IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-70023

BEUNKA ADAMS,

Petitioner – Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent – Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:07-CV-180

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Habeas petitioner Beunka Adams was convicted and sentenced to death

in Texas state court for the capital murder of Kenneth Vandever. Adams filed

a petition for a writ of habeas corpus in the United States District Court for the

Eastern District of Texas pursuant to 28 U.S.C. § 2254. The district court denied

Adams’s petition but granted Adams a certificate of appealability on all of his

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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claims. For the reasons detailed below, we affirm the judgment of the district

court denying Adams’s petition.

BACKGROUND

On September 2, 2002, Petitioner Beunka Adams, along with Richard

Cobb, robbed a convenience store in Rusk, Texas. At the time of the robbery,

Candace Driver and Nikki Dement were working in the store, and the only

customer present was Kenneth Vandever. Vandever, who was described as

mentally challenged, often “hung around” the store, helping clean and take out

the trash. At approximately 10:00 p.m., Adams and Cobb, wearing masks,

entered the store. Cobb carried a 12-gauge shotgun. Adams ordered Driver,

Dement, and Vandever to the front of the store and demanded the money in the

register. After the women complied, Adams demanded the keys to a Cadillac

parked in front of the store. Driver, who had borrowed the car to drive to work,

retrieved the keys from the back room.

Adams then ordered the three victims into the Cadillac with Adams and

Cobb, and Adams drove toward Alto, Texas. During the drive, Adams removed

his mask after Dement recognized him because they had gone to school together.

Adams then repeatedly told the victims that they would not be hurt, and that he

just needed money for his children. At some point, Adams turned off the road

and drove the vehicle into a field that was described as a pea patch.

The group got out of the car, and Adams ordered Driver and Vandever into

the trunk. Adams then escorted Dement away from the car and sexually

assaulted her. After leading Dement back to the Cadillac, Adams released

Driver and Vandever from the trunk, and he told the victims that he and Cobb

were waiting for Adams’s friends to arrive. Sometime thereafter, Adams decided

to let the three victims walk away. He reconsidered a few moments later,

however, and Driver stated that Adams feared the victims would reach a house

before he and Cobb could get away. Adams and Cobb then made the three

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victims kneel on the ground. He tied the women’s hands behind their backs

using their shirts but left Vandever unrestrained. The victims were unable to

remember who was carrying the shotgun through these events.

Adams and Cobb stood behind the victims for several minutes, and the

victims could tell they were discussing something, though they were out of

audible range. The women then heard a single shot. Adams asked, “Did we get

anybody?” and Driver answered, “No.” They heard a second shot a few moments

later, and Vandever cried out, “They shot me.” A third shot struck Dement.

When Dement fell forward, Driver fell forward as well, pretending to be hit.

Adams, carrying the shotgun, approached Driver and asked if she was bleeding.

Driver did not answer, hoping the men would believe she was dead. When

Driver did not immediately answer, Adams said, “Are you bleeding? You better

answer me. I’ll shoot you in the face if you don’t answer me.” Driver answered,

“No, no, I’m not bleeding.” Adams then fired the shotgun right next to her face,

and, though the pellets only hit her lip, she did not move, pretending to be dead.

Adams and Cobb turned to Dement and asked her the same questions.

She feigned death, and the men started kicking her when she did not answer.

Adams then grabbed Dement’s hair and held up her head while one of the men

shined a lighter on her face to see if she was still alive. Dement continued

feigning death, and Driver heard Cobb say, “She’s dead. Let’s go.” That was the

only time any of the victims heard Cobb speak. After Adams and Cobb left,

Driver and Dement, each fearing that the other was dead, got up and ran in

separate directions. Driver had minor injuries, but Dement had been shot

directly in the left shoulder. By the time police arrived at the pea patch,

Vandever, who had been shot in the chest, had died from the shotgun wound.

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A grand jury indicted Adams for the capital murder of Kenneth Vandever

pursuant to Texas Penal Code § 19.03(a)(2). Adams pleaded not guilty, and the

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case was tried before a jury. The jury found Adams guilty of capital murder and

sentenced him to death.

The Texas Court of Criminal Appeals (TCCA) affirmed Adams’s conviction

and sentence on direct appeal. Adams v. State, No. AP-75023, 2007 WL 1839845

(Tex. Crim. App. June 27, 2007). Adams filed a state habeas application, in

which he asserted, among other claims, several ineffective assistance of counsel

claims. The TCCA referred the application to the trial court and the trial court

heard evidence on Adams’s claims, including testimony from both of Adams’s

trial attorneys. The trial court entered findings of fact and conclusions of law

and recommended denying Adams’s habeas application. The TCCA adopted the

trial court’s findings of fact and conclusions of law and denied Adams’s

application. Ex parte Adams, No. WR-68066-01, 2007 WL 4127008 (Tex. Crim.

App. Nov. 21, 2007). Adams filed a second state habeas application on December

29, 2008, asserting two new claims related to the jury instructions given during

the sentencing phase of his trial. The TCCA dismissed the application as an

“abuse of the writ.” Ex parte Adams, No. WR-68066-02, 2009 WL 1165001 (Tex.

Crim. App. Apr. 29, 2009).

Before the TCCA ruled on his second habeas application, Adams filed a

federal habeas petition on January 8, 2009, in which he asserted ten claims for

relief, including the two claims that he had presented in his second state habeas

application. After the TCCA dismissed Adams’s second application, the district

In 2002, section 19.03(a)(2) provided, “A person commits [capital murder] if he 1

commits murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits

the murder in the course of committing or attempting to commit kidnapping, burglary,

robbery, aggravated sexual assault, arson, or obstruction or retaliation.” Tex. Penal Code Ann.

§ 1903(a)(2) (West 2003). Section 19.02(b)(1) provided, “A person commits [murder] if he . . .

intentionally or knowingly causes the death of an individual.” Tex. Penal Code Ann.

§ 19.02(b)(1) (West 2003).

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court dismissed the two claims Adams had presented in his second state habeas

application as procedurally barred and denied the remaining claims. Adams v.

Thaler, No. 5:07-cv-180, 2010 WL 2990967 (E.D. Tex. July 26, 2010). The

district court granted Adams a certificate of appealability (COA) on the ten

claims Adams presented in his federal habeas petition and on the issue whether

two of his claims are procedurally barred.

STANDARD OF REVIEW

Adams’s petition is governed by the standards of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). AEDPA “imposes a highly

deferential standard for evaluating state-court rulings, and demands that statecourt decisions be given the benefit of the doubt.” Renico v. Lett, — U.S. —, 130

S. Ct. 1855, 1862 (2010) (citations and internal quotation marks omitted). Under

AEDPA, if a state court has adjudicated a habeas petitioner’s claim on the

merits, a federal court may grant habeas relief only if the state court’s

adjudication of the claim:

(1) 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

(2) 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).

“A state court’s decision is deemed contrary to clearly established federal

law if it reaches a legal conclusion in direct conflict with a prior decision of the

Supreme Court or if it reaches a different conclusion than the Supreme Court

based on materially indistinguishable facts.” Gray v. Epps, 616 F.3d 436, 439

(5th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 404–08 (2000)). “To

merit habeas relief, a state habeas court’s application of federal law must be not

only incorrect but ‘objectively unreasonable.’ ” Maldonado v. Thaler, 625 F.3d

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229, 236 (5th Cir. 2010) (quoting Renico, 130 S. Ct. at 1865). A state court’s

factual findings “shall be presumed to be correct,” but the petitioner may rebut

this presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

DISCUSSION

I. Richard Cobb Testimony

Adams first claims that his trial counsel was ineffective for failing to

present evidence to the jury that Adams’s co-defendant, Richard Cobb, confessed

to firing the shot that killed Kenneth Vandever. To prevail on his ineffective

assistance of counsel claim, Adams must show (1) that his trial counsel’s

performance was deficient, and (2) that the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the

performance prong, “a petitioner must show that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. Judicial scrutiny of

counsel’s performance is “highly deferential” and “counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 689–90. “[A] conscious and

informed decision on trial tactics and strategy cannot be the basis of

constitutionally ineffective assistance of counsel unless it is so ill chosen that it

permeates the entire trial with obvious unfairness.” Richards v. Quarterman,

566 F.3d 553, 564 (5th Cir. 2009) (citation and internal quotation marks

omitted). The prejudice prong requires a petitioner to demonstrate “a reasonable

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

proceeding would have been different.” Strickland, 466 U.S. at 694.

The TCCA concluded that Adams’s counsel rendered effective assistance

because counsel’s decision not to present evidence of Cobb’s confession was

sound trial strategy. Under AEDPA, our review is limited to a consideration of

whether the TCCA’s holding was an unreasonable application of Strickland. See

Henderson v. Quarterman, 460 F.3d 654, 665 (5th Cir. 2006). We cannot say

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that the TCCA’s determination that Adams’s counsel rendered adequate

assistance was unreasonable.

Adams and Cobb were tried separately, and Cobb’s trial occurred first.

During his trial, Cobb testified on his own behalf, stating that he never intended

anyone to be hurt during the robbery. He testified that the robbery was Adams’s

idea and gave the following version of events: According to Cobb, the two had

planned to enter and exit the store quickly, but Adams ordered the three victims

to accompany them in the vehicle when they left the store. Cobb stated that

when the group arrived at the pea patch, it was Adams who was in control of the

situation, and, after assaulting Dement and using the victims’s shirts to restrain

their arms, Adams told Cobb that there had been a “change in plans” and “we

are going to have to off them.” Cobb testified that Adams told Cobb to fire the

shotgun at the victims. According to Cobb, he did not want to shoot the victims

and pretended that the shotgun had jammed so he would not have to shoot them.

Adams grabbed the gun to fix the “jam” and fired the first shot that did not hit

any of the victims. Adams then gave the gun back to Cobb and directed him to

shoot at the victims. When Cobb hesitated, Adams told Cobb that if only one of

them did the shooting only one of them was leaving, i.e., that Adams would kill

Cobb if Cobb did not shoot at the victims. Cobb stated that he was scared of

Adams so he fired the shot that hit Vandever. Adams then took the gun from

Cobb and fired the shot that hit Dement. Adams approached the girls and fired

the shot close to Driver’s face. Cobb also testified that Adams was the only one

to kick Dement to see if she was still alive.

In Adams’s trial, his attorneys presented a similar but reversed defense.

They argued that Adams was following Cobb’s orders during the robbery and

that Adams never intended that anyone be hurt. To underscore Adams’s lack of

lethal intent, Adams’s counsel stressed Adams’s statements in the car that he

did not want anyone to be hurt and that he only robbed the store because he

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needed money for his children. They argued that the only shot Adams fired was

the one that he fired at Driver. They argued that Cobb ordered Adams to shoot

Driver, but that Adams must have purposefully missed in order to spare her life

because he fired the gun at such close range he could not have missed unless he

intended to do so.

At one point during the trial the State agreed to tell the jury that Cobb

fired the shot that killed Vandever but only if the jury would also hear that

Adams had fired the shot that struck Dement. Adams’s counsel decided not to

take the agreement, instead arguing to the jury that Adams had not fired either

of the shots that struck Vandever and Dement. The State presented testimony

from Adam’s former cellmate, Lavar Bradley, who testified that Adams had

confessed to the shooting, but Adams’s counsel vigorously cross-examined

Bradley about his motives for testifying and Bradley could not say which

particular shots Adams had confessed to firing. To prove that Adams had not

fired the two shots that struck Vandever and Dement, Adams’s counsel

presented testimony from James Hamilton, Cobb’s former cellmate, who testified

that Cobb had confessed to shooting Vandever. Adams’s counsel also

emphasized that Dement and Driver were unable to definitely say who fired the

shot that killed Vandever and the one that struck Dement. The State even

conceded during its closing argument that “the testimony of Candace Driver and

Nikki [Dement] doesn’t prove who shot Kenneth Vandever.”

Adams argues that if the jurors had heard Cobb’s testimony that he fired

the fatal shot, they would not have sentenced him to death because they would

have concluded that Adams did not intend to kill Vandever. Adams also argues

that his counsel was ineffective for failing to enter into the stipulation offered by

the State. At the hearing held on Adams’s first state habeas application, both

of Adams’s attorneys testified that they considered all of the evidence and

decided against presenting Cobb’s testimony for strategic reasons. They stated

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that presenting Cobb’s testimony or entering into the stipulation with the State

would have undermined their defense because Cobb had testified that Adams

threatened him, that Adams had fired the shot that struck Dement, and that

Adams was the only one to kick Dement.

Adams cannot overcome the strong presumption that his counsel’s decision

not to present the Cobb evidence was a reasonable strategic choice. See

Strickland, 466 U.S. at 689 (noting that counsel must have “wide latitude” in

making tactical decisions). Given the tenor of Adams’s defense at trial, his

counsel’s decision not to present the Cobb testimony was a reasoned trial

strategy. Under Texas law, if Adams’s counsel had presented the portion of

Cobb’s testimony in which Cobb admitted to shooting Vandever, the State would

have been able to enter the remainder of the transcript, including the damaging

portions of Cobb’s testimony, into evidence under the rule of optional

completeness. See Tex. R. Evid. 107. Similarly, if Adams’s counsel had called

Cobb to testify, the State could have cross-examined Cobb on any of his previous

testimony. This additional evidence would have undermined Adams’s defense

that Cobb was the aggressor and that Adams was the one simply following

orders.

For the same reasons, Adams cannot demonstrate that he suffered

prejudice as a result of his counsel’s failure to introduce the Cobb testimony. In

determining whether a petitioner suffered prejudice, we are to “exclude the

possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like,” and

instead we are to consider “the totality of the evidence” before the jury.

Strickland, 466 U.S. at 695. If the Cobb testimony had been before the jury,

there would have been evidence that Adams directed Cobb to shoot Kenneth

Vandever and that Adams was the one to shoot Nikki Dement. Although Cobb’s

testimony would have demonstrated that Adams did not fire the fatal shot, the

remainder of Cobb’s testimony is so inculpatory that the exclusion of his

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testimony does not undermine our confidence in the outcome of the trial. See

2

id. at 694.

II. Jury Instructions Regarding Intent

Adams’s next two claims relate to the jury instructions given during the

sentencing phase of his trial. After the jury found Adams guilty of capital

murder, the jury was required to answer several special issues to determine

whether Adams would be sentenced to death. During the guilt/innocence phase,

the jury was instructed that they could find Adams guilty under the law of

parties, Tex. Penal Code Ann. § 7.02. Therefore, the jury could find Adams

3

guilty of capital murder even if they found that Cobb, not Adams, fired the shot

Attached to both his state and federal habeas petitions, Adams provided an affidavit 2

from an investigator who interviewed a juror who had served on Adams’s jury. The

investigator stated that the juror told the investigator that knowing of Cobb’s confession

“would have made a difference in his punishment decision.” We cannot consider the affidavit

as evidence of prejudice because such statements by jurors are inadmissible. Fed. R. Evid.

606(b); Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005). Moreover, there is nothing in

the affidavit to suggest that the juror was told about the portions of Cobb’s testimony that

were damaging to Adams’s defense.

 Section 7.02 provides:

3

(a) A person is criminally responsible for an offense committed by the conduct

of another if:

(1) acting with the kind of culpability required for the offense, he

causes or aids an innocent or nonresponsible person to engage in

conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and

acting with intent to promote or assist its commission, he fails to

make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another

felony is committed by one of the conspirators, all conspirators are guilty of the

felony actually committed, 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.

Tex. Penal Code Ann. § 7.02 (West 2003).

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that killed Kenneth Vandever. Because Adams was convicted under the law of

parties, the jury was required to answer an additional special issue regarding

Adams’s intent during the sentencing phase:

Do you find from the evidence beyond a reasonable doubt that

BEUNKA ADAMS,the defendant himself, actually caused the death

of KENNETH WAYNE VANDEVER, the deceased, on the occasion

in question, or, if he did not actually cause the deceased’s death,

that he intended to kill the deceased or another or that he

anticipated that a human life would be taken?

Adams argues that his sentence of death violates the Eighth Amendment

because the jury could have sentenced him to death if they found that he only

anticipated that a human life would be taken, a level of culpability too low to

warrant the death penalty under Enmund v. Florida, 458 U.S. 782 (1982), and

Tison v. Arizona, 481 U.S. 137 (1987). He also argues that his appellate counsel

was ineffective for failing to raise the issue on direct appeal.

Adams did not present these claims in his initial state habeas application,

and when he tried to exhaust the claims in a subsequent application, the TCCA

dismissed the subsequent application as an “abuse of the writ.” The district

court below dismissed these claims as procedurally defaulted, concluding that

the TCCA had dismissed the claims for failure to follow state-law procedure. On

appeal, Adams appears to concede that our circuit precedent compels the

conclusion that his claims are procedurally defaulted but argues that he meets

the standard to overcome the procedural default.

A. Procedural Default

We first address whether Adams’s claims are, in fact, procedurally

defaulted. A federal court generally cannot review the merits of a state

prisoner’s habeas petition if the prisoner presented his constitutional claim to

the highest available state court but the court dismissed the claim on an

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adequate and independent state-law procedural ground rather than deciding the

claim on the merits. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991).

Under Texas law, after the filing of a prisoner’s initial state habeas

application in a death penalty case, the TCCA cannot consider the merits of a

subsequent application unless the application satisfies one of three

requirements. The application must allege specific facts establishing that:

(1) the current claims and issues have not been and could not

have been presented previously in a timely initial application or in

a previously considered application . . . because the factual or legal

basis for the claim was unavailable on the date the applicant filed

the previous application;

(2) by a preponderance of the evidence, but for a violation of

the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the

United States Constitution no rational juror would have answered

in the state’s favor one or more of the special issues that were

submitted to the jury in the applicant’s trial . . . .

Tex. Code Crim. Proc. art 11.071, § 5(a) (West 2005). If an application does not

meet any of the standards in section 5(a), the TCCA must dismiss the

application as an abuse of the writ. Id. § 5(c).

Adams argues that the TCCA’s perfunctory dismissal of his subsequent

application as an abuse of the writ was not based on an adequate and

independent state-law procedural ground. He contends that the language of the

dismissal order is ambiguous as to whether the TCCA reached the merits of his

claim and that, under Michigan v. Long, 463 U.S. 1032 (1983), we must presume

that the TCCA rested its decision on federal law.

We recently clarified our understanding of the Texas abuse of the writ

doctrine in a pair of cases. See Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010);

Rocha v. Thaler (Rocha I), 619 F.3d 387 (5th Cir. 2010), clarified and panel

rehearing denied, Rocha v. Thaler (Rocha II), 626 F.3d 815 (5th Cir. 2010).

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Under Balentine and Rocha, we must first determine which of the subsections

quoted above the TCCA relied upon in dismissing Adams’s subsequent

application. The TCCA’s dismissal order simply stated, “We have reviewed the

application and find that the allegations do not satisfy the requirements of

Article 11.071, Section 5. Therefore, we dismiss this application as an abuse of

the writ.” Ex parte Adams, 2009 WL 1165001, at *1. Where, as here, the TCCA

does not identify the subsection on which it relied in dismissing the application

as an abuse of the writ, we look to the application itself to determine the

subsection the petitioner relied on in presenting his subsequent application to

the TCCA. Balentine, 626 F.3d at 854. In his second state habeas application,

Adams specifically alleged that his application met the requirements of

subsections 5(a)(2) and 5(a)(3). He did not claim under section 5(a)(1) that the

factual or legal basis was unavailable at the time he filed his initial state habeas

application. Therefore, we do not consider whether the TCCA reached the

4

merits of Adams’s claims in determining whether Adams’s application met the

requirements of section 5(a)(1).

Although Adams identified section 5(a)(2) as a basis for his subsequent

application, section 5(a)(2) is inapplicable. Adams did not argue that no

reasonable juror would have found him guilty beyond a reasonable doubt. See

Ex parte Brooks, 219 S.W.3d 396, 398 (Tex. Crim. App. 2007) (“[A]n applicant

must accompany constitutional-violation claims with a prima facie claim of

actual innocence in order to satisfy the requirements of [section 5(a)(2)].”).

Instead, all of the arguments in his subsequent petition relate to the instructions

given during the sentencing phase of trial. Because we must focus on the

Adams’s claims are based on Enmund v. Florida, 458 U.S. 782 (1982) and Tison v.

4

Arizona, 481 U.S. 137 (1987), both of which were decided before the filing of his initial

application, and Adams alleged no new factual basis for his claims.

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arguments presented to the TCCA, we conclude that Adams’s only asserted basis

for the TCCA to entertain his subsequent petition was section 5(a)(3).

We squarely addressed the TCCA’s summary dismissal of a claim under

§ 5(a)(3) in Rocha. There, the TCCA specifically stated that Rocha’s application

had not met the requirements of section 5(a)(3) and the court dismissed the

application as an abuse of the writ. Rocha I, 619 F.3d at 399. We held that the

TCCA had dismissed Rocha’s application on independent and adequate state-law

procedural grounds, and we were thus prevented from reviewing the claims in

the dismissed application because they were procedurally defaulted. Id. at

402–06; see also Rocha II, 626 F.3d at 826 & n.44. Adams concedes that our

decisions in Rocha and Balentine compel the conclusion that his Enmund/Tison

claims are procedurally defaulted. Therefore, we can reach the merits of

Adams’s claims only if he can overcome the procedural default.

B. Cause and Prejudice

A petitioner can overcome a procedural default in one of two ways. First,

he can show “cause for the default and actual prejudice as a result of the alleged

violation of federal law.” Coleman, 501 U.S. at 750. Second, a federal court can

review the merits of the petition if the petitioner can show that failure to do so

would result in a fundamental miscarriage of justice. Id. One way to

demonstrate a fundamental miscarriage of justice is to show that the petitioner

is actually innocent of the death penalty. Sawyer v. Whitley, 505 U.S. 333, 340

(1992).

Adams does not argue that he can overcome the procedural default under

the fundamental miscarriage of justice exception because he is actually innocent

of the death penalty. This argument is therefore waived. Elizalde v. Dretke,

5

Even if Adams had not waived this argument by failing to brief it, he would not be 5

able to demonstrate that, “but for a constitutional error, no reasonable juror would have found

[him] eligible for the death penalty.” Sawyer v. Whitley, 505 U.S. 333, 336 (1992). If the

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362 F.3d 323, 328 n.3 (5th Cir. 2004); see also Dowhitt v. Johnson, 230 F.3d 733,

741 n.6 (5th Cir. 2000) (finding that petitioner had waived “sub-issues” that

would support his actual innocence claim because they were presented in his

reply brief and not in his opening appellate brief).

Adams instead argues that he can demonstrate cause and prejudice for the

procedural default. Specifically, he argues that his claims were procedurally

defaulted due to the ineffective assistance of his trial and appellate counsel in

failing to raise the claims at trial and on appeal. Adams’s claim that his counsel

was ineffective for not raising the issue at trial and on appeal could have been

brought in his first state habeas application. Although Adams was represented

by counsel in filing his first application, he cannot overcome the procedural

default by claiming that his state habeas counsel was ineffective for failing to

raise his claims, and in any event Adams has not made this argument. See Ries

v. Quarterman, 522 F.3d 517, 526 n.5 (5th Cir. 2008) (“[T]he ineffective

assistance of state habeas counsel cannot provide cause to excuse a procedural

default.”). Therefore, Adams cannot demonstrate cause sufficient to overcome

the procedural default, and we affirm the district court’s dismissal of Adams’s

Enmund/Tison claims.

III. State’s Expert on Future Dangerousness

The district court granted Adams a COA on his claim that his trial counsel

rendered ineffective assistance by failing to investigate and fairly challenge the

State’s expert on future dangerousness, Dr. Tynus McNeel, who testified on

behalf of the State that Adams was a continuing threat to society. The district

court denied the claim, concluding that Adams had not demonstrated that his

counsel’s performance was deficient or that he was prejudiced in any way.

allegedly infirm language were removed from the jury instruction,the evidence before the jury

was sufficient such that reasonable jurors could find that Adams actually caused Vandever’s

death or that he intended to cause the death of Vandever or another.

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Adams has abandoned this claim by failing to brief it on appeal. See Banks v.

Thaler, 583 F.3d 295, 329 (5th Cir. 2009) (“It is well established, of course, that

an appellant abandons all issues not raised and properly presented in its initial

brief on appeal.”).

IV. Extrinsic Victim Impact Testimony

Adams next claims that the trial court erroneously allowed Nikki Dement

to give “extraneous victim impact testimony,” and that his appellate counsel was

ineffective for failing to recognize and brief the issue on direct appeal. During

the sentencing phase of Adams’s trial, Dement testified on behalf of the State

regarding the effect the shooting has had on her life. She testified that her

injuries affected her school and career options, that she was unable to enjoy her

wedding and honeymoon because she was still recovering, and that the lasting

effects of her injuries had caused problems with her pregnancy. She also

testified that she had trouble sleeping at night and that she could not be alone

in her house at night. Adams’s trial counsel objected to Dement’s testimony as

extraneous victim impact testimony because Vandever, not Dement, was the

victim of the capital murder for which Adams was convicted. Adams’s appellate

counsel, however, did not raise the issue in his direct appeal to the TCCA.

Ineffective assistance of appellate counsel claims are governed by the test

set forth in Strickland v. Washington. Amador v. Quarterman, 458 F.3d 397,

410 (5th Cir. 2006). Therefore, Adams must demonstrate that his appellate

counsel’s performance in not raising his claim was deficient and that he was

prejudiced by the deficient performance because the outcome of his appeal would

have been different. Id. at 410–11. “Counsel need not raise every nonfrivolous

ground of appeal, but should instead present solid, meritorious arguments based

on directly controlling precedent.” Ries v. Quarterman, 522 F.3d 517, 531–32

(5th Cir. 2008) (citation and internal quotation marks omitted).

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The Supreme Court has held that there is no per se bar under the Eighth

Amendment to the admission of victim impact testimony. Payne v. Tennessee,

501 U.S. 808, 827 (1991). Rather, the admission of such evidence during the

punishment phase is limited only by the Due Process Clause of the Fourteenth

Amendment if the evidence “is so unduly prejudicial that it renders the trial

fundamentally unfair.” Id. at 825. Texas has limited the introduction of victim

impact testimony in certain circumstances. For example, in Cantu v. State, 939

S.W.2d 627 (Tex. Crim. App. 1997), the TCCA held that the trial court had erred

in admitting victim impact testimony from the mother of a victim not named in

the indictment because the evidence was extraneous to the crime charged. Id.

at 637. The defendant had participated in the murder of two teenage girls but

was indicted for only one of the murders. Id. at 635. The TCCA held that the

testimony regarding the other victim’s character and the impact of her death on

her family was irrelevant and unduly prejudicial because the defendant had not

been indicted and tried for the murder of that victim. Id. at 637.

After Cantu, the TCCA further defined the categories of victim-related

evidence that would be permitted in the sentencing phase “Victim character”

evidence—“evidence concerning good qualities possessed by the victim”—and

“victim impact” evidence—“evidence concerning the effect that the victim’s death

will have on others, particularly the victim’s family members”—are admissible,

with some limitations, in the sentencing phase with regard to the victim of the

crime for which the defendant was convicted. Mosley v. State, 983 S.W.2d 249,

261–62 (Tex. Crim. App. 1998). Since Mosley, the TCCA has permitted

testimony that relates to the victim of a crime not described in the indictment

but that does not fall into the category of “victim impact” or “victim character”

testimony. Mathis v. State, 67 S.W.3d 918, 928 (Tex. Crim. App. 2002) (finding

no error in the admission of testimony from the caregiver of a victim injured in

the same criminal episode but not named in the indictment because the

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testimony did not involve the character of the victim or the effect of her injuries

on third persons); Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007)

(finding no error in the admission of testimony from the victim of a previous

crime because “ ‘[v]ictim impact’ evidence is evidence of the effect of an offense

on people other than the victim”); Mays v. State, 318 S.W.3d 368, 393 (Tex. Crim.

App. 2010) (finding no error in the admission of testimony from two officers

involved in a police shootout but not named as victims of the crimes for which

the defendant was indicted because they testified about their own injuries and

losses).

In denying Adams’s claim, the TCCA found that Cantu was factually

distinguishable from the present case because the testimony was given by a

victim of one of the underlying offenses and the victim did not testify about her

good character or the effect of her injuries on her family. Instead she testified

about the details of her injuries and their long term effect on her. The court

concluded that Dement’s testimony was admissible under Mathis because she

was injured in the same criminal episode as the victim of the capital murder and

that evidence from a victim of an extraneous offense as to the emotional effect

on her is admissible under Roberts. The TCCA thus held that Adams’s appellate

counsel had not rendered ineffective assistance by failing to raise the issue on

appeal.

The TCCA’s holding is not an unreasonable application of Strickland.

With Cantu among the guiding precedents, the argument that the trial court

erred in admitting Dement’s testimony during the punishment phase of Adams’s

trial was certainly cognizable and nonfrivolous. However, the TCCA decided

Mathis three years before Adams’s counsel filed his appellate brief and his

counsel could have reasonably concluded that pursuing the argument that

Dement’s testimony was inadmissible would have been futile in light of the

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TCCA’s holding in Mathis that certain testimony about a victim injured in the

same criminal episode is admissible.

Moreover, Adams cannot demonstrate that he was prejudiced by his

appellate counsel’s performance because he cannot show that the outcome of his

appeal would have been different if his counsel had briefed the issue. Although

Roberts and Mays were decided after Adams’s appeal, those cases demonstrate

that the TCCA will not find error in the admission of the testimony of a victim

of a crime not described in the indictment when the victim testifies regarding

her own injuries and the effect the crime had on her own life. We therefore

affirm the district court’s denial of this claim.

V. Burden of Proof on Mitigation Issue

Adams next claims that the Texas statute authorizing the jury to impose

the death penalty is unconstitutional. Article 37.071 of the Texas Code of

Criminal Procedure requires the jury to make several findings to determine

whether the defendant will receive a sentence of death. First, the jury is asked

to determine beyond a reasonable doubt “whether there is a probability that the

defendant would commit criminal acts of violence that would constitute a

continuing threat to society.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1) (West

2006). Second, if the defendant is convicted under the law of parties, as

discussed above, the jury is asked whether, beyond a reasonable doubt, “the

defendant actually caused the death of the deceased or did not actually cause the

death of the deceased but intended to kill the deceased or another or anticipated

that a human life would be taken.” Id. § 2(b)(2). If the jury answers both of

these questions in the affirmative, the jury is then asked to determine,

considering all evidence presented at the guilt/innocence phase and at the

punishment phase, whether any evidence mitigates against imposition of the

death penalty. Id. at § 2(e)(1).

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Adams argues that his Eighth and Fourteenth Amendment rights were

violated because the statute impermissibly placed the burden of proving the

mitigation issue on him, rather than requiring the State to prove the absence of

mitigating factors beyond a reasonable doubt. He argues that under Ring v.

Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000),

any fact that increases the available punishment, including the absence of

mitigating evidence, must be proved by the State beyond a reasonable doubt.

The district court concluded that this claim was foreclosed by our decisions

in Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005), and Granados v. Quarterman,

455 F.3d 529 (5th Cir. 2006). We agree. The Texas Court of Criminal Appeals

has held that under the Texas statutory scheme a defendant is eligible for the

death penalty once the jury answers the first and, if applicable, the second

special issues, which both require proof beyond a reasonable doubt, in the

affirmative. Perry v. State, 158 S.W.3d 438, 446–48 (Tex. Crim. App. 2004) (“By

the time the jury reaches the mitigation special issue, the prosecution has

proven all aggravating ‘facts legally essential to the punishment.’ ” (quoting

Blakely v. Washington, 542 U.S. 296, 313 (2004)); Blue v. State, 125 S.W.3d 491,

500–01 (Tex. Crim. App. 2003) (“Under Article 37.071, there is no authorized

increase in punishment contingent on the jury’s finding on the mitigating special

issue.”). We concluded in Granados that under Texas law “a finding of

mitigating circumstances reduces a sentence from death, rather than increasing

it to death.” 455 F.3d at 537. We therefore held that the statute does not violate

Apprendi or Ring because “the state was required to prove beyond a reasonable

doubt every finding prerequisite to exposing [the defendant] to the maximum

penalty of death.” Id. at 536; see also Rowell, 398 F.3d at 378 (“No Supreme

Court or Circuit precedent constitutionally requires that Texas’s mitigation

special issue be assigned a burden of proof.”). Adams concedes that his claim is

foreclosed by our precedent and that he presents this claim only to preserve it

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for possible further review. We therefore affirm the district court’s denial of this

claim.

VI. Limitations on Mitigating Evidence

In his federal habeas petition, Adams claimed that his Eighth and

Fourteenth Amendment rights were violated because the Texas death penalty

statute impermissibly limits the evidence that jurors can consider to be

mitigating. The statutory jury instruction asks the jury to consider, in

answering the mitigation special issue, the circumstances of the offense, the

defendant’s character and background, and the personal moral culpability of the

defendant. Adams argued that the instruction led the jury to believe they could

not consider mitigating evidence that did not fall within these categories. The

district court held that this claim was procedurally defaulted because Adams

failed to raise it on direct appeal in state court, but the court granted Adams a

COA on the issue whether the district court erred in finding procedural default.

However, Adams has abandoned this issue by failing to brief it on appeal. See

Banks, 583 F.3d at 329 (“It is well established, of course, that an appellant

abandons all issues not raised and properly presented in its initial brief on

appeal.”).

VII. Jury Instruction on Failure to Answer the Special Issues

Adams next claims that the trial court should have instructed the jury

that their failure to answer the special sentencing issues would result in the

imposition of a life sentence. Under the Texas capital sentencing scheme, the

jury must unanimously answer the first two special issues in the affirmative

before the court can impose the death penalty. Tex. Code Crim. Proc. art 37.071,

§ 2(d)(2). To answer the issues in the negative, ten of the twelve jurors must

agree. Id. In addition, a sentence of death requires a unanimous negative

answer on the mitigation issue and ten jurors must agree in order to answer the

mitigation issue affirmatively. Id. § 2(f)(2). If the jury answers “no” to either of

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the first two special issues or “yes” to the third special issue on mitigation, or if

the jury fails to answer any of the special issues, the court must sentence the

defendant to life in prison. Id. § 2(g).

In Adams’s case, the trial court instructed the jury that it would impose

a life sentence if they answered the first two questions in the negative or the

mitigation issue in the affirmative. The verdict form told the jury that the

foreperson was not to sign the form if the jury could not agree on an answer to

any of the special issues, but the jury was not informed that if they failed to

reach an answer on any of the three issues, the court would automatically

impose a life sentence. Adams argues that failing to inform the jury that a life

sentence, rather than the death penalty, would result if at least ten jurors

agreed on the special issues or if the jury reached no agreement on the special

issues may have confused the jurors and prevented them from individually

voting against the death penalty.

Adams relies on the Supreme Court’s decisions in Mills v. Maryland, 486

U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), in which the

Court held unconstitutional jury instructions that may have prevented the jury

from considering mitigating evidence unless all twelve jurors found the existence

of a particular mitigating circumstance. We have repeatedly rejected the

argument that jury instructions similar to those given in Adams’s case are

unconstitutional under Mills and McKoy. Hughes v. Dretke, 412 F.3d 582, 594

(5th Cir. 2005); Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir. 2000); Hughes

v. Johnson, 191 F.3d 607, 628–29 (5th Cir. 1999).

Adams concedes that this claim is foreclosed by our precedent and that he

raises the issue only to preserve it for possible further review. He also concedes

that we have concluded that any finding that the jury instructions given in this

case were unconstitutional would be an extension of Mills that we would be

barred from applying under Teague v. Lane, 489 U.S. 288 (1989). Hughes v.

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Dretke, 412 F.3d at 594 (“Because we are barred by Teague from extending Mills,

no clearly established federal law calls into doubt the Texas death penalty

statute.”). We therefore affirm the district court’s denial of this claim.

VIII. Meaningful Appellate Review

Adams next claims that the State violated his Eighth and Fourteenth

Amendment rights by failing to provide meaningful appellate review of the

sufficiency of the mitigating evidence he presented. As noted above, the jury was

asked to answer three special issues relating to punishment. After answering

the first two issues in the affirmative, the jury answered “No” to the following

question:

Taking into consideration all of the evidence, including the

circumstances of the offense, the defendant’s character and

background, and the personal moral culpability of the defendant, do

you find that there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment

rather than a death sentence be imposed?

On direct appeal, Adams argued that he presented sufficient mitigating

evidence to warrant the imposition of a life sentence rather than the death

penalty. In keeping with its precedent, the TCCA held that it “does not review

the jury’s finding on the mitigation issue for sufficiency of the evidence because

‘the determination as to whether mitigating evidence calls for a life sentence is

a value judgment left to the discretion of the fact finder.’ ” Adams v. State, 2007

WL 1839845, at *4 (quoting Green v. State, 934 S.W.2d 92, 106–07 (Tex. Crim.

App. 1996)). Adams argues that his constitutional rights were violated under

Parker v. Dugger, 498 U.S. 308 (1991), and Clemons v. Mississippi, 494 U.S. 738

(1990), when the State failed to accord “meaningful appellate review” to every

determination relevant to the punishment issue.

We first note that this claim may be procedurally defaulted. In denying

Adams’s state habeas application, the TCCA stated that the claim was

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procedurally barred because it was not raised on direct appeal. The TCCA also

alternatively considered and rejected Adams’s claim on the merits, but “[t]hat

the court reached these additional conclusions does not undermine the explicit

invocation of the procedural bar.” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.

2004) (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). The district court

nonetheless declined to hold that the claim was procedurally defaulted because

Adams did present this issue to the TCCA in his brief on direct appeal.

We need not decide whether the claim is procedurally defaulted, however,

because it is easily rejected on the merits. Busby, 359 F.3d at 720 (“Although the

question of procedural default should ordinarily be considered first, we need not

do so invariably.” (citation and internal quotation marks omitted)). We have

previously addressed the same argument and held that the appellate review of

death sentences afforded by Texas courts is constitutionally sound. Woods v.

Cockrell, 307 F.3d 353, 359–60 (5th Cir. 2002); Moore v. Johnson, 225 F.3d 495,

506–07 (5th Cir. 2000). Adams concedes that this claim is foreclosed by our prior

cases and that he raises the issue only to preserve it for possible further review.

Therefore, we affirm the district court’s denial of this claim.

IX. Unbridled Discretion

Adams’s final claim also relates to the third special issue regarding

mitigation. Adams argues that the Texas death penalty statute violates the

Eighth and Fourteenth Amendments because it allows the jury “unbridled

discretion” to impose the death penalty in answering the mitigation special

issue. The core of Adams’s argument is that the mitigation special issue does not

provide the jury with any guidance in choosing which mitigating factors they

should consider to determine whether there is sufficient mitigating evidence that

would warrant the imposition of a life sentence rather than the death penalty.

The TCCA denied this claim because it found that once the jury finds the factors

that make the defendant eligible for the death penalty, under Tuilaepa v.

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California, 512 U.S. 967 (1994), the jury must be given wide discretion not to

impose the death penalty.

In Tuilaepa, the Supreme Court distinguished between the two aspects

of the capital sentencing decision: the eligibility decision and the selection

decision. Id. at 971–72. The Court has already confirmed the constitutionality

of Texas’s procedure for determining the existence of aggravating circumstances

to make the eligibility decision. See Jurek v. Texas, 428 U.S. 262, 276 (1976)

(opinion of Stewart, Powell, and Stevens, J.J.); see also Sonnier v. Quarterman,

476 F.3d 349, 366–67 (5th Cir. 2007). In making the selection decision, the jury

must be allowed to make “an individualized determination” by considering

“relevant mitigating evidence of the character and record of the defendant and

the circumstances of the crime.” Tuilaepa, 512 U.S. at 972 (citation omitted).

Indeed, the jury “may be given ‘unbridled discretion in determining whether the

death penalty should be imposed after it has found that the defendant is a

member of the class made eligible for that penalty.’ ” Id. at 979–80 (quoting Zant

v. Stephens, 462 U.S. 862, 875 (1983)). In exercising its discretion, the jury

“need not be instructed how to weigh any particular fact in the capital

sentencing decision.” Id. at 979.

The question as posed to the jury asked them to consider the

circumstances of the offense, evidence of the defendant’s character, evidence of

the defendant’s background, and the personal moral culpability of the defendant,

precisely the considerations mandated by the Court in Tuilaepa. The jury was

also instructed that “mitigating evidence” includes “evidence that a juror might

regard as reducing the defendant’s moral blameworthiness.” Therefore, the

jury’s decision was based on “an individualized determination on the basis of the

character of the individual and the circumstances of the crime,” Tuilaepa, 512

U.S. at 972 (emphasis omitted), and the TCCA’s decision was not an

unreasonable application of clearly established federal law, see Johnson v.

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Cockrell, 306 F.3d 249, 256 (5th Cir. 2002) (denying a COA on a similar

contention that the Texas death penalty scheme affords juries “unfettered

discretion”).

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment denying

Adams’s petition for a writ of habeas corpus.

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