proof for the mitigation factors produces a confusing effect and encourages jurors
to evaluate the evidence in inconsistent ways.
      In Penry II, the Supreme Court struck down a judicially crafted jury
instruction because it was confusing and, in effect, required the jury to answer
the special issues dishonestly in order to give effect to the defendant’s mitigating
evidence. Id. at 801. The Court rejected the instruction as sending “mixed
signals” to the jury. Id. at 802. The Court, however, implicitly upheld Texas’s
current scheme:
      A clearly drafted catchall instruction on mitigating evidence also
      might have complied with [the Court’s precedents]. Texas’ current
      capital sentencing scheme (revised after Penry’s second trial and
      sentencing) provides a helpful frame of reference. Texas now
      requires the jury to decide “[w]hether, taking into consideration all
      of the evidence, including the circumstances of the offense, the
      defendant’s character and background, and the personal moral
      culpability of the defendant, there is a sufficient mitigating
      circumstance or circumstances to warrant that a sentence of life
      imprisonment rather than a death sentence be imposed.” TEX. CODE
      CRIM. PROC. ANN. art. 37.071(2)(e)(1) (Vernon Supp. 2001). . . . At
      the very least, the brevity and clarity of this instruction highlight
      the confusing nature of the supplemental instruction actually given,


                                      8
                                      No. 06-70006

       and indicate that the trial court had adequate alternatives available
       to it as it drafted the instructions for Penry’s trial.
Id. at 803.     Far from rejecting the current scheme regarding mitigation,
therefore, the Supreme Court implicitly endorsed it. See, e.g., Coleman v.
Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert denied, 127 S. Ct. 2030
(2007) (quoting Rowell, 398 F.3d at 378) (“[N]o Supreme Court or Circuit
precedent constitutionally requires that Texas’s mitigation special issue be
assigned a burden of proof.”). Oliver has failed to make any plausible argument
that Texas’s mitigation special issue does not allow the jury to consider and give
effect to a defendant’s mitigating evidence. Oliver also points to no other cases
to support his position. Thus, Oliver has failed to explain why the district court’s
decision amounted to a violation of “clearly established federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Reasonable jurists
would not debate that the district court properly rejected Oliver’s claim. We
therefore DENY Oliver’s request for a COA on this claim.
       4.     Reasonable jurists would not debate that the district court did not
              err in rejecting Oliver’s parole instruction claim
       Oliver argues that the trial court’s failure to instruct the jury that a life
sentence would require Oliver to spend forty years in prison before becoming
eligible for parole violated the Eighth Amendment’s requirement of heightened
reliability in the jury instructions. He rests his argument on an “evolving
standard regarding parole instructions” that he claims mandated his requested
jury charge. Specifically, he argues that during his trial, in April 1999, the
Texas legislature considered, and then passed, a law requiring an instruction
that notified the jury that the defendant would not be eligible for parole for forty
years. See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(2)(B) (Vernon 1999).1


       1
         The new instruction (now no longer in effect), for crimes committed after September
1, 1999, read:


                                             9
                                        No. 06-70006

This law became effective for crimes committed on or after September 1, 1999.
Act approved May 21, 1999, 76th Leg. R.S., ch. 140, § 2, 1999 Tex. Sess. Law.
Serv. 140 (Vernon). Oliver correctly concedes that the amended statute does not
apply retroactively to his trial and instead argues that the legislative hearing
that culminated in the revised jury instruction represented an “evolving
standard” that required the jury to know, even before the law took effect, of
Oliver’s ineligibility for parole for forty years.
       In Simmons v. South Carolina, the Supreme Court ruled that a capital
defendant has a constitutional right to inform the jury of his ineligibility for
parole when the state’s statute provides for a life sentence without the
possibility of parole as the alternative to the death penalty. 512 U.S. 154, 168-69
(1994) (plurality opinion). The plurality specifically exempted from its decision
those state statutes that provide for the possibility of parole. Id. at 168 (“In a
State in which parole is available, how the jury’s knowledge of parole availability
will affect the decision whether or not to impose the death penalty is speculative,
and we shall not lightly second-guess a decision whether or not to inform a jury
of information regarding parole.”). In Ramdass v. Angelone, the Court reiterated
that the Simmons rule applies only when the defendant is ineligible for parole



       Under the law applicable in this case, if the defendant is sentenced to
       imprisonment in the institutional division of the Texas Department of Criminal
       Justice for life, the defendant will become eligible for release on parole, but not
       until the actual time served by the defendant equals 40 years, without
       consideration of any good conduct time. It cannot accurately be predicted how
       the parole laws might be applied to this defendant if the defendant is sentenced
       to a term of imprisonment for life because the application of those laws will
       depend on decisions made by prison and parole authorities, but eligibility for
       parole does not guarantee that parole will be granted.

See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(2)(B) (Vernon 1999). Texas has since
amended its statutes to provide for life without parole as the alternative to the death penalty
and to instruct the jury of this fact. See id. § 2(e)(2)(B) (Vernon 2006) (The Court shall “charge
the jury that a defendant sentenced to confinement for life without parole under this article
is ineligible for release from the department on parole.”).

                                               10
                                         No. 06-70006

for life under state law. 530 U.S. 156, 166-67 (2000) (plurality opinion) (holding
that the trial judge did not have to provide a jury instruction on a life sentence
under Simmons because the defendant was not actually parole ineligible at the
time of his capital sentencing). Although the Supreme Court decided these cases
under due process rationale and not the Eighth Amendment, we find them
instructive as to the lack of an evolving standard requiring a jury instruction
regarding a Texas statute that allowed for the possibility of parole.
       Indeed, we have rejected similar claims from other habeas petitioners.
See Thacker v. Dretke, 396 F.3d 607, 617 (5th Cir. 2005) (“Since Simmons was
decided, we have repeatedly held that neither the Due Process clause nor the
Eighth Amendment requires Texas to allow presentation of parole eligibility
issues, because Texas does not offer, as an alternative to capital punishment, life
imprisonment without possibility of parole.”) (footnote omitted); Rudd v.
Johnson, 256 F.3d 317, 320-21 (5th Cir. 2001) (rejecting a COA for this exact
same claim); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995) (“We have
consistently held . . . that neither the due process clause nor the Eighth
Amendment compels instructions on parole in Texas.”).
       Given this precedent,2 reasonable jurists would not debate that there is no
“evolving standard” that required the trial court to provide Oliver’s requested
jury instruction. See Thacker, 396 F.3d at 617 (“Thus, settled precedent makes
pellucid the reasonableness of the state court’s rejection of [the habeas
petitioner’s] argument that Simmons and its progeny require that he be able to
raise parole eligibility with the jury. The district court’s denial of his claims,


       2
         The only case that Oliver cites to support his position is Clark v. Tansy, 882 P.2d 527,
533 (N.M. 1994), where the New Mexico Supreme Court held that due process required a jury
instruction that notified the jury as to the length of incarceration the defendant would face
before becoming eligible for parole if he is not sentenced to death. Clark provides little support,
however, because the court explicitly chose not to decide the case on Eighth Amendment
grounds. Id. at 490. Moreover, even if Clark supports Oliver’s position, it is hardly enough
evidence to constitute an “evolving standard.”

                                               11
                                        No. 06-70006

therefore, is not reasonably debatable and cannot justify the issuance of a
COA.”). We therefore DENY Oliver’s request for a COA on this claim.3
B.     Oliver’s claims for which he received a COA
       The district court rejected Oliver’s request for habeas relief but granted a
COA on two claims related to several jurors’ alleged use of the Bible during jury
deliberations. Oliver contends that evidence from his state court post-conviction
hearing on his motion for a new trial, as well as additional evidence uncovered
after that hearing, demonstrates that jurors consulted the Bible when
considering whether to impose death or life imprisonment during the
punishment phase of his trial. Oliver argues that any use of the Bible during
jury deliberations violated his rights under the Sixth and Eighth Amendments.
Oliver also asks this court either to stay this proceeding so that the state court
can conduct an additional hearing based on the newly-discovered evidence or
remand to the federal district court for an evidentiary hearing.
       1.      Oliver’s request for a stay and abatement or for an evidentiary
               hearing is without merit
       Oliver argues that he is entitled to, and never received, a hearing on the
additional evidence he uncovered from an interview between a foreign journalist
and juror Michael Brenneisen (the “Brenneisen interview”). This interview took
place in February 2002, one month after Oliver had timely submitted his habeas
application to the TCCA. In the interview, Brenneisen stated that jurors relied
on the Bible in making their decision during the punishment phase of



       3
         We also note that Oliver’s requested jury instruction would amount to a “new rule” in
violation of the non-retroactivity principle of Teague v. Lane, 489 U.S. 288, 310 (1989). See
Thacker, 396 F.3d at 617 n.15 (“Although [the habeas petitioner] argues at length that
applying Simmons in the way he proposes would merely be an unremarkable application of
existing precedent, this is plainly not the case. Given the volume of caselaw in this circuit
holding that, despite Simmons, the Fourteenth and Eighth Amendments do not require Texas
to allow discussion of parole eligibility in capital trials, a decision to the contrary here would
undoubtedly constitute a ‘new rule’ under Teague and is therefore barred.”).

                                               12
                                       No. 06-70006

deliberations.4 Upon learning of the interview, Oliver submitted to the TCCA
an “Objection[] to Disposition Without Evidentiary Hearing and Motion for
Extension of Time to File Habeas Findings of Fact and Conclusions of Law.”
The TCCA deemed this motion to be a subsequent application for habeas corpus
because Oliver submitted it after the state law deadline for an initial writ of
habeas corpus. The court therefore dismissed the subsequent application as an
abuse of the writ.
       Oliver then filed his federal habeas application in the district court. The
court denied his motion to stay the federal proceeding so that he could seek a
hearing in state court based on his “new” evidence. The court determined that
“the appropriate relief [when a habeas applicant asserts that he has not
exhausted his claim in the state court based on newly discovered evidence] . . . is
for the federal court to consider the new evidence, not to remand the case to the
state court.”5 Oliver submitted a transcript of the interview to the district court.
The court denied Oliver’s request for a federal hearing on this issue.                       In
particular, the court ruled that under 28 U.S.C. § 2254(e)(2), Oliver was not
entitled to a hearing because he did not act with “due diligence” to exhaust his
claim in the state post-conviction hearing. The district court also ruled that
Oliver failed to meet the second prong of § 2254(e)(2) because he failed to show
that “but for relying on the Bible, no reasonable juror would have answered the
special issues in the way that resulted in his receiving a death sentence.” The
district court then denied habeas relief on his two claims related to the jury’s use
of the Bible.


       4
         Oliver claims that Brenneisen’s interview confirms and bolsters the evidence from the
four jurors who testified during the state post-conviction hearing.
       5
         It is not clear whether the district court relied on the Brenneisen interview in making
its decision on the merits of Oliver’s claim. Instead, the district court focused on whether
Oliver was entitled to a hearing and spent little time analyzing the underlying substantive
issues.

                                              13
                                  No. 06-70006

      Oliver argues that this court should stay and abate the federal proceeding
so that he may go back to the state court and obtain a hearing on his claim. The
flaw in Oliver’s argument, however, is that the state court already refused to
grant him a hearing. The TCCA already considered his request to stay the
proceeding so that he could seek a hearing regarding the information from the
Brenneisen interview, and it deemed Oliver’s request to be a subsequent
application for habeas corpus that is barred under state law. Oliver presents no
arguments as to why the state court would now grant him a hearing. A stay and
abatement, therefore, would amount to nothing more than an unnecessary and
fruitless delay.
      Nor is Oliver entitled to a hearing in federal court. The district court
applied the correct standard under § 2254(e)(2) regarding Oliver’s request for an
evidentiary hearing in federal court.
Section 2254 (e)(2) provides:
      If the applicant has failed to develop the factual basis of a claim in
      State court proceedings, the court shall not hold an evidentiary
      hearing on the claim unless the applicant shows that—
             (A) the claim relies on—
                   (i) a new rule of constitutional law, made retroactive to
                   cases on collateral review by the Supreme Court, that
                   was previously unavailable; or
                   (ii) a factual predicate that could not have been
                   previously discovered through the exercise of due
                   diligence; and
             (B) the facts underlying the claim would be sufficient to
             establish by clear and convincing evidence that but for
             constitutional error, no reasonable factfinder would have
             found the applicant guilty of the underlying offense.
As the district court correctly noted, Oliver fails to meet subsection (A)(ii)
because Oliver could have discovered the evidence from the Brenneisen




                                        14
                                        No. 06-70006

interview through the exercise of due diligence.6 All Oliver had to do to uncover
Brenneisen’s testimony was to call him to the stand during the state post-
conviction hearing.7
       In sum, Oliver has presented no authority that would allow us to stay and
abate this proceeding so that the state court can conduct an evidentiary hearing.
Even if we did stay the federal proceeding, Oliver has failed to show why the
state court would grant him a hearing after it denied the exact same request in
its habeas decision. Further, Oliver failed to meet the stringent standard in
§ 2254(e)(2) that would allow a federal court to conduct an evidentiary hearing.
Congress has decided that a habeas applicant must jump a high hurdle before
a federal court can grant an evidentiary hearing, especially when the applicant
failed to develop the factual basis of his claim in state court. Therefore, we
DENY Oliver’s request for a stay and abatement and for an evidentiary hearing.
       2.     Substantive merits of Oliver’s Bible claims
       Oral argument will assist the court in determining if Oliver is entitled to
habeas relief given the evidence presented in the state court post-conviction
hearing regarding the jury’s consultation of the Bible during deliberations.
Specifically, the parties are directed to focus on the following two issues: (1) as



       6
          We make no decision regarding whether the district court correctly found that Oliver
failed to meet subsection (B) because, “but for relying on the Bible, no reasonable juror would
have answered the special issues in the way that resulted in [Oliver] receiving a death
sentence.” We note, however, that subsection (B) requires the habeas applicant to show that
“no reasonable factfinder would have found the applicant guilty of the underlying offense,” not
that no reasonable factfinder would have imposed the same sentence. 28 U.S.C. §
2254(e)(2)(B) (emphasis added). Oliver’s failure to meet subsection (A) makes the district
court’s application of subsection (B) moot. As to the substance of the district court’s statement
that the jurors did not improperly rely on the Bible in making its decision, the court will
consider this issue after further briefing and oral argument.
       7
        Oliver claims that he did not call Brenneisen to testify because Brenneisen would have
been hostile to his lawyer and would not have cooperated. This is mere speculation, however,
and does not excuse Oliver’s failure to call Brenneisen—or any of the other jurors—at the
hearing.

                                              15
                                  No. 06-70006

a matter of law, did the jurors’ consultation of the Bible in the jury room
constitute an external influence that raises a presumption of prejudice under
clearly established federal law, as determined by the Supreme Court of the
United States; and (2) if so, has the state rebutted that presumption here? The
clerk will issue a briefing schedule for the parties to submit supplemental briefs
on these questions and will schedule oral argument in due course.
                             III. CONCLUSION
      We DENY Oliver’s request for a COA on his three claims. We also DENY
Oliver’s request for a stay and abatement or for an evidentiary hearing. The
clerk will issue a briefing schedule and schedule oral argument for Oliver’s
remaining claims.




                                       16
