IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-70022

MARCUS RAY TYRONE DRUERY, 

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 Southern District of Texas

Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Chief Judge:

Petitioner Marcus Ray Tyrone Druery (“Petitioner”) was convicted of

capital murder and sentenced to death by a Texas court. After failing to obtain

relief in state court or the United States Supreme Court, Petitioner sought a

federal habeas petition, which the district court denied. The district court also

denied Petitioner a certificate of appealability (“COA”). Petitioner now asks this

court to grant him a COA pursuant to 28 U.S.C. § 2253. After reviewing the

record and the parties’ briefing, we conclude that the motion should be DENIED.

United States Court of Appeals

Fifth Circuit

F I L E D

July 20, 2011

Lyle W. Cayce

Clerk

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I. Background

Statement of the Case

Petitioner was convicted of capital murder after a jury trial and sentenced

to death by lethal injection. Petitioner’s conviction and sentence were affirmed

by the Texas Court of Criminal Appeals, Druery v. State, 225 S.W.3d 491 (Tex.

Crim. App. 2007), cert. denied, 522 U.S. 1028, 128 S. Ct. 627 (2007), after which

Petitioner sought state habeas relief. After failing to obtain relief in the state

courts, Ex parte Druery, 2008 WL 748479 (Tex. Crim. App. Mar. 19, 2008),

Petitioner filed for federal habeas relief, which the district court denied on July

26, 2010. Druery v. Thaler, 2010 WL 2991066 (S.D. Tex. July 26, 2010). The

district court also held that Petitioner was not entitled to a COA. Id. at *12. 

Petitioner now appeals, requesting a COA from this court. 

Factual Background

Since the key facts of this case are presented in the district court opinion,

Druery v. Thaler, supra, only a brief summary is required here. 

Petitioner was convicted of murdering Skyyler Browne, a fellow student

at Texas State Technical College in Waco, Texas. Before the murder, Petitioner

had asked Browne to travel with him to Bryan, Texas. Although Browne

initially hesitated, he eventually agreed to go. After an evening of partying in

Bryan, Petitioner, Browne, and two other individuals drove to a stock pond on

a rural property owned by Petitioner’s family. While Browne was standing near

the pond, Petitioner held a gun within six inches of Browne’s head and fired. As

Browne’s body fell, Petitioner fired a second shot into Browne’s neck, and then

a third shot as Browne lay on the ground. Petitioner returned to the vehicle in

which the group arrived, carrying with him Browne’s cell phone, money,

marijuana, and gun. Joquisha Pitts, who was present that evening, later

informed the police about the murder. 

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After trial, the jury found Petitioner guilty of capital murder for killing

Browne during the course of robbing or attempting to rob him. During the

penalty phase, the jury found beyond a reasonable doubt that there is a

probability that Petitioner would commit criminal acts of violence that would

constitute a continuing threat to society. The jury also found that the mitigating

evidence presented by defense counsel was insufficient to merit a life sentence. 

Accordingly, the trial court sentenced Petitioner to death. 

II. Standard for Certificate of Appealability

Under AEDPA, 28 U.S.C. § 2253(c)(2), a convict seeking a COA must make

“a substantial showing of the denial of a constitutional right.” In Miller-El v.

Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003), the U.S. Supreme Court clarified:

“A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court's resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Id. at 327, 123 S. Ct. at 1034 (citing Slack

v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000)). Importantly, in

determining this issue, we “view[] the petitioner’s arguments through the lens

of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson,

221 F.3d 741, 772 (5th Cir. 2000). Under § 2254(d), when reviewing a claim

adjudicated by a state court on the merits, we defer to the state court’s decision

regarding that claim, unless the decision “[is] contrary to, or involve[s] an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or ... [is] based on an unreasonable

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

proceeding.” Id. (quoting 28 U.S.C. § 2254(d)(1) & (2)). 

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III. Discussion

Petitioner raises five claims on appeal of the district court’s decision to

deny him a certificate of appealability (“COA”). First, Petitioner raises an

ineffective assistance of counsel claim because trial counsel declined a jury

instruction on the lesser-included offense of murder. Second, Petitioner asserts

ineffective assistance of counsel based on trial counsel’s failure to investigate

and plan a mitigation defense for the punishment phase. Third, Petitioner

asserts that the penalty phase jury charge denied his due process rights and

violated the Eighth Amendment because it did not inform the jury that

Petitioner would automatically receive a life sentence if the jurors did not reach

a unanimous verdict on one or both of the special issues. Fourth, the trial court

deprived Petitioner of due process by not sua sponte instructing the jury on the

lesser-included offense of murder. Fifth, the trial court violated Petitioner’s

Sixth and Fourteenth Amendment rights by not instructing the jury that the

State bore the burden of proof to negate Petitioner’s mitigation evidence. 

A. INEFFECTIVE ASSISTANCE OF COUNSEL.

We review these claims of ineffective assistance of counsel under the

familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984). 

In order to prevail on his ineffective assistance claims, Petitioner must

demonstrate that (1) counsel’s representation fell below an objective standard

of reasonableness and that (2) there is a reasonable probability that prejudice

resulted. See Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir. 2007) (citing

Strickland, 466 U.S. at 694, 104 S. Ct. 2052). Strickland itself calls for

considerable deference in evaluating the reasonableness of the attorney’s

conduct. See Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1403 (2011)

(counsel should be “strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

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judgment” (quoting Strickland, 466 U.S. at 690, 104 S. Ct. 2052)). When our

review is governed by AEDPA–as is the case here–our review of the state court’s

resolution of the ineffective-assistance-of-counsel claim is “doubly deferential”,

id. (quoting Knowles v. Mirzayance, 556 U.S. ----, ----, 129 S. Ct. 1411, 1413

(2009)), since the question is “whether the state court’s application of the

Strickland standard was unreasonable.” Harrington v. Richter, --- U.S. ----,

131 S. Ct. 770, 785 (2011). Importantly, “[t]his is different from asking whether

defense counsel’s performance fell below Strickland’s standard,” because the

“state court must be granted a deference and latitude that are not in operation

when the case involves review under the Strickland standard itself.” Id.

Consequently, “even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. at 786. Rather, in order to obtain

habeas relief, “a state prisoner must show that the state court's ruling on the

claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 786-87. 

In addition to this cumulation of deferential standards, we also recall the

precise standard for a COA. Petitioner must demonstrate that “reasonable

jurists could debate” whether the petition should have been resolved by the

district court in a different manner or “that the issues presented were adequate

to deserve encouragement to proceed further.” Barrientes, 221 F.3d at 772. 

With these standards in mind, we address each ineffective assistance claim in

turn. 

1. Counsel’s Failure To Request Instruction On LesserIncluded Offense of Murder.

Under Texas law, a person is guilty of capital murder if he commits

murder as defined by Section 19.02(b)(1) and he intentionally does so “in the

course of committing or attempting to commit . . . robbery.” TEX. PENAL CODE

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§ 19.03(a)(2). Petitioner contends that his trial counsel, Craig Washington

(“Washington”), was ineffective because he refused to agree to a lesser-included

offense instruction for first-degree murder. 

In this case, the state habeas court found that Washington’s punishment

theory of the case was that Druery did not intend to steal Browne’s property at

the time Petitioner killed Browne and, thus, Petitioner was not guilty of capital

murder. The court relied, in part, upon Washington’s sworn affidavit and

hearing testimony expressing his conviction that the State would not be able to

prove the aggravating element of robbery. Washington believed that if the jury

“only had a choice of capital murder, then they would have no choice but to

acquit him.” For this reason, Washington “specifically declined the opportunity

to request a jury charge instruction on the lesser included offense of murder.” 

Petitioner “admits that it was trial counsel’s ‘strategy’ to reject the lesser

included instruction.” Petitioner argues, however, that the strategy was based

on a misunderstanding of the law, and thus cannot have been reasonable. 

Washington testified that at the time he made the decision to decline the jury

charge, he believed that another jury could try Petitioner for murder at a later

time. Washington was mistaken, since the Double Jeopardy Clause would have

barred retrial following an acquittal of capital murder. See Brown v. Ohio,

432 U.S. 161, 169, 97 S. Ct. 2221, 2227 (1977) (“[T]he Fifth Amendment forbids

successive prosecution . . . for a . . . lesser included offense.”). Petitioner

contends that Washington was ineffective because his strategy rested upon on

an incorrect “belief that he could argue to the jury that [Petitioner] could be tried

again on a murder charge if acquitted of capital murder.” 

The state habeas court found, however, that Washington articulated a

valid strategic reason for declining the instruction: to obtain a full acquittal. 

Washington believed that the State introduced evidence sufficient to prove

murder but not the aggravating circumstance of robbery. In light of the state

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habeas court’s additional finding that Petitioner and his family rejected the

State’s offer of a life sentence, this all-or-nothing strategy was not objectively

unreasonable. Strickland directs courts to consider the conduct of defense

counsel based on the objective standard of the reasonable attorney. See

466 U.S. at 688, 104 S. Ct. at 2065. That Washington may have been mistaken

in part of his legal reasoning does not constitute ineffectiveness where the

ultimate strategic choice was reasonable. Consequently, it is not debatable that

the state court’s resolution of this issue was not unreasonable. 

2. Failing To Investigate And Plan Mitigating Evidence.

The second ineffective assistance claim relates to Washington’s alleged

failure to investigate potentially mitigating evidence or prepare a mitigation

defense at the punishment phase of trial. Petitioner asserts that Washington

did not begin to prepare his mitigation case until after the jury convicted

Petitioner of capital murder, and he never hired a mitigation specialist or

psychological expert. Petitioner also attempts to show prejudice by arguing that

an investigation would have uncovered evidence of possible brain damage. 

In reviewing this claim, the state habeas court credited Washington’s

assertion that Petitioner’s family hired an investigator who worked under

Washington’s direction and helped Washington prepare for both phases of trial. 

The court also found that Washington in fact formulated a theory for the penalty

phase of trial–that Petitioner’s “violent behavior was due to drug use, and that

he would not be a danger to anyone while in the structured environment of

prison.” Testimony adduced at trial supports this strategy, as even Petitioner

appears to acknowledge. See Pet’r’s Br. at 23-24 (Washington presented his

theory–“that [Petitioner] was a good person when he was not on drugs and he

would not be on drugs in prison”–“through lay witnesses”). For example, a

number of witnesses testified that Petitioner was a fine person as a young man. 

Other testimony, working in tandem with the former, communicated that

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Petitioner was different when he was on drugs. Petitioner’s grandmother

testified that Petitioner’s behavior changed and that she suspected him of drug

use. Other witnesses testified about particular violent or reckless acts during

which they perceived Petitioner as being “on something,” or “under the influence

of drugs.” Petitioner’s former girlfriend affirmed that “[Petitioner] was always

acting crazy when he was on drugs.” In light of this and other testimony, the

court concluded that defense counsel “prepared and presented a thorough

punishment case consistent with their theory.” 

Petitioner also alleges that Washington failed to hire a mitigation

specialist or psychologist, and to investigate potential physical or mental

problems that may have affected Petitioner’s behavior. While there is some

evidence Washington turned over records to a psychologist, Dr. Windell,

Dickerson, and that Washington suggested to the family that Petitioner be 1

subjected to a mental health examination, the record is largely bereft of evidence

of any serious inquiry into Petitioner’s mental health. According to Washington,

no mental health professional ever examined Petitioner because Petitioner’s

family rejected the suggestion. Even if we assumed, arguendo, this conduct fell

The state habeas court found that Washington turned over records to Dr. Windell 1

Dickerson, a psychologist, in order for Dr. Dickerson to determine whether a body of

information was available that could have been used for mitigation. According to Washington,

he gave to Dr. Dickerson “the information that was available about [Petitioner] concerning

some things that he had done in the recent past” and “the medical records that had been made

available” by the prosecutor, Mr. Turner. 

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below an objective standard of reasonableness, two findings of the state court 2

support its ultimate holding.

First, this court has held that “[a] defendant who alleges a failure to

investigate on the part of his counsel must allege with specificity what the

investigation would have revealed and how it would have altered the outcome

of the trial.” Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993) (quoting United

States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)). In this case, Petitioner did

offer some evidence suggesting that Petitioner may have sustained brain damage

as a result of drug use. Pet’r’s Br. at 26 (citing Bette Burke’s affidavit), 28

(quoting Dr. Rustin’s report and affidavit). However, the state court found that

Bette Burke’s affidavit contained mere conclusions and speculation, and was

thus not credible. Moreover, Dr. Rustin admitted that he was not qualified to

ascertain whether Petitioner had experienced brain damage because of drug use,

especially since doing so would have required testing prior to drug use. 

Dr. Rustin also testified that in his opinion, Petitioner was intoxicated at the

time of the murder, and this was not a result of long-term chronic brain damage. 

Thus, the state court was not unreasonable in concluding that Petitioner failed

to present credible evidence of actual brain injury, disease, or physical/mental

defect. Petitioner has failed to prove that an investigation would have yielded

mitigation evidence.

Petitioner relies upon ABA Guidelines and State Bar of Texas Guidelines to support 2

his ineffective-assistance-of-counsel claim. We note that while these may be “useful as ‘guides’

to what reasonableness entails,” they certainly do not define reasonableness. Bobby v. Van

Hook, --- U.S. ----, 130 S. Ct. 13, 16 (2009) (per curiam). Best practices urged by the ABA do

not necessarily track the contours of the Sixth Amendment. Consequently, the guidelines do

not function as “inexorable commands” with which all capital defense counsel “must fully

comply.” See id. at 17. In addition, even when we do consider them, they are useful only to

the extent “they describe the professional norms prevailing when the representation took

place.” Id. at 16. In this case, the probative value of the Texas guidelines is diminished by the

fact that they were adopted by the State Bar of Texas nearly three years after Petitioner’s

trial. 

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Second, even if Washington did unreasonably fail to investigate areas of

Petitioner’s mental health and such investigation would have yielded useful

information, the state court also noted that such evidence could have

undermined defense counsel’s theory. As the state court found, “[p]resentation

of some type of brain injury could indicate that [Petitioner]’s violent behavior

was of a permanent nature not induced by drug use, suggesting he could be a

future threat to those in prison.” Such evidence, according to the court, would

be “double-edged mitigation evidence,” since it could undermine Washington’s

theory that once separated from drugs, Petitioner would no longer be a

continuing threat to those in prison. Or, as the State argued, “expert testimony

suggesting that [Petitioner]’s condition was permanent would have eviscerated

counsel’s defensive theory.” 

Consequently, we agree with the district court that the state court’s

resolution of this issue is not debatable among reasonable jurists. 

B. TEXAS’S “12-10" JURY INSTRUCTION.

Petitioner next challenges Texas’s “12-10” rule jury instructions as

unconstitutional under the Sixth, Eighth, and Fourteenth Amendments. Under

Texas law, the jury must consider two special issues before the death penalty is

imposed on a capital defendant. First, the trial court is required to submit the

following “aggravating” special issue to the jury: “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.ANN. art. 37.071(2)(b)(1). 

If the jury unanimously answers “yes,” the jury must then answer the following

“mitigation” issue: “[w]hether, 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, there is a

sufficient mitigating circumstance or circumstances to warrant that a sentence

of life imprisonment without parole rather than a death sentence be imposed.” 

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Id. art. 37.071(2)(e)(1). If the jury unanimously answers “no,” then the

defendant is sentenced to death. Id. art. 37.071(2)(g).

Pursuant to these provisions, the trial court was also required to instruct

the jury that it must have at least 10 “no” votes to answer “no” on the

aggravating special issue, and at least 10 “yes” votes to answer “yes” on the

mitigation special issue–either of which answers would result in a life sentence,

not death. Id. art. 37.071(2)(g). Petitioner argues that this so-called “12-10”

instruction misleadingly implied that the jury could not return a life sentence

unless at least 10 jurors agreed on an answer to one of the special issues. (In

reality, the trial court is required to impose a life sentence if the jury is unable

to answer either special issue. Id. art. 37.071(2)(g). ) According to the 3

Petitioner, this was a lie which operated to relieve jurors of their individual

responsibilities in the process, which denied Petitioner’s right to due process, “to

a fair and impartial jury” under the Sixth Amendment, and to freedom from

cruel and unusual punishment under the Eighth Amendment. 

To the extent Petitioner’s challenge to Texas’s 12-10 rule rests on Mills v.

Maryland, 486 U.S. 367, 108 S. Ct. 1860 (1988) and the Eighth Amendment, as

well as due process under the Fourteenth Amendment, it is foreclosed by Fifth

Circuit precedent. In Mills, the Supreme Court held that a capital sentencing

scheme violated the Eighth Amendment by precluding the jury from considering

mitigating evidence unless the jury unanimously agreed that a particular

circumstance was supported by the evidence. Id. The Fifth Circuit has refused,

however, to invalidate the Texas sentencing scheme based on this decision.

 This provision states: “If the jury returns a negative finding on any issue submitted 3

under Subsection (b) or an affirmative finding on an issue submitted under Subsection (e)(1)

or is unable to answer any issue submitted under Subsection (b) or (e), the court shall sentence

the defendant to confinement in the Texas Department of Criminal Justice for life

imprisonment without parole.” (emphasis added)

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In Miller v. Johnson, this court rejected an Eighth Amendment challenge

to Texas’s 12-10 rule, despite Petitioner’s argument that it created the risk that

(1) one or more jurors would change a vote to satisfy the majority, and that (2) a

reasonable juror would believe that his individual vote was not meaningful

unless some threshold number of jurors were in agreement on that particular

special issue. 200 F.3d 274, 288 (5th Cir. 2000). The court stated that “Mills is

not applicable to the capital sentencing scheme in Texas.” Id. More recently,

this court rejected a petitioner’s claim that Texas’s 12-10 Rule violated due

process and the right to freedom from cruel and unusual punishment. Hughes

v. Dretke, 412 F.3d 582, 593-94 (5th Cir. 2005). The court held that Teague

barred it from extending Mills to invalidate the Texas scheme. Id. at 594. And

since “no clearly established federal law call[ed] into doubt the Texas death

penalty statute,” the court declined to issue a COA on this claim. Id. While one 4

Seventh Circuit case arguably supports Petitioner’s claims under the Eighth and

Fourteenth Amendments, Kubat v. Thieret, 867 F.2d 351, 372-74 (7th Cir. 1989)

(finding that the court’s failure to expressly inform jurors that if even one juror

believed that the death penalty should not be imposed, the petitioner would not

be sentenced to death, ran afoul of Mills), this case does not supercede

intervening Fifth Circuit precedent regarding challenges to Texas’ 12-10 rule.5

See also Alexander v. Johnson, 211 F.3d 895, 897 n.5 (5th Cir. 2000) (“In addition to 4

. . . being barred by Teague, [Petitioner]'s substantive argument is meritless. The Supreme

Court recently rejected the theory that a district court's failure to instruct the jury as to the

consequences of deadlock gives rise to an Eighth Amendment violation. Furthermore, the

Fifth Circuit has expressly rejected the contention that Texas's 10-12 Rule prevents jurors

from considering mitigating circumstances. ” (internal citations omitted)); Woods v. Johnson,

75 F.3d 1017, 1036 (5th Cir. 1996) (claim that “the instruction that the jury could not answer

any punishment special issue ‘no’ unless at least ten jurors concurred in that answer violated

the rule of Mills” lacks “substantive merit” since “the instruction at issue is wholly dissimilar

to that involved in Mills”); Webb v. Collins, 2 F.3d 93, 96 (5th Cir. 1993) (finding challenge to

Texas’s capital sentencing scheme under Mills barred by Teague).

Jacobs v. Scott also rejected a challenge to the 12-10 rule. 31 F.3d 1319, 1328 (5th Cir. 5

1994). While the relevant Texas statute at the time did not include the instruction on the

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Petitioner also relies upon Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct.

2633 (1985), for his Eighth Amendment claim. In Caldwell, the Supreme Court

held that “it is constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that the

responsibility for determining the appropriateness of the defendant's death rests

elsewhere.” Id. at 328-29, 105 S. Ct. at 2639. In Dugger v. Adams, 489 U.S. 401,

109 S. Ct. 1211 (1989), the Supreme Court clarified its holding in Caldwell,

stating that to “establish a Caldwell violation, a defendant necessarily must

show that the remarks to the jury improperly described the role assigned to the

jury by local law.” Id. at 407, 109 S. Ct. at 1215; see also Montoya v. Scott,

65 F.3d 405, 420 (5th Cir. 1995) (discussing Caldwell and Dugger). In this case,

Petitioner argues thatthe challenged instructions embody an “inherent lie” since

Texas law forbids jurors from being told the consequence of their failure to

answer the special issues. According to Petitioner, this has an “effect” on the

individual jurors–namely, it “denies the individual juror’s responsibilities, and

diminishes the individual juror’s understanding, and acceptance, of that

individual responsibility.” Since jurors may allegedly interpret the jury

instructions as relieving them of their responsibility, Petitioner asserts that

Caldwell is violated unless each juror is informed as to the individual

importance of his vote. 

Petitioner acknowledges that at first glance, Jones v. United States,

527 U.S. 373, 381, 119 S. Ct. 2090, 2098 (1999)–which held that “the Eighth

Amendment does not require that the jurors be instructed as to the

consequences of their failure to agree”–appears to be dispositive. He argues,

however, that while a court might not be constitutionally compelled to inform

mitigation special issue, the court reasoned that unlike in Mills, the Texas system here still

allowed each juror to take into account any mitigating circumstances, and thus did not permit

a single juror to preclude the entire jury from considering them. Id. at 1329. 

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the jury of the consequences of their inability to reach a verdict, it is

impermissible to lie to the jury regarding “their constitutional and statutory

responsibilities and their individual abilities to resolve the punishment issue.” 

The lone hold-out juror may capitulate to the majority under a mistaken belief

that the 12-10 Rule requires him to do so. Moreover, Petitioner suggests that

the failure to explain to the jury important elements of the sentencing scheme

creates an intolerable risk of confusing the jury. 

Caldwell does not, however, clearly support Petitioner’s argument. In that

case, the prosecution urged the jury not to view itself as finally determining

whether petitioner would die, because a death sentence would be reviewed for

correctness by the state supreme court. Caldwell, 472 U.S. at 323, 105 S. Ct. at

2636. The Court held that this violated the Eighth Amendment since it led

jurors to believe that “the responsibility for determining the appropriateness of

the defendant’s death rest[ed] elsewhere.” Id. at 328-29, 105 S. Ct. at 2639. 

In this case, Druery does not explain how the jurors would believe that the

responsibility to determine the propriety of a death sentence rested elsewhere. 

The 12-10 Rules implicitly urge jurors toward consensus, but nothing in them

suggests the ultimate responsibility to choose reposes in another actor. 

Moreover, while jurors were admittedly not told what would result from their

failure to agree on a special issue, Petitioner fails to show that the jury

instructions misstated their role under local law. Cf. Dugger, 489 U.S. at 407,

109 S. Ct. at 1215. 

Petitioner also asserts that the 12-10 Rules violates his Sixth Amendment

rights. It is unclear what cases he uses to support this claim, or how this is an

argument distinct from the others discussed above. 

Finally, Petitioner asserts that the 12-10 Rules violates his due process

rights as well. Petitioner cites the Supreme Court decision in Kelly v. South

Carolina, 534 U.S. 246, 122 S. Ct. 726 (2002), for the proposition that the trial

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court has a duty “to give instructions sufficient to explain the law,” and that the

instructions must be sufficiently clear. Id. at 256, 122 S. Ct. at 733. In Kelly,

the Supreme Court held that due process entitled a capital defendant to a jury

instruction that he would be ineligible for parole under a life sentence. Id. Parol

eligibility, of course, is not an issue raised in this petition. Rather, the question

is whether the jury must be instructed as to the consequence of their failure to

agree on the special issues regarding aggravating and mitigating factors. 

Adopting Petitioner’s argument would require an extension of Kelly, which is

impermissible on habeas review. See Teague v. Lane, 489 U.S. 288, 310,

109 S. Ct. 1060, 1075 (1989). 

Petitioner has not demonstrated that he is entitled to a COA on this issue. 

C. TRIAL COURT’S FAILURE TO SUA SPONTE INSTRUCT JURY ON

LESSER-INCLUDED OFFENSE OF MURDER.

Petitioner next argues that the trial court erred “by not sua sponte

instructing the jury on first-degree murder.” While Petitioner admits that trial

counsel “rejected the lesser included instruction,” Petitioner argues instead that

he only did so because of a misunderstanding of the law. Thus, according to

Petitioner, the trial court had a constitutional duty to correct, sua sponte,

counsel’s error at trial. As Petitioner states, “[T]he trial court should have

overruled Mr. Washington’s ill-informed decision [to decline the jury charge] and

instructed the jury on the lesser included offense of murder.” Notably, Petitioner

cites no case law for the proposition that trial courts have a duty to overrule such

a decision made by trial counsel. 

On direct review, the Texas Court of Criminal Appeals declined to review

this claim because the court found the invited-error doctrine estopped him from

raising it. Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007), cert.

denied, 522 U.S. 1028, 128 S. Ct. 627 (2007). The court reasoned that “Druery

not only did not object to the omission of the lesser-included instruction on first15

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degree murder but . . . he affirmatively requested . . . that the lesser-included

instruction not be given.” Id. at 506. As a result, he was barred from raising a

claim of error on appeal. Id.

To support his position, Petitioner cites two Supreme Court decisions

holding that “due process requires that a lesser included offense instruction be

given when the evidence warrants such an instruction.” Hopper v. Evans,

456 U.S. 605, 611, 102 S. Ct. 2049, 2053 (1982) (citing Beck v. Alabama, 447 U.S.

625, 100 S. Ct. 2382 (1980)). But even if Petitioner was entitled to such an

instruction under Beck, Petitioner’s decision to decline the lesser-included

instruction bars him from raising it now. 

The invited-error doctrine provides that “a defendant cannot complain on

appeal of alleged errors which he invited or induced, especially where the

defendant may not have been prejudiced by the error.” United States v. Green,

272 F.3d 748, 754 (5th Cir. 2001) (citing United States v. Raymer, 876 F.2d 383,

388 (5th Cir. 1989)). This doctrine applies to habeas review as well. See, e.g.,

Fields v. Bagley, 275 F.3d 478, 486 (6th Cir. 2001) (“When a Petitioner invites

an error in the trial court, he is precluded from seeking habeas corpus relief for

that error.”); Parker v. Champion, 148 F.3d 1219, 1221-22 (10th Cir. 1998)

(noting that habeas relief on the basis of an invited error is precluded); Wilson

v. Lindler, 8 F.3d 173, 175 (4th Cir. 1993) (en banc) (“Even if we were to find

such error in the trial of this case in the state court, the error was invited and

therefore cannot form the basis for habeas corpus relief.”). In this case,

Petitioner admits that his attorney “rejected the lesser included instruction.” 

Moreover, the Texas Court of Criminal Appeals explicitly refused to consider the

merits of Petitioner’s claim based on the invited-error doctrine. Druery, 225

S.W.3d at 506. 

The invited-error doctrine qualifies as a state procedural bar. See, e.g.,

Leavitt v. Arave, 383 F.3d 809, 832-33 (9th Cir. 2004) (suggesting that the

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invited error rule is a state procedural bar); Tucker v. Johnson, 115 F.3d 276,

281 (5th Cir. 1997) (holding that petitioner could not overcome procedural

default ofinvited-error doctrine); Coleman v. O’Leary, 845 F.2d 696, 699 (7th Cir.

1988) (referring to invited error as a “state procedural rule”). Petitioner may

overcome this bar only by showing “cause for the default and actual prejudice

as a result of the alleged violation of federal law” or “that failure to consider the

claims will result in a fundamental miscarriage of justice.” Neville v. Dretke,

423 F.3d 474, 480 (5th Cir. 2005) (quoting Coleman v. Thompson, 501 U.S. 722,

750, 111 S. Ct. 2546, 2565 (1991)). 

Petitioner’s principal argument on this issue centers on his trial counsel’s

alleged deficient performance. However, since Petitioner has not made a

showing that counsel was ineffective in refusing the instruction, he has not

shown cause. Cf. Tucker, 115 F.3d at 281 (applying pre-AEDPA standards, but

finding ineffective assistance of counsel not to be sufficient cause to overcome

bar of invited-error doctrine where petitioner failed to show counsel was

ineffective). Accordingly, Petitioner has not demonstrated that he is entitled to

a COA on this issue. 

D. FAILURE TO PROVIDE BURDEN OF PROOF ON MITIGATION

SPECIAL ISSUE.

Finally, Druery contends that he was denied a fair trial and “due process

when the trial court failed to instruct the jury that the State bore the burden of

proof to negate [Petitioner]’s mitigation evidence.” According to Petitioner, the

trial court’s “failure to place the burden of proof on the State unconstitutionally

placed on [Petitioner] the burden to produce mitigating evidence sufficient to

convince the jury a life sentence, rather than a death sentence, should be

imposed.” “Under such circumstances . . . a jury cannot determine how it is to

weigh the competing forms of evidence to arrive at a verdict worthy of

reliability.” 

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In order to obtain a death sentence under Texas law, the State has the

burden to prove beyond a reasonable doubt that “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. ANN. art. 37.071(2)(b)(1). 

If the jury finds future dangerousness, the jury must then consider whether

there are sufficient mitigating circumstances to warrant a sentence of life

imprisonment rather than a death sentence. Id. art 37.071(2)(e)(1). While the

jury may not answer the latter issue “no” unless they unanimously agree, id. art

37.071(2)(f), the sentencing scheme does not assign a burden of proof on this

issue. This, Petitioner contends, violates his constitutional rights to due process

and a fair trial, since the State is not required to negate Petitioner’s mitigation

evidence. 

This court has held that “[n]o Supreme Court or Circuit precedent

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

burden of proof.” Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005). In Avila

v. Quarterman, this court rejected a petitioner’s argument “that allowing a

sentence of death without a jury finding beyond a reasonable doubt that there

were no mitigating circumstances sufficient to warrant a sentence of life

imprisonment violated his Sixth and Fourteenth Amendment right to due

process and a fair trial.” 560 F.3d 299, 315 (5th Cir. 2009). Other decisions have

likewise rejected the argument that failure to instruct the jury that the State

has the burden of proof beyond a reasonable doubt on the mitigation issue is

unconstitutional. See, e.g., Scheanette v. Quarterman, 482 F.3d 815, 828 (5th

Cir. 2007); Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006); see

also Pet’r’s Br. at 60 (“[Petitioner] concedes that the case law is against him.”). 

Consequently, this argument by Petitioner is foreclosed by Fifth Circuit

precedent and not subject to debate among jurists. 

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IV. Conclusion

For the reasons stated above, Petitioner’s request for a COA is DENIED. 

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