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

_______________



### S HANNON 

### C HARLES 

### T HOMAS



### ,

Petitioner-Appellant,

VERSUS



### D OUGLAS 

### D RETKE



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, C ORRECTIONAL I NSTITUTIONS D IVISION

,



### Respondent-Appellee.



### _________________________

Appeal from the United States District Court

for the Southern District of Texas



### m H-03-CV-988

_________________________

Before S MITH , D E M OSS , and

S TEWART , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Shannon Thomas seeks a certificate of appealability (“CO A”) from the denial of his

petition for a writ of habeas corpus pursuant

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

make a substa nt ial showing of the denial of a

federal constitutional right, we deny a COA.

I.

On Christmas Eve 1993, Thoma s and his

friend Keith Clay entered the home of Roberto

R io s, a marihuana dealer. Thomas and Clay * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.2

robbed Rios, then

murdered him by shooting

hi m t hree times and stabbing him in the neck

with a pa ir o f scissors. Thomas then went

upstairs and executed Rios’s two 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, until the police received information from

Joseph “Boo” Jones, a friend of Clay and

Thomas. After his arrest, Thomas gave t he

police two written statements. In the first, he

acknowledged purchasing narcotics from Rios

that day but denied any knowledge of the

killings. In his seco nd statement, Thomas

asserted that Clay had acted alone in killing the

Rios family afte r Thomas had left the residence.

Thomas was indicted for the capital murder

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

st ated that Thomas had

admitted the murders to them. One of the

witnesses, Jones, agreed to tape r ecord a

conversation with Thomas at the request of the

police, in which Thomas made incriminat ing

statements about the murders.

Additionally, evidence put Tho mas at the

scene of the crime, including the statement of

a postal worker, Earl Guidry, who saw t wo

men leaving the Rios home near the time of the

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 ca r resembling Clay’s near the Rios

residence shortly before the murders.

Thomas was convi c ted, and the jury answered the special issues in a manner requiring

the imposition of a death sentence. The Texas

Court of Criminal A

ppeals affirmed the conviction and sentence on direct appeal. T homas

v. State

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

1999). Thomas did not seek a writ of certiorari

.

While his direct appeal was pending, Thomas sought state habeas relief, which was denied

by the Court of Cr iminal Appeals. E x Parte

Th omas , 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. T homas 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 Effe c tive 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 in vo lved an unreasonable application of,

clearly established federal law, as det ermined

by the Supreme Court of the United States” or

“resulte d in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court3

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

level of deference to state cou rt proceedings

“embodies the principles of federalism, comity,

and finalit

y of judgments

. . . .” Evans v.

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

To grant a COA, however, we need not decide the ultimate merits of the 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 o f reason could

disagree with the district court’s resolution of

his constituti o nal 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 entit led t o relief, but

whether the district court’s conclusion ( that

the state court adjudication was not contrary

to or an unreasonable ap plication of federal

law) is one about which jurists of reason could

disagree. Furthermore, other doctrines bridle

habeas relief, including the ha r mless error

doctrine. S ee Brecht v. Abrahamson

, 507

U.S. 619, 637 (1993).

III.

Thomas petitions for a COA based on an

argument that his constitut io nal rights were

violated by the admission of Guidry’s in-court

identification; he asserts that it was

impermissibly tainted by suggestive pre-trial

i dentification 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 th e di stri ct court. Both courts -

concluded that even assuming arguen do that

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

overw h elming evidence corroborating the

content of the witnesses’ testimony.

A habeas petitioner has the burden of

demo nstrating “actual prejudice” from the

alleged constitutional error. B recht

, 507 U.S.

at 637. Under B recht

, the app r opriate harmless erro r st andard on collateral review is the

test established by Kotteakos v. United States,

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

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 ve r dict.” W

oods v. Johnson

, 75

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

added). The district court meticulously laid

out how the other evidence presen ted by the

state corroborated and was cumulative of both

of the elements that Guidry’s in-court ident ification and testimony supporte d: (1) that

Thomas was at o r near the Rios residence at

the established time of the murders; and (2) the

impeachment of Thomas’s statement that

claimed that he left the resid ence by himself

before Clay did, implying that Clay acted alone

in murdering the family.

First, although Guidry’s identificatio n

placed T ho mas at the crime scene, it was far

from the only evidence tha t did so. Beyond

other circumstantial corroborating evi d ence,

t his element of the state’s case was most

plainly demonstrated by Thomas’s own admission 

### S S in his voluntary statement to the po1 See also Yarborough v. Gentry

, 540 U.S. 1, 5

(2003) (“Where, as here, the s t ate court’s application of governing federal law is c h allenged, it

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

li ce 

### SS t hat he was present. Given the great

mass of particular ly credible evidence supporting t his fact, we cannot conclude that

reasonable jurists could disagree as to the district court’s finding that admitting the testi

mony was harmless fo r establishing this element.

Further, Guidry’s testimony

, claiming that

he observed Clay and Thomas leaving the Rios

residence together, refuted Thomas’s claim

that he “left home alone and waited in the car

after he bought some marijuana

. . . [unti l ]

Clay came out of the ho me fifteen minutes

lat er wit h blood on his pants.” T homas v.

State

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

31, 1999). As the district court articulated,

the testim

o ny of numerous witnesses also

undercut Thomas’s statement to the police and

his claim that Clay

act ed alone in killing the

family while 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 attem

pts to meet his burden of est ablishing that admitting t he testimony subjected him to actual prejudice, because all that

remained was unrelia b le “biased” testimony,

because it came from witnesses paid to testify

by the police or subject to cooperati on deals to

obtain assistance in thei

r own cases. This

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

cross-examina t ion and is customary grist for

the jury mill. We deny a COA regarding the

a dmission of Guidry’s identification testimon y

, because given the extensive mass of evidence

that was present, reasonable jurists coul d not

disagree as to the district court’s sound finding

t hat the Court of Criminal Appeals was r easonable 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

s entence, he would be eligible for parole in

forty yea r s. At trial, the court forbade any

reference to the potential for parole eligibility

t hat is available for prisoners serving life

senten ces for capital murder in Texas. Although Texas subsequently has allowed for jury

instructions regarding parole eligibilit y in

capital murder cases, 3 this was not the case at

t he time of Thomas’s trial. The jury was

forced to consider the issue of his future dangerousness without hearing testimo n y 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 exp ressed with

respect to whether the Brechtstandard 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 the Brecht analysis in

case s decided pursuant to AEDPA. S ee, e.g.,

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

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

because jurist s of reason could not disagree with

the district court’s resolution of the claim under the

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

defendants than what would be applicable if it is in

fact superseded by AEDPA. S ee Tucker

, 247 F.3d

at 629 n. 16; see also Anderson

, 277 F.3d at 898-

99 n.3.

3 See T EX

. C ODE C RIM P ROC

. 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), w h ere the Court

concluded that the possibility of a life sentence

without p o ssibility of parole is relevant to a

jury’s determination of whether the defendant

poses futur e harm to society. To support his

p osition, Thomas points to languag e in

S immons v. South Carolina saying that “[i]n

as sessing 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

circumstance s 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 C arolina

holding in R amdass v. Angelone

, 530 U.S.

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

only to instances where, as a legal m atter,

there is n o po ssibility of parole if the jury

decides the appropriate se nt ence is life in

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

claims s eeking to extend S immons v. South

C arolina to the Texas capital sentencing procedure. 5

Because there is no well-settled federal law

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

because it cannot be said that the state court’s

application of federal law was obje c tively

unreasonable. Because binding precedent

forecloses relief on this claim, jurists of reason

could not disagree with the distri ct court’s

decision to dismiss this claim, and t h erefore

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 av ailable, how the

jury’s knowledge of parole availability will affect

the decision wheth er 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.”) (citing California 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

a pply 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

Thom as’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. S ee Wheat v. Johnson

, 238 F.3d 357, 361 (5th Cir. 2001). We have

r epeatedly held that an extension of the scope of

Simmons in the way requested by Thomas would

constitute a “new” rule under Teague

. S ee id.; see

also Tigner v. Cockrell

, 264 F.3d 521, 525 (5th

Cir. 2001).