### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 70018

KENT WILLIAM SPROUSE , Petitioner

– Appellant ,

versus WILLIAM STEPHENS, Director, Texas Department o f Criminal Justice, Correctional Institutions Division, Respondent

– Appellee

.

Appeal from the United States District Court for the Northern District of Texas

Before SMITH , PRADO , and HIGGINSON , Circuit Judges

. JERRY E. SMITH, Circuit Judge :

A jury found Kent Sprouse guilty of the capital murder of a police officer , and he was sentenced to death. Among many other issues raised on direct appeal and on state habeas corpus review , Sprouse challenged the jury instruct ion s given during the guilt phase of his trial . He claimed that t h e instructions, in violation of the Eigh t h Amendment, effectively precluded the United States Court of Appeals Fifth Circuit 

### FILED April 7, 2014 Lyle W. Cayce Clerk Case: 13-70018 Document: 00512586737 Page: 1 Date Filed: 04/07/2014No. 13

- 70018 jury from considering voluntary intoxication as mitigating evidence. The Texas Court of Criminal Appeals (“TCCA”) rejected th at argument

. On federal habeas review , Sprouse contends that the state court unreasonably applied Penry v. Lynaugh ( “ Penry I ” ) , 492 U.S. 302 (1989), Boyde v. California , 494 U.S. 370 (1990), and Penry v. Johnson ( “ Penry II ” ) , 532 U.S. 782 (2001)

. W e disagre e and affirm the d enial of the habeas petition. W e also decline to grant a certifi

cate of appeala bility (“COA”) on any of the additional issues Sprouse raises

.

I. In 2002, Sprouse entered a convenience store with a shotgun hung over his shoulder and, after returning to his vehicle, fired his weapon in the direc

tion of two men
. Then a nother customer saw Sprouse working on his vehicle and Pedro Moreno , yet another customer, filling his truck with gas. The cus

tomer noticed Sprouse attempt ing to speak to Moreno, who did not respond. Sprouse then reached into his vehicle, pulled out a gun, and shot and killed Moreno. Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle, responded to the shooting. When he arrived, before turning toward Sprouse’s

car , he noticed Moreno on the ground . As he turned, Sprouse sh ot him twice. Steinfeld t return ed fire but died from his injuries

. A second officer arrived and took Sprouse into custody. Sprouse was transported to a nearby hospital , where a doctor thought he was under the influence of drugs

. T esting revealed he had consumed amphetamines, meth amphetamines, and can na bis within the past forty

- eight hours. Sprouse was indicted for capital murder of a police officer . His lawyer filed notice of intent to present an insanity defense. T he issue of intoxication

— bot h as an affirmative defense and as mitigating evidence

— was raised with several potential jurors during voir dire

. S pecifically , the prosecutor 2 Case: 13-70018 Document: 00512586737 Page: 2 Date Filed: 04/07/2014No. 13

- 70018 question ed two jurors who were chosen

— Ruby Martinez 1 and Kathy Wilson 2

— on th at issue. Sprouse, however, did not object to th at questioning. Defense counsel discussed the issue of intoxication with Martinez but not Wilson.

1 The prosecutor discussed with Martinez the possibility of voluntary intoxication as a defe nse and as mitigating evidence: [Prosecutor]: [E]ven if a defendant showed you that his conduct was wrong, that doesn’t mean that he prevails on his insanity defense. And that leads into another area of law

. . . concerning voluntary intoxication. And in our questionnaire we advise you that voluntary intoxication is not a defense to crime. Do you agree with that? [Martinez]: Yes. [Prosecutor]: All right. And so no matter how much evidence was produced that a per son was intoxicated or why they did what they did while they were intoxic ated has nothing to do with th eir guilt of the crime charged.

. . . . [Prosecutor]: Right. Now, the law does allow a defendant to introduce evidence of intox ication at punishment as mitigation, okay, but only in a certain circumstance; and that is, a def endant has to show that he was intoxicated at the time of the conduct charged and that the intoxication resulted in his not knowing his conduct was wrong. Okay?

2 [Prosecutor]: Someone takes a substance into their body who becomes so intoxicated they simp ly don’t know their conduct is wrong. That’s a situation in the law known as temporary insanity. And that is completely different from the insanity defense. Our law says that a person who is voluntary

— who

— that voluntary intoxication is not a defense to crime. And I believe in your jury questionnaire you agreed with that law? [Wilson]: Uh

- huh. [Prosecutor]:

. . . Where intoxication or voluntary intoxication can be presented to the jury is on the issue of punishment. And the law says that while it’s no t a defense to [the] crime[, ] intoxication which results in a defendant not knowing their conduct is wrong can be used by the jury in mitigation of punishment, to lessen the punishment. Doesn’t say they have to use it. It, again, is just like any other mitigating evidence in a case. It’s only mitigating if you think it’s mitigating and the result of the jury thinks it’s miti gating. . . . Would you require

— before considering voluntary intoxication as any mitigation of punishment, would require a defendan t to prove that that intoxi ca tion resulting in their not knowing their conduct was wrong? [Wilson]: Would I require them to prove that they were so intoxicated

— [Prosecutor]: Would you

― would you require that finding . . . [The Court]: Preface it if the law stated th is . . . could she follow that? [Prosecutor]: If the law states that voluntary intoxication can be used in mitigation of punishment if the jury finds that the voluntary intoxication resulted in the defendant 3 Case: 13-70018 Document: 00512586737 Page: 3 Date Filed: 04/07/2014No. 13

- 70018 At the close of the guilt phase, the jury was instruct ed on insanity 3 but rejected that defense and convicted Sprouse of capital murder. At the punish

ment phase, Sprouse p ut forward no new evidence , instead rely ing on all the testimony and evidence that had been presented during the guilt phase

. At the close of the punishment phase, t he jury was given three general instructions regardin g mitigating evidence. First, i t was instructed on what

con stitutes “mitigating evidence

. ” 4 Second

— the focus of this appeal

— the jury was instructed on the issue of intoxication: “You are instructed that under our law neither intoxication 5 nor temporar y insanity of mind caused by intoxica

tion constitute [ sic ] a defense to the commission of a crime. Evidence of tem

porary insanity caused by intoxication may be considered in mitigation of the

not knowing that his conduct was wr ong, could you consider that

― no strike that would you be willing ―L et me rephrase that. . . . If the law is that a defendant can introduce evidence of intoxication that causes temporary insanity at punishment on the issue of mitigation, okay, but only if th at intoxication results in the condition called temporary insanity which means that they didn’t their c onduct was wrong

— [Wilson]: Uh

- huh. [Prosecu tor]:

— can you follow that law? [Wilson]: Yes. [Prosecutor]: Okay. And what that means is that if evidence o f intoxication was intro

duced that does not arise to temporary insanity that then it would not be considered as mitigation if it was consideration as mitigation anyhow.

3 “You are instructed that no act done in a state of insanity can be punished as an of

fense. It is an affirmative defense to prosecution that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know that his conduct was wrong.” T EX

. P ENAL C ODE A NN

. § 8.01(a) (West 2013). The jury wa s further instructed on the meaning of “mental disease or defect”: “The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial con

duct.” Id. § 8.01(b).

4 “You are instructed that the term ‘mitigating evidence,’ as used herein, means evi

dence that a juror might regard as reducing the defendant’s blameworthiness.”

5 The court further defined “intoxication” and “insanity”: “By the term ‘intoxication’ as used herein is meant a distu rbance of mental or physical capacity resulting from the intro

duction of any substance into the body.” “By the term ‘insanity’ as used herein is meant that
as a result of intoxication the defendant did not know his conduct was wrong.” 4 Case: 13-70018 Document: 00512586737 Page: 4 Date Filed: 04/07/2014No. 13

- 70018 penalty , if any, attached to the offense.” 6 Third, the jury was instructed on t he issue of temporary insanity. 7 Additionally , the court told the jury to answe r the mitigation special issue: “ Taking into consideration all of the evidence , including the circum

stances of the offense, the defendant’s character and background, and the per

sonal moral culpability of the defendant, do you find that there is sufficient mitigating

. . . circumstances to warrant that a sentence of life imprisonment rather than death be imposed? ” Finally, the jury was given a catch

- all in struc

tion on mitigation: “You are to consider all evidence submitted to you during the whole trial as to defen dant’s background or character or the circumstances of the offense that miti gates against the imposition of the death penalty.” At the close o f the punishment phase , duri ng his initial closing argu

ment 8 and again on rebuttal, 9 the prosecutor discus sed the possibility of Sprouse’s intoxication as mitigat ing

. Defense counsel also discussed th at issue

6 At the time, Spro use objected to this instruction: The second sentence where it says you are instructed that under our law nei

ther intoxication or [sic] temporary insanity of mind caused by intoxication shall constitute any defense to the commission of a crime. To the defense that serves no purpose. It confuses the issues. The defendant’s already been con

victed of the crime; and a defense to the crime, whether it’s a defense of the crime or not, seems to be irrelevant at this stage. We’d ask that sentence be taken o ut completely.

7 “[I]f you find from the evidence that . . . Sprouse, at the time of the commission of the offense . . . , was laboring under temporary insanity as defined in this charge, then you may take such temporary insanity into consideration in miti gation of the penalty which you attach to the crime.”

8 “No one here can tell you that you must consider anything to be mitigating. The Judge’s instructions have a section that talked about voluntary intoxication and the circum

stances under which you may consider that mitigating. It does not direct you that you must.”

9 “I submit to you if you think a 30

- year - old man whose parents have been good to him, who have given him a good home, supported him through high school, through college, tried to get him h elp, even went to the extent of getting him involuntarily committed in order to get him help, . . . if a man who has all of that advantage spends his life smoking it away with dope, you can consider that mitigation if you choose to.” 5 Case: 13-70018 Document: 00512586737 Page: 5 Date Filed: 04/07/2014No. 13

- 70018 during closing

. 10 T he jury determined (1) there was a probability that Sprouse would com mit criminal acts of violence that would constitute a c ontinuing threat to soci ety; and (2) there was not sufficient mitigating circumstances to warrant a life sentence. In accordance with the verdict, the c ourt sentenced Sprouse to death. T he T CCA affirmed on direct appeal

. See Sprouse v. State , No. AP

- 4933 , 2007 WL 283152, at * 9 (Tex. Crim. App. Jan. 31, 2007)

. I n deciding numerous issues raised o n state habeas , t he state trial court rejected the argumen t Sprouse presses on appeal , 11 and the TCCA denied Sprouse’s applicat ion for

10 “You can consider an ything on mitigation . . . . You know you can consider under law intoxication is mitigation. The law says you can. You can consider it either way. You know that. You’ve heard it before. ”

11 The state trial court’s opinion states in relevant part: 42. T here was evidence admitted at trial that Applicant was voluntarily intoxicated at the time of the offense. 43. The jury charge at punishment included the mandatory instruction on voluntary intoxication set out in section 8.04 of the Texas Penal Code. 44. T rial counsel objected to the jury instruction on voluntary intoxication in the Court’s charge at punishment, stating that the instruction was irrelevant and con

fused the issues because Applicant had already been convicted. 45. Trial counsel specifically s tated that he was not asking the trial court to not give the instruction at all but only objecting to specific parts of the instruction. 46. Defense counsel addressed the voluntary intoxication instruction during closing argument, telling the jury without objection that they could consider intoxication as mitigating. 47. Appellate counsel did not raise any issue regarding the voluntary

- intoxication instruction. 48. Neither trial counsel nor appellate performed deficiently in failing to raise such a claim wh en the issue has been decided against the claim. See Drinkard v. Johnson , 97 F.3d 751, 758 (5th Cir. 1996) [, overruled on other grounds by Lindh v. Murphy , 521 U.S. 320, 325 (1997) ] ; Cantu v. State , 939 S.W.2d 627, 647

– 48 (Tex. Crim. App. 1997). 49. Revie wing the voluntary intoxication instruction in the context of the instructions on special issues as a whole and in light of the proceedings before the jury, there is no reasonable likelihood that the jury applied the instruction to place consideration of
n on - insane intoxication beyond its effective reach. Drinkard , 97 F.3d at 758

– 59. 6 Case: 13-70018 Document: 00512586737 Page: 6 Date Filed: 04/07/2014No. 13

- 70018 writ of habeas corpus. See Ex parte Sprouse , No. WR

- 66950

- 01, 2010 WL 374959, at *1 (Tex. Crim. App. Feb. 3, 2010). P ursuant to 28 U.S.C. § 2254, Sprouse f iled the instant petition, which the district court denied but granted a COA on the following issue: “ Whether
t he jury instruction on intoxi cation during the punishment ph ase vio lated the Eight h Amendment, and whether counsel’s failure to object or pre serve it con

stitu ted ineffective assistance of trial counsel and/or appellate counsel.” 12 In determining that reasonable jurists would find th at issue debatable, the district court first recognized that Fifth Circuit caselaw foreclosed Sprouse’s contention

. 13 As the court n oted, “ [ Narvaiz v. Johnson , 134 F.3d 688 (5th Cir. 1998) , ] reasoned that the gen eral instruction to consider ‘a ll of the evidence’ admitted at trial negates any inference that the intoxication instruc

tion precludes consideration of non

- insane, voluntary intox i cation.” Sprouse , 2013 WL 1285468, at *23. The district court, however, also observed that (1) Nar vai z , Drinkard v. Johnson , 97 F.3d 751 (5th Cir. 1996) , and Lauti v. Johnson , 102 F.3d 166 (5th Cir. 1996) all predate Penry II , and (2) “ [ Penry II ] appears to reject the type of reasoning relied upon in Narvaiz that a jury can

Ex Parte Sprouse , No. 26824CR/A, slip op. at 124

– 25 (40th Dist. Ct., Ellis Cnty

. , Tex. Jan. 25, 2007).

12 Sprouse first raised this issue ( framed as an Eight h Amendment violati on ) before the state trial habeas court , which dismissed it on the merits. The record does not, however, make clear whether Sprouse repeated this argument before the T CCA . Because the state does not press procedural default, however, we do not need to de termine whether Sprouse did in fact raise it through one complete cycle in the state courts. Cf. Busby v. Dretke , 359 F.3d 708, 723 (5th Cir. 2004) (“Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post

- conviction col

lateral proceedings.” (emphasis added) ). Even if the TCCA decided this issue on the merits, it did not discuss it at any length , so we treat the state trial habeas court opinion as the rel evant state court decision

. 13 See Sprouse v. Thaler , No. 3:10

- CV

- 317

- P, 2013 WL 1285468, at *23 (N.D. Tex. Mar. 29, 2013) (citing Narvaiz v. Johnson , 134 F.3d 688, 692

– 94 (5th Cir. 1998) ; Lauti v. Johnson , 102 F.3d 166, 169

– 70 (5th Cir. 1996) ). 7 Case: 13-70018 Document: 00512586737 Page: 7 Date Filed: 04/07/2014No. 13

- 70018 logically and ethically follow two co n flicting sets of instructions.” Id. The district court denied a COA on all other issues raised in the motion. Sprouse appeals the Ei ght h Amendment issue and seeks COA s on five other s
.

I I

. “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de novo , applying the same standards to the state court’s decision as did the district court.” Busby v. Dretke , 359 F.3d 708, 713 (5th Cir. 2004). Under t he Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , if the state court adjudi cated Sprouse ’s claim on the merits, federal habeas relief can be granted on that claim only if the adjud i ca tion of it (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable deter

mination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (2012). We consider a state court d ecision to be “contrary to” clearly established Federal law 14 in two situations: “[(1)] the state court arrives at a conclusion opposite to that reached by this Court on a question of law . . . [or (2)] the state court confronts facts that are materially in distin guish

a ble from a relevant Supreme Court precedent and arrives at a result opposite to [that Supreme Court decision].” Williams v. Taylor , 529 U.S. 362, 405

14 “‘Clearly established federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court reaches its decision.” Lockyer v. Andrade , 538 U.S. 63, 71

– 72 (2003). Therefore, Sprouse must demonstrate that the trial habeas court’s opinion was “contrary to” or “an unreasonable application of” the hold ings of Supreme Court cases issued before January 25, 2007. 8 Case: 13-70018 Document: 00512586737 Page: 8 Date Filed: 04/07/2014No. 13

- 70018 (2000). Likewise, we consider a state court decision to be “an unreasonable appli cation ” of Supreme Court precedent in three situations: [(1)] the state court . . . unreasonably applies [the correct governing legal rule] to the facts of the particular [ ] case . . . [(2)] the state court [] unreasonably extends a legal principle from our pre cedent to a new context where it should not apply or [(3) the state court] unreasonably refuses to extend that principle to a new context where it should apply.
Id. at 407. E ven if a state court e rrs in applying Supreme Court precedent , the court may still not have acted unreasonably for AEDPA purposes

. See Harrington v. Richter , 131 S. Ct. 770, 786 (2011). “A state court’ s determination that a claim lacks merit precludes fe deral habeas relief so long as ‘ fa irminded jurists could disagree’ on the correctness of the state court’s decision.” Id. “ [E]valu

at ing whether a rule application was unreasonabl e requires considering the rule’ s specificity. The more general the rule, the more leeway courts have in reach ing outcomes i n case - by

- case deter minations.” Yarborough v. Alvarado , 541 U.S. 652, 664 (2004) . “ [I]t is not an unreasonable application of clearly estab lished Federal law for a state court to decline to apply a specific legal rule that has not b een squarely established by th[e ] [ Suprem e] Court. ” Knowles v. Mirzayance , 556 U.S. 111, 112 (2009). Attempting to bypass this deferential standard, Sprouse chal lenges the constitutionality of § 2254(d )

. 15 As Sprouse concedes, we, like our sister

15 First, Sprouse argues that AEDPA deference violates the principles of stare decisis specified by Marbu ry v. Madison , 5 U.S. (1 Cranch) 137 (1803) , and United States v. Klein , 80 U.S. (13 Wall.) 128 (1871) : “ [C] ontrary to the holdings of Marbury and Klein , Congress afforded the federal courts habeas jurisdiction, but limited the courts’ manner of review by suspending stare decisis

. ” Second, Sprouse argues that AEDPA violates Article III: “2554(d) prohibits the federal courts from saying what the law is. Instead, 2254(d) requires the federal courts to defer to and uphold state court decisions erroneously interpreting federal constitutional law.” 9 Case: 13-70018 Document: 00512586737 Page: 9 Date Filed: 04/07/2014No. 13

- 70018 courts, 16 have rejected th at challenge. 17 We there fore apply AEDPA’s highly defer ential standard to Sprouse’s appeal

.

III. Sprouse maintains that the voluntary

- intoxication instruction required by Texas P enal C ode § 8.04 unconstitutional ly limit ed the jury’ s ability t o con sider mitigating evidence. Because the instruction could have just stated “Intox ication may be considered in mitigation” as opposed to “ Evidence of tem

porary insanity caused by intoxication may be considered in mitigation ,” Sprouse contends that “[t]he jury must necessarily have been led to believe that they could not consider intoxication alone for mitigation.” He a ver s that the negative implication of this instruction trumps or else contradicts the catch

- all mitigation instruction a nd the mitigation s pecial issue. In this vein, Sprouse urges that the state court unreasonably applied Penry I , Boyde , and Penry II

.

A. Before specifically addressing Sprouse’s position , we turn t o the three Supreme Court cases on which he principally relies . In Penry I , the Supreme Court granted the habeas petition, holding that the Texas death

- penalty stat

ute had been applied unconstitutionally in that case. Because the Court was

16 Evans v. Thompson , 518 F.3d 1, 10 (1st Cir. 2008) ; Crater v. Galaza , 491 F.3d 1119, 1130 (9th Cir. 2007) ; Gree n v. French , 143 F.3d 865, 876 (4th Cir. 1998), abrogated on other grounds by Williams v. Taylor , 529 U.S. 362 (2000); Lindh v. Murphy , 96 F.3d 856, 871

– 74 (7th Cir. 1996) (en banc), rev ’ d on other grounds , 521 U.S. 320 (1997).

17 Cobb v. Thaler , 682 F.3d 364, 374 (5th Cir. 2012), cert. denied , 133 S. Ct. 933 (2013) (“As each circuit to address the question has recognized, § 2254(d)(1) does not intrude on the inde pendent adjudicative authority of the federal courts. Rather, it limits the ground s on which federal courts may grant the habeas remedy to upset a state conviction.”). 10 Case: 13-70018 Document: 00512586737 Page: 10 Date Filed: 04/07/2014No. 13

- 70018 reviewing the habeas petition, i t began by assessing the clear Supreme Court precedent ava ilable to the state court when Penry’s con viction became final: [I]t was clear from [ Lockett v. Ohio , 438 U.S. 586 (1978)] and [ Eddings v. Okla homa , 455 U.S. 104 (1982) ] that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giv ing effect to evidence rele

vant to the defendant’s back ground or char acter or to the circum

stances of the offense that mitigate against imposing the death pen alty. Penry I , 492 U.S. at 318. That is, the Eight h Amendment requires that a cap i tal sentencing jury not be precluded from con sidering, as a mitigating fac tor, the character and record of the individual defendant and the circum stan ces of the particular offense. T he Court in Penry I not ed t hat the jury was not given any sp ecific mitigation instruction , 18 so it could not adequately give effect to any mitigating cir cumstances it may have found. 19 At Penry’s second sentencing trial, the state court, attempting to ab i de by Penry I , gave a supplemental instruction on mitigation. Penry II , 532 U.S.
at 789

– 90

. If the jury believed that the mitigating evidence warranted a life

18 Penry I , 492 U.S. at 320 (“ Although Penry offered mitigating evidence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment ra ther than death, the jury that sentenced him was only able to express its views on the appropriate
sen tence by answering three questions: Did Penry act deliberately when he murdered Pam

ela Carpenter? Is there a probability that he will be dangerous i n the future? Did he act
unrea sonably in response to provocation? The jury was never instructed that it could con

sider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence. ” ).

19 Id. at 322 (“Penry argues that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its “reasoned moral response” to that evidence in determining whether death was the appropriate punishment. We agree. Thus, we reject the State’s contrary argument that the jury was able to consider and give effect to all of Penry’s mitigating evidence in answering the special issues wi thout any jury instructions on miti

gating evidence.”). 11 Case: 13-70018 Document: 00512586737 Page: 11 Date Filed: 04/07/2014No. 13

- 70018 sentence instead of death, it was directed to make a negative finding to one of the special issues even if i t had already answered yes to that question

. T he mitigation instruction did not include a separate question for the jury. T he Supreme Court first emphasized its holding in Penry I : Penry I did not hold that the mere mention of “mitigating circum

stances” to a capital sentencing jury satisfies the Eighth Amend

ment. Nor does it stand for the proposition that it is constitu tion

ally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.”
Id. at 797 (quoting Penry I , 492 U.S. at 319). Having established th at frame

work, the Court considered two possible ways of interpreting the “confusing instruction” and concluded that neither understanding satisf ied its command in Penry I : (1) I f the instruction was “understood as telling the jurors to take Penry’s mitigating evidence into acco unt in determining their truthful answers to each special issue . . . the supplemental instruction placed the jury in no bet ter position than was the jury in Penry I

. ” Id. at 798 . (2) Alternatively, the instruction could be understood “ as in forming the jury that it could ‘ simply answer one of the special issues ‘no’ if it believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of its initi al answers to the questions.’” Id. (citations omitted). This approach, howev er, “ made the jury charge as a whole internally contradictory, and placed law

- abiding jurors in an impossible s ituation. ” I d. at 7 99

. Therefore , under either approach,

“ [a] lthough the supplemental instruction made mention of mitigating evi

dence, the mec han ism it purported to create for the jurors to give effect to that evidence was inef fective and illogical.” Id. at 804. Finally, Boyde sets the standard for reviewing a claim of jury

- charge

error : A federal habeas court must ask “whether there is a rea sonable

12 Case: 13-70018 Document: 00512586737 Page: 12 Date Filed: 04/07/2014No. 13

- 70018 likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally rel e vant evidence.” Boyde , 494 U.S. at 38 0. Two observations underpin th at stan dard: (1) “Jurors do not sit in so litary iso lation booths parsing instructions for subtle shades of mean ing in the same way that lawyers might”; and (2) “Dif ferences among [jurors] in interpretation of instructions may be thrashed out in the deliber a tive process, with common sense und erstanding of the instruc tions in the light of all that has taken place at the trial likely to prevail over technical hair split ting.” I d. at 380

– 81. Moreover, “ a single instruction to a jury may not be judged in artificial isolation, but must be viewe d in the context of the overall charge.” I d. at 378 (quoting Boyd v. United States , 271 U.S. 104, 107 (1926)).

B. To obtain relief, Sprouse must establish that the state court unrea sonably applied Penry I , Boyde , and Penry II

. First, the state court had good reason to distinguish Sprouse’s case from Penry I and Penry II . U nlike the sit uation in Penry I , the state court here instructed the jury with a specific mit i gating special issue. And unlike the circumstance in Penry II , Sprouse’s jury was given a separate spe cial issue , which, as a discrete yes - or - no question , plain ly specified the mech anism by which the jury could give effect to any mitigating circumstances it wished to consider. Put otherwise, the fact that Sprouse perceives a negative inference in one sentence of his jury charge does not demonstrate th at his jury was confused about, and precluded from fol

lowing, the comprehensive and catch

- all affirmative command to the jury to

con sider mitigation circumstances. 20 In light of these differences, t he state

20 See Williams v. Norris , 612 F.3d 941, 956 (8th Cir. 2010) (“ Penry and [ Mills v . Mary

land , 486 U.S. 367 (1988)] involved juries that were precluded from properly considering mit

i gating circumstances because of mis leading jury instruction forms.” (citations omitted) ) ; see 13 Case: 13-70018 Document: 00512586737 Page: 13 Date Filed: 04/07/2014No. 13

- 70018 court did not act unreasonably in refusing to extend Penry I and Penry II to this case. Inso far as Sprouse points to dicta from th o se decisions that may sug gest reversal, AEDPA directs us to consider only holdings

. See Williams v. Taylor , 529 U.S. 362, 412 (2000)

. Second, Sprouse has not demonstrated that the state court’s reliance on
pre cedent was itself unreasonable. Although it is true that Cantu v. State , 939 S.W.2d 627 (Tex. Crim. App. 1997) , and Drinkard preceded Penry II , that fact alone does make the state court’ s reliance unreasonable. F or this reliance to be unreasonable, Sprouse would need to demonstrate that Boyde , Penry I , or Penry II squarely establish es a spec ific legal rule that Cantu and Drinkard violate. In Cantu , the T CCA assessed the very conflict at issue here : “[ T he defen

dant] contends[ ] evidence of intoxication which did not rise to this level was precluded from being afforded mitigating effect in violation of Eddings v. Okla

homa , 455 U.S. 104 (1982) and Lockett v. Ohio , 438 U.S. 586 (1978).” Cantu , 939 S.W.2d at 647. In light of the fact that a n unambiguous, separate miti ga
tion catch

- all instruction was given , the court rejected the petitioner ’s argu

ments: “We hold that the inclu sion of the latter instruction satisfied the consti

tutional deficiency appellant avers was created b y the inclusion of the intoxi

cation instruction. Thus, no egregious harm, if any harm at all, can be estab

lished.” Id. at 647

– 48. And i n Drinkard , 97 F.3d at 759, we assessed a similar instruction

. 21

also McCoskey v. Thaler , 478 F . App ’ x 143, 150 (5th Cir. 2012) (per curiam) (high lighting Penry “Court’ s concerns abo ut contradiction and limitation” ).

21 The instructi on in Drinkard stated only that “ [e] vidence of temporary insanity caused by intoxication may be considered in mitigation of the penalty . . . .” Drinkard , 97 F.3d at 755. In contrast, Sprouse’s instruction included that sentence but was preceded with the following: “ You are instructed that unde r our law neither intoxication nor temporary 14 Case: 13-70018 Document: 00512586737 Page: 14 Date Filed: 04/07/2014No. 13

- 70018 The court had given a special instruction addressing temporary insanity caused by intoxication during t he punishment phase

. Id. We determined that the instruction was not Boyde error: “ [W] e cannot say that there is a reason a ble likelihood that the jury interpreted the instructions as precludin g the con

sideration of Drinkard’ s intoxication if it did not rise to the level of tempor ary insa nity.” Id. I n both Cantu and Drinkard , the trial court instructed the jury with a clear, separate mitigation instruction

. In n eithe r case was the jur y required to take “ mitigating evidence into account in determining their truthful answers to each special issue ” or “ simply [to] answer one of the special issues ‘no’ if it believed that mitigating circumstances made a life sentence appropriate .” Cantu and Drinkard therefore did not involve juries that were precluded from considering mitigating evidence in the manner at issue in P enry I or Penry II

. Because th o se decisions do no t necessarily violate any rule squarely established by Boyde , Penry I , or Penry II , f or purposes of AEDPA , the state court’s reliance on the m was not unreasonable

. Third, o ther Fifth Circuit cases (not cited by the state court) further demon strate t hat the state court’s decision was not unreasonabl e
. In Narvaiz , 134 F.3d at 692 , for example, we addressed an instruction iden tical to the one here. And there , following Drinkard , we rejected the same Eight h Amendment argument Sprouse presses. See id. at 694. Finally, Sprouse maintains that his case can be distinguished from Drinkard and Narvaiz on three grounds: (1) the additional first sentence given in his case that was not given Drinkard ; (2) the prosecutor’s statements made during voir dire to two chosen jurors (which were not made in Drinkard or

insan ity of mind caused by intoxication constitute [ sic ] a defense to the commission of a crime

. ” 15 Case: 13-70018 Document: 00512586737 Page: 15 Date Filed: 04/07/2014No. 13

- 70018 Nar vaiz ); and (3) the prosecutor’s “confusing” closing remarks made in this case (again not made in Drinkard or Narvaiz ). This line of reasoning fails. First, as Sprouse readily concedes, Narvaiz included the additional first sen

tence. Second, as to the voir dire and closing remarks, even if Sprouse can show that those considerations consti tute proper bases to distinguish Drinkard and Narvaiz , he has not demonstrated that the state court unreasonably applied Supreme Court precedent in faili ng to distinguish his case on these bases

. We therefore conclude that the state court’s decision was not an unrea

sonable application of Boyde , Penry I , or Penry II

.

IV. Sprouse ask s this court to grant COAs on five additional issues : whether
t rial counsel provided ineffective assistance by failing to challenge (1) the Texas death

- penalty statute on the ground that it does not provide for mean

ing ful appel late review; (2) the statutory definition of “mitigating evi dence” as unconstitutionally narrow; (3) the statute on the ground that the aggravating factors are vague and do not properly channel the jury’s discretion; (4) the statute on the ground that it prohibits informing the jury of the conse quences of a “hold out” juror; and (5) the statute on the ground that it does not allocate to the s tate the burden of proving a lack o f mitigating evidence. Because clear Fifth Circuit caselaw forecloses each of t hese challenges, we do not grant a COA on any of the m
.

A

. AEDPA requires a state habeas petitioner to secure a COA before

16 Case: 13-70018 Document: 00512586737 Page: 16 Date Filed: 04/07/2014No. 13

- 70018 appeal ing a federal district court’s denial of habeas relief. 22 T he petitioner
must m ake “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2) (2012). For that , he must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a diffe rent manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller

- El v. Cock rell , 537 U.S. 322, 336 (2003) (citations and internal quotation marks omitted). “The COA determination under § 2253(c) requires an ove rview of the claims in the habeas petition and a general assessment of their merits.” Id. “Where a district court has rejected the constitutional claims on the merits, th e showing required to satisfy § 2253(c) is straightforward: The petitioner must dem onstrate that rea

sonable jurists would find the district court’s assessment of the constitu tional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “In assessing whether [a petitioner] is entitled to a COA, we must keep in mind
t he deference scheme laid out in 28 U.S.C. § 2254(d).” Moore v. Johnson , 225 F.3d 495, 501 (5th Cir. 2000).

B

. As discussed above, Sprouse seeks a COA with regard to five related claims . In the main, he contends that trial counsel w ere ineffective because they did not bring various constitutional challenges to Texas’s death

- penalty scheme. We take each in turn.

1

. Sprouse seeks a COA on whether trial counsel provided ineffective

22 Adams v. Stephens , No. 12

- 11264, 2013 WL 6155603, at *1 (5th Cir. Nov. 25, 2013) (per curiam) (unpublished) ; 28 U.S.C. § 2253(c)(1)(A) (2012). 17 Case: 13-70018 Document: 00512586737 Page: 17 Date Filed: 04/07/2014No. 13

- 70018 assistance of counsel (“I A C”) by failing to challenge the statute on the ground that it does not pro vide for meaningful appellate review on the following three issues: (1) the jury’s determination on mitigation; (2) the jury’s determination on future dangerousness; and (3) comparativ e propor tionality. In dismissing th at argument, the T CCA noted , “[A]ppellant asserts that the death penalty scheme is unconstitutional because it fails to provide to provide a meaningful appel late review of mitigating evidence or a re

- weighing of aggrav ating and mit i gating circumstances. . . . The [se] arguments . . . have been previously raise d and rejected by this Court.” 23 Applying AEDPA’s framework of “contrary to” or “unreasonable applica

tion” of Supreme Court law, Sprouse would need to show that the state court either applied the wrong test in deciding this issue or unreasonably applied the correct test to the facts. Sprouse has not point ed to any conflict ing Supreme Court precedent, ins tead conceding that we have rejected similar challenges. See Martinez v. Johnson , 255 F.3d 229, 244

– 45 (5th Cir. 2001) (“We find that the [T CCA ] was not objectively unreasonably in its application of the Jackson standard.”); Moore , 225 F.3d at 506

– 07 (“It is just this narrowly cabined but unbridled discretion to consider any mitigating factors submitted by the defendants and weighed as the jury sees fit that Texas has bestowed upon the jury. In so doing, Texas followed Supreme Court instructions to the le tter. No court could find that Texas had acted contrary to federal law as explained by the Supreme Court, and no benefit will arise from further con

sideration of the obvious.”). Therefore, Sprouse has not demonstrated that rea

sonable jurists wou ld find the district court’s determination to be debatable

.

23 Sprouse v. State , No. AP

- 74 933, 2007 WL 283152, at *8 & n.11 (Tex. Crim. App. Jan. 31, 2007) (citing Russeau v. State , 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); McGinn v. Stat e , 961 S.W.2d 161, 170 (Tex. Crim. App. 1998); Ibarra v. State , 11 S.W.3d 189, 198 (Tex. Crim. App. 1999)). 18 Case: 13-70018 Document: 00512586737 Page: 18 Date Filed: 04/07/2014No. 13

- 70018 2

. Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the statutory definition of “mitigating evidence” as unconstitu tion

ally narrow. In dismissing th at claim , the TCCA noted , “[A]ppellant asserts that Article 37.071 ’ s definition of mitigat ing evidence 24 is facially uncon sti

tutional because it limits the Eight h Amend ment concept of ‘ miti gation ’ to fac

tors that render a capital defendant less morally blame wor thy fo r the com mis

sion of a capital murder. We have pre viously rejected this argu ment.” Sprouse , 2007 WL 283152, at *8 & n.13 (citing Blue v. State , 125 S.W.3d 491, 504

– 05 (Tex. Crim. App. 2003)). Sprouse points to Payne v. Tennessee , 501 U.S. 808 (1991), Skipper v. South Carolina , 476 U.S. 1 (1986), and Eddings v. Oklahoma , 455 U.S. 104 (1982) , contending that the Court has a n expan sive view of mitigating evi

dence. As Sprouse concedes, however, we have rejected th at challenge. See Beazley v. Johnson , 2 42 F.3d 248, 260 (5th Cir. 2001) (“[O]ur reading of the statute leads us to conclude that the amended statute does not unconsti tu

tionally preclude[ ] [ the jury] from considering, as a mitigating factor, any aspect of a defendant ’ s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. ” (citation and internal quotation marks omitted) )

. R ea sonable jurists could not therefore con clude that the state court ’s opinion was contrary to or an unrea

sonable appli ca tion of Supreme Court precedent.

24 See T EX

. C ODE C RIM

. P ROC

. A NN

. ar t. 37.071 § 2(f)(4) (West 2013) ( “The court shall charge the jury that in answering the issue submitted under Sub section (e) of this article, the jury . . . shall consider mitigating evidence to be evidence that a juror might regard as reduc

ing the defendant ’ s moral blameworthiness.” ). 19 Case: 13-70018 Document: 00512586737 Page: 19 Date Filed: 04/07/2014No. 13

- 70018 3

. Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the Texas death

- penalty statute on the ground that the aggravating factors are vagu e and do not properly channel the jury’s discretion. I n dis miss

ing th at argument, the T CCA noted, Appellant argues . . . Article 37.071 is unconstitutional because the aggravating factors used in the statute are vague and do not prop

erly channel the se ntencer’s discretion. Specifically, ap pellant asserts that the terms “probability,” “criminal acts of violence,” and “continuing threat to society” should be defined. This Court has previously decided this claim adversely to appellant.
S

prouse , 2007 WL 283152, at *8 & n.14 (citing Blue , 125 S.W.3d at 505). T exas does not run afoul of Maynard v. Cartwright , 486 U.S. 356 (1988) ,
or Godfrey v. Georgia , 446 U.S. 420 (1980) , by not expressly defining these
terms. See Turner v. Quarterman , 481 F.3d 292, 300 (5th Cir. 2007) (“Because Turner is unable to point to any clearly established federal law under which the terms of the Texas sen tencing instructions could be unconstitutionally vague, he is unable to make a substantial showing of the denial of a federal constitutional right, and we deny a COA.”); Hughes v. Johnson , 191 F.3d 607, 615

– 16 (5th Cir. 1999) (“We similarly have rejected contentions that ‘ proba

bility ’ and other terms included in the statutory special issues are unconsti tu

tionally vag ue.
. . . Hughes has not made a substantial showing of the denial of a constitutional right as to this claim.”); James v. Collins , 987 F.2d 1116, 1120 (5th Cir. 1993) (“Despite the fact that Texas is a ‘ non - weighing ’ state, the terms used in the special issues are not so vague as to require clarifying instructions.”). We therefore deny a COA on this issue.

4

. Sprouse seeks a COA on whether trial counsel provided IAC by failing to
20 Case: 13-70018 Document: 00512586737 Page: 20 Date Filed: 04/07/2014No. 13

- 70018 challenge the statute on the ground that it pro hibits informing the jury of the consequences of a “hold out” juror. I n dis miss ing that claim , the T CCA noted , “[A]ppellant asserts that the capital

- sentencing statute is unconstitutional be cause it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have pre

vi ously decided this issue adversely to appellant.” Sprouse , 2007 WL 283152, at *9 & n.16 (citing Russeau v. State , 171 S.W.3d 871, 886 (Tex. Crim. App. 2005). C lear Supreme Court and Fifth Circuit precedent forecloses grant ing a COA on this issue. See Druery v. Thaler , 647 F.3d 535, 542 (5th Cir. 2011) (“To the extent Petitioner ’ s challenge to Texas ’ s 12

– 10 rule rests on Mills v. Mary

land , 486 U.S. 367 (1988) and the Eighth Amendment, . . . it is foreclosed by Fifth Circuit precedent.”); see also Jones v. United States , 527 U.S. 373, 379, 382 (1999).

5

. Sprouse requests a COA on whether trial counsel provided IAC by failing to challenge the statute on the ground that it does not allo cate to the s tate the burden of proving a lack of mitigating evidence. The TCCA rejected that con

tention by noting, [A]ppellant claims that the mitigation question submitted to the jury pursuant to Article 37.071, section 2(e), is unconstitutional because the statute does not require the State to prove beyond a
rea sonable doubt that there was insufficient mitigating evidence to support a life sentence. We have previously rejected this claim and appellant has given us no reason to revisit the issue here. Sprouse , 2007 WL 283152, at *9 & n.20 (citing Perry v. State , 158 S.W.3d 438, 446

– 47 (Tex. Crim. App. 2004)). Although Sprouse maintains that the state

co urt opinion runs counter to Apprendi v. New Jersey , 520 U.S. 466 (2000) , and

21 Case: 13-70018 Document: 00512586737 Page: 21 Date Filed: 04/07/2014No. 13

- 70018 Ring v. Arizona , 536 U.S. 584 (2002), we have expressly rejected th at argu
ment

. See Scheanette v. Quarterman , 482 F.3d 815, 828 (5th Cir. 2007) ( “We have specifi cally held that the Texas death penalty scheme did not violate either Apprendi or Ring by failing to require the state to prove beyond a rea

sonable doubt the absence of mitigating circumstances. In [ Granados v. Quar

terman , 455 F.3d 529, 536 (5th Cir. 2006)], we stated that ‘the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum penalty of death,’ and we concluded that ‘a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.’”). W e decline to grant a COA on this issue. The judgment denying Sprouse’s habeas petition is AFFIRM ED. Sprouse’s request for COA s on additional issues is DENIED.

22 Case: 13-70018 Document: 00512586737 Page: 22 Date Filed: 04/07/2014