### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Drue ry (“ 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, Petitio n er 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. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 20, 2 011 Lyle W . Cayce Clerk Case: 10-70022 Document: 00511545983 Page: 1 Date Filed: 07/20/2011No. 10-70022 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 re l i e f

. Af t er 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 , 20 1 0 WL 2 9 9 1 0 66 (S.D. Tex. July 26, 2010). The district court also h e ld 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. P e t itioner 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 t o 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 gu n . Joquisha Pitts, who was present that evening, later informed the police about the murder.

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After tri al, the jury found Petitioner guilty of capital murder for killing Browne during the co u r s e o f r o bbing or attempting to rob him. During the penalty phase, the jury found beyond a reasonable doubt that there is a probability tha t 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 o f t he 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 th i s 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 t o d e s e rve encouragement to proceed further.” Id. at 327, 123 S. Ct. at 1034 (citing Slack

v. McDaniel , 529 U.S. 473, 484, 1 2 0 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 revi e w i n g a c l aim adjudicated by a state court on the merits, we defer to the state court’s decision

r e g a r di n g that claim, unless the decision “[is] contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by t h e S u p r e m e Court of the United States; or ... [is] based on an unreasonable determination of the facts in light of the evidence prese n t ed 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 distri ct court’s decision to deny him a certificate of appealability (“COA”). Fi r s t , P e titioner raises an ineffective ass i s t a n ce 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 p l an a mitigation defense for the punishment phase. Third, Petitioner asserts that the penalty phase jury charge denied his d u e p r o cess rights and violated t he 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 les s e r - i ncluded 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 standa r d o f S t r ickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). In order to prevail on his ineffective assistance claims, Petitioner must demons t r a t e t hat (1) counsel’s representation fell below an objective standard of reasonableness and that (2) there is a reasonable p r o b ability that prejudice

r e s u l t e d

. See Bower v. Quarterman , 497 F.3d 459, 466 (5th Cir. 2007) (citin g Strickland , 466 U.S. at 694, 104 S. Ct. 2 0 5 2 )

. Strickland itself calls for considerable deference i n evaluating the reasonableness of the attorney’s conduct. See Cullen v. Pinholster , --- U. S

. - - - - , 131 S. Ct. 1388, 1403 (2011) (c o un s el s ho ul d b e “ s tro ngly presumed to have rendered adequate assistance and made all significant d e c i sions in the exercise of reasonable professional
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j u d gment” (quoting Strickland , 466 U.S. at 690, 104 S. Ct. 2052)). Wh e n o u r 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. 14 1 1 , 1413 (2009)), since the question is “whether the state court’s application of the Strickland standard w a s u n reasonable.” 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 stand a rd,” because the “state court must be granted a deference and latitude that are not in operation when the case involves review under the St r i c k la n d standard itself.” Id. Consequently, “even a strong case for relief does not mean the state court’s contrary conclusion w a s u n reasonable.” Id. at 786. Rather, in order to obtain habeas relief, “a state prisoner must show that the stat e c o u rt's ruling on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended i n e xi s ting 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 tha t “r e a s onable jurists could debate” whether the petition should hav e b e en 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.3 d a t 7 7 2

. With these standards in mind, we address each i neffective assistance claim in turn. 1. C o u n s e l ’ s F a i l u r e T o R e q u e s t I n s t r u c t i o n O n L e s s e rIncluded Offense of Murder.
Under Texas law, a person is guilty of capita l m u r d e r if he commits murder as d e f

i n e d by Section 19.02(b)(1) and he intentionally does so “in the

course of committing or attempting to commit

. . . r o b b e ry .” T E X

. P E NAL C O D E 5 Case: 10-70022 Document: 00511545983 Page: 5 Date Filed: 07/20/2011No. 10-70022

§ 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 W a shington’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 capit a l m u r d e r , 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 t h u s cannot have been reasonable. Washington testified that at the time he made the d e c i sion 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. Se e 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 f o u n d , however, that Washington articulated a valid strategic reason for declining the instructi o n : t o o btain a full acquittal. Washington believed that the S t a t e introduced evidence sufficient to prove murder but not the aggravating circ u m s t a n c e of robbery. In light of the state
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habeas court’s additional finding that Petitioner a n d his family rejected the State’s offer of a life sentence, this all-or-nothing strategy was not object ively

u n r e a s o n able. Strickland directs courts to consider the conduct of defens e 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 i n e f fectiveness 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 investigat e p o tentially mitigating evidence or prepare a mitigation defense at the punishment p h a s e o f trial. Petitioner asserts that Washington did not b e gi n to prepare his mitigation case until after the jury convicted Petitioner of capital murder, and he never hired a mit i gation 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 c o u rt 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 t o a n y one while in the structured environment of prison.” T e stimony adduced at trial supports this strategy, as even Petitioner
appears to acknowledge. See Pet’r’s Br

. a t 2 3 -24 (Washington presented his theory–“t h a t [Petitioner] was a good person when he was not on drugs and he would not be on drugs in prison”–“through lay witnesses”). F o r e x ample, a number of witnesses testified that Petitioner was a fine person as a young man. Other testimony, working in tande m w i th 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 reckle s s a c t s 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 t e s t i mony, the court concluded that defense counsel “prepared and presented a thorough punishment case consistent with their theory.” Petitioner also alleges th a t 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 i s s o me evidence W a s h i n gton turned over records to a psychologist, Dr. Windell, Dickerson, and that Washington suggested to the family t h a t P etitioner 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 P e ti tioner’s family rejected the suggestion. Even if we assumed, arguendo , this conduct fell

The st ate habeas court fou nd that Was hingto n tur ned over rec ord s t o Dr

. Wind ell 1 Di ck ers on, a ps ycholo gist , in ord er fo r Dr

. Di ck ers on to det erm ine wh ethe r a body of info rm atio n wa s availabl e that coul d have been use d for mi tigat ion. Acco rding to Was hingto n, he g av e t o Dr

. Di ck ers on “th e info rm atio n that wa s availabl e about [Pet itio ner] conc erni ng so me things that he had done in the rec ent pas t” and “th e me dic al rec ord s that had been mad e availabl e” by t he pr os ecut or, M r. Tur ner. 8 Case: 10-70022 Document: 00511545983 Page: 8 Date Filed: 07/20/2011No. 10-70022

below an objective standard of reasonableness, two findings of the state court 2 support its ultimate holding. First, this court has held that “[a] defen d a n t wh o alleges a failure to investigate on the part of his counsel m u st allege with specificity what the investigation would have revealed a n d h o w 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

of f er s o m e evi de nc e s u gge sting that Petitioner may have sustained b r ain d a m a ge

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 B e t t e Burke’s affidavit contained mere conclusions and speculation, and wa s thus not credible. Moreover, Dr. Rustin admitted that he was not qualified to ascertain whether Petitio n er h a d experienced brain damage because of drug use, especially since doing so would have required testing prior to dr ug use. Dr. Rustin also testified that in his opinion, Petitioner was intoxicated a t 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 cr e dible evidence of actual brain injury, disease, or physical/mental defect. Petitioner has failed to prove that an investigation would have yielded mitigation evidence.

Petit ioner reli es upon ABA Gu ide lines and Sta te Bar of Texas Gu ide lines to supp ort 2 his inef fec tive- ass ist ance -of-c ouns el clai m. We note that wh ile thes e may be “us efu l as ‘guid es ’ to wh at reas onable nes s enta ils ,” they cer tainl y do not def ine reas onable nes s. Bo b by v . Va n Ho ok , -- - U. S. --- -, 130 S. Ct. 13, 16 (2009) (perc uriam ). Bestp rac tic es ur ged by t he ABA d o not nece ss aril y tra ck the cont ours of the Sixth Ame ndm ent. Cons equent ly, the guide lines do not func tio n as “ine xorabl e com man ds ” wi th wh ich all cap ital def ens e coun s e l “ m u st full y com ply. ” See id. at17. In ad dit ion, eve n w hen wed o cons ide r them , they are use ful only to the exten t “th ey des cribe the pr o f e s s ional norm s pr evailin g wh en the rep res enta tio n too k plac e.” Id. at 16. In this cas e, the pr obat ive value of the Texas guide lines is dim inis hed by the fac t that they we re ado pt ed by the Sta te B a r o f T e x a s nearly thr ee years aft er Petit ioner ’s tri al. 9 Case: 10-70022 Document: 00511545983 Page: 9 Date Filed: 07/20/2011No. 10-70022

Second, even if Washington did unreasonably fail to investigate areas of Petitioner’s mental health and such investigation wou l d have yielded useful information, the stat e c ourt 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 [Peti t i o n e r] ’ s violent behavior

wa s o f a p e rmanent 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 u n d e r mine Washington’s theory that once separated from drugs , P e titioner 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” rul e 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.” T E X

. C O D E C R I M

. PR O C

. AN N

. art. 37.071(2)(b)(1). If the jury unanimously answers “yes,” the jury must then answer the following “mitigation” issue: “[w]hether, taking i n t o c onsideration all of the evidence, including the cir c u m s t a n ces of the offense, the defendant's character and background, and the personal moral culpability o f t h e 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 unanimo u s ly 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 a t least 10 “no” votes to answer “no” on the aggravating special issue, and at least 10 “yes” votes to a n s w e r “y e s” on the mitigation special issue–either of which answers would result in a life sentence, not death. I

d

. a r t

. 37.071(2)(g). Petitioner argues that this so-called “12-10” instruction misleadingly implied t h at the jury could not return a life sentence unless at least 10 jurors agreed o n 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 t o a n swer either special issue. Id. art. 37.071(2)(g). ) According to the 3 Petitioner, this w a s 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 i m p a r t i a l 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 t h a t 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 pr ovis ion st ates : “If th e jury retur ns a negative finding on any issuesubm itt ed 3 unde r Subs ect ion (b) or an aff irm ative find ing on an iss ue sub mi tte d unde r Subs ect ion (e) (1) or is unable to ans we r any iss ue sub mi tte d unde r Subs ect ion (b) or (e) , the cour t shall se nten ce the def enda nt to conf

inem ent in the Texas De par tm ent of Crim inal Jus tic e for lif e im priso nme nt wi thou t par ole. ” (em phas is add ed) 11 Case: 10-70022 Document: 00511545983 Page: 11 Date Filed: 07/20/2011No. 10-70022

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 jur o r s were in agreement on that particular special issue. 200 F.3d 274, 288 (5th Cir. 2000). The court stated that “Mills is

n o t a p p l icable to the capital sentencing scheme in Texas.” Id. More recen tl y , this court rejected a p e t itioner’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 tha t Teague barred it from extending Mills to invalidate the Texas scheme. Id. at 594. And since “no clearly established fe deral 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 c a s e ar gu ab ly 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 d oes not supercede intervening Fifth Circuit precedent regarding challenges to Texas’ 12-10 rule. 5

See also Alexa nder v. Johns on , 211 F.3d 895, 897 n.5 (5t h Cir. 2000) (“ In additio n to 4

. . . bein g barr ed by Tea gue , [Pet itio ner] 's sub st antive argum ent is me rit les s. The Sup rem e Courtr ece ntly rejec tedt he theo ry t hat a dis tri ct cour t's f ailur e t o i nst ruc t the jury a s to the cons equenc es of dea dlo ck give s ris e to an Eighth Ame ndm ent violat ion. Furtherm ore , the Fift h Circ uit has expr es sly rejec ted the cont enti on that Texas 's 10-1 2 R u l e p r e v ents juror s fr om cons ide ring mi tigat ing cir cum st ance s. ” (int erna l cit atio ns om itt ed) ); Woods v. Johns on , 75 F.3d 1017, 1036 (5t h Cir. 1996) (c laim that “th e ins tru cti on that the jury coul d not ans we r any puni shm ent sp ecial iss ue ‘no’ unles s at leas t ten juror s conc urr ed in that ans we r violat ed the rule of Mi lls” lack s “s ubs tant ive me rit” sin ce “th e ins tru cti on at iss ue is wh olly dis sim ilar to that involved in Mi lls”) ; Webb v. Coll ins , 2 F.3d 93, 96 (5t h Cir. 1993) (f indi ng chall enge to Texas ’s c apit al se nten cing sc hem e u nder Mi llsbar redby Tea gue).
Jac obs v. Scott als o rejec ted a chall enge to the 12-1 0 rule

. 31 F.3d 1319, 1328 (5t h Cir. 5 1994)

. While the rele vant Texas st atut e at the tim e did not i n c l u d e t h e i n s tru cti on on the 12 Case: 10-70022 Document: 00511545983 Page: 12 Date Filed: 07/20/2011No. 10-70022

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 d e ath sentence on a determination made by a sentencer who has been led to b e lieve that the responsibility for determining th e ap p ro p ri at e n ess 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 (1 9 89), the Supreme Court clarified its holding in Caldwell , stating that to “establish a Ca ldwell 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 4 0 7 , 1 0 9 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 argu e s th at th e ch all e n ge d in structions embody an “inherent lie” since Texas law forbids jurors from being told the c o nsequence of their failure to

answer the special issues. According to Petit i o n e r, this has an “effect” on the individual jurors–namely, it “denies the individual juror’s responsibilities, and diminishes the individua l juror’s understanding, and acceptance, of that individual responsibility. ” S i n ce jurors may allegedly interpret the jury i n s t ructions as relieving them of their responsibility, Petitioner asserts th a t Caldwell is violated unles s e a ch juror is informed as to the individual importance of his vote. P e t i t i oner acknowledges that at first glance, Jones v. United State s , 527 U.S. 373, 381, 119 S. Ct. 2090, 2 0 9 8 ( 1 999)–which held that “the Eighth Amendment does not r e qu i r e that the jurors be instructed as to the
consequences of their failure to agree”–appears to b e di s p o s itive. He argues, however, tha t wh ile a court might not be constitutionally compelled to inform

mi tigat ion sp ecial i ss ue, t he cour t reas onedt hat unlik e in Mi lls , theTexas sys temhe re st ill allow ed each juror to tak e into acc ount any mit igatin g cir cum st ance s, and thus did not per mi t a s ingle jurort o p rec ludethe enti re jury f romc ons ide ring them

. Id. at132 9. 13 Case: 10-70022 Document: 00511545983 Page: 13 Date Filed: 07/20/2011No. 10-70022

the jury of the consequences of their inabili t y to reach a verdict, it is i mpermissible to lie to the jury regarding “their constitutional and st a t u t o ry 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 require s h i m t o 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 , ho w ever , cl e arly 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 b e r e viewed for correctness by the state supreme court. Caldwell , 472 U.S. at 323, 105 S. Ct. at 2636. The Co u r t 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 263 9. 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 consen s us, but nothing in them suggests the ultimate responsibility to choos e r e p oses in another actor. Moreover, while jurors were admittedly not told what would r e sult from their failure to agre e o n a s p e cial 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. F i nally, Petitioner asserts that the 12-10 Rules violates his due proce s s

r i gh t s a s w ell. Petitioner cites the Supreme Court decision in Kelly v. South Carolina , 534 U.S. 246, 122 S. Ct. 7 26 (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 aggr av a t ing and mitigating factors. Adopting Petitioner’s argument would require an extension o f K e l l y , which is im p e r m i s s ib le on habeas review. See Teague v. Lane , 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (198 9). Petitioner has not demonstrated that he is entitled to a COA on this issue. C. TRIAL COUR T’ S FAI L U R E T O S U A S PONT E I N S T R U C T J U RY 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 dut y to correct, sua sponte , counsel’s error at trial. As Petitioner states, “ [T] h e trial court should have overruled Mr. Washington’s ill-informed de ci s io n [to decline the jury charge] and instructed the jury on the les s er 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 Case: 10-70022 Document: 00511545983 Page: 15 Date Filed: 07/20/2011No. 10-70022

degree murder but

. . . he affirmatively requested

. . . that t h e 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 h i s position, Petitioner cites two Supreme Court decisions holding that “due process requires that a lesser included offense instruction be given when the evidence war r a nts 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 (198 0 ) )

. But even if Petitioner was entitled to such an instruction under Beck , Pe t i t i o ner’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. Ba

g le y , 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 t h a t e r r o r.”); 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 f i n d

s u c h error in the trial of this case in the state court, the error was invited an d therefore cannot form the basis for habea s c orpus relief.”). In this case, Petitioner admits that hi s 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 a s a state procedural bar. See, e.g. , Leavit t v . Arave , 383 F.3d 809, 832-33 (9th Cir. 2004) (suggesting that the
16 Case: 10-70022 Document: 00511545983 Page: 16 Date Filed: 07/20/2011No. 10-70022

i nvi t ed error rule is a state procedural bar); Tucker v. Johnson , 115 F.3d 276, 2 81 (5th Cir. 1997) (holding that petitioner could not overcome procedural default of invited-error doctrine); Coleman v. O’Leary , 845 F.2d 696, 699 (7th Cir. 1988) (referring to invi t e d 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 miscarri a g e o f 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, 256 5 (1991)). Petitioner’s principal argument on this issue centers on his trial counsel’s alleged deficient performance. However, since Petitioner ha s n ot 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 c o unsel 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 evi d e n ce sufficient to convince the jury a life s e n t e n ce, rather than a death sentence, should be imposed.” “Under such circumstances

. . . a jury cannot determine how it is to weigh the competing forms of evid e n c e t o arrive at a verdict worthy of reliability.”

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In order to obtain a death se n tence under Texas law, the State has the burden to prove beyond a reasonable doubt that “there is a probability that the defendant would co m m i t c r iminal acts of violence that would constitute a continuing threat to society.” T E X

. C O D E C R I M

. P R O C

. AN N

. art. 37.071(2)(b)(1). If the jury finds future dangerou s n e s s , the jury must then consider whether th e r e a r e 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 o f 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 o r C ircuit precedent constitutionally requires th a t T e xas'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 al l o w ing a sentence of death without a jury finding beyond a reasonable doubt that there

were no mitigating circumstances sufficient to warrant a s e ntence of life imprisonment viola t e d 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 r e asonable doubt on the mitigation issue is unconst itutional. See, e.g. , Scheanette v. Quarterman , 482 F.3d 815, 828 (5th Cir. 2007); Granados v. Quarterman , 455 F.3 d 529, 536-37 (5th Cir. 2006); see also Pet’r’s Br. at 60 (“[Petitioner] concedes that the case law is against him.”). Consequently, t h i s a r gument 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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