               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                          _______________

                                            No. 98-40927
                                          _______________

                                   TIMOTHY L. GRIBBLE,
                                                              Petitioner-Appellant,
                                              VERSUS

                        GARY L. JOHNSON, Director, Texas
                  Department of Criminal Justice, Institutional Division,
                                                              Respondent-Appellee.
                                   _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                           (98-CV-32)
                                 _________________________

                                         September 20, 1999

Before JONES, SMITH, and STEWART,                    bathrobe, to a secluded field where he
  Circuit Judges.                                    strangled her and hid her remains.” Gribble v.
                                                     State (“Gribble I”), No. 71,485, slip op. at 2
PER CURIAM:*                                         (Tex. Crim. App. Feb. 1, 1995) (unpublished).
                                                     During the investigation of Jones’s
    Timothy Gribble requests a certificate of        disappearance, Gribble was questioned. He
appealability (“COA”) from this court,               submitted to a polygraph examination by a
following the district court's denial of his         private investigator, conducted at a police
request for a COA and of his petition for writ       station on September 21 and 22, 1987. See id.
of habeas corpus, in regard to his conviction of     at 10-11. He left Texas a few days later, id.
capital murder and a resulting sentence of           at 11, and was arrested in Tennessee on an
death. Finding no substantial showing of the         unrelated felony charge from Harris County,
denial of a constitutional right, we deny the        Texas, id. at 5.
request for a COA.
                                                        Gribble voluntarily returned to Texas and
                     I.                              confessed to the murder. He drew a map of
   Gribble “gained entrance into [Elizabeth          the location where Jones's body and purse
Jones's] home under false pretenses. He took         could be found. Id. Law enforcement officers
her from her home, in nothing but her                tape recorded his confession. See id. at 8-9.
                                                     Before he guided officers to these locations, he
                                                     appeared before a state magistrate on or about
   * Pursuant to 5TH CIR. R. 47.5, the court has     October 4, 1987. Id. at 5-6. The magistrate
determined that this opinion should not be           informed him of his right to counsel,
published and is not precedent except under the      whereupon he indicated his desire to have
limited circumstances set forth in 5TH CIR. R.       counsel appointed after he led investigators to
47.5.4.
the body. See id. at 6.                                 was no support for any claim concerning
                                                        habeas counsel’s assistance, jury instructions,
                       II.                              or the purported failure         to produce
   In April 1992, a jury found Gribble guilty of        exculpatory evidence.
capital murder in the course of kidnaping
Jones on or about September 9, 1987. See                   The Court of Criminal Appeals agreed with
Gribble I, slip op. at 1; see also TEX. PENAL           the trial court ’s findings and conclusions
CODE ANN. § 19.03 (West 1987). The jury                 concerning the claims raised by court-
answered in the affirmative the two special             appointed counsel. The court assumed,
issues set forth in TEX. CODE CRIM. P. ANN.             without deciding, that the claims raised pro se
art. 37.071(b) (West 1987), and Gribble was             were supplemental habeas claims and
sentenced to death. Previously, he had been             concluded that Gribble had failed to show
found guilty of capital murder and sentenced            entitlement to relief.
to death, but that judgment was reversed, thus
requiring retrial, because of Penry error, see             Gribble filed another pro se motion,
Penry v. Lynaugh, 492 U.S. 302 (1989), in the           requesting leave to file an out-of-time habeas
jury instructions from the punishment phase.            petition, indicating that he intended to assert
See Gribble v. State, 808 S.W.2d 65, 75-76              that habeas counsel had rendered ineffective
(Tex. Crim. App. 1990).                                 assistance. The Court of Criminal Appeals
                                                        treated the motion as a second habeas petition
    Gribble appealed his conviction and                 and dismissed it as an abuse of the writ. The
sentence from the retrial by raising eight              state trial court set April 22, 1998, for
issues, and the Court of Criminal Appeals               execution of the sentence.
affirmed. See Gribble I, slip op. at 1. Court-
appointed counsel filed a state petition for               In January 1998, Gribble moved for the
habeas relief. Gribble, pro se, filed a motion to       appointment of counsel to assist him in filing
strike the habeas petition because it raised            his federal habeas application. Appointed
issues that had been rejected on direct appeal.         counsel filed a motion to stay execution and a
Gribble viewed counsel’s petition as                    habeas application that raised multiple issues.
inadequate, and he listed the following issues          The court granted the stay of execution.
for postconviction consideration:
                                                           The state filed an amended answer and
   (1) [T]he jury charge at the guilt phase             motion for summary judgment. Gribble
   relieved the prosecution of its obligation           requested a conference, pursuant to FED. R.
   to prove every element of the crime                  CIV. P. 16(a), and indicated that he presumed
   beyond a reasonable doubt; (2) despite               that an order would be entered similar to an
   specific requests, the state failed to               earlier order that had relieved him of the duty
   produce exculpatory evidence related to              to file a response to the summary judgment
   both guilt/innocence and punishment;                 motion as contemplated by local rule. The
   [and] (3) the trial court committed                  court denied the request for a conference.
   reversal [sic] error by refusing to
   instruct the jury on mitigating evidence                Eight days after the state filed the summary
   of applicant’s background of childhood               judgment motion, the district court granted it,
   abuse.                                               denied habeas relief on the merits, and lifted
                                                        the stay of execution. See Gribble v. Johnson,
   The state trial court made proposed                  8 F. Supp. 2d 942, 942-57 (S.D. Tex. 1998).
findings of fact and conclusions of law and             The court analyzed nine constitutional claims:
denied habeas relief, essentially relying on the        four issues arising from Gribble’s statements
opinion from the direct appeal to conclude that         to police, from interrogations, and from
no relief was warranted on the claims                   confessions to the rape, kidnaping, and murder
previously raised. The court considered the             of Elizabeth Jones, see id., 8 F. Supp. 2d
claims raised pro se and concluded that there           at 948-52; a Sixth Amendment challenge to

                                                    2
the exclusion, for cause, of a jury venireman,           was based on an unreasonable
see id. at 952-53; a contention concerning               determination of the facts in
improper prosecutorial argument, see id. at              light of the evidence presented
954-55; challenges to the sufficiency of the             in the State court proceeding.
evidence proving the kidnaping, proving
Gribble’s intent to cause Jones’s death, and
proving the deliberateness of his acts, see id. at
955-56; and a due process challenge to the
“nullification charge,” the jury instruction used
to correct the defect identified by Penry, see
id. at 956-57. The court relied on a
procedural bar for disposing of only one claim
but noted that the state had raised a procedural
bar on two other claims. See id. at 950, 954
n.13, 955. After entering final judgment, the
court denied a request for a COA.

                       III.
   “A [COA] may issue . . . only if the
applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The standard is the same as for
issuance of a certificate of probable cause.
Muñiz v. Johnson, 114 F.3d 43, 44 (5th Cir.
1997), cert. denied, 523 U.S. 1113 (1998).
Because Gribble’s habeas application was filed
after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), that statute applies to his case.
See Williams v. Cain, 125 F.3d 269, 274 (5th
Cir. 1997), cert. denied, 119 S. Ct. 144
(1998).

   Under the AEDPA,

   (d) An application for a writ of habeas
   corpus on behalf of a person in custody
   pursuant to the judgment of a State
   court shall not be granted with respect
   to any claim that was adjudicated on the
   merits in State court proceedings unless
   the adjudication of the
   claimSS

        (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

                                                     3
   (e)(1) In a proceeding instituted by an               that he was not in custody when the
   application for a writ of habeas corpus               statements were made. The Court of Criminal
   by a person in custody pursuant to the                Appeals determined that Gribble was neither in
   judgment of a State court, a                          custody nor under arrest, because he
   determination of a factual issue made by              voluntarily appeared at the police station and
   a State court shall be presumed to be                 voluntarily submitted to the polygraph
   correct. The applicant shall have the                 examination. Therefore, the need for the
   burden of rebutting the presumption of                prophylactic warnings of Miranda v. Arizona,
   correctness by clear and convincing                   384 U.S. 436 (1966), were not necessary, and
   evidence.                                             the exclusionary rule was inapplicable. See
                                                         Gribble I, slip. op. at 9-13.
28 U.S.C. § 2254. A full and fair adjudication
of the claims in state court is a prerequisite for          “Miranda set[s] forth rules of police
application of AEDPA’s review provisions.                procedure appl icable to 'custodial
Corwin v. Johnson, 150 F.3d 467, 471 (5th                interrogation.' 'By custodial interrogation, [the
Cir.), cert. denied, 119 S. Ct. 613 (1998).              Court] mean[s] questioning initiated by law
                                                         enforcement officers after a person has been
   Pure questions of law are reviewed under              taken into custody or otherwise deprived of his
the “contrary to” standard; mixed questions of           freedom of action in any significant way.'”
law and facts are reviewed under the                     Oregon v. Mathiason, 429 U.S. 492, 494
“unreasonable application” standard.                     (1977) (quoting Miranda, 384 U.S. at 444).
Drinkard v. Johnson, 97 F.3d 751, 767-68                 The “in custody” determination is a mixed
(5th Cir. 1996).* The application of law to              question of fact and law. Thompson v.
facts is “unreasonable” only when reasonable             Keohane, 516 U.S. 99, 102 (1995).
jurists considering the question would view the          Therefore, the § 2254(d)(1) standard applies.
state court's ruling as incorrect. Id. at 768-69.
Habeas relief is thus appropriate only where “a             At the suppression hearing conducted on
state court decision is so clearly incorrect that        April 26, 1988, Mary Wood, the private
it would not be debatable among reasonable               investigator who conducted the polygraph
jurists.” Id. at 769. “State court factual               examination on September 21, 1987, testified
determinations shall be presumed correct                 that Gribble was waiting when she arrived at
unless rebutted by 'clear and convincing                 the police station; he had questions about
evidence.'” Jackson v. Johnson, 150 F.3d 520,            polygraph tests, which she answered; he
524 (5th Cir. 1998) (interpreting                        signed the test waiver form; she and he
§ 2254(e)(1)), cert. denied, 119 S. Ct. 1339             conversed quite a long time about Jones’s
(1999).                                                  disappearance; the test results revealed a
                                                         problem response to two of the test questions;
                      IV.                                and Gribble signed two written statements
    Gribble argues that his statements given to          after the test was conducted. Gribble’s
private investigators and police on                      account of his activity with Jones given to the
September 21, 1987, and without his being                private investigators and police officers on
informed of his right to counsel or to remain            September 21 was exculpatory. Wood’s
silent, should have been suppressed and that             testimony indicated that Gribble’s cooperation
the state appellate court erred in its conclusion        on September 21 was voluntary and that he
                                                         could have left at any time. Her testimony at
                                                         the second suppression hearing was consistent
   *
     To the extent that Drinkard and its progeny         with her earlier testimony.
interpreting the provisions of AEDPA do not
conflict with Lindh v. Murphy, 521 U.S. 320                 Officer Sergio Medina testified that Gribble
(1997), they remain controlling precedent for this       agreed to come to the police station for the
court. Nobles, 127 F.3d at 413 n.4; see Green v.         polygraph examination, although Gribble failed
Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).         to appear for the first scheduled examination.

                                                     4
Gribble became unsure of the polygraph                significantly deprived of freedom of action.**
examiner, and Medina reassured him about the          The Court of Criminal Appeals’s
polygraph procedures and told him that he             determination that Gribble was not in custody
could leave at any time. Gribble was advised          was not an unreasonable application of federal
of his rights after revealing to the officers,        law. See Drinkard, 97 F.3d at 767-68; §
following the examination, that the truck he          2254(d)(1); Mathiason, 429 U.S. at 494-96.
had been driving to work could have been a
stolen vehicle.
                                                                             V.
   Before he was warned, the officers had                 Gribble presents two arguments under one
accompanied him to his residence, impounded           issue: He avers that his comment, requesting
the car, and returned to the police department.       the stop of the taping of his statement, or the
Gribble came back voluntarily to the office and       momentary stop of the recording of his
cooperated with the investigation of the stolen       confession, given to investigating officers
truck.                                                during the interrogation on October 3, 1987,
                                                      was equivalent to the invocation of his right to
   Gribble testified at the first suppression         remain silent, so his Fifth Amendment right to
hearing, and his testimony was admitted at the        silence was violated. He also contends that his
second suppression hearing. He testified that         conversation with the officers that followed his
Medina pressured him into feeling guilty about        request for the stop, in which he indicated his
not wanting to cooperate or to take the               concern about his wife's hearing the details of
polygraph examination; Gribble did not mind           what he had done to the victim, demonstrated
answering the questions, but he did not want          police overreaching through subtle
to answer with the monitoring of the                  psychological persuasion. He argues that this,
polygraph machine; and his impression was             coupled with the officers’ failure to comply
that he had to take the test, or he could not         with his request to stop, violated his Fifth
leave.                                                Amendment right against self-incrimination.

   The findings of fact underlying the Court of           The Court of Criminal Appeals affirmed the
Criminal Appeals’s determination that Gribble         trial court’s conclusion that Gribble’s request
was not in custody are supported by the               to stop the tape recorder was not an
testimony at the suppression hearings, a              unequivocal termination of the interview, or
portion of which has been summarized above.           interrogation, but instead was a request to stop
See Gribble I, slip op. at 10-12. Gribble             momentarily the recording of the confession,
focuses on the lack of warnings he received           and thus, his Fifth Amendment right was not
compared to the warnings given to another             infringed. See Gribble I, slip op. at 13-14.
person the investigating officers interviewed         The district court concluded that Gribble’s
on September 21. He contends that the                 claim concerning the police officers’
different treatment supports the conclusion           overreaching and misleading tactics was
that the police had the subjective intent to          procedurally barred and was without merit.
obtain his signed statements without the
benefit of warnings of constitutional rights.            The circumstances giving rise to Gribble’s
                                                      taped co nfession are as follows: He was
    Any difference in the treatment accorded          arrested in Tennessee on September 30, 1987,
the two persons interviewed on September 21           pursuant to a Harris County, Texas, warrant
does not detract from the ample testimony
revealing that a reasonable person in Gribble’s
situation would not have viewed himself as              **
                                                           See Mathiason, 429 U.S. at 494-96; see also
being under arrest, in detention, or                  United States v. Bengivenga, 845 F.2d 593, 597
                                                      (5th Cir. 1988) (en banc) (holding that subjective
                                                      intent of police is irrelevant to the determination
                                                      whether defendant was in custody).

                                                  5
unrelated to the Jones investigation in               Before relating the events surrounding Jones’s
Galveston County.       Texas Ranger Joe              murder, Gribble voiced his concern that his
Haralson and Wayne Kessler, an investigator           wife, Tammy, would hear the tape.
with the Galveston County Sheriff’s Office,
traveled to Tennessee, interviewed Gribble,              Kessler and Haralson informed Gribble that
and accompanied him to Texas. On October              he would have a right to a trial; if he made
3, at the Harris County Sheriff’s Office,             “suitable arrangements with the State,” it
Gribble again received Miranda warnings and           might not have to go to trial; they anticipated
orally confessed to the rape, kidnaping, and          that he would be indicted; if there were a trial,
murder of Jones. He drew a map of where the           the tape would be used as evidence at an open-
body and Jones’s purse could be recovered.            court proceeding; and he could ask his wife
He agreed to have his confession tape                 not to be in the courtroom when the tape was
recorded.                                             played. After the tape recording ended,
                                                      Gribble’s wife arrived, and he spoke with her
    The confession consisted of two tapes, the        for approximately one-half hour.
first lasting approximately one minute. After
Haralson had identified each individual in the                                A.
room during the taping and each person spoke              “The Supreme Court has held that if a
his name, these comments followed:                    suspect 'indicates in any manner, at any time
                                                      prior to or during questioning, that he wishes
   Mr. Kessler: Tim, you also know that               to remain silent, the interrogation must cease.'”
   about 15 minutes ago at 9:15 we gave               Barnes v. Johnson, 160 F.3d 218, 224 (5th
   you rights before we talked the first              Cir. 1998) (quoting Miranda, 384 U.S.
   time; is that correct.                             at 474-75), cert. denied, 119 S. Ct. 1768
                                                      (1999). Whether a statement is an ambiguous
   Mr. Gribble: Yes.                                  invocation of a constitutional right is
                                                      determined by an objective inquiry as to how
   Mr. Haralson: And I am fixing to again             a reasonable police officer would have
   advise you of your rights.                         understood the defendant’s comment. Id.
                                                      at 224-25. What Gribble said to the officers
   Mr. Gribble: Could we stop this thing?             about stopping the tape is a finding of fact
                                                      viewed under the § 2254(d)(2) standard. The
   Mr. Haralson: WellSS                               conclusion by the state appellate courtSSthat
                                                      the statement was not an invocation of the
   Mr. Kessler: What’s the problem?                   right to remain silentSSis reviewed under the
                                                      reasonable-application-of-federal-law standard
   Mr. Haralson:       We need the tape               of § 2254(d)(1).
   recorder on.
                                                          The Court of Criminal Appeals stated
   Mr. Kessler: Do you have a question?               Gribble’s “stop” request as follows: “Can we
                                                      stop for just a second.” Gribble I, slip op. at
   Mr. Gribble: I don’t feel comfortable.             13. As noted above, Gribble requested,
   Even after telling you all this, I feel like       “Could we stop this thing.” He asserts that
   shit. Like I said when I told youSSwhen            Kessler’s testimony at the first trial indicated
   youSSyou said that after I told you this           that Gribble asked, “Can we stop the tape?”
   that I would feel better. I don’t feel             No matter what the precise phrase was, the
   better I feel worse. I feel like shit.             ultimate fact found by the state appellate
                                                      courtSSthat in the context of the situation,
   The confession recorded on the second tape         Gribble asked “for a momentary pause to
began three minutes after the first recording.        recompose himself”SSis presumptively correct.
Those in the room again identified themselves,        See id. at 13; Jackson, 150 F.3d at 524; §
and Gribble again was advised of his rights.          2254(e)(1).

                                                  6
   At the first suppression hearing, Gribble           confession might be used for or against him.***
testified that it was the concept of recording         He argues that the claim presented on direct
his confessionSSa recording his wife might             appeal was “functionally identical to the
hearSSthat precipitated his desire to stop the         federal claim” presented in his habeas
tape. He was willing to write his confession.          application.
Haralson testified at the second suppression               “The exhaustion requirement is satisfied
hearing that Gribble was physically distressed         when the substance of the federal habeas claim
when he asked for the tape to stop, that he            has been fairly presented to the highest state
choked but did not vomit, and that the second          court.” Whitehead v. Johnson, 157 F.3d 384,
tape began once he had recomposed himself.             387 (5th Cir. 1998) (footnote omitted). “A
In light of the circumstances surrounding              federal court claim must be the 'substantial
Gribble’s comment, the conclusion that the             equivalent' of one presented to the state courts
Fifth Amendment was not implicated by his              if it is to satisfy the 'fairly presented'
request to stop is not an unreasonable                 requirement.” Id. (footnote omitted). The
application of federal law. See Barnes, 160            claim presented to the state appellate court
F.3d at 225; Drinkard, 97 F.3d at 767-68;              arose from the state procedural rule
§ 2254(d)(1).                                          prohibiting the use at trial of a confession if the
                                                       defendant had been told by the interrogating
                         B.                            officers that the confession could be used in
    As we have noted, the district court               his favor as well as against him. See Gribble
concluded that Gribble’s issue concerning the          I, slip op. at 8-9. This issue is a separate legal
manner in which the police conducted the               theory from the theory underlying the federal
October 3 taped interview/confession was               habeas claim, although the claims arise from
procedurally barred. See Gribble, 8 F. Supp.           the same operative facts. The federal claim
2d at 949-50. If a the district court does not         was not fairly presented to the state court for
address the merits of a particular § 2254 claim        satisfaction of the exhaustion requirement.****
but denies relief because the claim is
procedurally barred, the constitutional issue is          Because Gribble failed to present his claim
never reached. In this situation, Gribble first        to the state courts, and presentation of the
must make a credible showing of error by the           claim in state court would result in its
district court in its reliance on the procedural       dismissal as an abuse of the writ, the claim is
bar. See Murphy v. Johnson, 110 F.3d 10, 11            procedurally barred in federal habeas court.
(5th Cir. 1997) (applying COA standard to              See Sones v. Hargett, 61 F.3d 410, 416 (5th
nonconstitutional issue of exhaustion of state         Cir. 1995); Fearance v. Scott, 56 F.3d 633,
remedies). Only if he makes such a showing             642 (5th Cir. 1995). Gribble does not assert
will the court consider whether his underlying         an argument of cause and prejudice for this
claim satisfies the COA standard.            Id.       court to overlook his procedural default. He
Although the district court alternately                has not made a credible showing of error by
addressed the merits of the claim, see Gribble,        the district court in applying the procedural bar
8 F. Supp. 2d at 950, we do not need to do so
unless we determine that Gribble has made the
initial showing of error under the standard                ***
enunciated in Murphy. See Murphy, 110 F.3d                     See Gribble, No. 71-485, slip op. at 8-9;
at 11.                                                 TEX. CODE CRIM. P. ANN. art. 38.22; Creager v.
                                                       State, 952 S.W.2d 852, 854-55 (Tex. Crim. App.
                                                       1997) (holding that a warning renders confession
   Gribble did not raise on direct appeal or in        inadmissible if it informs defendant that the
his state habeas petition his argument of police       confession can be used for or against him).
overreaching. He asserted on direct appeal
that the recorded confession should have been                ****
                                                                  See Nobles, 127 F.3d at 420 (“The
suppressed because the interviewing officers           exhaustion requirement is not satisfied if the
had violated state procedure by misleading him         prisoner presents new legal theories or factual
about the possible use of his confession: The          claims in the federal habeas petition.”).

                                                   7
to this habeas claim. See Murphy, 110 F.3d                   These prophylactic measures are
at 11.                                                   implicated, however, only if the suspect is
                                                         being questioned or interrogated by police.
                       VI.                               “'[I]nterrogation' under Miranda refers not
   Gribble argues that the evidence obtained             only to express question, but also to any words
after he invoked his right to counsel should             or actions on the part of the police (other than
have been suppressed. Before accompanying                those normally attendant to arrest and
the police to the physical location of Jones’s           custody) that the police should know are
body and purse, Gribble was taken before a               reasonably likely to elicit an incriminating
state magistrate, who informed him of his right          response from the suspect.” Rhode Island v.
to counsel. When asked whether he desired to             Innis, 446 U.S. 291, 301 (1980) (footnotes
consult with counsel, Gribble answered in the            omitted).
affirmative, and the magistrate made the
notation that Gribble wanted counsel to be                  The record supports the state appellate
appointed. Haralson then interjected that he             court’s assessment of the circumstances
believed Gribble had misunderstood the                   surrounding Haralson’s comment and
question. The magistrate continued to query              Gribble’s request for counsel. That court
Gribble, who said he wanted to maintain his              found that Haralson’s comment to the
cooperation with authorities before consulting           magistrate was “I believe that [Gribble]
with an attorney and subsequently led the                misunderstood your question.” Gribble I, slip
officers to the location of the body. See                op. at 6. On the printed warning form, the
Gribble I, slip op. at 5-6. Gribble’s argument           magistrate indicated Gribble’s affirmative
indicates that he views Haralson’s interjection,         response to the question “Do you wish to
occurring after Gribble essentially requested to         consult with your attorney?” and noted next to
speak with an attorney, as violative of the Fifth        the printed question, “wishes to have atty
and Sixth Amendments.                                    appoint 12:22 AM 10/4.”

    The Court of Criminal Appeals concluded                 The magistrate viewed Haralson’s comm ent
that Haral son’s comment was not                         as direct ed to him, not Gribble. After
interrogatorial and that, even if it had been            Haralson’s comment, the magistrate explained
made as part of an interrogation, it was                 again to Gribble how counsel can be
constitutionally permissible, because it assisted        appointed, and Boyd told him that an attorney
in clarifying Gribble’s qualified invocation of          could be there in thirty minutes. Gribble then
his right to counsel. See id. at 7-8. After a            responded that he wanted counsel later, not
suspect has been advised of his rights pursuant          immediately; he wished to do some act first.
to Miranda and has invoked his right to speak
with counsel, all interrogation must cease until            Kessler viewed Haralson’s comment as
he has conferred with counsel or until                   made to the magistrate, and he testified that
questioning can be done in the presence of               Gribble’s “puzzled look” precipitated
counsel. Michigan v. Jackson, 475 U.S. 625,              Haralson’s comment. Gribble’s suppression-
636 (1986) (Sixth Amendment); Edwards v.                 hearing testimony concerning the magistrate’s
Arizona, 451 U.S. 477, 484-87 (1981) (Fifth              recitation and advisement of rights did not
Amendment). “[I]f a suspect makes a                      include any mention by Gribble about
reference to an attorney that is ambiguous or            Haralson's making a comment. Gribble
equivocal in that a reasonable officer in light of       testified that he indicated he wanted appointed
the circumstances would have understood only             counsel for consultation but did not want to
that the suspect might be invoking the right to          wait thirty to forty minutes, because his wife
counsel, . . . precedent[] do[es] not require the        was waiting.
cessation of questioning.” Davis v. United
States, 512 U.S. 452, 459 (1994). “[T]he                    Gribble does not challenge the magistrate’s
suspect must unambiguously request counsel.”             explanation and further inquiry concerning
Id.                                                      Gribble’s request for appointed counsel. The

                                                     8
habeas claim focuses on Haralson’s comment,             jurisdictional, so if Gribble did not present to
which was not directed to Gribble and                   the district court a claim as to which he now
occurred as a neutral judicial officer was              requests a COA, we are without jurisdiction to
informing Gribble of his constitutional rights          consider it. See Whitehead, 157 F.3d at 388;
and was determining whether he understood               Muñiz, 114 F.3d at 45. Accordingly, we
those rights and wished to waive them. The              cannot review Gribble's request for a COA on
state appellate court’s determination that              this issue. Moreover, a limited remand to the
Haralson’s comment was not interrogatorial              district court for consideration of a habeas
for purposes of the Fifth Amendment, the                claim raised for the first time in the COA
Sixth Amendment, or Miranda is not contrary             motion would be contrary to the statutory
to clearly established federal law as determined        prohibition against a successive habeas
by the Supreme Court. See § 2254(d)(1);                 application's raising a claim that could have
Innis, 446 U.S. at 301-02.                              been raised earlier. See § 2244(b)(2).

                      VII.                                                   VIII.
   Gribble argues that the prosecution’s                   Gribble argues that the evidence fails to
challenge for cause of venireman Beverly                prove beyond a reasonable doubt his intent to
Deaton should have been denied, because the             murder Jones or that the murder was done
prosecution’s tactics in questioning Deaton             with deliberateness. He relies primarily on his
about the standard of proof she would apply in          taped confession concerning the immediate
determining the special questions during the            events preceding Jones’s death, and he asserts
punishment phase of the trial amounted to               that the evidence supports his versionSSthat
“prosecutorial browbeating.”           Although         the murder was unintentional and not done
Gribble begins his argument by implying that            with deliberationSSas much as it supports the
Deaton should not have been excused for                 prosecution’s version of what happened.
cause, he states his issue as follows:
                                                           On direct appeal, Gribble argued that the
   [w]hether the prosecutor’s relentless                evidence was insufficient to prove that he
   examination of this potential juror                  intentionally killed Jones. He asserted that his
   provided a basis from which [Gribble]                confession proved “that he accidently killed
   could have developed an evidentiary                  the victim in an attempt to silence her cries for
   challenge to the state trial court’s                 help.” Gribble I, slip op. at 1-2.
   determination, had he been given that
   opportunity, because the state court                     The Court of Criminal Appeals held that a
   unreasonably accepted the fruits of                  rational juror could find the evidence sufficient
   prosecutorial browbeating as a genuine               to establish that Gribble intentionally killed
   expression of her disqualification to                Jones. Id. at 2. The state appellate court’s
   serve.                                               assessment of the evidence focused on the
                                                        manner in which Gribble carried out the
   This is not the claim raised by Gribble in his       kidnaping and murder of JonesSSincluding
federal habeas application, in which he                 Gribble’s hiding of the bodySSand on the
asserted that Deaton was qualified to serve on          medical examiner’s testimony about
the jury and that granting the challenge for            strangulation taking several minutes before
cause was erroneous. The district court                 death occurs. That court’s conclusion, under
denied this claim on the merits, concluding that        the federal standard of review of a sufficiency
the trial court’s decision to exclude Deaton for        claim, is not an unreasonable application of
cause was presumptively correct, and Gribble            federal law. See Drinkard, 97 F.3d at 769; §
presented no evidence to rebut the                      2254(d)(1); Jackson v. Virginia, 443 U.S.
presumption. See Gribble, 8 F. Supp. 2d at              307, 319 (1979).
952-53.
                                                           As for Gribble’s sufficiency argument
   The    requirement      for   a    COA      is       concerning the evidence supporting the jury’s

                                                    9
affirmative answer to one of the two special                  Gribble argues that by urging the jury to
questions in determining punishment, Gribble               consider the question of future dangerousness
notes that the district court viewed this portion          in terms that included the possibility of his
of his habeas claim as being procedurally                  being out on the streets and in the community,
barred, because Gribble had failed to exhaust              the prosecution improperly commented, in
the claim in state court. See Gribble, 8 F.                closing argument during the penalty phase, on
Supp. 2d at 955. To obtain a COA on this                   the possibility of parole or pardon. In arguing
portion of his sufficiency claim, Gribble must             for the answer “no” to special issue 2
make a credible showing of error. See                      concerning Gribble’s future dangerousness, his
Murphy, 110 F.3d at 11.                                    attorney asked the jury to consider whether
                                                           there was any evidence to indicate that he
    Gribble did not raise this sufficiency claim           would be raping or killing people in prison.
focusing on special issue 1 in his direct appeal           During closing argument, the prosecutor made
or in the state habeas proceedings. He                     the following comments:
concedes the lack of exhaustion and contends
that the issue is properly before the federal                 Second special issue, again probability
habeas court because he raised it in his first                he would commit continuing acts of
direct appeal, which resulted in retrial of the               violence and be a future threat to
guilt and punishment phases. Gribble cites no                 society, again very strong. And I think
authority for his novel interpretation of the                 we proved those not beyond a
fair-presentment requirement of the doctrine of               reasonable doubt, but beyond any doubt.
exhaustion. He is not in custody pursuant to                  He did that when he went out and
a judgment of conviction and sentence from                    sexually assaulted Mary Kate O’Grady.
his first trial. His assertion of exhaustion is               When you answer that, I think you take
legally frivolous.                                            in consideration conduct in the
                                                              penitentiary but I think you also take in
    Gribble also asserts that his lack of                     consideration conduct that the
exhaustion should be excused because                          Defendant may have on the street in the
attempting to exhaust now would be futile.                    community as a whole when you answer
He cites Layton v. Carson, 479 F.2d 1275,                     that special issue.
1276 (5th Cir. 1973), for the proposition that
futility will excuse exhaustion. Supreme Court                The defense objected to the comment as
authority defeats this assertion.*****                     being “clearly outside of what’s going on. If
                                                           he gets a life sentence that’s obviouslySSthat’s
   Because any attempt to exhaust the claim in             improper argument.” The court overruled the
state court would result in the claim’s                    objection, noting that “[t]he issue is whether
dismissal as an abuse of the writ, the claim is            or not he will be a continuing threat to
procedurally barred. See Fearance, 56 F.3d at              society.”
642. Gribble fails to make a credible showing
of error in the district court’s determination                 During deliberations, the jury asked the
concerning this portion of his sufficiency                 following question: “As per Mr. Abbington’s
claim. See Murphy, 110 F.3d at 11.                         statement of 'life in prison' does that mean he
                                                           will spend the rest of his normal natural life in
                       IX.                                 prison or does that equate into years.” The
                                                           court answered by referring to the following
                                                           paragraph in the general charge:
   *****
        See Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991) (holding claim procedurally barred                 With regard to the effect of your
from federal habeas review if “the petitioner would           answers to the Special Issues in this case
be required to present his claims in order to meet            you are not to discuss or consider any
the exhaustion requirement [and] would now find               possible actions of the Governor or the
the claims procedurally barred”).                             Pardons and Paroles Division of the

                                                      10
   Texas Department of Criminal Justice.               Green v. Johnson, 160 F.3d 1029, 1045 (5th
   During your deliberations in this case,             Cir. 1998), cert. denied, 119 S. Ct. 1107
   you must not consider, discuss, or relate           (1999).
   any matters not in evidence before you.
   You should not consider or mention any                 Under Texas law, the jury may not consider
   personal knowledge or information you               parole or parole eligibility. See Colburn v.
   may have about any fact or person                   State, 966 S.W.2d 511, 519 (Tex. Crim. App.
   connected with this case which is not               1998). The prosecutor did not use the word
   shown by the evidence.                              “parole,” and Gribble’s speculation that the
                                                       comment was an indirect challenge to defense
    Gribble contends that the Eighth                   counsel’s argument, which incorrectly
Amendment was violated by the comment,                 presumed that Gribble would be in prison for
because the sentence was arbitrarily imposed:          his natural life if given a life sentence, is
The prosecutor placed before the jury that life        baseless. The jury showed, by its question,
in prison could be less than Gribble’s natural         that its possible consideration of parole was a
life. He also contends that the comment                result of the comment of defense counsel, not
amounted to a Fourteenth Amendment                     the prosecutor. The court answered the
violation, because it made his death sentence          question by directing the jury to the general
fundamentally unfair: The jury impermissibly           instruction to disregard consideration of parole
considered the possibility of parole if a life         or pardon in the deliberations.
sentence was imposed.
                                                           The record does not support Gribble’s
   The Court of Criminal Appeals held that the         contention that the prosecutor’s comments
prosecutor’s comment was not improper,                 misled t he jury as to its role in determining
because “[t]he possibilities of escape or some         sentence or as to the proper boundaries of
other release from prison are legitimate               future dangerousness. See Sawyer v. Butler,
concerns in determining the future                     881 F.2d 1273, 1285 (5th Cir. 1989) (en
dangerousness of a defendant.” Gribble I, slip         banc), aff’d sub nom. Sawyer v. Smith, 497
op. at 14. Although the state asserted that the        U.S. 227 (1990). The Constitution does not
constitutional claims based on the prosecutor’s        prohibit a jury's consideration of the actual
comment were not raised on direct or state             length of a life sentence. See Simmons, 512
habeas review and thus were procedurally               U.S. at 163. The state appellate court
barred, the district court gave Gribble the            concluded that the prosecutor’s comment was
benefit of the doubt that the constitutional           not improper under state law. See Gribble I,
claim had been sufficiently raised on direct           slip op. at 14. The state court’s conclusion is
appeal and thus had been exhausted. The                not “contrary to . . . clearly established Federal
court addressed the merits. See Gribble, 8 F.          law, as determined by the Supreme Court.” §
Supp. 2d at 954-55.                                    2254(d)(1).

   Gribble relies on Simmons v. South                                        X.
Carolina, 512 U.S. 154, 169 (1994), and                   Gribble argues that the nullification charge,
Caldwell v. Mississippi, 472 U.S. 320, 328-29          given in response to the Penry error****** from
(1985) (reasoning that “it is constitutionally
impermissible to rest a death sentence on a
determination made by a sentencer who has
been led to believe that the responsibility for             ******
                                                                   Penry requires the jury to receive, in
determining the appropriateness of the                 addition to the instructions on the art. 37.071
defendant’s death rests elsewhere”), for his           special issues, special instructions about mitigation
due process and Eighth Amendment                       evidence if the defendant introduces evidence
arguments. Simmons is inapplicable, because            reflecting reduced culpability and the jury cannot
Texas does not provide the jury the option to          give mitigating force to the evidence under the art.
impose a sentence of life without parole. See          37.071 special issues. See Penry, 492 U.S. at 318-

                                                  11
the first trial, was confusing and cumbersome            court committed reversal [sic] error by
and insufficient to make the sentence a                  refusing to instruct the jury on mitigating
reasoned consideration, as required by the               evidence of [Gribble]’s background of
Constitution, of all the mitigating evidence.            childhood abuse.” The Court of Criminal
The general charge included the following:               Appeals assumed, without deciding, that the
                                                         pro se claims could be treated as supplemental
           When you deliberate about the                 habeas claims and denied relief because the
      questions posed in the Special Issues,             claims were conclusional.
      you are to consider any mitigating
      circumstances supported by the evidence               The state asserted in the district court that
      presented in both phases of the trial.             Gribble’s nullification charge claim was
      Mitigating circumstances may include,              unexhausted and could not then be exhausted,
      but are not limited to, any aspects of the         and thus the claim was procedurally barred
      defendant’s background, character,                 from federal habeas review. The court noted
      record, or circumstances of the crime              the state’s assertion of the procedural bar but
      which you believe makes a sentence of              exercised its discretion under § 2254(b)(2) and
      death inappropriate in this case. If you           reviewed the merits. See Gribble, 8 F. Supp.
      find there are any mitigating                      2d at 957.
      circumstances you must decide how
      much weight they deserve, if any; and                 The court concluded that to grant relief on
      give them the consideration and effect             Gribble’s nullification charge claim, it would
      they deserve, if any, when you answer              have to announce a new rule of constitutional
      the Special Issues.                                law, which is prohibited by Teague v. Lane,
                                                         489 U.S. 288, 305-08 (1989). See Gribble,
           If you determine, in consideration            8 F. Supp. 2d at 957. Gribble argues that
      of this mitigating evidence, t hat a life          Teague is inapplicable, because his habeas
      sentence rather than a death sentence, is          claim is based on Penry, 492 U.S. at 318-19,
      an appropriate response to the personal            and Roberts v. Louisiana, 428 U.S. 325,
      moral culpability of the defendant, you            334-35 (1976).
      are instructed to answer at least one of
      the Special Issues under consideration                “Unless they fall within an exception to the
      “no.” If you have made such a                      general rule, new constitutional rules of
      determination, an answer of “no” should            criminal procedure will not be applicable to
      be given independently of whether such             those cases which have become final before
      mitigating evidence is relevant to either          the new rules are announced.” Teague, 489
      Special Issue, and regardless of what              U.S. at 310. The exceptions are “if the new
      you find the answers to the Special                rule (1) puts certain kinds of primary, private
      Issues to be.                                      individual conduct beyond the power of the
                                                         criminal law-making to proscribe or (2) is a
Gribble challenges the constitutionality of the          rule of procedure that is implicit in the concept
second paragraph, which he refers to as the              of ordered liberty . . . . The second exception
“nullification charge.”                                  is reserved for watershed rules of criminal
                                                         procedure.” Muñiz v. Johnson, 132 F.3d 214,
    Gribble failed to challenge the nullification        225 (5th Cir. 1998) (internal quotations and
charge on direct appeal, and it was not raised           citations omitted).
in his state habeas petition. He listed the
following contention in his pro se motion to                Roberts was one of five opinions issued by
strike the state habeas petition: “The trial             the Court on the same day. The Court
                                                         essentially applied the Gregg v. Georgia, 428
                                                         U.S. 153, 195 (1976), rationale to the
(...continued)                                           Louisiana death penalty statute, which directed
19.                                                      the use of a responsive-verdict procedure, and

                                                    12
held the statute to be violative of the Eighth           made a substantial showing of the denial of a
Amendment, because it failed to channel the              constitutional right”). Thus, for a COA to
jury’s judgment or provide an adequate check             issue, Gribble first must show error in the
on the possible arbitrary imposition of the              granting of summary judgment. See Murphy,
death penalty. See Graham v. Collins, 950                110 F.3d at 11.
F.2d 1009, 1018 (5th Cir. 1992) (en banc),
aff’d, 506 U.S. 461 (1993). The Court has                    To show harm, Gribble contends that
upheld the Texas death penalty sentencing                evidence from the first trial would have shown
scheme, see Graham v. Collins, 506 U.S. 461,             a different factual context of the taped
474 (1993); Jurek v. Texas, 428 U.S. 262,                confession. He does not specify the precise
268-75 (1976), and, as we have noted, Penry              factual context, but we presume he is referring
requires that the mitigating evidence not be             to the different phrases in the record as to the
beyond the effective reach of the jury, see              precise wording he used in asking that the
Robinson v. Johnson, 151 F.3d 256, 263 (5th              recording of his confession be stopped or
Cir. 1998), cert. denied, 119 S. Ct. 1578                paused.
(1999).
                                                            Gribble avers that the lack of an
   Gribble does not contend that any specific            opportunity to respond to the state’s amended
mitigating evidence was beyond the jury’s                summary judgment motion/answer denied him
reach. A review of the charge confirms that              the opportunity to assert that presentation of
the jury could consider mitigating evidence, if          issues on the initial direct appeal was sufficient
any, in its consideration of the special issues          exhaustion to overcome the state’s assertion of
and beyond the scope of those issues. Thus,              the lack of exhaustion and of procedural bar
to grant relief on Gribble's nullification charge        on some of his claims. As we have noted,
claim, we would need to apply a new rule of              Gribble cites no authority to support his novel
constitutional law, because Gribble seeks relief         interpretation of t he fair-presentment
beyond the purview of Jurek, Penry, and                  requirement.
Graham. See Graham, 506 U.S. at 475-77.
Gribble’s claim is barred by Teague. See                    Gribble complains that the truncated
Lucas v. Johnson, 132 F.3d 1069, 1083                    procedures impaired his right to have counsel
(5th Cir.), petition for cert. dismissed,                present the habeas claims to the district court
141 L. Ed. 2d 765 (1998).                                with factual specificity and citation to
                                                         authority. A review of the state’s amended
                     XI.                                 summary judgment/answer and of the district
   Gribble argues that the district court erred          court’s memorandum opinion reveals that
in ordering him to refrain fro m filing a                Gribble’s habeas application was sufficient for
response to the state's summary judgment                 consideration of the habeas claims. See
motion and by denying his motion for a FED.              Gribble, 8 F. Supp. 2d at 945-57. Any error
R. CIV. P. 16 conference, which he asserts               in the procedures surrounding the grant of
would have provided the opportunity to                   summary judgment was harmless.*******
address the merits of his habeas claims. He
asserts that the truncation of the rule 56                  Even assuming Gribble has made a credible
procedures impermissibly impaired his right to           showing of error, thus satisfying the first of the
habeas counsel, pursuant to 21 U.S.C. §                  two-part Murphy standard for a COA, the
848(q)(B), to research and present the habeas
claims.
                                                             *******
                                                                  See Resolution Trust Corp. v. Sharif-
    Gribble’s appeal is before us on motion for          Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403
COA. His contentions concerning procedural               (5th Cir. 1993) (concluding that summary
irregularities, if any, in the district court are        judgment without sufficient notice to the
non-constitutional in nature. See § 2253(c)(2)           nonmoving party was harmless); FED. R. CIV. P.
(stating that a COA issues if “applicant has             61.

                                                    13
second part of the standard is the § 2253(c)(2)
standardSSmaking a substantial showing of the
denial of a constitutional right. See Murphy,
110 F.3d at 11. As we have stated, Gribble
fails to meet the standard warranting the
issuance of a COA on any of his habeas claims.
See § 2253(c)(2). Thus, he is not entitled to a
COA on his claim concerning procedural error
in the district court.

   The application for a COA is DENIED.




                                                  14
