IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70005

TILON LASHON CARTER, 

 Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner-appellant Tilon Carter has filed a motion for a certificate of 

appealability (COA). We DENY his motion.

FACTS AND PROCEEDINGS

Carter and his girlfriend, Letheka Allen, needed money. Carter v. State, 

No. AP-75603, 2009 WL 81328, at *1 (Tex. Crim. App. Jan. 14, 2009) 

(unpublished). Allen’s mother suggested that they rob James Tomlin, an 89-

year-old man who was known to keep cash in his home. Id. After Carter and 

Allen gained entry to Tomlin’s home, Carter bound Tomlin’s hands and feet

with duct tape. Id. Tomlin died and was found face down on the carpet with 

United States Court of Appeals

Fifth Circuit

FILED

October 28, 2015

Lyle W. Cayce

Clerk

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his hands and feet bound and a piece of tape on his cheek. Id. Carter gave two 

confessions. Id. He contended that Tomlin was alive when Carter and Allen 

left and suggested that Tomlin had not been smothered. Id. But the medical 

examiner determined that the cause of Tomlin’s death was “smothering with 

positional asphyxia.” Id. at *2.

A Texas state jury convicted Carter of capital murder and sentenced him 

to death. Id. at *1. He appealed to the Texas Court of Criminal Appeals (CCA), 

which affirmed his conviction and sentence. Id. at *6. He then filed a postconviction application for writ of habeas corpus in state court. A state trial 

judge entered findings of fact and conclusions of law and recommended that 

the CCA deny relief. With a few exceptions, the CCA adopted the trial judge’s 

findings of fact and conclusions of law and denied habeas relief. Ex Parte 

Carter, No. WR-70722-01, 2010 WL 5232998 (Tex. Crim. App. Dec. 15, 2010)

(unpublished).

Carter then filed a petition for writ of habeas corpus in federal district 

court. Carter v. Stephens, No. 4:10-CV-969-Y, 2015 WL 918677, at *1 (N.D. 

Tex. Mar. 4, 2015). The district court denied that petition and denied a COA. 

Id. at *8.

STANDARD OF REVIEW

A COA should be granted when a habeas petitioner “has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). “[A] petitioner must ‘sho[w] that reasonable jurists could debate 

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

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

encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484 

(2000)) (some internal quotation marks omitted).

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Because all of Carter’s claims have been rejected on the merits by state 

courts, he can succeed only if the state courts’ adjudications either “resulted in 

a decision that was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States” or “resulted in a decision that was based on an unreasonable 

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

proceeding.” 28 U.S.C. § 2254(d). Thus, to be entitled to a COA, Carter must 

demonstrate that it is debatable that the state court decisions were contrary 

to or unreasonable applications of clearly established Supreme Court 

precedent or were unreasonable determinations of the facts, or that Carter’s 

arguments on these issues deserve further encouragement.

DISCUSSION

Carter requests a COA as to three issues. We deal with each in turn.

A. Ineffective Assistance of Counsel Regarding Expert Witness

Carter first requests a COA on the issue of his counsel’s ineffectiveness

for failing “timely to contact, confer with, and produce in court the testimony 

of a forensic pathologist to testify regarding the cause and manner of the 

victim’s death.” The Tarrant County Medical Examiner, Dr. Nizam Peerwani, 

performed an autopsy and testified that Tomlin’s death was caused by 

“smothering with positional asphyxia.” Positional asphyxia involves a person 

being stuck in a position that prevents him from breathing. By contrast, 

smothering involves pressing something (such as a hand) against someone’s 

nose and mouth to prevent breathing. Because smothering is an intentional 

behavior, Dr. Peerwani’s testimony that Tomlin’s death was caused by both 

smothering and positional asphyxia was important to prove that Carter had 

the specific intent to cause Tomlin’s death, which was necessary for a capital

murder conviction.

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Carter’s theory of the case was that he had not smothered Tomlin, but 

that Tomlin had instead accidentally died of only positional asphyxia. Carter’s 

counsel tried to find a forensic expert who would testify that Tomlin’s death 

had been caused solely by positional asphyxia or some other accidental cause. 

But his counsel did not move for the appointment of an expert until over a year 

after his initial counsel was appointed. Starting about two months before trial, 

Carter’s counsel contacted and spoke with eight potential expert witnesses. 

Most of the contacted experts were too busy to take the case, although at least 

one expert was “not interested in working for the defense” and another “was 

reluctant to involve himself in the case in light of Dr. Peerwani’s involvement.” 

Eventually Carter’s counsel found a forensic pathologist, Dr. Charles 

Harvey, whom they hired to look at the autopsy and other reports. Carter’s 

counsel sent the relevant records to Dr. Harvey shortly before Carter’s trial 

began. The day after testimony began, Dr. Harvey left Carter’s counsel a 

phone message saying that he “agreed with Dr. Peerwani and that his findings 

did not substantially differ from Dr. Peerwani’s.” Carter’s counsel decided not 

to call Dr. Harvey. Carter ultimately was convicted of capital murder and 

sentenced to death.

Carter’s state habeas petition argued that his trial counsel had rendered 

constitutionally ineffective assistance by failing “to timely contact, confer with, 

and present the testimony of a forensic pathologist.” The state trial court held 

a hearing on this matter and applied the familiar standard of Strickland v. 

Washington, 466 U.S. 668 (1984), to determine whether trial counsel was 

constitutionally ineffective. Under Strickland, a defendant asserting a claim 

of constitutionally deficient counsel must first “show that counsel’s 

representation fell below an objective standard of reasonableness.” Id. at 688. 

The defendant then must show not simply that “the errors had some 

conceivable effect on the outcome of the proceeding,” but rather that “there is 

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a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 693–94. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Id. at 694.

The state habeas court rejected Carter’s claim under this standard. It 

held that his counsel’s failure to call Dr. Harvey as a witness was not deficient 

performance but was instead a reasonable strategic decision, given that Dr. 

Harvey told them that he had “reviewed everything, agreed with Dr. Peerwani, 

and could not help the defense.” But it held that counsel’s substantial delay in 

procuring and consulting with a forensic expert was deficient performance. 

The state habeas court went on to hold that the assistance was not 

constitutionally deficient, however, because Carter had not been prejudiced

under Strickland’s second prong. In particular, the state habeas court found 

that Dr. Harvey’s written report regarding Tomlin’s death “did not, and was 

not intended to, dispute or contradict Dr. Peerwani’s autopsy findings because 

Dr. Harvey agreed that the cause of death was smothering with positional 

asphyxia.” Further, “[h]ad Dr. Harvey been called to testify at [Carter’s] trial, 

he would not have rendered an opinion based on natural causes that would 

have contradicted Dr. Peerwani’s conclusions regarding the cause and manner 

of Tomlin’s death.” Thus, because Dr. Harvey did not contradict Dr. Peerwani’s 

finding that Tomlin’s death was at least partly caused by smothering, there 

was no “reasonable probability of changing the results of the proceedings” by 

consulting with Dr. Harvey earlier. 

Carter argues that the state habeas court’s decision debatably involved 

an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). 

Specifically, he argues that the state habeas court unreasonably determined 

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that Carter was not prejudiced by his counsel’s failure to introduce Dr. 

Harvey’s expert testimony.1

At the state habeas proceeding, Dr. Harvey provided live testimony 

about his expert opinion on the cause of Tomlin’s death. He repeatedly testified

that he did not disagree with Dr. Peerwani’s autopsy report. He also testified 

that “[t]here is smothering that’s going on, and that’s volitional.” While Carter 

points to a few inconsistencies between Dr. Harvey’s testimony and Dr. 

Peerwani’s, reasonable jurists would not debate whether the state habeas 

court’s decision was reasonable. In addition to repeatedly emphasizing that he 

did not disagree with the prosecution’s expert witness, Dr. Harvey contradicted 

Carter’s theory of the case by testifying that Tomlin had been smothered. The 

state habeas court was undebatably reasonable when it determined that there 

was no reasonable probability that Dr. Harvey’s testimony would have helped 

the defense.

B. Challenge to Denial of Instruction that Jurors Find Absence of 

Mitigating Circumstances Beyond a Reasonable Doubt

Carter next complains that the trial judge refused to give a jury 

instruction providing that the jurors had to find the absence of mitigating

circumstances beyond a reasonable doubt. Carter candidly admits that this 

 

1 Carter does not argue that his trial counsel could have found a better expert witness 

if they had been quicker to discover that Dr. Harvey was unsuitable. Moreover, any such 

argument would fail because Carter has not produced any evidence that another expert could 

have provided better testimony for the defense.

[W]e require petitioners making claims of ineffective assistance based on 

counsel’s failure to call a witness to demonstrate prejudice by “nam[ing] the 

witness, demonstrat[ing] that the witness was available to testify and would 

have done so, set[ting] out the content of the witness’s proposed testimony, and 

show[ing] that the testimony would have been favorable to a particular 

defense.”

Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010) (quoting Day v. Quarterman, 566 F.3d 

527, 538 (5th Cir. 2009)) (all but first alteration in original). Cf. Hinton v. Alabama, 134 S. 

Ct. 1081, 1089 (2014) (“We do not today launch federal courts into examination of the relative 

qualifications of experts hired and experts that might have been hired.”). 

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challenge is foreclosed by our precedent. See, e.g., Rowell v. Dretke, 398 F.3d 

370, 378 (5th Cir. 2005) (“No Supreme Court or Circuit precedent 

constitutionally requires that Texas’s mitigation special issue be assigned a 

burden of proof.”). “We are bound by our precedent and must conclude that 

[Carter] has not made a substantial showing with respect to the denial of his 

right to a jury finding of beyond a reasonable doubt” regarding the lack of

mitigating factors. Avila v. Quarterman, 560 F.3d 299, 315 (5th Cir. 2009).

Carter argues that we are not bound by circuit precedent because only 

Supreme Court precedent is relevant for § 2254(d) purposes. He cites Parker 

v. Matthews, 132 S. Ct. 2148 (2012) (per curiam), for this proposition. We 

disagree with his reading of Parker. Parker merely held that circuit precedent 

cannot create clearly-established law under § 2254(d)(1). But “an appellate 

panel may, in accordance with its usual law-of-the-circuit procedures, look to 

circuit precedent to ascertain whether it has already held that the particular 

point in issue is clearly established by Supreme Court precedent.” Marshall v. 

Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam). We look to circuit precedent 

only to determine that we have already held that Carter’s burden-of-proof 

argument fails under § 2254(d)(1), so we do not run afoul of Parker.

C. Challenge to Instruction that Ten Jurors Must Agree to Sentence of 

Life Imprisonment

Carter’s final complaint is that the jury was instructed that ten jurors 

had to agree on special issues in his favor before he could receive a sentence of 

life imprisonment.2 In fact, if the jurors had failed to agree on a sentence, 

Carter would have received a life-imprisonment sentence. Carter argues that 

 

2 In contrast, all twelve jurors needed to agree before imposing a death sentence. This 

rule is known as the “10-12 Rule” or the “12-10 Rule.” Druery v. Thaler, 647 F.3d 535, 542, 

543 n.4 (2011).

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it was unconstitutional to mislead the jury “into believing that their failure to 

agree [would] not result [in] a judgment for the defendant.”

Binding circuit precedent forecloses Carter’s argument. See, e.g., Druery, 

647 F.3d at 542–45. Supreme Court precedent forbids jury instructions that 

misstate the jury’s role under local law, but we have held that the Texas jury 

instruction about the 10-12 rule does not misstate the jury’s role. Id. We have 

also held that this argument does not raise a substantial issue warranting the 

issuance of a COA. Id. Accordingly, given the absence of any intervening 

change in the law, we are bound by our precedent and must conclude that 

Carter has not made a substantial showing with respect to the instruction that 

ten jurors had to agree to impose a life sentence.3

CONCLUSION

For the foregoing reasons, we DENY Carter’s motion for a COA.

 

3 We again look to circuit precedent only “to ascertain whether [we have] already held 

that the particular point in issue is clearly established by Supreme Court precedent,”

Marshall, 133 S. Ct. at 1450 (2013).

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