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

                                                                            FILED
                                                                         February 14, 2008

                                       No. 07-70005                   Charles R. Fulbruge III
                                                                              Clerk

DERRICK LEON JACKSON

                                                  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 Southern District of Texas
                             USDC No. 4:05-CV-4083


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner, Derrick Leon Jackson, requests a certificate of appealability
(“COA”). His request is DENIED.
                          I. FACTS AND PROCEEDINGS
       Jackson, a prisoner sentenced to death and currently in the custody of the
Texas Department of Criminal Justice (“TDCJ”), filed this application for a COA
after his petition for a writ of habeas corpus was denied by the district court.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-70005

      The victims, Forrest Henderson and Richard Wrotenberry, were singers
in the Houston Grand Opera. Wrotenberry moved into Henderson’s Houston
apartment to housesit while Henderson was out of the country and continued to
live in the apartment after Henderson had returned.
      David Trujillo lived next door to Henderson and Wrotenberry.           At
approximately 10:30 p.m. on Saturday, September 10, 1988, Trujillo heard music
and Henderson’s voice through the common wall separating their apartments.
Trujillo went to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the
sound of Wrotenberry screaming several times, “Oh my God. No. No.” Trujillo
also heard what sounded like someone being hit numerous times with a pipe or
a baseball bat. After thirty minutes of silence, he heard the water running for
about forty-five minutes. Trujillo never heard Henderson’s front door open or
anyone leave, but a person could enter or leave Henderson’s apartment via a
separate stairwell without passing by Trujillo’s door.
      Trujillo testified that he often saw “street trash” entering and leaving
Henderson’s apartment before Wrotenberry moved in, that the apartment was
a rowdy place, and that screaming and fighting were common there. The
rowdiness subsided after Wrotenberry moved in.
      Wrotenberry was a music teacher at Deer Park Elementary School, and
on Monday, September 12, 1988, he failed to appear for work. At 9:00 a.m., the
school principal contacted Henderson’s apartment manager and requested that
he check on Wrotenberry. The manager unlocked Henderson’s apartment door
and found a body covered in blood in one of the bedrooms. He left and called the
police.
      Police officers arrived at the apartment soon thereafter and detected no
sign of forced entry. They found Henderson’s and Wrotenberry’s bodies in their
respective bedrooms at opposite ends of the apartment. Henderson’s nude body
was lying face-down in his bed, and Wrotenberry’s body, clad only in a pair of


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swimming trunks, was lying on the floor of his bedroom. The absence of
significant blood in the hallway connecting the two bedrooms indicated that
neither victim left his room during or after the attacks. Police found a bloody
metal bar in the hallway in front of the bathroom door and a bloody knife in the
kitchen sink. Blood was on the bedroom walls, doors, and curtains. Both
victims’ wallets were missing, and Henderson’s car was gone. Two or three days
later, the car was recovered. Following a chase after a burglary at a mall, the
car crashed and caught on fire. The driver was not apprehended, and the police
recovered no evidence related to the murders from the car.
      A forensic pathologist testified that Henderson received a shallow non-
fatal cut to the neck, defensive wounds on both arms, a six-inch fracture of the
skull from blunt force, and multiple stab wounds to the torso. Wrotenberry
suffered a severed carotid artery, cuts to the vertebrae, and at least three blows
to the back of the head with a narrow blunt instrument, such as a pipe. Fixed
lividity in both bodies signified that the victims were dead for more than eight
hours before they were found. Tests performed on both victims revealed no signs
of drugs, alcohol, or semen. Blood samples and twenty identifiable fingerprints
were collected from the crime scene, but the Houston Police Department (“HPD”)
was unable to identify a suspect.
      In 1995, nearly seven years after the murders, HPD upgraded to a new
fingerprint system with an expanded database. The new system matched
Jackson with prints lifted from a beer can and a glass tumbler in Henderson’s
bedroom. Blood spattered during the attack covered Jackson’s fingerprints on
the front of the tumbler. A bloody print found on Henderson’s bedroom door also
matched Jackson’s fingerprint.      An expert in blood-spatter interpretation
testified that the bloody fingerprint could have been formed only by touching a
blood drop while the blood was still wet, and could not have been the result of a
blood drop landing on an old fingerprint.


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      Police found only one blood sample in the apartment capable of yielding
blood type information. That sample was taken from blood on one of the
bedroom doors which an HPD serologist testified was type-B blood. Jackson had
type-B blood, and both victims had type-A blood.
      A state DNA expert, Mary Henry, testified that Jackson’s DNA type
matched DNA isolated from blood stains on a red towel and a beige towel located
in Henderson’s bathroom. That expert testified that Jackson’s DNA type for that
specific test conducted on the samples from the two towels would occur once out
of every 224 people in the black population.1
      A second DNA expert, Joseph Chu, testified that he conducted a different
kind of DNA test on the DNA extracted from the beige towel. He concluded that
the DNA from the beige towel came from a single source and matched Jackson’s
DNA type for that test. By comparing Jackson’s DNA type to databases of the
black population and using calculation methods approved at the time of the DNA
testing in March 1997, Chu calculated that the odds that another black person
would possess the DNA profile found on the beige towel were one out of 7.2
million. By the time of Jackson’s trial in March 1998, the DNA forensic
community had endorsed making a calculation based on combining the
probabilities from the two different types of DNA tests that Chu and Henry had
conducted. Using that calculation method, Chu testified that the probability of
Jackson’s DNA type appearing in the black population would be one out of 1.6
billion. He testified that he had compared Jackson’s DNA type to the databases
for the black population because his race was already known.                   On cross-
examination, Chu testified that had he compared Jackson’s DNA type to
databases of other races, he would have found similar results.




      1
          Jackson was black, Wrotenberry was white, and Henderson was black.

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      Chu also testified that he conducted DNA tests on blood on the metal bar
found in the apartment. The tests showed a mixture of DNA from different
people on the metal bar. He compared Henderson’s and Jackson’s DNA, and
Wrotenberry’s parent’s DNA—a DNA type could not be determined from Allen
Wrotenberry’s sample—to the mixture of DNA on the bar and could not
eliminate any of their DNA from the mixture. The tests concluded that the
mixture was consistent with all three individuals’ DNA. However, Chu could not
determine an exact match of the DNA because of the mixture, nor could he
provide a mathematical calculation as to the probability of each individual’s
DNA being in the mixture.
      After considering this evidence, the jury found Jackson guilty of capital
murder.
      During the penalty phase, the state presented evidence that Jackson
snatched a woman’s purse in 1990. The state also presented evidence that, in
1992, Jackson robbed two other victims of their purses at gunpoint and
attempted to steal a car. For those robberies, he received a sentence of ten years
which was imposed on May 13, 1992.
      Wrotenberry’s father testified that Wrotenberry was a vivacious young
man. He played tennis and ping pong and was a fan of the Houston Astros and
Rockets. Wrotenberry was divorced and had a one year-old daughter at the time
of his death. Wrotenberry had a close relationship with his father, mother, and
sister. His father testified that he and his family had difficulty coming to grips
with Wrotenberry’s death and had undergone counseling. Wrotenberry’s sister
was admitted to a psychiatric hospital following the murder.
      Leroy Smith testified for Jackson. Smith was a barber instructor for the
TDCJ. Jackson was Smith’s student and had completed over 1400 of the 1500
hours required for a barber training course at the time he was brought back to
Houston for his capital murder trial. Smith testified that Jackson was a good


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student who caused no problems and was respectful of TDCJ personnel and
other inmates. Smith never saw Jackson act violently or misuse any of the
barber equipment.
      Dr. Ann Carolyn Wheeler, a clinical psychologist, also testified for Jackson.
She performed a psychological evaluation of Jackson. She testified that Jackson
did well in a structured setting, such as prison. He was unlikely to affiliate with
a gang or engage in violence in prison. On cross-examination, Dr. Wheeler
conceded that Jackson’s history of criminal conduct suggested that he was
dangerous.
      Jackson’s mother, Rita Everline, testified that Jackson never knew his
father because his father committed suicide when he was a baby. Everline
remarried when Jackson was nine months old. Jackson has two younger half-
brothers. He was a normal child and got along well with his brothers. Jackson’s
stepfather had a drinking problem. Sometimes, he and Everline fought, and she
fled the house. Jackson did not have any unusual discipline problems at school.
Jackson’s stepfather’s testimony agreed with Everline’s testimony.
      The jury found that Jackson deliberately committed acts that caused
Wrotenberry’s death with the reasonable expectation that the death of
Wrotenberry or another would result, that there was a probability that Jackson
would commit criminal acts of violence that would constitute a continuing threat
to society, and that there was not sufficient mitigating evidence to warrant a
sentence of life imprisonment rather than death.            Accordingly, the jury
determined that Jackson be sentenced to death.
      The state habeas court found that Jackson’s trial counsel interviewed
witnesses, talked to his family, and spoke to Jackson about his life and
background.     The defense counsel contacted everyone that Jackson had
requested him to contact for the punishment phase of the trial. In an affidavit,
Jackson’s trial counsel explained his actions as follows:


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             During punishment, the jury knew that the defendant had
      been in prison for 10 years and our main strategy was to establish
      that he was a good candidate for a life sentence and that he did well
      in prison. We did not call employees who worked with the
      defendant at the Luxeford Hotel because the defendant was working
      there at the time of the offense. Witnesses who knew the defendant
      during the ten-year period from the offense to the trial would have
      been in a Catch-22 type of position. If they testified about the
      defendant’s good character, they would be confronted with cross-
      examination that they didn’t know the defendant very well because
      they did not know that he committed the offense ten years before
      trial. We presented evidence of the defendant’s family background,
      his good behavior in prison and his psychological profile.
      The Texas Court of Criminal Appeals affirmed Jackson’s conviction and
sentence, Jackson v. State, 17 S.W.3d 664, 677 (Tex. Crim. App. 2000), and
denied his application for a writ of habeas corpus. Ex parte Jackson, No. 60,124-
01 (Tex. Crim. App. Dec. 1, 2004). Jackson filed a federal petition for habeas
corpus on November 30, 2005. The district court granted Quarterman’s motion
for summary judgment and denied Jackson a COA on February 12, 2007.
Jackson v. Quarterman, No. H-05-4083 (S.D. Tex. Feb. 12, 2007).
      Jackson raises two issues in this application for a COA. He argues that
reasonable jurists could debate whether there was sufficient evidence to support
his conviction for capital murder. He also argues that reasonable jurists could
debate whether he was denied effective assistance of counsel.
                         II. STANDARD OF REVIEW
      Jackson filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Accordingly, the
petition is subject to AEDPA’s requirement that Jackson obtain a COA before an
appeal can be taken to this Court. 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537
U.S. 322, 335–36 (2003). In determining whether a COA should be issued, this
Court limits its examination to a “threshold inquiry into the underlying merit
of [the petitioner’s] claims.” Id. at 327. “This threshold inquiry does not require

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full consideration of the factual or legal bases adduced in support of the claims.
In fact, the statute forbids it.” Id. at 336. A COA will be granted if the petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).   To meet this standard, a petitioner must demonstrate that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-
El, 537 U.S. at 336 (internal quotations omitted). The debatability of the
underlying constitutional claim is at issue, not the resolution of that debate. Id.
at 342.
                                III. DISCUSSION
A.    Sufficiency of the evidence
      In deciding a sufficiency of the evidence claim, the “relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). Jackson claims that reasonable jurists could
debate whether there was sufficient evidence to support his conviction for capital
murder. He argues that the evidence was constitutionally insufficient to prove
his identity as the one who committed the murders and that there was
insufficient evidence to prove that both murders were committed during the
course of the same transaction. Jackson points to the fact that he was not
identified as a suspect until seven years after the crime and that there was no
eyewitness, no sign of forced entry, no proof of a prior relationship with the
victims, and no proof of a motive. He also states he was not found in possession
of any property taken from the murder scene. Jackson relies on Gibson v.
Collins, which accepted that where the only evidence is the discovery of the
defendant’s fingerprints at the scene of the crime, a reasonable juror may find

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guilt beyond a reasonable doubt “only if the evidence indicates that the
imprinted object was generally inaccessible to the defendant except during the
commission of the crime.” 947 F.2d 780, 785 (5th Cir. 1991). Jackson also asks
this Court to extend Gibson to DNA evidence, specifically the DNA that was
found on a towel in the bathroom of the apartment where the murders occurred.
      DNA, fingerprint, and blood-type evidence placed Jackson at the
apartment both before and immediately after the murders.               Jackson’s
fingerprints were found on a tumbler placed on a stereo speaker in Henderson’s
room. Blood splatter landed on top of the prints. Jackson’s bloody fingerprint
was found on Henderson’s bedroom door. This print could only have been formed
by touching a drop of blood while it was still wet. Therefore, these fingerprints
indicate that Jackson was in the apartment both before and soon after the
murders. Furthermore, a blood splatter expert testified that the attacker
suffered a bleeding wound during the attack. Jackson’s DNA was found on
bloody towels in the bathroom. Type-B blood, consistent with Jackson’s blood,
and not consistent with the blood of either victim, was found on a bedroom door.
With such evidence, it is not debatable whether any rational trier of fact could
have found beyond a reasonable doubt that Jackson’s fingerprints and DNA were
left at the time of the murders and that Jackson had committed the murders.
      Jackson also argues that the evidence was insufficient to show that both
murders were committed during the course of the same transaction. This
argument is without merit, because of the characteristics of both murders. Both
victims suffered cuts to the neck. A bloody knife was found in the kitchen sink.
Both victims suffered wounds from blunt force. A bloody metal bar with a
mixture of DNA on it was found in the hallway. A neighbor heard what sounded
like someone being hit by a pipe or baseball bat in Henderson’s apartment. Both
murders were committed in that same apartment, separated only by a hallway.
Both men’s wallets were missing. With such evidence, it is not debatable


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whether any rational trier of fact could have found beyond a reasonable doubt
that both murders were committed during the course of the same transaction.
B.    Ineffective assistance of counsel
      In deciding an ineffective assistance of counsel claim, this Court first
determines whether the counsel’s performance was deficient. Turner v.
Quarterman, 481 F.3d 292, 298 (5th Cir. 2007). “This requires [the defendant
to show] that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second,
this Court determines whether the deficient performance prejudiced the defense.
Id. “This requires [the defendant to show] that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In
determining whether to grant Jackson’s application for a COA, this Court must
determine whether reasonable jurists could debate whether Jackson’s counsel’s
performance was deficient, and, if so, whether that performance prejudiced the
defense.
      Jackson argues that his counsel’s performance was deficient in failing to
present certain character witnesses at the punishment phase of the trial. He
relies on Wiggins v. Smith, 539 U.S. 510, 534 (2003), where the counsel’s lack of
investigation into the defendant’s background “did not reflect reasonable
professional judgment.” Jackson’s reliance on Wiggins is misplaced. In Wiggins,
the defense counsel failed to expand the investigation of his client’s background
beyond social services records and a presentence investigation. Id. at 524.
Wiggins’s counsel did not have a social history report prepared as was standard
practice in Maryland, even though funds were available to have the report made.
Id. His performance fell short of the American Bar Association’s standards, and
the information that he did have about his client’s background indicated that
additional investigation for mitigating circumstances was necessary. Id.



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      Unlike the counsel in Wiggins, Jackson’s counsel made a strategic decision
not to seek out the witnesses who knew Jackson before or at the time of the
murders. Instead, he chose to rely on witnesses who could testify to Jackson’s
character while he was in prison, the period just before the trial. He also relied
on Jackson’s mother and stepfather. The defense counsel reasonably decided
that witnesses who knew Jackson between the time of the murders and the trial
would lack credibility if they testified to his nonviolent character, in light of the
fact that the jury had just convicted Jackson of beating two men with a metal
bar and cutting their throats.       “This court will not question a counsel’s
reasonable strategic decisions.” Bower v. Quarterman, No. 03-40980, 2007 WL
2326065, at *7 (5th Cir. Aug. 16, 2007). It is not debatable whether Jackson’s
counsel acted reasonably in deciding not to seek out testimony that Jackson was
nonviolent before or at the time of the murders. Therefore, Jackson’s application
for a COA on the claim of ineffective assistance of counsel is denied.
                               IV. CONCLUSION
      Jackson’s application for a COA is DENIED.




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