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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-11248

_____________________

RONALD CURTIS CHAMBERS,

Petitioner - Appellant,

versus

NATHANIEL QUARTERMAN, 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:*

At his third trial in 1992, Ronald Curtis Chambers

(“Chambers”) was convicted of capital murder and sentenced to

death, for the third time, for the 1975 murder of Mike McMahan

during the course of a robbery. This court granted a certificate

of appealability (“COA”) authorizing Chambers to appeal the

district court’s denial of federal habeas relief as to certain

claims. We AFFIRM.
2

I

In April 1975, Chambers and an accomplice, Clarence Ray

Williams, forced their way, at gunpoint, into the car occupied by

two college students, Mike McMahan and Deia Sutton, outside a night

club in Dallas, Texas. After robbing the victims, they drove to a

levee and forced the victims from the car, and down an embankment.

Both victims were shot. As Chambers and Williams walked back up

the hill, McMahan called out to Sutton. Williams told Chambers

that the victims were not dead and Chambers responded, “They gotta

be dead. I shot ‘em in the head.” Williams and Chambers returned

to the location of the victims. Chambers struck McMahan in the

head numerous times with the barrel of the shotgun and ordered

Williams to take Sutton into the water. Williams pulled Sutton to

the water and attempted to choke and drown her. When Chambers

finished beating McMahan, he approached Sutton, who begged him not

to kill her. He ignored her pleas, raised his shotgun over his

head, and struck her three times. McMahan died, but Sutton

survived. After committing the crime, Chambers washed blood and

hair off the shotgun, wiped blood from the stolen money and divided

it, and then played dominoes before going to sleep. A more

complete description of this brutal crime can be found in the

opinion of the Texas Court of Criminal Appeals. Chambers v. State,

903 S.W.2d 21, 24-25 (Tex. Crim. App. 1995). Williams pleaded

guilty and was sentenced to two stacked terms of life imprisonment.
3

Chambers was convicted and sentenced to death in 1976 for

capital murder during the course of a robbery. His conviction was

affirmed on direct appeal. Chambers v. State, 568 S.W.2d 313 (Tex.

Crim. App. 1978), cert. denied, 440 U.S. 928 (1979). His first

state habeas application was denied in 1981. Ex parte Chambers,

612 S.W.2d 572 (Tex. Crim. App. 1981). His conviction was reversed

in his 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).

Chambers was retried, convicted, and sentenced to death in

1985. His second conviction was reversed on direct appeal because

of violations under Batson v. Kentucky, 476 U.S. 79 (1986).

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

496 U.S. 912 (1989).

In 1992, Chambers was convicted and sentenced to death for the

third time. His conviction and sentence were affirmed on direct

appeal. Chambers v. State, 903 S.W.2d 21 (Tex. Crim. App. 1995).

His state habeas application, filed in October 1996, was denied by

the state trial court in September 1998. Ex parte Chambers,

Application No. 7,929-03 (Tex. Crim. App. March 24, 1999)

(unpublished). In March 1999, the Texas Court of Criminal Appeals

adopted the trial court’s findings and conclusions and denied

relief.
4

Chambers filed his federal habeas petition in October 1999,

raising 41 claims. On August 26, 2003, the district court denied

relief. Chambers v. Cockrell, No. 3:99-CV-1283-L (N.D. Tex. Aug.

26, 2003) (unpublished). The district court denied Chambers’s

application for a COA in December 2003.

Chambers requested a COA from this court for sixteen claims.

This court granted a COA for the claims discussed below. Chambers

v. Dretke, No. 03-11248 (Aug. 19, 2005) (unpublished). The parties

filed supplemental briefs on the merits of the claims for which a

COA was granted, and this court heard oral arguments of counsel.

Having considered the arguments of counsel, and based on our review

of the state court record, we conclude that the state court’s

decision to deny relief on these claims is not contrary to, or an

unreasonable application of, clearly established federal law as

determined by the Supreme Court. We therefore AFFIRM the district

court’s denial of federal habeas relief.

II

Based on our “threshold inquiry”, consisting of “an overview

of the claims in the habeas petition and a general assessment of

their merits,” Miller-El v. Cockrell, 537 U.S. 322, 327, 336

(2003), this court granted a COA authorizing Chambers to appeal the

denial of relief as to the following claims:

(1) that 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 in 1992 had a conflict of
5

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

accomplice, Clarence Ray Williams, in guilty plea proceedings in

1975;

(2) that his appellate counsel rendered ineffective assistance

on direct appeal by (a) failing to appeal the denial of Batson

objections to the prosecution’s peremptory strikes of three

minority jurors; (b) failing to appeal the prosecutor’s comment on

the defense’s failure to produce photographs; and (c) failing to

appeal the admission of testimony from a news reporter regarding

statements made by Chambers while he was on death row; 

(3) that his 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 Chambers’s comparative

culpability; and, alternatively, whether appellate counsel rendered

ineffective assistance by failing to raise the issue on direct

appeal; and

(4) that the Texas capital punishment statute in effect at the

time of his trial 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.

Chambers is not entitled to habeas relief on these claims

unless the state court’s adjudication of the claims “(1) resulted

in a decision that was contrary to, or involved an unreasonable
6

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State Court

proceeding.” 28 U.S.C. § 2254(d). The state court’s factual

determinations “shall be presumed to be correct”, and the

petitioner “shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1). We conclude that Chambers has not made the required

showing, for the reasons stated in the following discussion of each

of the claims.

A

The state court did not unreasonably conclude that Chambers’s

Sixth Amendment right to counsel was not violated because Lawrence

Mitchell, one of the two attorneys appointed to represent him on

the direct appeal of his third conviction in 1992, had a conflict

of interest based on Mitchell’s representation of his accomplice,

Clarence Ray Williams, in guilty plea proceedings in 1975. The

state court rejected this claim, holding that Mitchell did not

actively represent conflicting interests; that Mitchell’s

representation of Williams did not have an adverse effect on

Mitchell’s representation of Chambers; and that Mitchell did not

have a conflict of interest while representing Chambers. We

observe that the Supreme Court has not held that the standard

applied by the state court applies to claims of successive
7

representation conflicts. See Mickens v. Taylor, 535 U.S. 162, 176

(2001) (declining to decide whether to extend standard for multiple

concurrent representation conflicts in Cuyler v. Sullivan, 446

U.S. 335 (1980) -- conflict actually affected adequacy of

representation -- to successive representation conflicts); but see

Perillo v. Johnson, 205 F.3d 775, 797-98 (5th Cir. 2000) (holding

that Cuyler standard applies to all multiple representation

conflicts, whether concurrent or successive, under pre-AEDPA law,

and holding Teague bar inapplicable). Even assuming that the state

court incorrectly applied the Cuyler standard rather than the

prejudice standard of Strickland v. Washington, 466 U.S. 668

(1984), its decision is not objectively unreasonable. The Cuyler

standard is less demanding of habeas petitioners than the

Strickland standard, see Perillo, 205 F.3d at 781, and Chambers has

not demonstrated that his Sixth Amendment rights were violated

under either standard. Chambers has not offered any convincing

explanation of how anything Mitchell did or did not do in

Chambers’s 1992 appellate proceedings could have jeopardized

Williams’s 1975 guilty plea or the sentence he is now serving, or

the conditions of his imprisonment. Thus, there is no basis for

the speculation that Chambers’s Sixth Amendment right to the

effective assistance of counsel was harmed because Mitchell was

unwilling to raise any issues critical of Williams in Chambers’s

appeal.

B
8

The state court did not unreasonably conclude that Chambers’s

appellate counsel did not render ineffective assistance by failing

to appeal the denial of Batson challenges to the prosecution’s

peremptory strikes of three minority prospective jurors. The trial

court judge conducted a hearing on the objections and found that

the prosecutor provided race-neutral explanations for the

challenged strikes, and that there was no evidence that the

prosecutor’s explanations were pretextual. In rejecting Chambers’s

state habeas claim, the trial court stated that it had expected the

prosecution to strike these jurors “due solely to their answers and

not due to their race.” The trial court also noted that two

African-Americans and one Hispanic served on Chambers’s jury, and

that the prosecution had accepted three minority veniremembers that

the defense struck. Chambers concedes that he cannot prove that

the State exercised a high percentage of strikes against

minorities, that the strikes resulted in an all-white jury, or that

whites and minorities were questioned differently. The state

court’s decision that Chambers’s appellate counsel did not render

ineffective assistance by failing to raise a meritless Batson claim

on direct appeal is not contrary to, or an unreasonable application

of, clearly established federal law.

C

The state court’s decision that Chambers’s appellate counsel

did not render ineffective assistance by failing to appeal the
9

prosecutor’s comment on his failure to produce photographs is not

objectively unreasonable.

During closing arguments at the guilt-innocence phase, defense

counsel argued:

You know, we don’t have anybody--we have got

all these investigators and all this manpower

and everything, but the only picture that

[Deia Sutton has] ever been shown, according

to her own testimony, in 17 years, is Mr.

Chambers’ picture, and it’s in a photo lineup

that nobody can bring down here and show you.

It doesn’t exist anymore, which is pretty

convenient, I guess. Just doesn’t exist

anymore.

Why get rid of it? We don’t know what Mr.

Chambers looked like back in April of ‘75.

Nobody sees fit to come down and show you

that. Nobody’s seen fit to come down here and

show you what he looked like. Nobody’s -- and

they didn’t see fit to say, “Hey, could it

have been this guy? Could Bickems have been

the guy that did it?” No, they didn’t show

you that.

Did they talk--did they even show her a

picture of Williams? No, they didn’t do that.

We all know that.

In response, the prosecutor asked the jury to consider that

Chambers could have produced a photograph of himself to show that

he does not resemble the victims’ attacker:

We know from the testimony of Deia, she sees a

photo lineup. It’s not in existence anymore.

I would like to bring it to you, I can’t.

It’s long gone. We know she saw a photo

lineup, seven photographs of black males, all

about the same age, same body configurations,

same hair type, and she immediately, without

any hesitation, goes to the photograph of Mr.

Chambers. They say, why don’t we have a

photograph of Mr. Chambers? I don’t have that
10

photo lineup. It’s gone. We know he’s got a

father and family members. They could produce

a photo.

Defense counsel objected, and the trial court sustained the

objection. The prosecutor then continued, without objection:

Photographs of the Defendant exist. They

could bring them forth. Both sides have equal

subpoena power and both sides have a right to

bring photographs that they deem is [sic]

appropriate and admissible relevant [sic].

The Texas Court of Criminal Appeals adopted the state habeas

court’s findings that (1) “essentially the same argument was

repeated later in the trial without objection,” so any claim of

error was procedurally barred; (2) the argument was a proper

response to defense counsel’s argument that “We don’t know what Mr.

Chambers looked like back in April [of] ‘75"; (3) the argument was

not an indirect comment on Chambers’s failure to testify; and (4)

therefore, appellate counsel did not render ineffective assistance

by “reasonably deciding not to assert the seemingly frivolous point

of error.” Chambers has not demonstrated that the state court’s

decision is objectively unreasonable and, therefore, he is not

entitled to federal habeas relief on this claim.

D

The state court did not unreasonably conclude that Chambers’s

appellate counsel did not render ineffective assistance by failing

to appeal the admission of testimony from a news reporter regarding

statements made by Chambers while on death row. At the punishment

phase of the third trial, a former reporter for D Magazine, Mark
11

Donald (a licensed Texas attorney), was called as a rebuttal

witness for the State. Over Chambers’ objection, Donald testified

that, while writing a story about the crime, and with the

permission of Chambers’s counsel at the second trial, he

interviewed Chambers in the Dallas County Jail in January 1986, two

months after Chambers’s second trial. Donald testified that

Chambers told him that by the age of sixteen, Chambers could get

girls, guns and drugs, including marijuana, reds, codeine, coke,

and smack if he wanted, but that the only drug he used was

marijuana because he did not like to lose control. Chambers argues

that his appellate counsel should have appealed the admission of

Donald’s testimony, because it undercut a major defense contention

-- that Chambers’s normally peaceful nature was altered by drug

use.

The state habeas court held, inter alia, that because similar

evidence was introduced without objection, error had been waived,

and appellate counsel was not in a position to appeal the admission

of Donald’s testimony. Chambers has not demonstrated that the

state court’s decision is contrary to, or an unreasonable

application of, clearly established federal law.

E

The state court did not unreasonably conclude that Chambers’s

Eighth Amendment rights were not violated by the trial court’s

refusal to admit evidence of the criminal history of Williams, the

accomplice, to demonstrate Chambers’s comparative culpability, nor
12

did it unreasonably conclude that appellate counsel did not render

ineffective assistance by failing to raise this issue on direct

appeal.

At the punishment phase, Chambers sought to introduce as

mitigating evidence certified copies of accomplice Clarence Ray

Williams’s three prior violent criminal convictions. Chambers

argued that the record of convictions would show that Williams was

a far more dangerous man than Chambers; that Williams was likely

the leader; that Williams had led Chambers astray; and thus it was

fundamentally unfair for Chambers to be executed while Williams

“relaxed in prison” on a life sentence. After the trial court

ruled that it would admit only Williams’s indictment, judgment and

sentence for the murder and robbery for which Chambers was being

tried, defense counsel withdrew the offer of all of Williams’s

convictions, including Williams’s stacked life sentences for the

murder of McMahan and the robbery of Deia Sutton. Counsel

explained that the admission of Williams’s conviction and sentences

for the crime for which Chambers was being tried, without

Williams’s criminal history, would fail to convey to the jury the

magnitude of Williams’s dangerousness and would have presented a

misleading picture of Williams’s and Chambers’s relative

culpability.

The Texas Court of Criminal Appeals adopted the findings of

the state habeas court that: the claim was procedurally barred

because defense counsel withdrew their offer to introduce the
13

evidence after the trial court ruled that it would admit only

Williams’s conviction and sentence for the crime for which Chambers

was being tried; alternatively, evidence of Williams’s criminal

history was irrelevant to the determination of Chambers’s

individual culpability; and Chambers was not harmed by the

exclusion of the challenged evidence because his trial counsel were

still able to achieve the desired effect by having various

witnesses testify to Williams’s bad character.

At the time of Chambers’s trial in 1992, clearly established

federal law, as determined by the Supreme Court, required that the

jury be able to consider, as a mitigating factor, any aspect of

Chambers’s character or record and the circumstances of the offense

that he proffered as a basis for a sentence less than death. See

Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality)

(“in capital cases the fundamental respect for humanity underlying

the Eighth Amendment ... requires consideration of the character

and record of the individual offender and the circumstances of the

particular offense as a constitutionally indispensable part of the

process of inflicting the penalty of death”); Lockett v. Ohio, 438

U.S. 586, 604 (1978) (plurality) (“the sentencer [may] not be

prevented from considering, as a mitigating factor, any aspect of

a defendant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence

other than death”); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)

(“the rule in Lockett recognizes that justice ... requires ... that
14

there be taken into account the circumstances of the offense

together with the character and propensities of the offender”)

(internal quotation omitted); Penry v. Lynaugh, 492 U.S. 302, 328

(1989) (“In order to ensure reliability in the determination that

death is the appropriate punishment in a specific case, the jury

must be able to consider and give effect to any mitigating evidence

relevant to a defendant’s background and character or the

circumstances of the crime.”) (internal quotation omitted).

The Supreme Court has never held that a capital murder

defendant has an Eighth Amendment right to present an accomplice’s

criminal history. Williams’s criminal history is not an aspect of

Chambers’s character or record, and is not a circumstance of the

capital murder for which Chambers was on trial. Thus, the state

court’s conclusion that evidence of Williams’s criminal history was

not relevant to the determination of Chambers’s individual

culpability is not contrary to, or an unreasonable application of,

clearly established federal law. To be sure, however, the trial

court ruled that Chambers could present as mitigating evidence the

fact that Williams received two life sentences for the murder of

McMahan and robbery of Sutton, but his counsel chose not to do so.

The state court’s decision that appellate counsel did not render

ineffective assistance by failing to appeal a procedurally barred

claim likewise is not contrary to, or an unreasonable application

of, clearly established law.

F
15

Finally, the state court’s decision that the Texas special

punishment issues were not unconstitutional as applied to Chambers

is not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court.

Chambers offered the following mitigating evidence at the

punishment phase of the trial. Cathy Hill testified that Chambers

was the father of one of her three children, who was about a year

old at the time of the murder; that he cared for and supported them

and sent them cards from prison; and that his parents are nice,

hard-working, God-fearing people who tried to raise Chambers the

right way. Rhonda Mayes, Chambers’s daughter, who was 18 years old

at the time of trial, testified that Chambers had sent her cards

and letters from prison, and that she had visited him in prison.

Ron Byrd, Chambers’s cousin, testified that he grew up with

Chambers in the projects; that Chambers’s parents are good

Christian people who treated Chambers with love; that Chambers went

to church; that he was not in trouble while they were growing up

together; and that Chambers was remorseful. Chambers’s sister,

Patty, testified that he was respectful to his family, was wellliked, and had a good sense of humor and a good personality.

Chambers’s uncle, James, testified that Chambers was a normal kid,

that his parents were good, church-going people, and that Chambers

was polite and kind. Chambers’s mother testified that he had a

normal upbringing, that she took him to church, and that he seemed

to be sorry for what he had done. Chambers’s first cousin, Doris
16

Mead, testified that she babysat him while his parents worked; that

he was not a bully; and that he was respectful to his elders.

Reverend Raymond Hunter, Chambers’s pastor, testified that Chambers

had always been respectful. Howard Falls testified that he grew up

in the projects with Chambers; that Chambers used marijuana and

alcohol; but that he did not bully or hurt people. Wayne Sternes,

who grew up with Chambers, testified that everybody loved Chambers;

that he did not have a violent nature; and that he had no business

“running with” Williams, who was a gangster. Julius Sternes, who

also grew up with Chambers, testified that he was a normal,

peaceful guy who was not a troublemaker. Chambers’s father

testified that Chambers was respectful, well-liked, had a good

sense of humor, and worked, painting houses. Glenn Byrd,

Chambers’s cousin, testified that Chambers was respectful and

pleasant, well-liked, and not a bully. Dr. George Parker, a

clinical psychologist, testified that psychological tests showed

that Chambers falls into the class of prisoners who are least

likely to have trouble or to be a major discipline problem; that

Chambers does not have an antisocial personality disorder; and that

he is remorseful. Dr. Richard Coons, a psychiatrist, testified

that Chambers is not a sociopath; that there is not a probability

that he would commit criminal acts of violence in the future; that

he feels remorse and sadness about the crime; and that the incident

was an aberration in his behavior. 
17

In his closing argument, defense counsel argued that the

evidence of Chambers’s remorse for the crime, his caring

relationship with his daughter, his assistance to others, his

limited criminal history and absence of violent criminal history,

his upbringing in a depressed, crime-infested neighborhood, his

relative youth at the time of the crime, his good behavior while

incarcerated, and his age, 37 at the time of his 1992 trial,

supported a “no” answer to the special issue on future

dangerousness.

The trial court instructed the jury:

When you deliberate about the questions posed

in the Special Issues, you are to consider any

mitigating circumstances supported by the

evidence presented in both phases of the

trial. A mitigating circumstance may be any

aspect of the defendant’s character and record

or circumstances of the crime which you

believe makes a sentence of death

inappropriate in this case. If you find there

are any mitigating circumstances, you must

decide how much weight they deserve and give

them effect when you answer the Special

Issues. If you determine, in consideration of

this evidence, that a life sentence, rather

than a death sentence, is an appropriate

response to the personal moral culpability of

the defendant, you are instructed to answer at

least one of the Special Issues under

consideration “No”.

On direct appeal, Chambers argued that the Texas special

issues were unconstitutional as applied to him because they did not

allow the jury to consider and give effect to his mitigating

evidence of his youth at the time of the commission of the offense

and his good behavior in prison for the seventeen years between his
18

first conviction and his third trial. The Texas Court of Criminal

Appeals rejected that contention, holding that this evidence was

not beyond the scope of the special issues and therefore did not

call for a mitigating evidence instruction. 903 S.W.2d at 34-35.

The state habeas court denied Chambers’s Penry claims on the

ground that the above-quoted “nullification” instruction allowed

the jury to consider and give effect to his mitigating evidence in

assessing the death penalty. However, in Penry v. Johnson, 532

U.S. 782 (2001) (Penry II), the Supreme Court held that a similar

“nullification” instruction was “an inadequate vehicle for the jury

to make a reasoned moral response to Penry’s mitigating evidence.”

Id. at 790. The Court stated that because Penry’s mitigating

evidence (mental retardation and severe child abuse) was beyond the

scope of the special punishment issues on future dangerousness and

deliberateness, it was logically and ethically impossible for the

jury to answer the special issues truthfully and at the same time

give effect to Penry’s mitigating evidence. Id. at 799-800.

The district court held that Chambers’s mitigating evidence

was not constitutionally relevant under this court’s former

relevance standard (criminal act was attributable to uniquely

severe permanent handicap with which defendant was burdened through

no fault of his own) and, therefore, there was no Penry error and

Chambers was not harmed by the nullification instruction.

At this court’s direction, the parties filed supplemental

briefs addressing the impact of Smith v. Texas, 543 U.S. 37 (2004),
19

and Tennard v. Dretke, 542 U.S. 274 (2004). In Tennard, in which

the petitioner presented mitigating evidence of low IQ and

gullibility, the Supreme Court rejected the relevance standard

applied by this court and by the district court in Chambers’s case.

542 U.S. at 283-88. In Smith, the Texas Court of Criminal Appeals

had also applied the discredited relevance standard, and the

Supreme Court reversed, citing Tennard. 543 U.S. at 43-45. The

Court held further that the nullification instruction given at

Smith’s trial was not adequate to permit the jury to give effect to

Smith’s mitigating evidence (low IQ, speech handicap, organic

learning disability, placement in special education classes, youth

and immaturity, and troubled background, including drug-addicted

father who stole from the family). Id. at 45-48.

Chambers concedes that the special issues adequately addressed

his evidence of good behavior in prison and his youth at the time

of the offense, but he argues that much of his other mitigating

evidence -- particularly his caring relationship with his daughter,

his efforts to help others, and the deprivations of his community

-- had little, if anything, to do with the deliberateness and

future dangerousness inquiries. He contends further that the

nullification instruction given to the jury injected an intolerable

arbitrariness into the sentencing proceeding because it permitted

jurors to give effect to mitigating evidence only by violating

their oaths to answer the special issues truthfully.
20

Chambers argues that, although a defendant’s adaptability to

structured environments, or his non-violent nature generally, may

bear on future dangerousness, other kinds of good character

evidence -- such as his concern for his daughter and his

helpfulness to others -- is unrelated to the likelihood of future

dangerousness. He relies for support on Justice O’Connor’s

concurring opinion in Franklin v. Lynaugh, 487 U.S. 164, 186

(1988), in which she contrasted evidence of good behavior in prison

with evidence of “voluntary service, kindness to others, [and]

religious devotion,” which might call for a sentence less than

death, but not be reflected in the jury’s answer to the future

dangerousness issue.

Although it has had many opportunities to do so, the Supreme

Court has never held that evidence of good character traits and

upbringing in a disadvantaged community cannot be considered and

given effect under the Texas special issues. In Graham v. Collins,

506 U.S. 461 (1993), the Supreme Court held that the rule sought by

Graham -- that the Texas special issues did not allow the jury to

give effect to mitigating evidence of Graham’s youth, family

background (childhood poverty, parents’ separation, transient

upbringing, mother’s nervous condition), and positive character

traits (regular church attendance, visiting his mother, helping

with family chores, buying food and clothing for his two young

children) -- was not dictated by precedent in effect at the time

Graham’s conviction and sentence became final in September 1984,
21

and thus constituted a new rule barred by Teague v. Lane, 489 U.S.

288 (1989). Graham, 506 U.S. at 463-64, 475-76. The Court stated:

... Jurek [v. Texas, 428 U.S. 262 (1976)] is

reasonably read as holding that the

circumstance of youth is given

constitutionally adequate consideration in

deciding the special issues. We see no reason

to regard the circumstances of Graham’s family

background and positive character traits in a

different light. Graham’s evidence of

transient upbringing and otherwise nonviolent

character more closely resembles Jurek’s

evidence of age, employment history, and

familial ties than it does Penry’s evidence of

mental retardation and harsh abuse.

Id. at 476. The Court stated that, not only was the rule sought by

Graham not dictated by precedent existing at the time his

conviction became final in 1984, it could not say, “even with the

benefit of the Court’s subsequent decision in Penry, that

reasonable jurists would be of one mind in ruling on Graham’s claim

today.” Id. at 477. Graham was decided on January 25, 1993.

Chambers’s conviction and sentence were affirmed on direct appeal

on June 28, 1995. Because he did not seek further review in the

Supreme Court, his conviction became final when the time for filing

a petition for a writ of certiorari expired. Between the time that

Graham was decided and the time that Chambers’s conviction became

final, the Supreme Court did not hold that evidence of positive

character traits and transient upbringing could not be adequately

considered and given effect by the jury under the Texas special

issues. Therefore, Teague bars the relief sought by Chambers.
22

Consistent with Graham, this court has also held, repeatedly,

that the kinds of mitigating evidence that Chambers presented can

be considered and given effect by the jury in answering the special

issues. See Barnard v. Collins, 958 F.2d 634, 640-41 (5th Cir.

1992) (good character, including evidence of carpentry skills, work

history, and familial responsibility and support), cert. denied,

506 U.S. 1057 (1993); James v. Collins, 987 F.2d 1116, 1121-22 (5th

Cir.) (cooperation with police, remorse, impoverished and abusive

family history, positive familial ties despite troubled

upbringing), cert. denied, 509 U.S. 947 (1993); Andrews v. Collins,

21 F.3d 612, 629-30 (5th Cir. 1994) (good family relationships),

cert. denied, 513 U.S. 1114 (1995); Jacobs v. Scott, 31 F.3d 1319,

1327-28 (5th Cir. 1994) (“troubled childhood; cooperation with the

police; remorse; efforts to better his life by starting a

successful auto repair business while on parole and educating

himself while in prison; trustworthiness; love for his family and

friends; and, that he was president of a prison group dedicated to

benefiting charitable institutions and helping unwed mothers and

abused children”), cert. denied, 513 U.S. 1067 (1995); Boyd v.

Johnson, 167 F.3d 907, 912 (5th Cir.) (positive character traits),

cert. denied, 527 U.S. 1055 (1999); Beazley v. Johnson, 242 F.3d

248, 260 (5th Cir.) (good character), cert. denied, 534 U.S. 945

(2001); Newton v. Dretke, 371 F.3d 250, 256-57 (5th Cir.) (youth,

good character, church attendance, cooperation with police,

unfaithful/drug dealing spouse, and impoverished background), cert.
23

denied, 543 U.S. 964 (2004); Summers v. Dretke, 431 F.3d 861, 882-

83 (5th Cir. 2005) (nonviolent nature and general good character,

grief for parents’ death, ability to conform to prison life); Coble

v. Dretke, 444 F.3d 345, 362-63 (5th Cir. 2006) (good character,

feelings of remorse and guilt, poverty in childhood, stepfather’s

alcoholism and conflicts with mother, and mother’s nervous

breakdown). Contrary to Chambers’s contention, Smith did not

overrule all of these cases. See Tennard v. Dretke, 442 F.3d 240,

250 (5th Cir. 2006) (“Typically, evidence of good character, or of

transitory conditions such as youth or being under some particular

emotional burden at the time, will tend to indicate that the crime

in question is not truly representative of what the defendant’s

normal behavior is or may become over time, and that the defendant

may be rehabilitable so as not to be a continuing threat to

society. The core of Jurek -- which we cannot conclude has been

abandoned -- is that the mitigating force of this kind of evidence

is adequately accounted for by the second special issue.”); Bigby

v. Dretke, 402 F.3d 551, 570 (5th Cir. 2005) (“The Supreme Court’s

rulings in Penry II and Smith should not be read to disturb its

earlier holdings affirming the constitutionality of Texas’s

statutory death penalty sentencing scheme.”), cert. denied, 126

S.Ct. 239 (2005); In re Kunkle, 398 F.3d 683, 685 (5th Cir. 2005)

(“We are not persuaded that the Court intended to undercut Jurek,

Graham, and Johnson without even citing them. Whether Tennard or
24

Smith sweep so broadly as to create a conflict with its own Jurek

or Graham decisions is for the Supreme Court.”).

A juror who was considering whether a defendant should live or

die based on whether he would be a future danger to others, could

reasonably consider and give mitigating effect to evidence that he

has maintained a caring relationship with his daughter, despite his

incarceration, and evidence that he has been helpful to others in

the past, despite having been brought up in an economicallydisadvantaged, crime-ridden neighborhood, and thus conclude that he

is less likely to commit criminal acts of violence in the future if

sentenced to life in prison. See Boyd v. Johnson, 167 F.3d 907,

912 (5th Cir.) (“Evidence of good character tends to show that the

crime was an aberration, which may support a negative answer to the

special issue regarding the future dangerousness of the

defendant.”); James, 987 F.2d at 1122 (“[s]uch positive character

evidence is directly related to whether or not James would continue

to present a threat to society, and an additional instruction to

that effect is not required”). Because this evidence was not

beyond the effective reach of the jury in answering the special

issues, the nullification instruction given in this case did not

create any ethical or moral dilemma for the jury, because it was

not put in the position of having to answer the special issues

falsely in order to give effect to Chambers’s mitigating evidence.

See Bigby, 402 F.3d at 570 (noting that this court has found a

nullification instruction “to be unconstitutional only where the
25

special issue questions themselves are not broad enough to provide

a vehicle for the jury to give effect to the defendant’s mitigation

evidence”).

In sum, we conclude that there is not a reasonable likelihood

that the jury would have found itself foreclosed from considering

and giving effect to Chambers’s mitigating evidence when answering

the special issues. See Johnson v. Texas, 509 U.S. 350, 368

(1993); Boyde v. California, 494 U.S. 370, 380 (1990). That

evidence was not beyond the effective reach of the jury because it

was within the scope of the special issues, and could have been

considered and given constitutional effect by the jury in answering

those special issues. Therefore, the state court did not

unreasonably conclude that under clearly established law, the

special issues, as applied to Chambers, were not unconstitutional.

III

For the foregoing reasons, the judgment of the district court

denying Chambers’s petition for a writ of habeas corpus is

AFFIRMED.