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

_______________



### A NZEL 

### K

EON 

### J ONES



### ,

Petitioner-Appellant,

VERSUS



### J ANIE 

### C OCKRELL



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, I NSTITUTIONAL D IVISION

,



### Respondent -Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas



### m 6:99-CV-660

_________________________

Before H IGGINBOTHAM

, S MITH , and

C LEMENT , Circuit Judges.

J ERRY E. S MITH , 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 t he residence of

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

daughter Sherry Jones (“ the daughter”), * Pursuant to 5 TH C IR. R. 47.5, the court has

determined that this opinion s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR. 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 o ut side the

burning house, where a neighbor saw her and

called authorities.

Jones’s fingerprint was found on a bottle of

fingernail polish found in the house; his DNA

matched the DNA found in semen sw abbed

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

was found on his clothing; and the daughter’s

blood was fo und 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 Jo n es 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.

Jon es argues that he had ineffective assistance of counsel at trial because, in questio n

ing Dollins, his attorney opened the door to

testimon y o f 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 of the crime. After introducing the

inconsistent statements, counsel asked, “Well,

Mr. Dollins, tell this jury what suddenly caused

y o u o n the 17th to finally tell the story that

you are now telling us is the truth?”

Dollins responded that the police had confronted him with a letter indicating that Dollins

and Jones had conspired to kill Dollins’s father

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 ou t by Jones. Dollins

also testified that he and Jones had di scussed

the plan and that Jones was willing to commit

the crime.

In the district court, Jones argued that this

qu estioning was ineffective, because counsel

could have struct ured the questions so as to

impeach Doll

ins 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), b ut opined that Jones

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

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

related testimon y eliminated “residual doubt”

that Jones was the murderer and supported the

state’s case that Jones could represent a future

dange r, bo th of which might have caused the

jury to impose the death se ntence. The state

argues that Jones did not raise this argu ment

before the district court, t hat trial counsel’s

performance was not defici ent, 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 determi nati ons of

law de novo

. E vans v. Cockrell

, 285 F.3d

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

habeas relief is governed by the height ened

st a ndard of review provided by AEDPA,

whic h “‘substantially restricts the scope of

federal review of state criminal court proceedings.’” I d

. (quoting M

ontoya v. Johnson

, 226

F.3d 399, 404 (5th

Cir. 2000)); W

iggins 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 f

inding of error by a state

court. Rat her, a writ may be granted

o nly 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 [ s ic ] the Supreme Court has on a

set of materially indistinguishable facts.

Without such a direct conflict, a wri t

will be granted only if the state cou r t

identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably app l ies that

principle to the f

a cts of the prisoner’s

case.

Evans

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

punctuation omitted).

B.

The state contends that Jones has never before raised this argumen t as i t rel ates 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 of future dangerousness sufficient to prejudice the

sentencing.

The argument Jones now presents i s not

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

trial in whic h the jury was to determine his

guilt or innocence of the of fense 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 th at error to the guilt phase verdict.”

In his federal hab e as petition, Jones again

failed to argue that the prejudice applied to

sentencing; rather, he asserted t hat it “undermined the guilt phase theory that the state’s

evidence failed to establish that Mr. Jo nes

killed Sherry Jones.” None of the words that

might imply an argument based on a prejudice

to sentencing 

### SS

such as sentencing, penalty

phase, residual d oubt, or future dangerousness 

### SS appears in either petition’s discussion of

the Dollins questioning. 2

Jones’s contention that the issue was raised

in the district court essentially rests on the notion that his previous argu ment d id not expressly contradict the argument he now raises.

Though this is d ebat able, we find it beyond

question that Jones’s petitions before the state

2 In his response to the state’s motion for summar y 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 cour t s did not actually make the

argument. We are precluded from considering

the claim, because Jones did not raise it properly before the district court. B eazley 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’s response

to summary judgment was sufficien t to rai se

the argument in the distric t court, i t was al so

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

court to which he would be required to peti

tion wo uld no w find that the claim is procedurally defaulte d

. B ledsoe v. Johnson

, 188

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

Code of Criminal Procedure prohibits the filing

of subsequent or untimely habeas applications,

absent a demonstration of cause or actual innocence. S ee T EX

. C ODE C RIM

. P ROC

. art

1 1.071 § 5(a); Ex parte Davis

, 947 S .W.2d

216 (Tex. Cri m. App. 1996) (en banc) (upholdin g 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 R o yce 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 test ified 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

Cr iminal Appeals decided that the evidence

was irrelevant to the sentencing determination

and should not have been adm i tted over

Jones’s objection, it found the admission

harmless. The district court held the denial of

this claim was “neither contr ary to, nor an

unreasonable application of, a ny clearly established federal law,” see Wiggins

, 123 S. Ct.

at 2534, and granted summary judgme n t; 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 objectively unreasonable “because it failed

to take into account the profound effect the

prospect of an easy escape would have had on

the jurors’ assessment of Anzel Jones’s future

dangerousness.” We disagree that the decision

was objectively unreasonable.

A.

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

appeal before the Court of Criminal Appeals,

Jones’s claim with respect to this evidence was

based entirely on the argument that t he evidence was no t relevant under T E X

. R. C RIM

. E VID

. 401 and 402 and was prejudicial. His

arguments did not touch upon the Constitution

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

the other cases he relies on in his arg u ment 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. H

opkins v. Cockr ell , 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 gi ven phase of a proceeding cannot be said to have raised the argument

w ith respect to that phase, and much less to have

met his burden under Washington

.5

be fo re 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 fail s to satisfy the

exh a ustion requirement.” Henry v. Cockrell

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

and quotati on mar ks omitted). “It i s not

enough that all the facts necessary to support

the federal claim were before the state courts

or that a somew hat similar state-law claim

was mad e. ” A nderson v. Harless

, 459 U.S.

4, 6 (198 2 ) (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 th e st ate, 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 claim that has not been

adjudicated on the merits by a state court, our

review is governed by Teague v. Lane

, 489

U.S. 288 (1989). S ee Daniel v. Cockrell

, 283

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

, 123 S.

C t. 286 (2002). T

eague held that a feder a l

court may not create o r apply new

constitutional rules on habeas review. The

Teague analysis involves three 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 applic a nt seeks to apply a new rule,

whether that rule falls within one of the narrow exceptions to the non-retroactivity princ iple.

Id

. at 7 05 (citations omitted). Jones did not

petition the Su preme Court for a wri t of

certiorari on direct appeal, so hi s conviction

and sentence became final in 1999, after t he

time for fil

i ng such a petition had elapsed.

Fisher v. Texas

, 169 F.3d 2 95, 305 (5th Ci r.

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 abe t s a felony in the course of

which a murder is committed by others but

who does not himself kill, attem pt to ki l l , or

intend that a killing take place or that lethal

force will be employed.” I d

. at 797. I

n 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 f ocus of

sentencing away fr o m the defendant and

placed it on “the character and repu tati on of

the victim and the effect on his f amily” and

their “emotionally charged opinions as to what

conclusions the jury should draw from the

evidence . . .”

Jones argues not that Texas’s death penalty

proc edure is inadequate under the Eighth

Amend m ent, 4 but rather that the improper ad

4 “The Te xas 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.” J urek 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 personal responsibility

or guilt. This argument is akin to that raised

by the petitioner in Romano v. Oklahoma

, 512

U.S. 1, 10-11 (19 94), who argued that the

jury’s consideration of irrelevant evidence 

### SS in

that case the fact that the petitioner had

received a death sentence for a prior, separate

murder conviction 

### SS

”rendered his sentencing

proceeding so unreli a ble that the proceeding

violated the Eighth Amendment.” The Court

held “[t]hat the evidence may have been

irrelevant as a matter of state l aw, however,

does not render it s admission federal

constitutional error.” I

d

. at 10. It rejected the

“proposition that the mere admission of

irrelevant and prejudicial evidence requires the

overturning of a death sentence,” affirming the

state appellate court’s determination that the

death penalty was warranted and supported

despite the improper admission. I d

. at 11.

Concluding its discussion of the argument, the

Court held:

Petitioner’s argument, pared down,

seems t o be a request that we fashion

general evidentiary rules, under the

guise of interpret ing t he Eighth

Am e ndment, which would govern the

admissibilit

y of evidence at capital

sen t encing proceedings. We have not

done so in the past, howev e r, and we will not do so today

. T he 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 tha t the Court found no Ei ghth

Amendment violation in Romano

, Jones has

not demonstrated an Eighth Amendment claim

under the fact s befo re us. If anything, the

evidence considered here h as even fewer

Eighth Amendment implications than did that

conside red in R omano

. 5 A Texas court

considering Jones’s federal claim in 199 9

would not have felt compelled by existing precedent to find an Eighth Amendment 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 [.]” C oc k rell v.

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

1996). 5 Though the Court in Romano di d weigh the

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

Process Clause of the Four teenth Amendment.”

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

an argument based on the Due 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 retr oactivity laid out in

Teague

. S ee Daniel

, 283 F.3d at 708 (“T he two

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

kinds of primary, private indi vidual conduct beyond the power of t h e criminal law-making authority to proscribe; or (2) are implicit in the concept of or dered liberty.”) (quotation marks

omitted).7 IV.

Jones con t ends that the death penalty, as

applied to a seventeen-year-old, violates the

Eighth and Fourteenth Amen d ments. The

state argues, inter alia

, that we should affirm

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

pres ent it to the Court of Criminal Appeals.

J o nes does not address this holding, and we

find nothing in the record to undermine it. 7

V.

Jones argues that he ha d ineffective

assistance at trial because counsel failed

adequately to develop and present evidence of

mental healt h 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 requirement s fo r filing a second

habeas application. S ee T EX

. C ODE C RIM

. P ROC

. a rt 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 o f Criminal

Appeals to allow a second filin g, meets the

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

all ows 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 notes that Texas’s 1995 Habeas Corpus Reform Act (“Reform Act”) provides that

“an applica nt shall be represented by

competent counsel unless the applicant ha s

elected to proceed pro se

. . . .” T E X

. C O DE

C RIM

. P ROC

. A RT

. 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

p ro cess 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 a ppoi nted

state habeas counsel provided ineffective assistance. M

artinez v. Johnson

, 255 F.3d 229,

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

provide ‘competent’ counsel for a state habeas

petition does not fall under 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

, suggest ing t hat perhaps the court misunderstood the contention, and urges that we

“should fairly address the argument.” But,

absent “an intervening contrary or superseding

decision by this court sitting en banc or by the

United States Supreme Court, a panel cannot

overrule a prior panel’s decision.” B urge v.

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

(5th Cir. 1999). Under M artinez

, Jones’s

claim is procedurally barred.

7 This argument also is foreclosed by precedent.

See Beazl e y

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

v. Kentucky , 492 U.S. 361, 370-73 (1989)). 8 Further m ore, the statutory right created in

T EX

. C ODE C RIM

. P ROC

. art. 11.071 § 2(a) relates

t o “habeas counsel’s qualifications, expe rience, 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 h a beas

counsel’s inadequate representati on i n failing to

raise a particular claim; he makes no arguments as

to counsel’s general competence

. Therefore, to the

extent that Jones’s argumen t rests on the guarantees of the Reform Act, his reliance is misplaced,

because we defer to the Court of Criminal Appeals’

interpretation of a Texas statute.8

AFFIRMED.