                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                                                           December 1, 2003
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit            Charles R. Fulbruge III
                                                                Clerk


                           No. 03-50361


                       DONALD LOREN ALDRICH,

                                               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 Western District of Texas, San Antonio Division
                         (SA-99-CA-171-IV)


Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

      Donald Loren Aldrich (“Aldrich”) filed an application for

federal writ of habeas corpus in the Western District of Texas.       On

February 24, 2003, the district court entered a judgment denying

his petition for writ of habeas corpus and refusing to issue a

certificate of appealability (“COA”).     Aldrich subsequently filed

  *
    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opinion should not be published and is not precedent except under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.

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with this court seeking a COA.     We deny his request.



                           I.   BACKGROUND

     Aldrich was convicted of capital murder and sentenced to death

on August 9, 1994 for the November 30, 1993 murder of Nicholas

West.   On November 30, 1993, Aldrich and two friends decided to go

“queer-bashing,”   using   procedures   similar   to   those   they   had

employed at least twice in the past to rob and assault persons they

believed to be homosexual.

     The three of them drove to Bergfeld Park, which they believed

to be a homosexual meeting spot in Tyler, Texas, where they robbed

Nicholas West at gunpoint.      After robbing West of his money and

vehicle, they forced him into their automobile and drove to a

remote area of Smith County.     They then forced the victim to walk

up a hill, where Aldrich and another one of the assailants shot him

at least nine times with two .357 handguns.   Aldrich fired at least

three shots into the victim.

     After a change of venue from Smith County, Texas, to Kerr

County, Texas, Aldrich was convicted of the murder of Nicholas

West.   Following a separate punishment hearing, the trial court

sentenced Aldrich to death. Aldrich appealed to the Texas Court of

Criminal Appeals, which affirmed his conviction and sentence.         See

Aldrich v. State, 928 S.W.2d 558 (Tex. Crim. App. 1996).        Aldrich

then petitioned for state habeas relief, to no avail.


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     Aldrich initiated federal habeas proceedings on June 16, 1998.

On February 24, 2003, the district court entered a judgment denying

Aldrich’s petition for writ of habeas corpus and denying Aldrich a

certificate of appealability.       Aldrich timely appealed.



                       II.   STANDARD OF REVIEW

     The Anti-Terrorism and Effective Death Penalty Act (AEDPA)

states that federal habeas petitioners must demonstrate that the

state court’s adjudication was either “contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States,” or “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).

     To obtain a COA, the petitioner must make “a substantial

showing of the denial of a constitutional right.”         28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district court’s

resolution of his constitutional claim 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).



                             III.   ANALYSIS



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A.   Basis of Aldrich’s Claims

     At the penalty phase of the trial, the jurors were charged

with answering certain questions to determine whether Aldrich would

be put to death or given a life sentence.        The threshold question

was whether, if not sentenced to death, Aldrich would probably

“commit    criminal   acts   of   violence   that   would   constitute   a

continuing threat to society.”       TEX. CODE CRIM. PROC. ART 37.071, §

2(b)(1).    The jury found, beyond a reasonable doubt, that the

answer to this question was yes.

     Aldrich offered evidence to show he would not be violent in

prison, mainly by showing his nonviolent prison record.              The

prosecution argued that, because Aldrich’s chosen victim pool

consisted of homosexuals, he would be likely to perpetrate violent

crimes against homosexuals in prison.        The jury was also shown the

unedited version of Aldrich’s videotaped confession in which he

confessed to his participation in multiple violent crimes.

     Aldrich’s bases for appeal here surround the possibility that,

if not sentenced to death, Aldrich would have been eligible for

parole in 35 years and thus could theoretically constitute a danger

to society beyond prison.     Texas does not have the option of life

without the possibility of parole.       During the closing argument by

Aldrich’s attorney at the penalty phase, the following exchange

occurred.



Defense:         You’re not going to have to worry about Mr.

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               Aldrich being on the streets of Kerrville....
               You’re not going to find him here, because
               he’s going to be in prison with a life
               sentence at least, okay.      So when you’re
               defining who he’s going to be a danger to, you
               don’t have a choice. You have to define where
               he is and he’s going to be in prison.
Prosecutor:    Judge, I’m going to object to that. That’s
               outside the record and incorrect. I object to
               it.
Court:         I’ll sustain the objection.
Defense:       Which part of it, Your Honor? We feel like we
               have a right to argue he’s going to be in
               prison for life.
Court:         I think you’ve got a right to argue that he’s
               going to be in prison.
Defense:       All right.
Prosecutor:    My objection is, he’s standing up there
               arguing to the jury that he’s going to be in
               prison for life. That’s my objection.
Defense:       It’s a life sentence, Your Honor.
Court:         There’s a difference between a life sentence.
               I’ll sustain the objection as to being in
               prison for life. A life sentence, yes. You
               can talk about that.
Defense:       He’s going to be in there for a life sentence.
               I’m going to state this the way that [the
               prosecutor] and the Court asked me to. You’re
               not going to have to worry about him. People
               of Tyler and Smith County are not going to
               have to worry about him....


     Thus, defense counsel at trial attempted to argue that Aldrich

would necessarily be in prison for the rest of his life, an

argument that is incorrect.   The court sustained the prosecution’s

objection to this argument, but allowed defense counsel to argue

that Aldrich would have a life sentence.   Aldrich also argues that

the trial court prevented him from introducing evidence to show

that he would not be eligible for parole for 35 years, but, as

discussed below, his citations to the record do not support this


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assertion.

B.   Aldrich’s Arguments

     Aldrich seeks a COA on three closely-related arguments.            He

argues that the trial court’s refusal to permit testimony, judicial

instruction, or argument as to his 35 year period of ineligibility

for parole violated his constitutional rights.       Aldrich maintains

that this prevented him from (1) meeting or rebutting damaging

evidence in violation of his Fourteenth Amendment right to due

process; (2) bringing evidence to the jury relevant to a death

penalty issue   that   is   mitigating   in   violation   of   the   Eighth

Amendment; and (3) making a complete defense in violation of his

Sixth Amendment rights.     He concedes that the “rubric is basically

the same whether the issue is analyzed as a Sixth Amendment, an

Eighth Amendment, or a Fourteenth Amendment question.”

     As Aldrich concedes, his Eighth and Fourteenth Amendment

claims are foreclosed by this circuit’s precedent.             See, e.g.,

Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir 2001).           Thus, the

state court’s actions here were obviously not contrary to clearly

established federal law.     We need not grant COA because, in light

of this circuit’s precedent, reasonable jurists would not conclude

the issues presented are adequate to deserve encouragement to

proceed further.

     But this court has not yet addressed Aldrich’s Sixth Amendment

permutation of this argument.      In United States v. Scheffer, the


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Supreme Court stated that state lawmakers “have broad discretion to

establish rules excluding evidence from criminal trials. Such rules

do not abridge an accused's right to present a defense so long as

they are not ‘arbitrary’ or ‘disproportionate’ to the purposes they

are designed to serve.”       523 U.S. 303, 308 (1998).        The suppression

of evidence may be unconstitutional where it infringes on a weighty

interest of the accused.           Id.

      Aldrich argues that, under the Scheffer balancing test, his

weighty interest in introducing evidence that he would not be

eligible for parole for 35 years outweighs the state’s interest in

excluding such evidence regarding parole eligibility.              But, again,

Aldrich has not indicated any point in the record in which the

trial court judge prevented him from introducing evidence regarding

his 35-year ineligibility for parole.              In arguing that the trial

court prevented him from introducing such evidence, Aldrich cites

to the following: (1) a pretrial motion to set aside the indictment

in   which   he    argued   that    the   Texas   capital    punishment   scheme

violated     the   federal   constitution,        (2)   an   objection    to   the

punishment phase instructions in which he objected to the charge

not including information about the parole implications of a life

sentence, and (3) the jury charge from the punishment phase which

instructs the jurors not to consider the manner in which the parole

law would be applied.

      The pretrial motion regarding the constitutionality of the


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Texas capital punishment scheme clearly fails to indicate that the

trial court judge refused proferred evidence.                       The fact that the

jury     charge        didn’t      include    information      about        the     parole

implications of a life sentence similarly does not indicate that

such evidence could not have been adduced at trial.                               The jury

charge instructing the jurors not to consider the manner in which

parole    law     is    to    be    applied       is   consistent    with    the     then-

longstanding Texas practice designed to prevent jurors, functioning

within the judicial branch, from attempting to anticipate how the

executive branch would apply parole factors, in violation of the

Texas constitution.             In arguing that his Sixth Amendment rights

were   violated,        Aldrich     actually       attempts   to    distinguish       this

inquiry from simply telling the jury he would be ineligible for

parole for 35 years.            In any event, Aldrich still does not indicate

any point at which proffered evidence as to the mandatory 35 year

period of parole ineligibility was rejected by the trial court.

Thus, Aldrich has not stated a basis for a Sixth Amendment claim.

       Also, as Aldrich admits, the Sixth Amendment analysis is much

the same as under the Fourteenth and Eighth Amendments, and this

court has consistently stated that a defendant is only entitled to

a jury instruction regarding parole ineligibility if there exists

a   life-without-possibility-of-parole                  alternative    to    the     death

penalty, which does not exist under Texas law.                     See, e.g., Tigner,

264 F.3d at 525.             The argument that this court should develop a



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constitutional rule contrary to these holdings is foreclosed by the

non-retroactivity rule of Teague.    Teague v. Lane, 489 U.S. 288

(holding that new rules of constitutional law should generally not

be applied on collateral review).

     Thus, Aldrich does not state the proper basis for a Sixth

Amendment claim, and such claim would in any event be barred by

Teague.   The state court’s actions here were not contrary to

clearly established federal law.    This court need not grant COA

because reasonable jurists would not conclude the issues presented

are adequate to deserve encouragement to proceed further.



                            CONCLUSION

     For the reasons outlined above, we DENY Aldrich’s request for

a COA.



DENIED.




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