               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 01-50371
                       _____________________



     DANIEL EARL RENEAU


                                    Petitioner - Appellant

          v.


     JANIE COCKRELL, DIRECTOR, TEXAS
     DEPARTMENT OF CRIMINAL JUSTICE,
     INSTITUTIONAL DIVISION


                                    Respondent - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                            No. 99-CV-615
_________________________________________________________________
                          December 5, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

KING, Chief Judge:*

     Petitioner-Appellant Daniel Earl Reneau, a Texas death-row

inmate, appeals the district court’s denial of his petition for a

writ of habeas corpus brought under 28 U.S.C. § 2254 (1994 &


     *
        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that this opinion should not be published and is not precedent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.
Supp. 2001).   Our review is limited to the two issues on which

the district court granted Reneau’s request for a certificate of

appealability: (1) whether Reneau’s constitutional challenges to

the Texas habeas corpus procedure are cognizable on federal

habeas review, and (2) whether the Texas Court of Criminal

Appeals properly determined that its review of the sufficiency of

the evidence for Reneau’s death sentence satisfied the

requirement under the Eighth and Fourteenth Amendments that

states provide meaningful review of death sentences.      For the

following reasons, we AFFIRM the district court’s denial of

habeas relief.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

     On January 22, 1996, a grand jury indicted Petitioner-

Appellant Daniel Earl Reneau for intentionally causing the death

of Kris Keeran in the course of committing and attempting to

commit robbery.    Felony-murder is a capital offense in Texas.

See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994).1   Reneau

pleaded not guilty to the charge, and a jury convicted him and

sentenced him to death.



     1
        Section 19.03(a)(2) provides: “A person commits [capital
murder] if he commits murder as defined under Section 19.02(b)(1)
[i.e., “intentionally or knowingly causes the death of an
individual”] and . . . intentionally commits the murder in the
course of committing or attempting to commit kidnapping,
burglary, robbery, aggravated sexual assault, arson, or
obstruction or retaliation.” TEX. PENAL CODE ANN. §§ 19.02(b)(1),
19.03(a)(2) (Vernon 1994).

                                  2
     During the guilt-innocence phase of Reneau’s trial, the

state spent one day presenting evidence of the following events.

Over the course of approximately two weeks in December 1995,

Reneau and Jeffrey Wood, who resided together with their

girlfriends, made plans to rob a gas station located near their

home.   Initially, Wood and Reneau believed that they had

convinced Kris Keeran and William Bunker, who worked as cashiers

at the gas station, to participate in the robbery.    Keeran and

Bunker soon made clear, however, that they would not provide any

assistance.   Nevertheless, Wood and Reneau decided to carry out

the robbery on their own.

     Early in the morning of January 2, 1996, Reneau entered the

gas station with a gun in his hand while Wood waited outside.

Reneau pointed the gun at Keeran, who was standing behind the

counter, and told Keeran to go into a back office.    Keeran did

not move, and Reneau shot him in the head.   Proceeding with the

robbery, Reneau went into the back office and took a safe.    Wood,

who had entered the gas station after Reneau fired the gun,

removed a box of cash and a videocassette recorder containing a

surveillance tape.   They loaded the three items onto the truck

that they had driven to the gas station and left.    Keeran died

almost instantaneously.

     The jury convicted Reneau of capital murder.    At the

punishment phase of Reneau’s trial, the state sought the death

penalty.   The state urged the jury that “there is a probability

                                 3
that [Reneau] would commit criminal acts of violence that would

constitute a continuing threat to society,” one of the two

findings that Texas law requires a jury to determine beyond a

reasonable doubt before the state may impose the death penalty on

a defendant convicted of capital murder.   TEX. CODE CRIM. PROC. ANN.

art. 37.071, § 2(b)(1) (Vernon Supp. 2001).2   In support of that

claim, the state relied on the evidence presented at the guilt-

innocence phase of the trial and introduced further evidence of

events occurring before the January 2, 1996 robbery and evidence

of events occurring thereafter.   Because Reneau’s second issue

relates to the sufficiency of the evidence for his death

sentence, we set forth that evidence in some detail.

     Nadia Mireles, Wood’s girlfriend at the time of the robbery,

testified that she lived with Wood, Reneau, and her sister

(Reneau’s girlfriend) from November 1995 until the January 2,

1996 robbery.   She stated that during this time Wood and Reneau

kept several firearms in the house and that Reneau had informed

her that he had stolen two of them, one from a children’s home

and another from a gun store.   The state also presented the

testimony of Bennie Skinner and Aaron Toledo, who claimed that

     2
         If the jury makes this “continuing threat” finding, the
jury must then determine “[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).

                                  4
they had participated in a total of three burglaries with Reneau

and Wood.3   Both Toledo and Skinner testified that the group

stole firearms during the burglaries.    They further stated that

Reneau was armed during the burglaries and that he had conveyed

to them that he was prepared to shoot someone if necessary.     The

state also presented evidence connecting Reneau to a robbery of a

convenience store that had taken place approximately one month

before the January 2, 1996 robbery.    The investigating officer

read to the jury Reneau’s written confession stating that he and

Wood had perpetrated the convenience store robbery and that

Reneau had been the one who threatened the cashier with a gun.4

     The state also presented the testimony of individuals who

had encountered Reneau during his incarceration in county jail

after the January 2, 1996 robbery.    Justin Lemond, who was

Reneau’s cellmate for a brief time, testified that Reneau had

conveyed his desire to escape from the jail and had stated that

“he wasn’t afraid to take out a jailer, to take out a law

enforcement official, but he was going to get out, one way or

another.”    Lemond further testified that in recounting the events


     3
        Both Skinner and Toledo testified that they had been
involved in the burglary of the children’s home. Skinner also
stated that he participated in the burglary of a residence with
Reneau and Wood, and Toledo stated that he participated in the
robbery of a gun store with Reneau and Wood.
     4
        The officer took Reneau’s confession while he was
incarcerated after being charged and arrested for the January 2,
1996 robbery.

                                  5
of January 2, 1996, Reneau had not expressed any remorse about

Keeran’s death.   Two prison officials testified that they

overheard Reneau and Wood talking through the pipe duct that ran

between their adjacent cells about what the officials concluded

were escape plans.

     In addition to cross-examining the state’s witnesses, Reneau

sought to show that he was not a continuing threat to society and

to present mitigating evidence by introducing the testimony of

several witnesses.   Dr. Michael Arambula, a forensic psychiatrist

who had examined Reneau and reviewed his personal and mental

history, described Reneau’s childhood as “very abusive.”     He

testified that when Reneau was six to eight years old, the state

had removed him from his home because he was subjected to severe

physical abuse.   Arambula stated that after Reneau was removed

from his home, he “pretty much jumped around from one mental

hospital to another mental hospital” until he was eighteen or

nineteen years of age.   Arambula told the jury that he had

diagnosed Reneau with “severe personality disorder,” a treatable

condition.   Further, Arambula testified: (1) that he was aware

that Reneau would not be eligible for parole for 40 years if

sentenced to life imprisonment for capital murder, (2) that

individuals afflicted with personality disorders “generally get

better” as they get older, and (3) that in a structured

environment like a prison, individuals with severe personality

disorders present a decreased risk of danger.   On cross-

                                 6
examination, Arambula stated that in making his prognosis on

Reneau’s potential for dangerousness, Arambula did not recall

having been aware that Reneau had threatened people with

firearms5 or that Reneau had indicated his willingness to kill

someone in order to escape from jail.

     Other witnesses who testified for Reneau gave various

positive accounts of his character.       David Warner, who met Reneau

in August 1995, testified that Reneau stayed with Warner and his

four-year-old daughter for approximately six weeks.       Warner

testified that his daughter liked Reneau and that Warner had

trusted Reneau enough to let him babysit.       Warner further stated

that he had never seen Reneau display violent behavior and that

he was surprised when he learned that Reneau was a suspect in the

January 2, 1996 robbery.

     Two women who had met Reneau through Warner testified that

they had never seen Reneau act angrily and that they felt

comfortable when he was around their children.       Zabra Pieper, who

had briefly lived in the same apartment complex as Reneau, also

testified that her three-year-old daughter liked Reneau and that

he was “really good with [her].”       One of the officers who

accompanied Reneau back and forth between the jail and the

courthouse during the trial testified that the officers had not

     5
        Skinner and Toledo, who testified about their
participation in burglaries with Reneau and Wood, both testified
that Reneau had pointed a gun at them while warning them not to
tell anyone about the burglaries.

                                   7
had any problems with Reneau.   Robert Baudat, who had hired

Reneau to help build log cabins, testified that Reneau was a

satisfactory worker.

     The jury answered “yes” to the first special issue ——

whether Reneau would present a continuing threat to society ——

and “no” to the second special issue —— whether there was any

mitigating circumstance warranting a sentence of life

imprisonment rather than a sentence of death.6     On March 20,

1997, the state trial court sentenced Reneau to death.

     Reneau’s trial counsel withdrew from representation and new

counsel was appointed to represent him on direct appeal to the

Texas Court of Criminal Appeals (“TCCA”).7   The TCCA affirmed his

conviction and sentence on January 27, 1999.     Reneau then filed a

petition for certiorari with the U.S. Supreme Court, which was

denied on November 8, 1999.

     While his case was pending on direct appeal to the TCCA,

Reneau petitioned for state habeas corpus relief.     Another

attorney (i.e., not the attorney representing Reneau in his

direct appeal) was appointed to represent him in his state habeas

proceedings.   On April 22, 1999, the state trial court

recommended that Reneau’s habeas petition be denied on all

     6
         See supra note 2 and accompanying text.
     7
        Texas law provides that “[t]he judgment of conviction and
sentence of death shall be subject to automatic review by the
Court of Criminal Appeals.” TEX. CODE CRIM. PROC. ANN. art. 37.071,
§ 2(h) (Vernon Supp. 2001).

                                 8
grounds.    Determining that the record supported the trial court’s

recommendation, the TCCA entered an order denying Reneau’s state

habeas petition on September 15, 1999.

     On March 8, 2000, Reneau filed a petition for a writ of

federal habeas corpus pursuant to 28 U.S.C. § 2254, challenging

the constitutionality of his death sentence on several grounds.

The district court assigned Reneau’s petition to a magistrate

judge, who issued a report recommending that the district court

dismiss the petition and grant the state’s motion for summary

judgment.   On April 2, 2001, the district court denied all of

Reneau’s objections to the magistrate judge’s report and entered

an order adopting the magistrate judge’s recommendation.

     Reneau sought certificates of appealability (“COA”) for two

of the district court’s holdings: (1) that his challenges to the

Texas habeas corpus procedure for capital cases are not

cognizable on federal habeas review, and (2) that the TCCA

properly held that it afforded Reneau meaningful review of his

death sentence as required by the Eighth and Fourteenth

Amendments.   The district court granted Reneau a COA on each

holding.

               II.   FEDERAL HABEAS STANDARD OF REVIEW

     In a federal habeas appeal, we review a district court’s

grant of summary judgment de novo, “applying the same standard of

review to the state court’s decision as the district court”



                                  9
applied.   Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001)

(quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)).

We consider all of the facts in the summary judgment record in

the light most favorable to Reneau, the nonmoving party.    See

Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994).

     Because Reneau filed his petition for federal habeas corpus

after the date of the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 100

Stat. 1214 (codified as amended at 28 U.S.C. § 2254 (1994 & Supp.

2001)) (“AEDPA”), the district court’s federal habeas review was

governed by AEDPA.   See Penry v. Johnson, 121 S. Ct. 1910, 1918

(2001).

     Under § 2254(d) of AEDPA, habeas relief is not available to

a state prisoner

           with respect to any claim that was adjudicated
           on the merits in State court proceedings
           unless the adjudication of the claim —
                (1) resulted in a decision that was
           contrary to, or involved an unreasonable
           application of, clearly established Federal
           law, as determined by the Supreme Court of the
           United States; or
                (2) resulted in a decision that was based
           on an unreasonable determination of the facts
           in light of the evidence presented in the
           State court proceeding.

28 U.S.C. § 2254(d) (Supp. 2001).

     In this case, state court factual determinations are not at

issue, and thus subsection (1) of § 2254(d) provides the

framework for our inquiry.   The Supreme Court recently elaborated


                                10
on the § 2254(d)(1) standards.    See Williams v. Taylor, 529 U.S.

362 (2000).   Applying statutory construction principles, the

Court determined that the phrases “contrary to” and “unreasonable

application” establish “two categories of cases in which a state

prisoner may obtain federal habeas relief with respect to a claim

adjudicated on the merits in state court.”        Id. at 404.

According to the Court, a state court decision may be “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.”    Id. at 405-06.

     As to the second category of cases warranting federal habeas

relief, the Court determined that 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. at 407-08.    The Court

established two guidelines for ascertaining when an application

of federal law is “unreasonable.”      First, the inquiry into

unreasonableness is an objective one.      See id. at 409-10.

Second, the Court emphasized that “unreasonable” does not mean



                                  11
merely “incorrect”: an application of clearly established Supreme

Court precedent must be incorrect and unreasonable to warrant

federal habeas relief.   See id. at 410-12.

      III. COGNIZABILITY OF THE CONSTITUTIONAL CHALLENGES
                TO THE STATE’S HABEAS PROCEDURES

     The district court granted Reneau a COA on its determination

that his constitutional challenges to the Texas habeas corpus

procedures are not cognizable on federal habeas review.      These

challenges arise out of the Texas Legislature’s significant

revision of the state’s habeas corpus statute in 1995.      Before

this revision, all felony defendants had the right to petition

for a writ of habeas corpus in Texas courts after their

convictions and sentences became final, i.e., after the

defendants had unsuccessfully appealed to the TCCA and petitioned

the U.S. Supreme Court for certiorari.    See TEX. CODE CRIM. PROC.

ANN. art. 11.07, § 2(a) (Vernon 1977).   Under the current habeas

provisions, however, only petitioners “seek[ing] relief from a

felony judgment imposing a penalty other than death” have the

right to petition for state habeas relief after their convictions

and sentences become final.   TEX. CODE CRIM. PROC. ANN. art. 11.07,

§§ 1, 3(a) (Vernon Supp. 2001) (emphasis added).     In contrast,

petitioners who have been sentenced to death must now pursue

state habeas relief at the same time that they are pursuing

direct appellate relief, i.e., before their convictions and




                                12
sentences become final.     See id. art. 11.071, §§ 1, 4(a)

(“article 11.071”).

     Specifically, article 11.071 requires death-penalty

petitioners to file their state habeas petitions by “the 180th

day after the date the convicting court appoints counsel under

Section 28 or . . . the 45th day after the date the state’s

original brief is filed on direct appeal with the [TCCA],

whichever date is later.”     Id. art. 11.071, § 4(a).

Consequently, Reneau was required to file his state habeas

petition while his direct appeal was still pending in the TCCA.

The TCCA entered an order denying Reneau’s state habeas petition

before the Supreme Court denied his petition for certiorari, and

thus before his conviction and sentence became final.

     Reneau challenges article 11.071 on three constitutional

grounds.   First, Reneau argues that because the simultaneous

appeal/habeas procedure applies only to defendants who have been

sentenced to death, and all other felony defendants may wait

until their convictions and sentences have become final to seek

state habeas relief, article 11.071 deprived him of his

Fourteenth Amendment right to equal protection of the law.

Second, Reneau contends that article 11.071 deprived him of due

process by forcing him to petition for a writ of habeas corpus


     8
        Section 2 of article 11.071 gives death-penalty
defendants a right to appointed counsel in habeas proceedings.
See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 2.

                                  13
before he could have known the legal grounds on which the state

court system based his final conviction and sentence.   Finally,

Reneau argues that the filing requirements of article 11.071

deprived him of his right under the Sixth and Fourteenth

Amendments to effective assistance of appellate counsel.

According to Reneau, by including a claim of ineffective

assistance of appellate counsel in his state habeas petition

while he was still being represented by his appellate counsel, he

risked losing the attorney-client privilege because there was a

possibility that an adversarial relationship would develop

between Reneau and his appellate counsel.9   Consequently, Reneau

contends that the habeas “applicant is placed in the position of

[choosing] between losing his attorney/client privilege with his

appellate counsel on the one hand or defaulting his claim of

ineffective assistance of appellate counsel on the other.”

     The district court held that it could not reach the merits

of Reneau’s challenges to article 11.071 because such challenges

to state habeas procedures are not cognizable on federal habeas

review.   The district court relied on a set of our cases holding

that “infirmities in state habeas proceedings do not constitute

grounds for federal habeas relief.”   Duff-Smith v. Collins, 973

     9
        Reneau based this conclusion on Rule 503 of the Texas
Rules of Evidence, which provides that the attorney-client
privilege does not apply “[a]s to a communication relevant to an
issue of breach of duty by a lawyer to the client or by a client
to the lawyer.” TEX. R. CRIM. EVID. 503(d)(3).


                                14
F.2d 1175, 1182 (5th Cir. 1992) (quoting Vail v. Procunier, 747

F.2d 277, 277 (5th Cir. 1984)); see also Trevino v. Johnson, 168

F.3d 173, 180 (5th Cir. 1999) (noting that “[o]ther circuits have

similarly decided that habeas corpus relief is not available to

correct alleged errors in state habeas proceedings); Hallmark v.

Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (“Insofar as [the

petitioner] raises a due process challenge to the state habeas

proceedings, his claim fails because infirmities in state habeas

proceedings do not constitute grounds for relief in federal

court.”).

     Acknowledging that his due process and Sixth Amendment

challenges to the state’s habeas procedure may be precluded by

this circuit’s precedent, Reneau argues that his equal protection

challenge is distinguishable and should not be subject to the “no

state habeas infirmities” rule.    According to Reneau, in

Montgomery v. Meloy, the Seventh Circuit recognized such a

distinction in stating that “[u]nless state collateral review

violates some independent constitutional right, such as the Equal

Protection Clause, errors in state collateral review cannot form

the basis for federal habeas corpus relief.”    90 F.3d 1200, 1206

(7th Cir. 1996) (citations omitted).    Reneau asserts that in

making this distinction, the Seventh Circuit relied on Lane v.

Brown, 372 U.S. 477 (1963), and Smith v. Bennett, 365 U.S. 708

(1961), in which the Supreme Court held that the state post-

conviction proceedings at issue violated the Equal Protection

                                  15
Clause.   See Brown, 372 U.S. at 485; Smith, 365 U.S. at 713-14.

Reneau also notes that the First Circuit has relied on Brown in

holding that an equal protection challenge to state post-

conviction proceedings is cognizable on federal habeas review.

See Dickerson v. Walsh, 750 F.2d 150, 152, 154 (1st Cir. 1984)

(stating that in Brown, “[t]he Supreme Court . . . specifically

addressed state post-conviction procedure via habeas petitions”).

Finally, Reneau points out that neither this court nor any of our

sister circuits have applied the “no state habeas infirmities”

rule to an equal protection claim.

     Reneau correctly perceives that our cases preclude federal

habeas review of his due process and Sixth Amendment challenges

to the state’s habeas procedure.       Our “no state habeas

infirmities” rule is based on one of the jurisdictional

prerequisites of federal habeas review.      The statute authorizing

federal habeas review provides:

          The Supreme Court, a Justice thereof, a
          circuit judge, or a district court shall
          entertain an application for a writ of habeas
          corpus in behalf of a person in custody
          pursuant to the judgment of a State court only
          on the ground that he is in custody in
          violation of the Constitution or laws or
          treaties of the United States.

28 U.S.C. § 2254(a) (1994) (emphasis added).      We have explained

that the “no state habeas infirmities” rule is necessary to give

effect to this § 2254(a) jurisdictional prerequisite because a

claim that a state’s post-conviction procedures violate “the


                                  16
Constitution or laws or treaties of the United States” is not a

claim that the petitioner’s custody violates “the Constitution or

laws or treaties of the United States.”     See, e.g., Rudd v.

Johnson, 256 F.3d 317, 320 (5th Cir. 2001) (stating that claims

based on “infirmities in state habeas proceedings” are not

cognizable on federal habeas review “because an attack on the

state habeas proceeding is an attack on a proceeding collateral

to the detention and not the detention itself”); Trevino, 168

F.3d at 180 (same).   Accordingly, in federal habeas cases, “[w]e

look only to the trial and direct appeal.”     Duff-Smith, 973 F.2d

at 1182.

      Reneau argues that despite this precedent, we should treat

his equal protection claim differently from his Sixth Amendment

and due process claims and deem his equal protection claim

cognizable on federal habeas review.   However, the Supreme Court

authority that he cites does not support this position with the

strength and clarity that would be necessary to justify a

departure from our “no state habeas infirmities” rule.     In Smith,

the Supreme Court heard a challenge to state habeas proceedings

on direct review of a state court decision —— not on review of a

district court’s federal habeas decision.     See 365 U.S. at 708-

10.   Our “no state habeas infirmities” rule is based on the

assumption that federal courts do not have the authority on

federal habeas review to hear challenges to state habeas

procedures.   The Smith Court did not exercise such authority.

                                17
     Brown is more relevant to the cognizability issue because in

that case the Court upheld a district court’s grant of federal

habeas relief on the ground that state habeas procedures violated

the Equal Protection Clause.   372 U.S. at 478, 482-83.   However,

as the state correctly points out, the Brown Court did not

explicitly address the issue of whether a challenge to state

post-conviction proceedings is a claim that the petitioner’s

custody violates “the Constitution or laws or treaties of the

United States,” and thus is cognizable on federal habeas review.

28 U.S.C. § 2254(a) (full text supra).    Reneau does not cite, and

we have not found, a Supreme Court case explicitly addressing the

cognizability issue presented in the instant case.    In the

absence of such authority, we cannot justify departing from our

“no state habeas infirmities” cases to carve out an exception for

an equal protection challenge to a state habeas procedure of the

sort that Reneau advances here.    Under our precedent, we must

affirm the district court’s dismissal of Reneau’s equal

protection challenge as well as his Sixth Amendment and due

process challenges to the Texas habeas procedure; these claims

are not cognizable on federal habeas review.

           IV. MEANINGFUL REVIEW OF THE DEATH SENTENCE

     The other issue on which the district court granted a COA is

whether the TCCA properly rejected Reneau’s claim that the TCCA’s

review of his death sentence did not satisfy the requirement



                                  18
under the Eighth and Fourteenth Amendments that states provide

meaningful review of death sentences (“meaningful-review claim”).

Reneau raised his meaningful-review claim on direct appeal to the

TCCA and again in his habeas petition.    However, the state habeas

court did not address the claim, noting that Reneau’s meaningful-

review claim “ha[d] been previously reviewed and rejected by the

[TCCA].”10   Accordingly, the proper inquiry under AEDPA is

whether the TCCA’s decision on direct appeal denying Reneau’s

meaningful-review claim “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) (full text supra, Part II).

     Pursuant to the Texas death penalty statute, a jury must

make two findings beyond a reasonable doubt before the state may

impose the death penalty on a defendant: (1) that “there is a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society,”

TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1) (Vernon Supp.

2001) (“future danger finding”), and (2) “taking into

consideration all of the evidence, including the circumstances of

     10
        Texas law limits the remedy of habeas corpus to claims
that were not raised on direct appeal. See Ex parte Ramos, 977
S.W.2d 616, 617 (Tex. Crim. App. 1998) (stating that because five
of the habeas petitioner’s claims “have already been raised and
rejected on the direct appeal from this conviction[, t]hey will
not be addressed on habeas corpus”); Ex parte Groves, 571 S.W.2d
888, 890 (Tex. Crim. App. 1978) (“[W]e have consistently held
that habeas corpus will not lie as a substitute for an appeal.”).

                                 19
the offense, the defendant’s character and background, and the

personal moral culpability of the defendant, [that] there is

[not] a sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment rather than a death

sentence be imposed,” id. art. 37.071, § 2(e)(1) (“mitigation

finding”).11   Because the jury made these two necessary findings

in Reneau’s case, the trial court sentenced him to death.   See

id. art. 37.071, § 2(g).12

     Reneau contends that the TCCA denied him meaningful review

by (1) refusing to conduct a factual sufficiency review of the

jury’s future danger finding, and (2) refusing to conduct any

review of the jury’s mitigation finding.   The TCCA held that its

legal sufficiency review of the jury’s future danger finding

conducted pursuant to Jackson v. Virginia, 443 U.S. 307 (1979),

provided Reneau with meaningful review of his death sentence.




     11
          “[I]n cases in which the jury charge at the guilt or
innocence stage permitted the jury to find the defendant guilty
as a party under Sections 7.01 and 7.02 [of the Texas] Penal
Code,” the jury must also find that “the defendant actually
caused the death of the deceased or did not actually cause the
death of the deceased but intended to kill the deceased or
another or anticipated that a human life would be taken.” TEX.
CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(2) (Vernon Supp. 2001).
     12
        Section 2(g) of article 37.071 states that “[i]f the
jury returns an affirmative finding on each issue submitted under
Subsection (b) of this article and a negative finding on an issue
submitted under Subsection (e) of this article, the court shall
sentence the defendant to death.” TEX. CODE CRIM. PROC. ANN. art.
37.071, § 2(g).

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       The Supreme Court has clearly established “that meaningful

appellate review of death sentences is fundamental to the

constitutional application of death penalty statutes.”      Martinez

v. Johnson, 255 F.3d 229, 242 n.17 (5th Cir. 2001) (citing Parker

v. Dugger, 498 U.S. 308, 321 (1991) and Clemons v. Mississippi,

494 U.S. 738, 749 (1990)); see also Moore v. Johnson, 225 F.3d

495, 505-06 (5th Cir. 2000) (“The Supreme Court requires that a

jury’s determination that a death sentence should issue must be

guided by standards and reviewed by appellate courts to determine

its propriety and non-arbitrariness.”).    In Jackson, the Court

held that in reviewing the sufficiency of the evidence for a

state prisoner’s conviction, “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.”     443

U.S. at 319.    We have held that appellate review of the

sufficiency of the evidence for a death sentence is “meaningful”

if conducted under the constitutional standard established by the

Supreme Court in Jackson.    See Martinez, 255 F.3d at 242 n.17,

244.

       Further, this court has determined that Supreme Court

precedent requires a Jackson review of only the future danger

finding, and not the mitigation finding.    In other habeas cases,

we have rejected claims like Reneau’s that challenge the Texas

death penalty scheme on the ground that it prohibits appellate

                                 21
review of the jury’s mitigation finding.      For example, in Hughes

v. Johnson, we held that “a state appellate court’s limitation of

its review in capital cases to the constitutional sufficiency of

aggravating factors to support a death sentence, while totally

ignoring compelling and uncontradicted mitigating evidence,” is

consistent with Supreme Court precedent and thus does not violate

the constitutional right to meaningful appellate review of death

sentences.    191 F.3d 607, 621 (5th Cir. 1999) (internal

quotations omitted).    Similarly, in Moore, we stated that “[n]o

court could find that” in making jury mitigation findings immune

to appellate review, “Texas had acted contrary to federal law as

explained by the Supreme Court.”      225 F.3d at 507.   The TCCA’s

decision that a Jackson review of the jury’s future danger

finding satisfies the Eighth and Fourteenth Amendments’

meaningful-review requirement is not “contrary to” clearly

established Supreme Court precedent.

     Accordingly, Reneau is entitled to federal habeas relief on

his meaningful-review claim only if the TCCA’s decision involved

an objectively unreasonable application of controlling Supreme

Court law.    See Williams, 529 U.S. at 409-10 (discussed supra,

Part II).    Reneau argues that the TCCA’s refusal to apply a

factual sufficiency review of the evidence for the future danger

finding was an unreasonable application because Texas law

prevents the jury from considering certain facts that are

constitutionally relevant to determining whether to impose a

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death sentence.   Reneau notes that although the TCCA has held

that the term “society” means “prison society” as well as its

ordinary meaning of “free society,” the TCCA will not permit this

broader definition to be included in the jury charge.

Consequently, Reneau argues, “society” is unconstitutionally

vague: without a definition making clear that “society” includes

“prison society,” the jury did not have the means to give effect

to his evidence that he would not be a continuing threat to

prison society.   Reneau further contends that the deleterious

effect of the state’s refusal to define “society” for the jury

was exacerbated by the requirement under Texas law that the jury

charge include an instruction that the jury may not consider the

period of statutory ineligibility for parole (which in Reneau’s

case is 40 years).   According to Reneau, because the jury was not

equipped to give effect to his constitutionally-relevant evidence

that he would not present a continuing threat to prison society

(because of the absence of a definition) and was effectively

instructed to disregard such evidence (because of the prohibition

against considering parole ineligibility), the jury did not

determine whether the state had presented factually sufficient

evidence to support a future danger finding.   Thus, Reneau claims

that the TCCA was obligated to provide him with a factual

sufficiency review that takes into account his evidence that he

would not represent a threat to prison society.



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     We are not altogether clear on why it is that Reneau

considers a factual sufficiency review by the TCCA to be a proper

substitute for a jury finding based on the charges that Reneau

claims were constitutionally necessary.    Indeed, Reneau argued

that he was entitled to such jury findings in his claims

challenging his death sentence on grounds of jury charge error,

claims that he asserted in addition to his meaningful-review

claim in the TCCA on direct review, in state habeas court, and in

federal habeas court.   There is no clearly established basis in

Supreme Court precedent for the jury charge facet of Reneau’s

meaningful-review claim.   Thus, the TCCA’s decision does not

involve an unreasonable application of clearly established

Supreme Court precedent.

     Because the TCCA’s decision that it afforded Reneau

meaningful review of his death sentence by conducting a Jackson

review of the jury’s future danger finding was neither “contrary

to” nor “an unreasonable application of” clearly established

Supreme Court precedent, we affirm the district court’s denial of

federal habeas relief on Reneau’s meaningful-review claim.

                           V. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court denying Reneau’s petition for a writ of habeas

corpus.




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