United States Court of Appeals

Fifth Circuit

FILED

December 27, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-70006

_______________

SHANNON CHARLES THOMAS,

Petitioner-Appellant,

VERSUS

DOUGLAS DRETKE,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m H-03-CV-988

_________________________

Before SMITH, DEMOSS, and

STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Shannon Thomas seeks a certificate of appealability (“COA”) from the denial of his

petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Because Thomas cannot

make a substantial showing of the denial of a

federal constitutional right, we deny a COA.

I.

On Christmas Eve 1993, Thomas and his

friend KeithClay entered the home ofRoberto

Rios, a marihuana dealer. Thomas and Clay

* 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 R. 47.5, the court has determined that this opinion should not be published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

robbed Rios, then murdered him by shooting

him three times and stabbing him in the neck

with a pair of scissors. Thomas then went

upstairs and executed Rios’stwo children, ten

year-old Maria and eleven year-old Victor, by

shooting each in the head through a pillow as

they lay side-by-side on the floor.

The murders remained unsolved for over a

year, untilthe police received informationfrom

Joseph “Boo” Jones, a friend of Clay and

Thomas. After his arrest, Thomas gave the

police two written statements. In the first, he

acknowledged purchasing narcoticsfromRios

that day but denied any knowledge of the

killings. In his second statement, Thomas

asserted that Clay had acted alone in killing the

Rios family after Thomas had left the residence.

Thomas wasindicted for the capitalmurder

of Victor Rios. At trial, no physical evidence

was presented to link him to the murders. He

was inculpated, however, by an abundance of

circumstantial evidence, including information

that he possessed a gun similar to the murder

weapon. In addition, the state presented

testimony linking him to the robbery and

murders. Three witnesses testified that Thomas had asked them to participate in robbing

Rios; two of them stated that Thomas had

admitted the murders to them. One of the

witnesses, Jones, agreed to tape record a

conversationwithThomas at the request ofthe

police, in which Thomas made incriminating

statements about the murders. 

Additionally, evidence put Thomas at the

scene of the crime, including the statement of

a postal worker, Earl Guidry, who saw two

men leaving the Rios home near the time ofthe

killings. Guidry tentatively identified Thomas

after undergoing hypnosis and participating in

several photograph identification arrays and

one live line-up. Another witness testified that

he saw a car resembling Clay’s near the Rios

residence shortly before the murders.

Thomas was convicted, and the jury answered the special issuesin a manner requiring

the imposition of a death sentence. The Texas

Court of Criminal Appeals affirmed the conviction and sentence on direct appeal. Thomas

v. State, No. 72,701 (Tex Crim. App. Mar. 31,

1999). Thomas did not seek a writ of certiorari. 

While his direct appealwas pending, Thomassought state habeasrelief, which was denied

by the Court of Criminal Appeals. Ex Parte

Thomas, No. 51,306-01 (Tex. Crim. App.

Mar. 20, 2002). Thomas then filed for a

federal writ of habeas corpus under § 2254,

raising six claims of error. The district court

dismissed the claims on summary judgment

and refused to grant a COA. Thomas v. Dretke, No. H-03-CV-988 (S.D. Tex. Dec. 10,

2003). Thomas now seeks a COA on two of

his claims.

II.

Our review on a request for a COA is highly circumscribed by statute. Pursuant to the

Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), to be entitled to relief a petitioner must show that the state court

resolution of his case was either “contrary to,

or involved an unreasonable application of,

clearly established federal law, as determined

by the Supreme Court of the United States” or

“resulted in a decision that was based on an

unreasonable determination ofthe factsin light

of the evidence presented in the State court
3

proceeding.” 28 U.S.C. § 2254(d).1 This high

level of deference to state court proceedings

“embodiesthe principles offederalism, comity,

and finality of judgments . . . .” Evans v.

Cockrell, 285 F.3d 370, 374 (5th Cir. 2002).

To grant a COA, however, we need not decide the ultimatemerits ofthe underlying habeas petition; we ask only whether the petitioner

has made “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. 2253-

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

demonstrating that jurists of reason could

disagree with the district court’s resolution of

his constitutional claim or that jurists could

conclude the issues presented are adequate to

deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). That is, our duty is to determine not

whether Thomas is entitled to relief, but

whether the district court’s conclusion (that

the state court adjudication was not contrary

to or an unreasonable application of federal

law) is one about which jurists of reason could

disagree. Furthermore, other doctrines bridle

habeas relief, including the harmless error

doctrine. See Brecht v. Abrahamson, 507

U.S. 619, 637 (1993).

III.

Thomas petitions for a COA based on an

argument that his constitutional rights were

violated by the admission of Guidry’s in-court

identification; he asserts that it was

impermissibly tainted by suggestive pre-trial

identification procedures under Simmons v.

United States, 390 U.S. 377 (1968). Although

he expends much breath in analyzing the twoprong test established under Simmons v. United States and its progeny, we focus on the

analysis performed by the Court of Criminal

Appeals and the district court. Both courts -

concluded that even assuming arguendo that

the admission of the testimony was unconstitutional, the error was harmless in light of the

overwhelming evidence corroborating the

content of the witnesses’ testimony.

A habeas petitioner has the burden of

demonstrating “actual prejudice” from the

alleged constitutional error. Brecht, 507 U.S.

at 637. Under Brecht, the appropriate harmless error standard on collateral review is the

test established by Kotteakos v. United States,

328 U.S. 750 (1946), under which there hasto

be more than a reasonable possibility that it

contributed to the verdict; the error must have

had a “substantial effect or influence in determining the verdict.” Woods v. Johnson, 75

F.3d 1017, 1026 (5th Cir. 1996) (emphasis

added). The district court meticulously laid

out how the other evidence presented by the

state corroborated and was cumulative of both

of the elementsthat Guidry’s in-court identification and testimony supported: (1) that

Thomas was at or near the Rios residence at

the established time ofthe murders; and (2) the

impeachment of Thomas’s statement that

claimed that he left the residence by himself

before Clay did, implying that Clayacted alone

in murdering the family.

First, although Guidry’s identification

placed Thomas at the crime scene, it was far

from the only evidence that did so. Beyond

other circumstantial corroborating evidence,

this element of the state’s case was most

plainly demonstrated byThomas’s own admissionSSin his voluntary statement to the po1

See also Yarborough v. Gentry, 540 U.S. 1, 5

(2003) (“Where, as here, the state court’s application of governing federal law is challenged, it

must be shown to be not only erroneous, but objectively unreasonable.”).
4

liceSSthat he was present. Given the great

mass of particularly credible evidence supporting this fact, we cannot conclude that

reasonable jurists could disagree as to the district court’s finding that admitting the testimony was harmless for establishing this element.

Further, Guidry’s testimony, claiming that

he observed Clay and Thomasleaving the Rios

residence together, refuted Thomas’s claim

that he “left home alone and waited in the car

after he bought some marijuana . . . [until]

Clay came out of the home fifteen minutes

later with blood on his pants.” Thomas v.

State, No. 72,701, at 9 (Tex. Crim. App. Mar.

31, 1999). As the district court articulated,

the testimony of numerous witnesses also

undercut Thomas’sstatement to the police and

his claim that Clay acted alone in killing the

familywhile Thomas waited in the vehicle. No

less than three of Thomas’s own friends competently testified that Thomas had confessed

the killings to them. 

Thomas attempts to meet his burden of establishing that admitting the testimony subjected him to actual prejudice, because all that

remained was unreliable “biased” testimony,

because it came from witnesses paid to testify

by the police orsubject to cooperation dealsto

obtain assistance in their own cases. This

argument is unavailing; the bias of the remaining witnesses was appropriately the subject of

cross-examination and is customary grist for

the jury mill. We deny a COA regarding the

admissionofGuidry’sidentificationtestimony,

because given the extensive mass of evidence

that was present, reasonable jurists could not

disagree asto the district court’ssound finding

that the Court of Criminal Appeals was reasonable in its conclusion that it was harmless

under Brecht.

2

IV.

Thomas applies for a COA on the issue of

whether the state court violated his right to

due process under the Fourteenth Amendment

by failing to instruct the jury that, if given a life

sentence, he would be eligible for parole in

forty years. At trial, the court forbade any

reference to the potential for parole eligibility

that is available for prisoners serving life

sentences for capital murder in Texas. Although Texas subsequently has allowed for jury

instructions regarding parole eligibility in

capital murder cases,3 this was not the case at

the time of Thomas’s trial. The jury was

forced to consider the issue of his future dangerousness without hearing testimony or argument regarding the possibility of his release

on parole if given a life sentence.

Thomas contends it was error to keep the

2 There has been some doubt expressed with

respect to whether the Brecht standard is still viable after the enactment of AEDPA. See Tucker v.

Johnson, 247 F.3d 617, 629 n.16 (5th Cir. 2001)

(citing Anderson v. Cowan, 227 F.3d 893, 898 n. 3

(7th Cir. 2000)). The parties have not briefed this

issue, and we have employed theBrecht analysisin

cases decided pursuant to AEDPA. See, e.g.,

Corwin v. Johnson, 150 F.3d 467, 476-77 (5th

Cir. 1998). We need not decide this question,

because jurists of reason could not disagree with

the district court’sresolution of the claim under the

Brecht standard, which we and others have recognized would be a more generous standard for

defendants than what would be applicable if it is in

fact superseded by AEDPA. See Tucker, 247 F.3d

at 629 n. 16; see also Anderson, 277 F.3d at 898-

99 n.3.

3

See TEX. CODE CRIM PROC. art. 37,071,

§ 2(e)(2)(B).
5

information about his parole eligibility from

the jury based on Simmons v. South Carolina,

512 U.S. 154, 169 (1994), where the Court

concluded that the possibility of a life sentence

without possibility of parole is relevant to a

jury’s determination of whether the defendant

poses future harm to society. To support his

position, Thomas points to language in

Simmons v. South Carolina saying that “[i]n

assessing future dangerousness, the actual

duration of the defendant’s prison sentence is

indisputably relevant.” Id. at 163. 

The Court, however, also specifically delineated that the holding was inapplicable in

circumstances in states where parole was

available for capital offenses, as is the case in

Texas.4 The Court confirmed the limited

nature of the Simmons v. South Carolina

holding in Ramdass v. Angelone, 530 U.S.

156, 168 (2000),stating that “Simmons applies

only to instances where, as a legal matter,

there is no possibility of parole if the jury

decides the appropriate sentence is life in

prison.” Moreover, as the district court observed, we have repeatedly rejected similar

claims seeking to extend Simmons v. South

Carolina to the Texas capital sentencing

procedure.5

Because there is no well-settled federal law

supporting Thomas’s position, AEDPA precludes federal courts from granting relief,

because it cannot be said that the state court’s

application of federal law was objectively

unreasonable. Because binding precedent

foreclosesrelief on this claim, jurists of reason

could not disagree with the district court’s

decision to dismiss this claim, and therefore

the request for a COA is DENIED.6

4

Simmons v. South Carolina, 512 U.S. at 168

(“In a State in which parole is available, how the

jury’s knowledge of parole availability will affect

the decision whether or not to impose the death

penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a

jury of information regarding parole.”) (citingCalifornia v. Ramos, 463 U.S. 992, 1013-14 (1983)).

The Simmons v. South Carolina Court, id. at 168

n.8, explicitly acknowledged that its holding did not

apply to Texas, because Texas does not offer a

life-without-parole sentencing alternative.

5

See, e.g., Woods v. Cockrell, 307 F.3d 353,

360-62 (5th Cir. 2002); Johnson v. Cockrell, 306

F.3d 249, 256-57 (5th Cir. 2002); Collier v. Cockrell, 300 F.3d 577, 583-84 (5th Cir. 2000).

6

 Even if we were to agree that the Simmons v.

South Carolina line of cases lends support to

Thomas’s claims, relief would be barred by the

non-retroactivity principle of Teague v. Lane, 489

U.S. 288 (1989), which prevents a federal court

from creating new constitutional rules of criminal

procedure on habeas review. See Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001). We have

repeatedly held that an extension of the scope of

Simmons in the way requested by Thomas would

constitute a “new” rule under Teague. See id.; see

also Tigner v. Cockrell, 264 F.3d 521, 525 (5th

Cir. 2001).