                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             August 19, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-11248
                       _____________________

RONALD CURTIS CHAMBERS,

                                           Petitioner - Appellant,

                              versus

DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                      USDC No. 3:99-CV-1283-L
_________________________________________________________________

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Ronald Curtis Chambers was convicted and sentenced to death in

1976 for capital murder during the course of a robbery.               He

requests a certificate of appealability (“COA”) to appeal the

district court’s denial of federal habeas relief for sixteen

claims.   The request is GRANTED, in part, and DENIED, in part.

                                 I

     To obtain a COA, Chambers must make “a substantial showing of

the denial of a constitutional right.”   28 U.S.C. § 2253(c)(1)(A).


     *
      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this opinion should not be published and is not precedent except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.
To make such a showing, he must demonstrate that “jurists of reason

could   disagree    with   the    district      court’s   resolution   of   his

constitutional claims or that jurists could conclude the issues

presented   are    adequate      to   deserve     encouragement   to   proceed

further.”   Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).                In

making our decision whether to grant a COA, we conduct a “threshold

inquiry”, which consists of “an overview of the claims in the

habeas petition and a general assessment of their merits.”              Id. at

327, 336.

                                        A

     Based on our limited, threshold inquiry and general assessment

of the merits of Chambers’s claims, we conclude that the following

claims present issues that are adequate to deserve encouragement to

proceed further:

     Claim 1.     Whether Chambers’s Sixth Amendment right to counsel

was violated when one of two attorneys appointed to represent him

on the direct appeal of his third conviction had a conflict of

interest based on that attorney’s representation of Chambers’s

accomplice in guilty plea proceedings in 1975.

     Claim 2, subparts a, c, and e.             Whether Chambers’s appellate

counsel rendered ineffective assistance by:

     a.   failing to appeal the denial of Batson objections to the

prosecution’s peremptory strikes of three minority jurors;

     c.     failing   to   appeal     the    prosecutor’s    comment   on   the

defense’s failure to produce photographs;

                                        2
       e.   Failing to appeal the admission of testimony from a news

reporter regarding statements made by Chambers while on death row.

       Claims 5-6.   Whether Chambers’s Eighth Amendment rights were

violated by the trial court’s refusal to permit the introduction of

evidence of his accomplice’s criminal history to demonstrate his

comparative culpability; and, alternatively, whether appellate

counsel rendered ineffective assistance by failing to raise this

issue on appeal.

       Claims 14-16. Whether the Texas capital punishment statute is

unconstitutional as applied to Chambers because it prohibited the

jury     from   considering   mitigating   evidence,   and    because   it

prohibited the court from submitting to the jury a special issue

regarding whether mitigating evidence warranted a life sentence.

       Accordingly, we GRANT a COA for these claims.         If petitioner

Chambers wishes to file a supplemental brief with respect to the

claims for which a COA has been issued, he may do so within thirty

days. The supplemental brief should address only matters that have

not already been covered in the brief in support of the COA

application.     The State may file a reply fifteen days thereafter.

                                    B

       Chambers has failed to demonstrate that jurists of reason

could disagree with the district court’s resolution of the issues

presented in the following claims, and we therefore DENY his

request for a COA for those claims, for the reasons set forth

below:

                                    3
      Claim 2, subpart b:             Whether appellate counsel rendered

ineffective assistance by failing to challenge on direct appeal the

State’s argument that a not guilty verdict must be based upon

unanimous reasonable doubt.            The prosecutor told the jury, during

closing argument at the guilt-innocence phase, that it could find

Chambers guilty      of   capital      murder      only   if    all   twelve    jurors

unanimously found reasonable doubt.                Chambers speculates that the

jurors carried this misunderstanding to the special issues and

inaccurately believed that unanimity was required on each of the

special issues in order for a life sentence to be imposed.                     He also

claims that the prosecutor reversed the burden of proof, telling

jurors that the burden was on Chambers to convince all twelve

jurors that reasonable doubt existed before he could escape a

capital murder verdict.              The Texas Court of Criminal Appeals

adopted the state habeas court’s findings and conclusions that:

(1)   the   prosecutor’s      argument      was     proper     because    he   neither

contradicted the court’s charge nor misstated the law; (2) assuming

arguendo that the argument was improper, any error was cured when

the court instructed the jury to read and follow the charge; and

(3)   appellate     counsel    were     not       ineffective     for    making    the

reasonable decision not to raise this issue on appeal.                             The

district    court   found     that    the       prosecutor’s    statements      merely

paraphrased the jury charge:            Before the jury could consider the

lesser offense of murder, it had to first acquit Chambers of

capital murder, and the verdict had to be unanimous.                     The district

                                            4
court   concluded    that,   because       the   prosecutor’s     argument    was

consistent with the jury charge, there was no error for appellate

counsel to raise on appeal.           The district court’s resolution of

this sub-claim is not debatable.

      Claim 2, subpart d:            Whether appellate counsel rendered

ineffective assistance by presenting his Penry claims on direct

appeal as   fundamental      error    under      state   law,   based   on   their

erroneous belief that objections had been waived.               Chambers argues

that all of the objections had been preserved by written motion.

The Texas Court of Criminal Appeals adopted the state habeas

court’s factual finding that appellate counsel cited the correct

appellate standard.     The state habeas court found that the motion

filed two months before trial “neither enabled the trial court to

know in what respect Chambers regarded the charge as defective nor

afforded the trial court an opportunity to correct it before

reading the charge to the jury”.             The district court held that,

because the state court had authoritatively ruled on this matter of

state procedural law, the court was not entitled to re-interpret

state law differently on federal habeas review. Reasonable jurists

would not consider the district court’s resolution of this issue to

be debatable.

      Claim 2, subpart f:            Whether appellate counsel rendered

ineffective assistance by failing to raise on appeal the trial

court’s failure to include an anti-parties charge at sentencing and

an   application    paragraph   in     the    guilt-innocence      instructions

                                       5
applying the law of parties to Chambers’s accomplice.   Under Texas

law, it is error to refer to the law of parties in the abstract

portion of the guilt-innocence charge and not to apply the law or

to refer to that law in the application paragraph of the charge.

Furthermore, if there is a parties charge at the guilt-innocence

phase, the defendant is entitled to an anti-parties charge (an

instruction that the law of parties may not be considered by the

jury in assessing punishment or in answering the special issues in

a capital case) at the punishment phase if the defendant requests

such an instruction.   Chambers contends that the instructions in

the guilt phase included a parties instruction:

               You are instructed that an “accomplice,”
          as that term is hereafter used, means any
          person connected with the crime charged, as a
          party thereto, and includes all persons who
          are connected with the crime, as such parties,
          by unlawful act or omission on their part
          transpiring either before or during the time
          of the commission of the offense. A person is
          criminally responsible as a party to an
          offense if the offense is committed by his own
          conduct, by the conduct of another for which
          he is criminally responsible, or by both.
          Mere presence alone, however, will not
          constitute one a party to an offense.

Chambers therefore contends that he was entitled to an application

paragraph pertaining to Williams, and an anti-parties charge at the

punishment phase, and that appellate counsel rendered ineffective

assistance by not raising these issues on direct appeal.   The state

habeas court found that a parties application paragraph was not

required because the jury instructions in the guilt-innocence phase


                                6
did not contain a parties charge (although they did contain an

accomplice witness instruction), and because the charge, read as a

whole, demonstrated that the State tried Chambers as the primary

actor, and not as a party.       Therefore, the court concluded that an

anti-parties charge was not warranted in the jury instructions for

the punishment phase. The district court held that the prosecution

did not rely on party liability for a finding of guilt, and that

the charge      permitted   a   verdict   of   guilty   only   upon   evidence

establishing that Chambers’s own conduct caused the death of the

victim in the course of a robbery.              Accordingly, even if the

accomplice witness instruction could be construed as a parties

instruction, the district court held that Chambers was not harmed

by the omission of an application paragraph.             The district court

held that because the jury was instructed that it could find

Chambers guilty of capital murder based only on his own conduct, no

anti-parties instruction was required at the punishment phase.

Jurists of reason would not debate the district court’s resolution

of this sub-claim.

     Claim 2, subparts g-o:         Whether appellate counsel rendered

ineffective assistance by failing to raise on appeal the following

issues:   (g)    denial of his objection to victim impact testimony;

(h) denial of his motion to dismiss jurors who had read certain

news accounts; (i) denial of his request for a change of venue and

continuance; (j) improper excusal of several jurors for cause; (k)

denial of his objection to the trial court’s admission of four

                                      7
autopsy photographs; (l) denial of hearsay objections; (m) refusal

to release the statement of a convicted accomplice; (n) refusal to

excuse several jurors for cause; and (o) denial of a motion for new

trial    based    on    jury   misconduct.          Chambers    states    that   page

limitations required him to omit discussion of these sub-claims

(designated as claims 5-11 and 15-16 in the district court) in his

brief in support of his COA application, and he attempts to

incorporate by reference his briefing of these issues in district

court.    Chambers did not, however, request permission from this

court to exceed the page limitations.                Based on our precedent, we

will not consider these unbriefed issues.                See Matchett v. Dretke,

380 F.3d 844, 848 (5th Cir. 2004) (claims not addressed in brief in

support of COA application deemed abandoned); Woods v. Cockrell,

307 F.3d 353, 357 (5th Cir. 2002) (inadequately briefed issues are

waived); Martin v. Cain, 246 F.3d 471, 475 n.1 (5th Cir. 2001)

(holding that court will not consider COA requests that are not

briefed).

     Claim       3:      Whether      trial    counsel    rendered       ineffective

assistance       by    failing   to     seek    a    parties    application      jury

instruction at the guilt-innocence phase of trial, followed by an

anti-parties charge at sentencing.                  As discussed supra, in sub-

claim    2-f,    Chambers      argued    that       appellate   counsel     rendered

ineffective assistance by not challenging on appeal the trial

court’s failure to include a parties application paragraph in the

instructions at the guilt-innocence phase and an anti-parties

                                          8
charge in the sentencing instructions. In Claim 3, he contends, in

the alternative, that if the court holds that trial counsel waived

error,    then   trial    counsel   rendered    ineffective   assistance      by

failing to request such instructions. Reasonable jurists would not

find debatable the district court’s decision that there was no

error for trial counsel to waive, because there was no parties

instruction upon which to base an application paragraph or an anti-

parties charge.

     Claim 4:     Whether the claims that were not raised on direct

appeal are procedurally defaulted and/or barred by Teague v. Lane,

489 U.S. 288 (1989), and whether such claims constitute fundamental

error such that the failure to address them on the merits will

violate Chambers’s rights to procedural and substantive due process

and the Eighth Amendment.         The district court held that the claims

that were not raised on direct appeal are procedurally defaulted,

Teague-barred, and meritless, because Chambers has no due process

and Eighth Amendment right to federal review of claims not raised

at the state level.       The district court also held that Chambers had

not “shown that the state procedural rule is not adequate to bar

federal    review;   nor    has   he   shown   that   sufficient     cause   and

prejudice    exist   to    excuse      the   procedural   default,    or     that

imposition of the bar would result in a fundamental miscarriage of

justice.”    Reasonable jurists would not find the district court’s

rejection of this claim debatable or wrong.



                                         9
     Claim 7:       Whether Chambers’s execution after such a lengthy

delay would violate the Eighth Amendment. Chambers was arrested in

April 1975 and has been in custody since that time.                 He has been

tried, convicted, and sentenced to death three times.                  His first

(1976) conviction was reversed in a second state habeas action in

1984, because the State’s psychologist had interviewed him without

informing him that his statements would be used to obtain a death

sentence.     Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim. App.

1984), cert. denied, 474 U.S. 864 (1985).                  His second (1985)

conviction    was    reversed     on    direct   appeal   because      of   Batson

violations.     Chambers v. State, 784 S.W.2d 29 (Tex. Crim. App.),

cert. denied, 496 U.S. 912 (1989).            He was convicted for the third

time in 1992.       He argues that his execution after such a lengthy

delay would violate the Eighth Amendment.              He claims to be one of

the two or three longest-serving death row inmates in the United

States.   The district court held that this claim is Teague-barred

and foreclosed by Fifth Circuit precedent.             See Lackey v. Johnson,

83 F.3d 116 (5th Cir. 1996).            The district court’s resolution of

this claim is not debatable.

     Claims    8-10:      Whether        Chambers’s    Eighth    Amendment    and

procedural due process rights were violated because the trial court

applied the wrong sentencing statute; alternatively, if trial and

appellate     counsel    waived        this   claim,   whether    he    received

ineffective assistance of counsel.            Chambers argues that the trial

court erred by failing to give him the benefit of the 1991

                                         10
amendments to the capital sentencing statute, which required the

court to instruct the jury to consider mitigating evidence and to

submit a new special issue on mitigation.         The Texas Court of

Criminal Appeals adopted the findings of the state habeas court

that Chambers’s jury was correctly instructed to answer the special

issues pursuant to the pre-1991 version of the statute.                The

district court declined to review the state court’s interpretation

of state law and concluded that no waiver of error was present to

support a claim of ineffective assistance of trial and appellate

counsel.    Reasonable jurists would not debate the district court’s

resolution of these claims.

     Claims 11-12:    Whether the jury misunderstood key terms used

in the sentencing phase instructions and did not feel able to give

effect to    mitigating   evidence.    In   support   of   these   claims,

Chambers argues that social science evidence and testimony by the

jury foreperson prove that the jury did not understand or feel able

to give effect to mitigating evidence, and did not understand the

terms “deliberately”, “criminal acts of violence”, “probability”,

“continuing threat”, and “society”, as used in the sentencing phase

instructions.    The Texas Court of Criminal Appeals adopted the

findings of the state habeas court that the affidavits of six

social scientists were unpersuasive because they were written for

a habeas proceeding in another case which had a different jury

charge in the punishment phase; and the jury foreperson’s affidavit

was not credible.    The district court held   that Chambers failed to

                                  11
rebut the state court’s presumptively correct factual findings.

Reasonable jurists would not find the district court’s resolution

of these claims to be debatable or wrong.

      Claim 13: Whether Chambers received ineffective assistance of

counsel during his second trial, which resulted in the admission of

damaging evidence in his third trial.          The Texas Court of Criminal

Appeals adopted the state habeas court’s conclusion that Chambers

had waived review of this claim because he cited no authority for

the   proposition    that   ineffective    assistance      of    counsel   in   a

previous    trial   is   cognizable   in   a   post-conviction      proceeding

regarding a subsequent trial.         The district court held that the

claim was procedurally defaulted, and that Chambers had not shown

cause or prejudice to excuse the default.          It also noted that the

claim is Teague-barred.         Reasonable jurists would not debate

whether    the   district   court   properly    rejected    as    procedurally

defaulted and Teague-barred Chambers’s claim that habeas relief is

available for alleged ineffective assistance of counsel arising out

of a previously reversed conviction.

      Accordingly, we DENY a COA for those claims.

                              COA GRANTED in part and DENIED in part.




                                      12
