IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 93-2792

_______________

JESSE DEWAYNE JACOBS,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

(September 1, 1994)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jesse Jacobs was convicted and sentenced to death for the

murder of Etta Urdiales , the young mother of two children. When

Jacobs's sister was later tried for the same killing, the state

changed its position, claiming that Jacobs's sister, not Jacobs,

fired the bullet that killed the victim. Jacobs now seeks federal

habeas corpus relief from his conviction and death sentence. The

federal district court denied Jacobs's petition for writ of habeas

cor pus and denied a certificate of probable cause ("CPC") to

appeal. Concluding that Jacobs has not made a substantial showing1 Although we consider this case on application for CPC, we have received

full briefing of the issues and have heard oral argument. of the denial of a federal right, we deny CPC. 1

I.

A.

Jacobs moved from Illinois to Texas in 1983 while on parole

for the murder of a retarded man. A Texas parole officer supervised Jacobs from December 1983 through February 1986. Jacobs

became romantically involved with a fourteen-year-old girl named

Lisa Chisholm, who gave birth to his child.

Bobbie Hogan, Jacobs's si ster, had also moved to Texas and

began seeing a man named Michael Urdiales, who was married to Etta

Urdia les, the murder victim. By 1986, Michael Urdiales and the

victim were in the process of getting a divorce; each bitterly

disputed the custody of their two children.

Chisholm's parents eventually signed a complaint against

Jacobs, who was arrested for inducement of a minor. Hogan posted

a bond for Jacobs's release pending trial. On February 21, 1986,

soon after Jacobs was released, the victim was discovered missing

from her apartment in Conroe, Texas. Police officers searched the

victim's apartment, finding blood splattered all over the bedroom

and bathroom. Subsequent chemical analysis of these stains matched

them with the victim's blood type. The police found that the

victim's car was missing and that a stolen pickup had been left

near her apartment. Her body was not discovered until September

1986.2 During the intervening months between the killing and Jacobs's

apprehension in September, he and an accomplice (1) abducted a woman in a grocery parking lot and attempted to use her ATM card to get money; (2) robbed three fast

food restaurants at gunpoint; and (3) abducted a man outside a drugstore. After

Jacobs robbed another fast food outlet in Oklahoma, he participated in a shootout

with local police. His accomplice was wounded and captured, but he escaped.

3 Jacobs was allowed to meet with Chisholm, and the prosecutor sought the

death penalty. Jacobs told the district attorney that his motivation in seeking

the death penalty was to avoid spending the rest of his life in prison.

3 After the victim's disappearance, Jacobs and an accom plice

went on an extended crime spree. 2 On September 9, 1986, Jacobs was

finally arrested for car theft in Hudspeth, Texas. Police asked

Jacobs about the disappearance of Etta Urdiales. Jacobs told them,

and later the district attorney, that he would tell them what they

wanted to know if he would be allowed to see Chisholm and if the

district attorney would seek the death penalty. Jacobs's requests

were met. 3

Jacobs told the police that soon after his release from jail,

he went to the victim's apartment, struck her on the head, abducted

her, and drove her to a clearing in the woods. She was still

"dizzy" when they arrived in the woods. He took a sleeping bag

fro m her car and put it on the ground for her to sit on, then

grabbed her left hand and shot her in the l eft side of the head

with a .38 caliber revolver.

Jacobs took the police to the victim's gravesite, a small

clearing in a wooded area in southern Montgomery County, and

po inted out an area of the ground covered with pine needles and

limbs. After excavating the area, the police found a blue sleeping

bag containin g the remains of the victim, whose body was in the

same position as Jacobs had described: face down with her head4

pointed southeast. An autopsy showed that her death was caused by

a gunshot wound to her left temple and t hat there was a tear in

another part of her scalp.

B.

At trial, Jacobs changed his story. He testified that after

having been released from jail, he called Hogan to tell her that he

was fleeing the state. He met with her in a parking lot and agreed

to help his sister "deal with" the victim. According to Jacobs, he

thought Hogan merely wanted to scare the victim into giving custody

of her children to Michael Urdiales.

Jacobs testified that his motorcycle had been stolen, and so

he stole a pickup truck the next day. He testified that he waited

outside Etta Urdiales's apartment, abducted her, drove her to the

woods, tied her up, blindfolded her, placed her in a sleeping bag

in a tent he had erec ted, and then left to return her car to her

apartment. Seeing police outside the apartment, he parked her car

in a parking lot one-half mile away.

He telephoned Hogan. Both he and Hogan went back to the

woods. Then, Jacobs testified, he told Hogan to go to a nearby

abandoned house. Jacobs untied Urdiales, took her to the house,

and made her sit on a bed. He went outside and sat on the porch.

Jacobs testified that he heard a shot and then saw Hogan with

a gun. Hogan told him that she did not mean to kill Etta Urdiales.

Jacobs took the gun, told Hogan to go home, and said he would take

care of things. According to this version of events, Jacobs buried5

the victim's body but did not actually kill her.

C.

Chisholm visited Jacobs while he was being held in the county

jail pending trial. During Chisholm's first visit, Jacobs admitted

that he killed the victim. Jacobs later wrote Chisholm a letter

admitting that he killed the victim "for the love of a sister." On

September 29, 1986, Jacobs escaped from jail but was apprehended

twenty hours later.

II.

A.

Jacobs was indicted in Texas state court for the capital

murder of Etta Urdi ales during the course of committing or

attempting to commit a kidnapping. He pleaded not guilty. During

the trial, he testified that Hogan, not he, had killed the victim.

The prosecution showed the jury a videotape of Jacobs's

confession. The jury was instructed that it could return a guilty

verdict if it found beyond a reasonable doubt that Jacobs had

intentionally killed the victim or that Jacobs was guilty under the

Texas "law of parties," which provides that a defendant is

responsible for certain act ions of his co-conspirator. T E X

. P ENAL

C ODE A NN

. § 7.02(b) (Vernon 1994). The jury found Jacobs guilty of

capital murder.4 At that time, the Texas statute read:

(b) On conclusion of the presentation of the evidence, the

court shall submit the following three issues to the jury:

(1) whether the conduct of the defen dant that caused the

de ath of the deceased was committed deliberately and with the

reasonable expectation that the death of the d eceased or another

would result;

(2) whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a continuing

threat to society; and

(3) if raised by the evidence, whether the conduct of the

defendant in kill ing the deceased was unreasonable in response to

the provocation, if any, by the deceased.

The third question was not relevant in this case and was not submitted to the

jury.

5 In 1973, Jacobs had been convicted in Illinois for murder, for which he

received a 25-50-year sentence. In 1977, Jacobs had been convicted of attempted

escape from the Illinois penitentiary, for which he received an 18-year sentence.

In 1967, Jacobs was convicted of burglary, for which he received probation. In

6 B.

At the punishment phase of the trial, the court gave the jury

two questions, or "special issues," required by Texas law to be

asked of the jury before the death penalty can be imposed. The

special issues were:

Whether the conduct of the defendant that caused the

death of the deceased was committed deliberately and with

the reasonable expectation that the death of the deceased

or another would result?

Whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a continuing threat to society?

See T E X

. C ODE C RIM

. P ROC

. A NN

. art. 37.071(e). 4 The jury answered

"yes" to both special issues, and Jacobs was given a death

sentence. During the punishment hearing, evidence had been

elicited regarding Jacobs's other criminal conduct, including the

Illinois murder. 51964, while a juvenile, Jacobs was p laced on probation for his theft of five

cars, two motorcycles, and three b icycles. He escaped from the juvenile

detention facility, stole another vehicle, and was placed in a youth correction

center. In addition, evidence was presented of various crimes that Jacobs

committed between the victim's murder and his apprehension.

6 At Jacobs's trial, the state had argued to the jury that "[t]he simple

fact of the matter is that Jesse Jacobs and Jesse Jacobs alone killed Etta Ann

Urdiales." But at the sister's trial, the prosecutor told the jury that, after

further investigation, the prosecutor now believed that Jacobs did not killed the

victim:

But through the course of it all I changed my mind about what

actually happened. And I'm convinced that Bobbie Hogan is the one

who pulled the trigger. And I'm convinced that Jesse Jacobs is

telling the truth when he says that Bobbie Hogan is the one that

pulled the trigger.

The state told the jury that the evidence revealed by the investigation cast

doubt on Jacobs's conviction.

The state told the jury that Jacobs's pretrial confession was full of

"holes" and that it had verified that certain portions were completely "nontrue."

Various police officers who investigated the case also testified that parts of

the confession were false.

7 The state also claimed that Jacobs was telling the truth when he

testified that he did not in any way anticipate that the victim would be shot.

7 C.

Several months after Jacobs was convicted, his sister, Bobbie

Hogan, was tried and convicted of involuntary manslaughter in

connection with the killing of Etta Urdiales. Hogan was prosecuted

by the same attorney who prosecuted Jacobs. During Hogan's trial,

the prosecutor said that the state had been wrong in taking the

position in Jacobs's trial that Jacobs had done the actual killing.

The prosec utor stated that, after further investigation, he had

determined that Hogan, not Jacobs, had killed t he victim. 6 The

prosecution maintained that Jacobs did not know that Hogan had a

gun. 7 The state called Jacobs as a witness to testify that Hogan

shot the victim.8 As a threshold matter, Jacobs notes that in Texas ex rel. Holmes v.

Honorable Court of Appeals for the Third District , No. 71,764, 1994 Tex. Crim.

App. LEXIS 52 (Tex. Crim. App. Apr. 20, 1994), the court held for the first time

8 D.

Jacobs's case was automatically appealed to the Texas Court of

Criminal Appeals, which affirmed his con v iction and sentence.

Jacobs v. State

, 787 S.W.2d 397 (Tex. Crim. App. 1990). Jacobs did

not seek rehearing, informing the trial court that he wished to

forego further appeals. The court scheduled Jacobs to be executed

on June 22, 1990. Later, Jacobs told the court that he had changed

his mind and did wish to seek further appeals. The execution date

was rescheduled, and certiorar i was denied. J acobs v. Texas

,

498 U.S. 882 (1990).

Jacobs filed a habeas petition in the state trial court. That

court recommended that relief be denied and forwarded the writ to

the Court of Criminal Appeals, which denied the writ and denied

rehearing. E x parte Jacobs

, 843 S.W.2d 517 (Tex. Crim. App. 1992).

Jacobs's petition for certiorari was denied. J acobs v. Texas

,

113 S. Ct. 3046 (1993).

Jacobs filed a habeas petition and an application for stay of

execution in federal district court, which denied the petition and

denied CPC. J acobs v. Collins

, No. H-93-2454 (S.D. Tex. 1993).

The appeal of the district court's decision is before us.

III.

We first must decide whether to grant CPC, for unless CPC is

grant ed, we lack jurisdiction to hear this appeal. 8 B lack v.that the state habeas corpus procedure is available to a convicted murderer who

alleges his innocence on the basis of newly discovered evidence. According to

Jacobs, comity requires that this court first allow him to exhaust this newlycreated state court remedy. We disagree. Jacobs's claim does not turn on newly

discovered evidence, but on the state's "concession" during Hogan's trial. Any

attempt by Jacobs to avail himself of the new procedure would be frivolous. We

are not required to dismiss a federa l habeas petition in order to allow a

defendant to pursue a frivolous state claim.

9 Col lins , 962 F.2d 394, 398 (5th Cir.), c ert. denied

, 112 S. Ct.

2983 (1992). Under F E D

. R. A PP

. P. 22(b), the standard for granting

a CPC is whether the defendant has made "a substantial showing of

the denial of a federal right." B lack

, 962 F.2d at 398 (citing

Barefoot v. Estelle , 463 U.S. 880, 893 (1983)). He must "demonstrate that the issues are debatable among jurists of reason; that

a court could resolve the issues [in a different manner]; or that

the questions are adequate to d eserve encouragement to proceed

further." B arefoot

, 463 U.S. at 893 n.4 (citations and internal

quotations omitted). Although in a capital case the court may

properly consider the nature of the penalty in deciding whether to

grant CPC, this alone does not suffice to justify issuing a

certificate. B arefoot

, 463 U.S. at 893; Black , 962 F.2d at 399.

As discussed below, none of the arguments advanced by Jacobs

amounts to a substantial showing of a denial of a federal right.

IV.

Jacobs challenges his conviction and death penalty sentence

because of the state's concession at Hogan's trial that Jacobs was

not the triggerman. Jacobs argues that he is innocent of capital

murder, that he is "innocent of the death penalty" in the sense of9 Section 7.02(b) provides:

If, in the attempt to carry out a conspiracy to commit one felony,

another felony i s committed by one of the conspirators, all

conspirators are guilty of the felony actually committ ed, though

having no intent to commit it, if the offense was committed in

furtherance of the unlawful purpose and was one that should have

been anticipated as a result of the carrying out of the conspiracy.

T EX. P ENAL C ODE A NN. § 7.02(b) (Vernon 1994).

10 being ineligible for it, and that he was convicted and sentenced to

death on the basis of evi dence that has been revealed to be

materially inaccurate. We deal with each of these arguments in

turn.

A.

Jacobs argues that he is innocent of capital murder b ecause

the state's post-trial concessions show that he did not reasonably

anticipate the victim's death. Under Texas law, Jacobs could be

convicted of capital murder if either (1) he intentionally caused

the death of the victim, T EX

. P ENAL C ODE A NN

. §§ 19.02(a), 19.03(a),

or (2 ) the death of the victim "should have been anticipated" by

him under the doctrine of the "law of the parties." T E X

. P ENAL C ODE

A NN . § 7.02(b). 9

Jacobs testified at his trial and at Hogan's trial that he

gave the gun to Hogan several days before the kidnapping but did

not realize that Hogan had the gun wi th her on the day of the

kidnapping. Jacobs argues on appeal that his testimony at Hogan's

trial and the prosecutor's endorsement of his testimony show that

he did not intentionally cause the death of the victim or anticipate the killing.1 0 Jacobs also claims that e v idence at Hogan's trial of a piece of a

mattress containing a small hole supports his second version of events placing

the blame for the killing on Hogan.

11 We do not consider the statements of the state prosecutor at

Bobbie Hogan's trial to be ne wly discovered evidence. Nor do we

c onsider Jacobs's testimony at Hogan's trial, which was substantially the same as Jacobs's testimony at his own trial, to be new

evidence. 10 Even if we were to consider Jacobs's testimony or the

prosecutor's statements to be new evidence, it is the law of this

circuit that "the existence merely o f newly discovered evidence

relevant to the guilt of a state prisoner is not a ground for

relief on federal habeas corpus." Boyd v. Puckett , 905 F.2d 895,

896-97 (5th Cir.), ce rt. denied , 498 U.S. 988 (1990). Thus, we

reject Jacobs's argument.

The Court held in Herre ra v. Collins , 113 S. Ct. 853, 860

(1993), that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal

habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding." The Court

went on to state the following:

We may assume, for the sake of argument in deciding

this case, that in a capital case a truly persuasive

demonstration of "actual innocence" made after trial

would render the execution of a defe ndant unconstitutional, and warrant federal habeas relief if there were

no state avenue open to process such a claim. But

because of the very disruptive effect that entertaining

claims of actual innocen ce would have on the need for

finality in capital cases, and the enormous burden that

having to retry cases based on often stale evidence would

place on the States, the threshold showing for such an

assumed right would necessarily be extraordinarily high.1 1 See Herrera

, 113 S. Ct. at 871-72 (O'Conner, J., concurring) ("Resolving

the issue [of whether an exceptionally strong showing of actual innocence should

negate a death sentence] is neither necessary nor advisable in this case.").

12 Id. at 869. The Court concluded that post-trial affidavits to the

effect that Herrera's brother committed the crime did not meet

Herrera's "extraordinarily high" burden of proof. Id. at 869-70.

The Court did not reach the issue of whether a d efendant on

death row can be executed if he can show that he is "actually

innocent." 11 T hus, Herrera does not affect the precedential value

of Boyd . We need not engage in the Court's hypothetical analysis

of whether the defendant has made a "truly persuasive demonstration

of `actual innocence.'" As Justice Scalia wrote in his concurrence

in Herrera

,

A number of Courts of Appeals have hitherto held, largely

in reliance on our unelaborated statement in Townsend v.

Sain

, 372 U.S. 293, 317

. . . (1963), that newly discovered evidence relevant only to a state prisoner's guilt

or innocence is not a basis for federal habeas corpus

relief. S ee

, e.g.

, Boyd v. Puckett [905 F.2d at 896-97,

other citations omitted]. I do not understand it to be

the import of today's decision that those holdings are to

be replace d with a strange regime that assumes permanently, though only " arguendo ," that a constitutional

right exists, and expends substantial judicial resources on the assumption. The Court's extensive and scholarly

discussion of the question presented in the present case does nothing but support our statement in Townsend , and

strengthen the validity of the holdings based upon it.

Id. at 875 (Scalia, J., concurring).

B.

Jacobs, relying upon Sawyer v. Whitley , 112 S. Ct. 2514

(1992), argues th at he is innocent of the death penalty. At the

time of Jacobs's conviction, the de ath penalty could be imposed13

only if "the conduct of the defendant that caused the death of the

deceased was committed de liberately and with the reasonable

expectation that the death of the deceased or another would

result." T E X

. C ODE C RIM

. P ROC

. A NN

. art. 37.071(e). Jacobs argues

that if Hogan killed the victim, as the prosecution claimed at

Hogan's trial, then Jacobs did not engage in conduct causing the

death of the victim. Jacobs also argues that if, as the prosecution stated at Hogan's trial, he did not know Hogan had a gun, he

did not reasonably expect that Hogan would die as a result of his

conduct.

A petitioner bringing a successive, a busive, or defaulted

federal habeas claim may have a federal court reach the merits of

his claim if he is "actually innocent." In S awyer

, the Court held

that to show "`actual innocence' one must show by clear and

convincing evidence that bu t for a constitutional error, no

reasonable juror would have found the petitioner eligible for the

death penalty under the applicable state law." 112 S. Ct. at 2517.

There is no independent constitutional error. Therefore, the

"reasonable juror" standard articulated in Sawyer is not applicable.

Jacobs urges that this claim must be remanded for consideration by the federal district court because that court failed to

address his Sawyer claim when it considered his federal habeas

petition. We disagree. The district court rejected Jacob's claim

by implication when it rejected Jacobs's argument under Herrera

.14 C.

Jacobs argues that he des erves a retrial, citing J ohnson v.

Mississippi

, 486 U.S. 578 (1988). The defendant in J ohnson was

sentenced to death under Mississippi law, under whi ch the death

penalty is imposed only if the jury finds that certain aggravating

circumstances outweigh the mitigating circumstances. Id. at 581.

The jury found the following aggravating circumstances: that the

defendant had previously been convicted of a violent felony, that

the defendant had committed ca pital murder for the purpose of

avoiding arrest or escaping from custody, and that the capital

murder was especially heinous, atrocious and cruel. I d. at 581

n. 1. The sole evidence supporting the aggravating circumstance

tha t the defendant had previously been convicted of a violent

felony was a document showing that he had b een convicted in New

York of the crime of second-degree assault with intent to commit

first-degree rape. Id. at 581.

The jury found that the three agg ravating circumstances

ou tweighed the mitigating circumstances. The death penalty was

imposed. After trial, a state appeals court vacated the previous

felony conviction. Because the defendant's death sentence had been

based in part upon a reversed conviction, the Court remanded to the

Mississippi Supreme Court. Id. at 585.

Jacobs argues that Johnson requires that he be given a new

t rial. We disagree. In J ohnson

, the jury imposed th e death

penalty on the basis of a conviction that was later vacated. In

Jacobs's case, the jury heard Jacobs testify that, contrary to his1 2 On the direct appeal to the Court of Criminal Appeals, one of the issues

raised by Jacobs was the voluntarine s s of his confession. The state's brief,

dated March 10, 1989, recounted Jacobs's pretrial confession as follows:

Appellant led officers directly to where the body was buried.

He described that he had wrapped a towel around her head, shot her,

stuffed her head first into a sleeping bag, and buried her face down

with her head pointing toward the clearing. . . .

All of the above details of the offense, many of which could have

only been known by Appellant, were shown to be true.

15pretrial statement, he did not kill the victim. The jury disbelieved this trial testimony. It is not for us to say that the jury

erred in this credibility determination.

V.

Jacobs argues that the state vi olated the Eighth and Fourteenth Amendments by continuing to take the position, after Hogan's

trial, that Jacobs had shot the victim, was guilty of capital

murder, and was eligible for the death penalty. For example,

Jacobs points to the state's brief before the Texas Court of

Criminals Appeals, claiming that Jacobs's pretrial statement that

he shot the victim was true. 12

Although we agree that the state's brief on direct appeal

appears to contradict its statements to the jury during the Hogan

trial, we have found no authority, and Jacobs has cited none, that

the state's contradic tory statements amount to federal constitutional error. Jacobs has failed to prove facts that would entitle

him to relief under established constitutional principles. Thus,

Jacobs seeks the benefit of a "new" rule of constitutional law and

is not entitled to relief. See Teague v. Lane , 489 U.S. 288, 3071 3 Jacobs makes three arguments that are, in essence, rephrasings of this

same contention. First, he argues that the jury was not instructed that the "law

of parties" was not applicable at se ntencing. Second, he avers that the jury

would have automatically had to answer "yes" to the second part of the first

special issue )) whether the defendant acted "with the reasonable expectation that

the death of the deceased or another would result." Third, he contends that the

jury might have believed that th e defendant's non-triggerman actions were

delibe rate. All three of these arguments are rephrasings of Jacobs's basic

thesis: that the two special issues did not allow the jury to take into account

the possibility that a co-conspirator physically caused the death of the victim.

Jacobs also argues that it was er ror for the state trial court not to

define the word "deliberately" in the first special issue. We have squarely

rejected this claim. S ee Nethery v. Collins , 993 F.2d 1154, 1162 & n.28 (5th

Cir. 1993).

The federal district co urt held that Jacobs waived any challenge to the

special issu e instructions because he did not make an objection to the state

trial court. But because the Court of Criminal Appeals evaluated the claim on

its merits, Ex Parte Jacobs

, 843 S.W.2d at 518-19, Jacobs ' s failure to object

does not waive his challenge. We must therefore evaluate the claim on its

merits. See Drew v. Collins , 964 F.2d 411, 420 (5th Cir. 1992), cert. denied

, 113 S. Ct. 3044 (1993).

16 (1989).

VI.

Jacobs argues that the two special issues did not allow the

jury to take into account mitigating evidence that he was not the

triggerman. 13 In P enry v. Lynaugh

, 492 U.S. 302, 322-34 (1989), the

Court held that the deliberateness and future dangerousness special

issues violated the Eighth Amendment by failing to let the jury

"give effect" to mitigati ng evidence that the defendant suffered

from brain damage, was mentally r etarded, and had a troubled

childhood.

Jacobs's argument, base d upon mitigating evidence of nontriggerman status, is firmly foreclosed by precedent. See Harris

v. Collins

, 990 F.2d 185, 188-89 (5th Cir. 1993); Drew v. Collins

,

964 F.2d 411, 421 (5th Cir. 1992), cert. denied

, 113 S. Ct. 30441 4 See Skillern v. Estelle

, 720 F.2d 839, 843 (5th Cir. 1983), c ert.

denied

, 469 U.S. 493 (1984); Johnson v. McCotter

, 804 F.2d 300 (5th Cir. 1986),

cert. denied , 107 S. Ct. 1262 (1987).

17 (1993); Bridge v. Collins , 963 F.2d 767, 770 (5th Cir. 1992). In

Bridge

, we held that a jury could give mitigating effect to

evidence that the defendant's accomplice may have shot the victim.

Id. The jurors could have concluded either that the defendant's

conduct was not deliberate and therefore answered "no" to the first

special issue or that the defendant would not be a future threat

and answered "no" to the second special issue. Id. 14

VII.

Jacobs contends that the jury was unable to take into account

other mitigating evidence when sentencing him. The other evidence

includes:

evidence of his troubled childhood; cooperation with the

police; remorse; efforts to better his life by starting

a successful aut o repair business while on parole and

educating himself while in prison; trustworthiness; love

for his family and friends; and, that he was president of

a prison group dedicated to benefiting charitable

institutions and helping unwed mothers and abused

children.

Ex Parte Jacobs

, 843 S.W.2d at 520. The mitigating evidence falls

into two groups: (1) evidence of Jacobs's troubled childhood and

(2) evidence of remorse and favorable personality traits.

Jacobs argues that the jury could not give effect to evidence

of his troubled childhood. I n Penry

, the defendant argued that the

jury was unable to consider mit igating evidence that he suffered

fro m brain damage, was mentally retarded, and had a troubled1 5 In response to Penry

, the Texas Code of Criminal Procedure now instructs

the jury that "in deliberating on the issues submitted under Subsection (b) of

this article, it shall consider all evidence admitted at the guilt or innocence

stage and the punishment stage, including evidence of the defendant's background

or character or the circumstances of the offense that militates for or mitigates

again st the imposition of the death penalty." T E X. C ODE C RIM. P ROC. A NN. art. 37.071(2)(b) (effective Sept. 1, 1991) (Vernon Supp. 1993-94).

18 childhood. The Court held that the first special issue on

deliberateness did not adequately account for the possibility that

P enry's mental retardation and history of child abuse might have

diminished his moral culpability for his crime. 492 U.S. at 322-

23. The Court also held that the second special issue failed to

give full effect to the mitigating evidence of mental retardation

and child abuse. I d. at 324. Such mitigating evidence could only

be an aggravating factor, as it suggests that the jury should

answer "yes" to the question of future dangerousness. I d. at 323-

24. 15

In Graham v. Collins

, 113 S. Ct. 892 (19 93), the Court held

that the Texas special issues gave effect to evidence of a

defendant's childhood that was "unstable" and "transient." I d. at

897, 902. The G raham Court distinguished Penry on the following

grounds:

Graham's evidence of transient upbringing and otherwise

nonviolent character more closely resemble Jurek's [ Jurek

v. Texas , 428 U.S. 262 (1976)] evidence of age, employment history and familial ties than it does Penry's

evidence of mental retardation and harsh physical abuse.

Id. at 902.

Jac obs had a troubled childhood like that of Graham, as

opposed to a childhood rife with harsh physical abuse like that of

Penry. In his brief, Jacobs describes the evidence of his troubled19

childhood as follows:

Finally, evidence was presented showing that Mr. Jacobs

had an unstable, troubled childhood. He never knew his

mother, and has only vague memories of his father. His

father left him to live alone with strangers when he was

a small boy, and Mr. Ja cobs never saw him again. Mr.

Jacobs ende d up living in several foster homes as a

child, separated from his sister, parents, and all other

family connections.

Thus, Jacobs's evidence of a troubled childhood is distinguishable

from that in Penry

.

We therefore reject Jacobs's contention that the Texas special

issues do not accou nt for mitigating evidence of his troubled

childhood. In addition, Jacobs failed to present evidence of the

effect his childhoo d had on him or of his reaction to his childhood. See Graham v. Collins , 950 F.2d 1009, 1033 (5th Cir. 1992)

(en banc), aff'd

, 113 S. Ct. 892 (1993). As for Jacobs's alleged

positive character traits, a jury wishing to give effect to such

traits could answer "no" to the second special issue regarding

future dangerousness. G raham

, 113 S. Ct. at 902 (various positive

character traits); Franklin v. Lynaugh

, 487 U.S. 164, 178 (1988)

(clean prison record); Andrews v. Collins

, 21 F.3d 612, 630 (5th

Cir. 1994) (good relationship with wife).

VIII.

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

tha t the Texas special issue questions did not allow the jury to

take into account whether Jacobs killed, attempted to kill, or16 In Enmund

, the Court held that it was cruel and unusual punishment to

impose the death penalty o n 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." 458 U.S. at 797.

1 7 See Skillern v. Estelle

, 720 F.2d 839, 843 (5th Cir. 1983), c ert.

denied

, 469 U.S. 493 (1984); Johnson v. McCotter

, 804 F.2d 300 (5th Cir. 1986),

cert. denied , 107 S. Ct. 1262 (1987).

20 intended that a killing take place. 16 Jacobs's argument is

foreclosed by precedent. T he first spec ial issue satisfies the

requirements of Enmund

, even in cases where the defendant may have

been found guilty of capital murder on the basis of the "law of the

parties." A ndrews v. Collins

, 21 F.3d 612, 630-31 (5th Cir.

1994). 17

IX.

The state trial court instructed the jury that "[i]f ten (10)

jurors or more vote "No" as to any Special Issue, then the answer

of the Jury shall be "No" to that issue . . . ." Citing Mills v.

Maryland

, 486 U.S. 367 (1988), Jacobs claims that t he jury

instruction violated the Constitution by creating a false need for

a nearly unanimous response to the special issues. The state trial

court held that Jacobs's claim was procedurally barred because he

did not object to the charge or request a special instruction and

did not demonstrate egregious harm arising from hi s claimed

constitutional violation.

Jacobs's claimis procedurally barred. Federal review of a

habeas claim is procedurally barred if the last state court to

consider the claim expressly and unambiguously based its denial of21

relief on a state procedural bar. H arris v. Reed

, 489 U. S. 255,

265 (1989). The state court's opinion must contain a "plain

s tatement" that its decision rests upon adequate and independent

state grounds. I d. at 263-66. Where a state court has explicitly

relied upon a procedural bar, a state prisoner may not obtain

federal habeas relief absent a showing of cause for the default and

actual prejudice that is attributable to the default. M urray v.

Carrier , 477 U.S. 478, 485 (1986). Jacobs has not made a showing

of cause for default. Therefore, we reject his claim.

Furthermore, Jacobs was not prejudiced by the state court's

invocation of a procedural bar. His substantive argument is

meritless. In Mills , the Supreme Court reversed a death sentence

impose d under Maryland's capital punishment scheme because jury

instructions may have precluded the jury from considering mitigating evidence unless all twelve jurors agreed on the existence of a

particular circumstan ce supported by that evidence. 486 U.S. at

384. The Court concluded that merely one juror could block

consideration of the mitigating evidence and thus require the jury

to impose the death penalty. I d. The Supreme Court has interpreting Mills to mean that "each juror [must] be permitted to consider

and give effect to mitigating evidence when deciding the ultimate

question whether to vote for a sentence of death." M cKoy v. North

Carolina , 494 U.S. 433, 442-43 (1990).

The law in Texas is completely different from that in Mills

.

The law in Texas provided as follows:

(c) The state must prove each issue submitted beyond a

reasonable doubt, and the jury shall return a s pecial22

verdict of "yes" or "no" on each issue submitted.

(d) The court shall charge the jury that:

(1) it may not answer any issues "yes" unless it agrees

unanimously; and

(2) it may not answer any issue "no" unless 10 or more jurors

agree.

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071 (Verno n 1981) (effective June

14, 1973).

The jury instructions substantially conform to the Texas law

on death penalty special issues. The state trial judge instructed

that the jury may answer "Yes" to one of the special issues only if

the entire jury unanimously deter mined that the answer should be

"Yes." The judge then instructed that if 10 or more jurors voted

"No" as to any special answer, then the jury's vote should be "No."

The judge further instructed that each juror was to make his or her

decision independ ently. Under the Texas system, all jurors can

take into account any mitigating circumstance. One juror cannot

p reclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable.

The Texas system allows an answer of "Yes" to a special issue

if all jurors vote "Yes," and allows an answer of "No" if ten

jurors vot e "No." M ills does not require a certain number of

jurors to agree to impose the death penalty.

X.

Jacobs avers that the trial court erred by charging the jury

at the guilt phase on a conspiracy theory of liability even though1 8 The parties hotly debate whether we should defer to the state court's

factual findings. Because Jacobs's argument are meritless even if no deference

is accorded to the state court, we need not reach the issue of how much deference

should be accorded to the state court's findings of fact.

23 the indictment contained no such charge. We have held that "one

who has been indicted as a principal may, on proper instructions,

be convicted on evidence showing only that he aided and abetted the

commission of the offense." United States v. Robles-Pantoja , 887

F.2d 1250, 1255 (5th Cir. 1989) (citations omitted). Similarly, it

was not error for Jacobs to be indicted as a principal and then to

be convicted under the "law of the parties."

XI.

During the sentencing phase of his trial, Jacobs told his

counsel not to presen t any defense witnesses and not to make a

closing argument. Jacobs's counsel complied with these requests.

Jacobs now argues that the trial court erred by allowing him to

represent himself without warning him of the dangers of proceeding

without counsel.

A defendant wishing to represent himself must "be made aware

of the dangers and disadvantages of self-representation, so that

the record will establish that `he knows what he is doing and his

choice is made with eyes open.'" Faretta v. California , 422 U.S.

806, 835 (1975) (citation omitted). T he record shows that the

district c ourt fully informed Jacobs of the pitfalls of selfrepresentation. We therefore reject his argument. 18

The application for CPC is DENIED.