-1- UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

___________

No. 00-10433

____________

JOHN L. WHEAT,

Petitioner - Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court

for the Northern District of Texas

January 5, 2001

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Texas prisoner John L. Whe at seeks a certificate of appealability to challenge the district

court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Wheat was convicted of

capital murder in violation of Tex. Penal Code Ann. § 19.03(a)(8) and sentenced to death. The Texas

Court of Criminal Appeals affirmed his convicti o n o n direct appeal. State habeas counsel was

appointed, but relief was denied by both the t rial court and the Texas Court of Criminal Appeals.

Wheat then filed an application for a writ of habeas corpus for relief from the judgment of the state-2-

court under § 2254(a). The district court disposed of all claims and denied this writ, as well as

subsequently denying t he required certificate of appealability (COA). Wheat now appeals this

decision, presentin g seven arguments as to why habeas relief is proper. Because these arguments

either lack merit or are not properly considered on collateral review, we deny Wheat’s motion for a

COA.

I

John Wheat was a neighbor o f Angela Anderson and her three children ) ) seven-year-old

Eddie, six-year-old Ashley, and nineteen-month-old Lacey )) in the Les Jardins apartment complex

in Fort Worth. Angela relied on neighbors in the complex, including Wheat, to babysit her children

when she worked night shifts on an assembly line. On the evening of July 25, 1995, Wheat watched

Eddie and Ashley, while another neighbor took care of Lacey. The next morning, Ashley told her

mother that Wheat had kissed her on the lips and touched her vagina. Angela reacted by instructing

her son to deliver a handwritten note to Wheat that read as follows:

Ashley said you put your hand on her private (in her shorts) part. What the fuck? I

will be calling the police! (emphasis in original).

Angela then started upstairs to use a telephone to report the incident to the police. As she left her

apartment, Wheat came around the corner and began firing a .45 automatic pistol, cha sing her

upstairs. Injured, Angela fled into another apartment to rest momentarily. Wheat entered this

apartment’s open front door, chased Angela into the rear bedroom, and with a .22 caliber derringer

shot her twice in the head, though not fat ally. Wheat then reloaded the automatic pistol and returned

to Angela’s apartment, where he shot to death her three children.

Hearing gunfire, the apartment security officer went outside to investigate. Wheat shot at-3-

him, grazing his head. The security officer went back inside the apartment , but Wheat also shot

t hrough the door three times, further injuring the officer. Wheat also shot a police o fficer who

responded to the police dispatch, inflicting a life-threatening injury.

Wheat was convicted of capital murder for the killing of the infant, Lacey, and sentenced to

death. Wheat offers seven arguments in favor of his motion for a COA: (1) t hat the Texas death

penalty scheme is unconstitutional in that it prevents defend ant s fro m offering evidence of parole

ineligibility to juries considering the factor of future dangerousness; (2) that the trial court erred by

excluding expert testimony that Wheat would probably not live long enough to qualify for release on

parole; (3) that the trial court erred by disallowing Wheat to voir dire potential jurors regarding the

forty-year parole ineligibilit y in Texas for life sentences for capital murder; (4) that there was

insufficient evidence to support the jury finding of future dangerousness; (5) that the trial court erred

by granting the State’s challenge for cause to a venire member for his professed aversion to the death

penalty; (6) that he was deprived of his right to effective assistance of counsel when his lawyer failed

to present a defense of insanity at the guilt-or-innocence p h ase of his trial; and (7) that the Texas

Court of Criminal Appeals erred in state habeas proceedings by refusing to consider a supplement to

Wheat’s original state writ application that would have brought out an argument of ineffective

assistance of counsel.

To obtain a COA, Wheat must make a substantial showing of the denial of a constitutional

right. S ee 28 U.S.C. § 2253(c)(2). This standard is met if Wheat demonstrates that “‘reasonable

jurists could debate whether (or, for that matter agree that) the petition should have been resolved

in a different manner or that the issues presented were adequate to deserve encouragement to proceed

further.’” Barrientes v. Johnson

, 221 F.3d 741, 771 (5th Cir. 2000) (quoting Slack v. McDaniel

, 529-4-

U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000)). Our determination requires deference

to the state habeas court’s adjudication of Wheat’s claims on the merits, unless that adjudication: (1)

“was contr ary t o , or involved an unreasonable application of, clearly established Federal law, as

determined by t he Supreme Court of the United States,” § 2254(d)(1), or (2) constituted an

“unreasonable determination of the facts in light of the evidence presented in the State court

proceeding,” § 2254(d)(2).

II

Several of

Wheat ’s claims are procedurally barred. Wheat’s arguments of insufficient

evidence to prove the probability of future dangerousness, and erroneous granting of the State’s forcause challenge to a venire member were not raised on direct appeal. In his habeas petition, Wheat

has made no attempt to argue cause and prejudice for the procedural default, so that the arguments

are not properly considered on habeas review. S ee Keeney v. Tamayo-Reyes

, 504 U.S. 1, 112 S.Ct.

1715, 118 L.Ed.2d 318 (1992).

Wheat’s argument regarding the alleged improper exclusion of expert testimony that Wheat

would probably not live long enough to qualify for parole is also procedurally barred. Wheat raised

t his argument on direct appeal, where the court found that the issue was not preserved during

Wheat’s trial.

The intended offer of proof on the issue at the punishment phase went as follows:

A [by Dr. Mills]: I don’t feel I was able to give full meaning to my opinion regarding future

dangerousness because of my inabilit y or instructions not to discuss the parole issue.

I believe that Mr. Wheat will not live 40 years. His physical health is bad and he has

deteri orated over the last year. He is very likely to end up needing a nursing home in

the future. And his life expectancy is essentially impossible to reach the age of 90.

Q [by defense counsel]: That’s approximately the age, 90 or 93, when Mr. Wheat, if in fact

he received a life sentence, would only become eligible for parole.-5-

A: That’s correct.

Q: To what degree or percentage can you say for the record was the impact of y our

testimony reduced by regarding future dangerousness without being able to discuss

this factor before the jury?

A: I would say 50 percent.

Mr. Ford: That’s our offer of proof, Judge.

The Court: Let me add that I t hink t here are some questions in there that I would

permit you to ask him in front of the jury. I don’t know exactly what you’re

seeking to offer.

Mr. Ford: That’s okay, Judge. I just wanted that on the record as our offer of proof.

We agree with the Texas Court of Criminal Appeals that the offer of proof was not properly

preserved because without clarification by defense counsel it was impossible to dete rmine which

testimony the trial court allegedly erroneously excluded. Wheat again makes no attempt on appeal

to show either cause or prejudice for this procedural default; he is therefore barred from now bringing

the claim on federal habeas review. See , e.g., Sharp v. Johnson , 107 F.3d 282, 285-86 (5th Cir.

1997) (applying the cause and prejudice standard to the failure to preserve an issue).

Finally, Wheat argues that he was deprived of effective assistance of counsel when the Court

of Criminal Appeals during state habeas proceedings refused to consider a supplement to his original

state writ application. Wheat contends that this supplement would include an affidavit from Wheat’s

counsel acknowledging his own ineffective assistance for failing to preserve an issue (related to future

dangerousness) for appeal, as well as the Court of Criminal Appeals’ criticism of counsel for this

failure. The district court ruled that “[t]here is simply no authority to support the proposition that

a petitioner has a constitutional right to have untimely submitted materials considered on their

merits,” citing Coleman v. Thompson

, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). And

as the district court further noted, infirmit ies in state habeas proceedings are not proper grounds for

federal habeas relief. S ee Nichols v. Scott

, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v. Collins

,-6-

973 F.2d 1175, 1182 (5th Cir. 1 992). Wheat now attempts to circumvent these problems by

emphasizing the importance of the supplement to the full development of his ineffective assistance

claim, and theorizing that he “cannot be held responsible for any failure to develop any facts under

[§ 2254]...since the failure is not his own but rather due to the state habeas court’s failure to allow

appropriate supplementation of the then-pending writ application.” The trouble with this argument,

however, is that the failure was Wheat’s: his supplemental application was filed late. Wheat has again

made no attempt to argue “cause” for his procedural default on this claim, so that he is barred from

bringing these ineffective assistance of counsel arguments on federal habeas review. S ee Coleman

,

501 U.S . at 750, 111 S.Ct. at 2565 (applying the cause and prejudice standard to a late filing of a

notice of appeal in state court).

III

Wheat argues that the Texas death penalty scheme violates the Fifth, Eighth, and Fourteenth

Amendments to the extent that it prevents juries from considering the mitigating circumstances that

dictate against the imposition of the death penalty. Fifty -three-y ear-old Wheat argues that the

mitigating circumstances in his case are that there is an exceedingly low pro bability that, given his

forty-year parole ineligibilit y on a life sentence, he would constitute a continuing threat to society.

Wheat therefore analogizes his case to Simmons v. South Carolina , 512 U.S. 154, 114 S.Ct. 2187,

129 L.Ed.2d 133 (1994), where the Supreme Court held that a capital defendant must be given the

opportuni ty to inform the sentencing jury that he is parole ineligible if the prosecution argues future

dangerousness.

The district court found that thi s argum ent woul d ask the court to adopt a new rul e of

constitutional law, so that the claim is Teague -barred, regardless of the merits. T eague v. Lane

, 489-7-

U.S. 288, 109 S.Ct. 1060, L.Ed.2d 334 (1989). We agree.

Under Teague

, a federal court may not create new constitutional rules of criminal procedure

on habeas review. S ee Teague

, 489 U.S. at 301, 109 S.Ct. at 1070; Fisher v. Texas

, 169 F.3d 295,

305 (5th Cir. 1999). The treatment of parole eligibility that Wheat seeks would constitute a rule of

criminal proced ure. S ee O’Dell v. Netherland

, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351

(1 997) (characterizing the rule announced in S immons as a rule of criminal procedure). Wheat’s

proposed approach, although he takes pains to point out the similarities between his own situation

and that in Simmons , would also constitute a “new” rule under existing Fifth Circuit law. We have

repeatedly recognized that the Simmons rule applies only where there is a life-without-possibility-ofparo le alternative to the death penalty, an alternative that does not exist in Texas. To hold t hat a

lengthy parole ineligibility is the de facto equivalent of a life sentence without possibility of parole,

as Wheat argues, would create a new rule under the law of our Circuit. See Simmons , 512 U.S. at

168 n.8, 114 S.Ct. at 2196 (noting that Texas is unlike South Carolina in that it does not offer a lifewithout-possibility-of-parole alternative to the death penalty); Miller v. Johnson

, 200 F.3d 274, 290

(5th Cir. 2000) (holding that the Simmons rule is not applicable to defendants who would be eligible

for parole if sentenced to life); Hughes v. Johnson

, 191 F.3d 607, 617 (5th Cir.), cert. denied, 2000

WL 38193 (No. 99-7701)(U.S. Jan. 24, 2000) (same); Muniz v. Johnson

, 132 F.3d 214, 224 (5th

Cir.), cert. denied, 523 U.S. 1113 (1998) (same); Montoya v. Scott

, 65 F.3d 405, 415 (5th Cir. 1995)

(same); Allridge v. Scott

, 41 F.3d 213, 222 (5th Cir.), cert. denied, 514 U.S. 1108 (1995) (holding

that Simmons is only applicable where the state argues future dangerousness and the defendant is

legally ineligible for parole); Collier v. State

, 959 S.W.2d 621, 623 (Tex. Crim. App.), cert. denied,

__ U.S.

__, 199 S.Ct. 335, 142 L.Ed.2d 276 (1998) (holding that parole considerations do not apply-8-

to capital cases because when d e ciding future dangerousness, juries are free to consider

dangerousness to prison as well as free society). Thus, even if Wheat’s construct ion could in the

abstract be seen as an extension of the Simmons rule, avoiding the Teague bar, this possibi lit y has

been ruled out by this Circuit.

IV

In a related claim, Wheat argues that his Fifth, Sixth, Eighth, and Fourteenth Amendment

rights were violated when the trial court denied his motion to examine potential jurors regarding the

forty-year parole ineligibility for life sentences for capital murder. Wheat asserts that his ability to

exercise peremptory cha llenges, as well as the court’s ability to fulfill its obligation to remove

prospective jurors, was impaired when he was unable to question jurors regarding parole eligibilit y.

In King v. Lynaugh

, 850 F.2 d 1055, 1061 (5th Cir. 1998), however, we held that there is no

constitutional right to question venire members on their conceptions and understandings of the Texas

parole system and parole eligibilit y. S ee also Collier v. State

, 959 S.W.2d at 623; Smith v. State

, 898

S.W.2d at 846; Boyd v. State

, 811 S.W.2d at 118 n.12. Wheat’s claims are indistinguishable from

the issues addressed in King , so that we cannot grant relief on these grounds.

V

Wheat next argues that his court-appointed trial counsel violated his Sixth Amendment right

to the effective assistance of counsel by failing to present an insanity defense at the guilt-or-innocence

phase of the trial. Wheat asserts that if called, the court-appointed psychiatrist would have testified

that Wheat was legally insane at the time of the offense. Wheat contends that because the insanity

defense was the only viable defense available to him, trial counsel’s error rises to the level of a

constitutional deprivation.-9-

The district court, following an evidentiary hearing on this issue, rejected the ineffective

assistance of counsel claim. We review this decision d e novo because ineffective assistance of counsel

is a mixed question of law and fact. See Crane v. Johnson , 178 F.3d 309, 312 (5th Cir. 1999).

Historical findings of fact, however, are entitled to a presumption of correctness. S ee id

. To prevail

in his claim, Wheat must demonstrate (1) deficient p erfo rmance by counsel that (2) prejudiced his

defense such that the outcom e of the trial would have been different. S ee Strickland v. Washington

,

466 U.S. 668, 687 (1984). Wheat cannot meet this standard because, as the district court correctly

found, there was no deficient performance by trial counsel, so that the first prong of the Strickland

standard is not met.

It is true that there is some evidence that Wheat suffers from a mental deficiency. Specifically,

the court-appointed psychiatrist testified in the punishment phase that Wheat was delusional shortly

after his arrest, that magnetic resonance imaging of his brain revealed a large empty pocket in the base

of his brain, that Wheat suffers from Subcortical White Matter Disease (perhaps caused by workplace

exposure to toluene ), and that this brain damage was in a region that regulates impulsiveness,

aggression, and violence. This psychiatrist, Dr. Mills, asserts that if called during the guilt-orinnocence stage of the trial, he would have testified that Wheat was legally insane at the time of the

offense.

Wheat’s trial counsel, however, investigated the possibility of an insanity defense and made

a tactical choice to reserve the doctor’s testimony until the punishment phase. S ee Williams v. Cain

,

125 F.3d 269, 278 (5th Cir. 1997) (“failure to present ...evidence would not constitute ‘deficient’

perfo rmance within the meaning of S trickland if...[counsel] could have concluded, for tactica l

reasons, that attempting to present such evidence would be unwise.”). Even if we were not applying-10-

the deferential Strickland standard, we would have to find Wheat’s counsel’s choice was arguably

a sound one. By reserving Dr. Mills’ testimony for the punishment phase, Wheat’s counsel benefitted

from the discovery rules in effect for the trial that did not require disclosure of plans to produce

psychiatric testimony in the punishment phase. Counsel thus spared Dr. Mills’ testimony the

impeachment that would have been likely at the guilt-or-innocence phase. As trial counsel testified

at the district court evidentiary hearing, Dr. Mills himself told them that the insanity defense was not

a viable one. The doctor also testified that the opinions he presented at the punishment phase were

based primarily on Wheat’s own testimony about h is delusions, and only secondarily on the brain

damage evidence. Wheat’s supervisor at work t est ified in the punishment phase that Wheat’s

exposure to toluene had been minimal. Additionally, a licensed psychologist determined that Wheat

was competent to stand trial, that his abnormal mental condition did not grossly and demonstrably

impair his perception of

realit y, and that there was no indication of a severe mental illness or

emotional disturbance that would preclude his abilit y to understand right and wrong. If Dr. Mills had

testified at the guilt-or -innocence phase, the record indicates that his testimony would have been

impeached. We accordingly find no deficient performance; the decision to reserve the insanity

evidence as mitigating evidence during the punishment phase was a reasonable tactical choice, well

above the Strickland

standard.

VI

For the foregoing reasons, Wheat’s request for a certificate of appealability is DENIED.