United States Court of Appeals

Fifth Circuit

FILED

July 28, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-41459

_______________

ANZEL KEON JONES,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent -Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 6:99-CV-660

_________________________

Before HIGGINBOTHAM, SMITH, and

CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Anzel Jones appeals the denial of his petition for writ of habeas corpus sought pursuant

to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254. We affirm. 

I.

In 1995, Jones entered the residence of

Edith Jones (“the mother”), age 72, and her

daughter Sherry Jones (“the daughter”),

* 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determined that this opinion should not be published and is not precedent except under the limited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.
2

age 49.1 Armed with a gun and a knife, Jones

beat and tortured both women, then confined

the mother in a closet while he continued to

beat the daughter. The mother escaped from

the closet and ran for the back door, but Jones

caught her before she could escape. He then

killed the daughter by stabbing her in the heart

and slitting her throat as her mother watched.

He raped the mother; then stabbed her in the

chest, slit her throat, and set the house on fire.

The mother survived by crawling outside the

burning house, where a neighbor saw her and

called authorities.

Jones’sfingerprint wasfound on a bottle of

fingernail polish found in the house; his DNA

matched the DNA found in semen swabbed

from the mother’s mouth; the mother’s blood

was found on his clothing; and the daughter’s

blood was found on his shoes. Though the

mother could not positively identify Jones because of poor eyesight, she did select his picture from an array of twelve photographs as

most resembling her attacker. Joe Dollins,

Jones’s best friend, testified that Jones had

confessed to the crime. 

Jones was found guilty of capital murder.

At the penalty phase, the jury found that there

was a probability that he would constitute a

continuing threat to society and that there was

insufficient evidence of mitigating circumstances to preclude a death sentence.

II.

Jones argues that he had ineffective assistance of counsel at trial because, in questioning Dollins, his attorney opened the door to

testimony of a collateral offense. Jones’s

counsel tried to impeach Dollins’s testimony

that Jones had confessed to the murder, using

statements made by Dollins claiming no

knowledge ofthe crime. After introducing the

inconsistent statements, counsel asked, “Well,

Mr. Dollins, tellthisjurywhatsuddenlycaused

you on the 17th to finally tell the story that

you are now telling us is the truth?” 

Dollins responded that the police had confronted himwith a letter indicating that Dollins

and Jones had conspired to killDollins’sfather

and brother. On redirect, the court allowed

the state to have Dollins read the letter, which

described a murder plan in detail, with most of

the crime to be carried out by Jones. Dollins

also testified that he and Jones had discussed

the plan and that Jones was willing to commit

the crime.

In the district court, Jones argued that this

questioning was ineffective, because counsel

could have structured the questions so as to

impeach Dollins without opening the door to

the letter, and this prejudiced the verdict. The

court agreed that Jones’s counsel performed

deficiently under Strickland v. Washington,

466 U.S. 668 (1984), but opined that Jones

had failed to meet the second prong of Washington requiring a showing of prejudice. 

Jones assertsthat he has demonstrated prejudice, because the admission of the letter and

related testimony eliminated “residual doubt”

that Jones wasthe murderer and supported the

state’s case that Jones could represent a future

danger, bo th of which might have caused the

jury to impose the death sentence. The state

argues that Jones did not raise this argument

before the district court, that trial counsel’s

performance was not deficient, and that any

error was not prejudicial.

1

 Jones was not related to the victims.
3

A.

We review the district court’s factual findings for clear error and its determinations of

law de novo. Evans v. Cockrell, 285 F.3d

370, 374 (5th Cir. 2002). Jones’s petition for

habeas relief is governed by the heightened

standard of review provided by AEDPA,

which “‘substantially restricts the scope of

federalreview ofstate criminal court proceedings.’” Id. (quoting Montoya v. Johnson, 226

F.3d 399, 404 (5th Cir. 2000)); Wiggins v.

Smith, 123 S. Ct. 2527, 2534 (2003). Under

the Act, 

neither the district court nor this Court

may grant a writ of habeas corpus based

solely on a finding of error by a state

court. Rather, a writ may be granted

only if a state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if

the state court decides a case differently

than [sic] the Supreme Court has on a

set of materially indistinguishable facts.

Without such a direct conflict, a writ

will be granted only if the state court

identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s

case.

Evans, 285 F.3d at 374-75 (citations and

punctuation omitted).

B.

The state contendsthat Jones has never before raised this argument as it relates to the

penalty phase, but rather has argued only that

the questioning prejudiced the guilt/innocence

phase. Jones now disclaims any argument that

the Dollins questioning prejudiced the verdict,

but does claim that it reduced residual doubt

about innocence and supported a finding offuture dangerousness sufficient to prejudice the

sentencing.

The argument Jones now presents is not

properly before us. In his state habeas petition,Jones argued that ineffective cross-examination of Dollins “deprived Applicant of a fair

trial in which the jury was to determine his

guilt or innocence of the offense changed in

the indictment.” Jones now contends that although the petition did not address prejudice

as it related to sentencing, it also did not “limit

the effect of that error to the guilt phase verdict.” 

In his federal habeas petition, Jones again

failed to argue that the prejudice applied to

sentencing; rather, he asserted that it “undermined the guilt phase theory that the state’s

evidence failed to establish that Mr. Jones

killed Sherry Jones.” None of the words that

might imply an argument based on a prejudice

to sentencingSSsuch as sentencing, penalty

phase, residual doubt, or future dangerousnessSSappearsin either petition’s discussionof

the Dollins questioning.2

Jones’s contention that the issue wasraised

in the district court essentially rests on the notion that his previous argument did not expressly contradict the argument he now raises.

Though this is debatable, we find it beyond

question that Jones’s petitions before the state

2

 In his response to the state’s motion for summary judgment, Jones attempted, unconvincingly,

to recast his argument as relating to “[r]esidual

doubt, or lack of certainty about whether a person

actually killed the victim of a capital murder,

[which] is often a powerful basis for a jury to decide not to impose death.” This marked the first

appearance of this argument.
4

and district courts did not actually make the

argument. We are precluded from considering

the claim, because Jones did not raise it properly before the district court. Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (stating that issues not raised in habeas proceedings

before the district court cannot be considered

on appeal).3

Even were we to find that Jones’sresponse

to summary judgment was sufficient to raise

the argument in the district court, it was also

not raised in state court. A claim is procedurally defaulted if a petitioner has failed to exhaust all available state remedies, and the state

court to which he would be required to petition would now find that the claim is procedurally defaulted. Bledsoe v. Johnson, 188

F.3d 250, 254 (5th Cir. 1999). The Texas

Code ofCriminalProcedure prohibitsthe filing

ofsubsequent or untimely habeas applications,

absent a demonstration of cause or actual innocence. See TEX. CODE CRIM. PROC. art

11.071 § 5(a); Ex parte Davis, 947 S.W.2d

216 (Tex. Crim. App. 1996) (en banc) (upholding the constitutionality of art. 11.071).

Jones does not claim that he meets these exceptions; we find that he cannot, and therefore

his claim is procedurally barred.

III.

Jones argues that the testimony of Royce

Smithey at the sentencing phase prejudiced his

sentencing and denied him his right to an individualized sentencing determination required

under the Eighth Amendment, as explicated in

Enmund v. Florida, 458 U.S. 782 (1982).

Smithey testified that a prisoner in another

Texas county,serving a life sentence for a capital murder conviction, escaped from a workrelease program. Though the Texas Court of

Criminal Appeals decided that the evidence

was irrelevant to the sentencing determination

and should not have been admitted over

Jones’s objection, it found the admission

harmless. The district court held the denial of

this claim was “neither contrary to, nor an

unreasonable application of, any clearly established federal law,” see Wiggins, 123 S. Ct.

at 2534, and granted summary judgment; in

doing so, it addressed Jones’s Eighth Amendment argument and found it to be without

merit. 

Jones challenges this decision, arguing that

the decision of the Court of Criminal Appeals

was objectivelyunreasonable “because itfailed

to take into account the profound effect the

prospect of an easy escape would have had on

the jurors’ assessment of AnzelJones’s future

dangerousness.” We disagree that the decision

was objectively unreasonable.

A.

We first consider how Jones’sfailure to exhaust this claim affects our review. On direct

appeal before the Court of Criminal Appeals,

Jones’s claimwith respect to this evidence was

based entirely on the argument that the evidence was not relevant under TEX. R. CRIM.

EVID. 401 and 402 and was prejudicial. His

arguments did not touch upon theConstitution

generally or the Eighth Amendment particularly, and he did not cite Enmund or any of

the other cases he relies on in his argument

3

It is the petitioner’s burden under Washington

to show that trial counsel’s errors were so serious

that they rendered the proceedings unfair or the result unreliable. Hopkins v. Cockrell, 325 F.3d

579, 586 (5th Cir. 2003); see Wiggins, 123 S. Ct.

at 2535. A petitioner who fails even to indicate

that prejudice influenced a given phase of a proceeding cannot be said to have raised the argument

with respect to that phase, and much less to have

met his burden under Washington.
5

before this court. “[W]here petitioner advances in federal court an argument based on

a legal theory distinct from that relied upon in

the state court, he fails to satisfy the

exhaustion requirement.” Henry v. Cockrell,

327 F.3d 429, 432 (5th Cir. 2003) ) (citations

and quotation marks omitted). “It is not

enough that all the facts necessary to support

the federal claim were before the state courts

or that a somewhat similar state-law claim

was made.” Anderson v. Harless, 459 U.S.

4, 6 (1982) (internal citation omitted)

(emphasis added).

Though the state has not addressed Jones’s

failure to exhaust this claim, we raise the issue

sua sponte, because 28 U.S.C. § 2254(b)-

(1)(A) precludes granting a habeas petition unless the state, through counsel, has expressly

waived the exhaustion requirement. Although

the state has not done so here, “[a]n

application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.” § 2254-

(b)(2).

When we consider a claimthat has not been

adjudicated on the merits by a state court, our

review is governed by Teague v. Lane, 489

U.S. 288 (1989). See Daniel v. Cockrell, 283

F.3d 697, 702 (5th Cir.), cert. denied, 123 S.

Ct. 286 (2002). Teague held that a federal

court may not create or apply new

constitutional rules on habeas review. The

Teague analysisinvolvesthree determinations:

(1) when the conviction became final; (2)

whether a state court considering the federal

claim when the conviction became final would

have felt compelled by existing precedent to

apply the rule the applicant now seeks; and (3)

if the applicant seeks to apply a new rule,

whether that rule falls within one ofthe narrow

exceptions to the non-retroactivity principle.

Id. at 705 (citations omitted). Jones did not

petition the Supreme Court for a writ of

certiorari on direct appeal, so his conviction

and sentence became final in 1999, after the

time for filing such a petition had elapsed.

Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.

1999).

B.

Enmund requires, 458 U.S. at 801, that, in

death penalty cases, punishment must be tailored to the offender’s personal responsibility

and moral guilt. Enmund forbids the

imposition of the death penalty for a defendant

“who aids and abets a felony in the course of

which a murder is committed by others but

who does not himself kill, attempt to kill, or

intend that a killing take place or that lethal

force will be employed.” Id. at 797. In Booth

v. Maryland, 482 U.S. 496, 504, 509 (1987),

another case cited by Jones, the Court rejected

the requirement of a state statute that the jury

consider a victim impact statement, finding

that it impermissibly took the focus of

sentencing away from the defendant and

placed it on “the character and reputation of

the victim and the effect on his family” and

their “emotionally charged opinions asto what

conclusions the jury should draw from the

evidence . . .” 

Jones argues not that Texas’s death penalty

procedure is inadequate under the Eighth

Amendment,4but rather that the improper ad

4

“The Texas capital-sentencing procedure

guides and focuses the jury’s objective consideration of the particularized circumstances of the

individual offense and the individual offender before it can impose a sentence of death.” Jurek v.

Texas, 428 U.S. 262, 274 (1976). With the excep-

(continued...)
6

mission of evidence within that proceeding inappropriately influenced the jury’s

determination of future dangerousness in a

manner unrelated to his personalresponsibility

or guilt. This argument is akin to that raised

by the petitioner in Romano v. Oklahoma, 512

U.S. 1, 10-11 (1994), who argued that the

jury’s consideration ofirrelevant evidenceSSin

that case the fact that the petitioner had

received a death sentence for a prior, separate

murder convictionSS”rendered his sentencing

proceeding so unreliable that the proceeding

violated the Eighth Amendment.” The Court

held “[t]hat the evidence may have been

irrelevant as a matter of state law, however,

does not render its admission federal

constitutional error.” Id. at 10. It rejected the

“proposition that the mere admission of

irrelevant and prejudicial evidence requiresthe

overturning of a death sentence,” affirming the

state appellate court’s determination that the

death penalty was warranted and supported

despite the improper admission. Id. at 11.

Concluding its discussion of the argument, the

Court held:

Petitioner’s argument, pared down,

seems to be a request that we fashion

general evidentiary rules, under the

guise of interpreting the Eighth

Amendment, which would govern the

admissibility of evidence at capital

sentencing proceedings. We have not

done so in the past, however, and we

will not do so today. The Eighth

Amendment does not establish a federal

code of evidence to supersede state

evidentiary rules in capital sentencing

proceedings.

Id. at 11-12 (emphasis added).

Given that the Court found no Eighth

Amendment violation in Romano, Jones has

not demonstrated anEighthAmendment claim

under the facts before us. If anything, the

evidence considered here has even fewer

Eighth Amendment implications than did that

considered in Romano.

5

 A Texas court

considering Jones’s federal claim in 1999

would not have felt compelled by existing precedent to find anEighthAmendment violation,

and accordingly we deny the claim.6 

4

 (...continued)

tion of a modification taken by the Texas legislature to respond to Penry v. Lynaugh, 492 U.S.

302 (1989), “Texas’ death penalty scheme substantively is the same as the one the United States

Supreme Court upheld in Jurek[.]” Cockrell v.

State, 933 S.W.2d 73, 92-93 (Tex. Crim. App.

1996). 

5 Though the Court in Romano did weigh the

prejudice of the remarks against the remaining untainted evidence, it did so when considering the petitioner’s alternative argument “that the introduction of the evidence in question violated the Due

Process Clause of the Fourteenth Amendment.”

Romano, 512 U.S. at 12-14. Jones has not raised

an argument based on theDue Process Clause, and

therefore we need not engage in such a weighing.

6

 To the extent that Jones seeks the application

of a new rule that extends beyond the mandates or

relevant precedent, it plainly would not meet either

narrow exception to retroactivity laid out in

Teague. See Daniel, 283 F.3d at 708 (“The two

exceptions are for new rules that: (1) place certain

kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe; or (2) are implicit in the concept of ordered liberty.”) (quotation marks

omitted).
7

IV.

Jones contends that the death penalty, as

applied to a seventeen-year-old, violates the

Eighth and Fourteenth Amendments. The

state argues, inter alia, that we should affirm

the district court, which found the claim procedurally barred because petitioner did not

present it to the Court of Criminal Appeals.

Jones does not address this holding, and we

find nothing in the record to undermine it.7

V.

Jones argues that he had ineffective

assistance at trial because counsel failed

adequately to develop and present evidence of

mental health problems that could have

mitigated against a death sentence. Jones

admits that the claim is unexhausted, because

he failed to raise it in state habeas proceedings,

and further concedes that he could not satisfy

the state’s requirements for filing a second

habeas application. See TEX. CODE CRIM.

PROC. art 11.071 § 5(a). He contends,

however, that counsel’s failure to raise the

issue in his state habeas application, together

with the refusal of the Court of Criminal

Appeals to allow a second filing, meets the

requirements of § 2254(b)(1)(B)(ii), which

allows a grant of a writ of habeas corpus

where “circumstances exist that render [state

corrective] process ineffective to protect the

rights of the applicant.”

Jones notesthat Texas’s 1995 Habeas Corpus Reform Act (“Reform Act”) provides that

“an applicant shall be represented by

competent counsel unless the applicant has

elected to proceed pro se . . . .” TEX. CODE

CRIM. PROC. ART. 11.071 § 2(a). Because

state habeas counsel failed to raise the

argument Jones wishes to assert here, Jones

reasons that Texas failed to meet its burden to

provide competent counsel, and therefore the

process was ineffective to protect his rights.

The district court rejected this argument and

found that it is procedurally barred.

Failure to exhaust under § 2254(b)(1)(B)(i)

cannot be excused by arguing that appointed

state habeas counsel provided ineffective assistance. Martinez v. Johnson, 255 F.3d 229,

240-41 (5th Cir. 2001). Moreover, “failure to

provide ‘competent’ counselfor a state habeas

petition does not fallunder the general catchall

exception provided in 28 U.S.C. § 2254(b)(1)-

(B)(ii).” Id. at 238 n.10.8 Jones argues that

we provided insufficient reasoning in Martinez, suggesting that perhaps the court misunderstood the contention, and urges that we

“should fairly address the argument.” But,

absent “an intervening contraryorsuperseding

decision by this court sitting en banc or by the

United States Supreme Court, a panel cannot

overrule a prior panel’s decision.” Burge v.

Parish of St. Tammany, 187 F.3d 452, 466

(5th Cir. 1999). Under Martinez, Jones’s

claim is procedurally barred.

7 This argument also isforeclosed by precedent.

See Beazley, 242 F.3d at 268-69 (citing Stanford

v. Kentucky, 492 U.S. 361, 370-73 (1989)).

8 Furthermore, the statutory right created in

TEX.CODECRIM. PROC. art. 11.071 § 2(a) relates

to “habeas counsel’s qualifications, experience, and

abilities at the time of his appointment,” not “the

final product of representation.” Ex parte Graves,

70 S.W.3d 103, 113-14 (Tex. Crim. App. 2002).

Jones’s argument rests entirely on state habeas

counsel’s inadequate representation in failing to

raise a particular claim; he makes no arguments as

to counsel’s general competence. Therefore, to the

extent that Jones’s argument rests on the guarantees of theReform Act, hisreliance is misplaced,

becausewe defer to theCourt of Criminal Appeals’

interpretation of a Texas statute.
8

AFFIRMED.