* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 11, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40980

LESTER LEROY BOWER,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

(92-CV-182)

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Petitioner-Appellant Lester Leroy Bower, Jr. fil ed an Appl

i cati on for a Certi fi

cate of

Appealability (COA), wherein he seeks to appeal the district court’s denial of his petition for writ

of habeas corpus. Bower has been convicted and sentenced to death fo r t he murder of four

individuals in connection with the theft of an ultralight aircraft. Following a series of unsuccessful

s t ate habeas appeals, Bower sought federal habeas relief asserting that his conviction was2

constitutionally infirm. The district court denied his federal habeas petition, and he presently asks

this court to issue a COA so that he may appeal the district court’s ruling. For the reasons set forth

below we hold that the district court’s denial of Bower’s federa l writ of habeas corpus was

appropriate and that a COA should be denied.

FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 1984, Bower was found guilty of capital murder and was sentenced to death.

Some background is appropriate. On October 8, 1983, the bodies of Ronald Mays, Ph i lip Good,

Bobby Tate, and Jerry Mack Brown were discovered in an airplane hanger located on the property

of Tate. B ower v. State of Texas , 769 S.W.2d 887, 889 (Tex. Crim. App. 1989). Each man had

been shot multiple times. I d. at 890. Moreover, a valuable ultralight aircraft, which had also been

located inside the hanger was missing. Id. During the course of a subsequent law enforcement

investigation, eleven empty .22 caliber shell casings which had been manufactured by Julio Fiocci, had

been discovered on the hangar’s floor. Id. This discovery was of some significance to the

investigators because the discovery of the spent shell casings suggested that the murderer had used

an automatic weapon. Id. The investigators also believed, based on the evidence recovered at the

crime scene, that a silencer was used. Id.

The FBI’s init

ial attenti on focused on Bower and he agreed to meet with investigators. It was

subsequently learned that in the days preceding the murders, Bower had several telephone

conversations with one of the victims, Philip Good, because he (Bower) was interested in purchasing

an ultralight aircraft which Good had advertised was for sale. Id. at 891. During conversations with

FBI investigators, Bower also conceded to owning a passel of firearms. Id. The officers secured a

search warrant for Bower’s home. I d. at 892. The evidence recovered included several manu als1 As such, in order to impose a sentence of death under Texas law at the time, the jury was

required to find beyond a rea so nable doubt and answer in the affirmative regarding two Special

Issues: (1) whether Bower’s conduct which caused the death of Jerry Mack Brown, was committed

deliberately and with r easonable expectation that the death of the deceased would result; and (2)

whether there was a probability that Bower would continue to commit violent criminal acts, and as

such would he constitute a continuing threat to society at-large.

3 related to the construction of ultralight aircrafts, several instructional guides as to the proper use of

silencers, books and art icles o n weaponry and how to commit murder, as well as receipts which

indicated that he had purchased three boxes of Julio Fiocchi .22 caliber bullets. I d. Additionally, the

search also recovered two ultralight tires and rims that had the name “Tate” scratched i n them

(apparently belonging to victim Bobby Tate), unidentified blood stains were found on Bower’s boots,

and fingerprints from victim Jerry Mack Brown were found on the ultralight tubing that was

discovered in Bower’s gar age. Id. Also discovered in Bower’s garage were decals and materials

usually found on the exterior of an ultralight aircraft, id. as well as evidence which suggested that in

the days preceding the murders, Bower went to a shooting range and prac t iced firing .22 caliber

ammunition. Id. at 893.

Bower was eventually tried for the murders and was found guilty of killing all four victims

in the course of stealing the ultralight aircraft. 1 He appealed his conviction, and the Texas Court of

Criminal Appeals affirmed on January 25, 1989. See Bower v. State of Texas

, 769 S.W .2d 887

(Tex.Crim.App. 1989), cert. denied, 492 U.S. 927, 109 S.Ct. 3266 (1989). Bower then brought a

Petition for Post-C o nvict ion Writ of Habeas Corpus in the 15th Judicial District Court, Grayson

County, Texas which was denied, as was his subsequent habeas appeal. See Ex Parte Bower , 823

S.W.2d 284, cert. denied , 506 U.S. 835 (1992).

Thereafter, Bower filed a petition for a writ of habeas corpus in the United States Distri ct2 Bower has already been granted a COA as to two issues. In an order date d February 2,

2004, a federal district court found that Bower was entitled to a COA because “questions of

ineffective assistance of trial counsel at both the guilt determination and punishment determination

phase of his trial deserve[d] encouragement to proceed further.” Second, the district court found “that

Bower’s claim that the prosecution failed to produce material, exculpatory evidence, at least [with]

regards [to] the cumulative effect of the several alleged items of evidence, also de s erve[d]

encouragement to proceed further.”

4 Court for the Eastern District of Texas in 1992 pursuant to 28 U.S.C. § 2254

. The district court

conducted a five day evidentiary hearing between June 12 and16, 2000, and two years later, issued

a seventy-one page memorandum opinion denying Bower’s petition for habeas relief on September

6, 2002.

This petition for a COA ensued, wherein Bower asserts that he should be entitled to appeal

a number of issues stemming from the district court’s denial of his habeas petition. 2

STANDARD OF REVIEW

Because Bower filed his federal habeas petition in 1992, prior to the April 24, 1996 enactment

of the Antiterrorism and Effective Death Penalty Act (AEDPA), this court must employ pre-AEDPA

law in analyzing the propriety of district court’s denial of his habeas petition. S ee

, e.g.

, Soffar v.

Dretke

, 368 F.3d 441, 463 (5th Cir. 2004); K unkle v. Dretke

, 352 F.3d 980, 985 (5th Cir. 2003).

Because Bower has also filed his appeal from the denial of his habeas petition follow ing the enactment

of AEDPA, “post-AEDPA law governs the right to appeal.” Kunkle , 352 F.3d at 984. This simply

mea ns t hat Bo wer may only appeal the denial of his petition for federal habeas relief if this court

det ermines that a COA should be issued, i d.

, because without such authorization this court lacks

jurisdiction to consider his claims. See 28 U.S.C. § 2253; s ee also Miller-El v. Cockrell , 537 U.S.

322, 336 (2003).

In order to obtain a COA appealing the district court’s habeas ruling, Bower must make a5

“substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c), meaning simply

that Bower must make a “showing that reasonable jurists could debate (or, for that matter, agree that)

the petition should have been resolved in different manner or that the issues presented were adequate

to deserve encouragem ent to proceed further.” S lack v. McDaniel

, 529 U.S. 473, 484 (2000)

(citation and internal quotati on marks omitted). Thus, it is largely unnecessary to engage in a highly

involved analysis as to the substance of Bower’s claims in weighing the p ropriety of granti ng the

COA. S ee Miller-El

, 537 U.S. at 336. Moreover, it is not the province of this court to deny a COA

on the grounds that Bower has very little hope of succeeding as to the ultimate merits of his claims.

Id.

It naturally follows that if a distri ct court has rejected the merits of the applicant’s

constitutional claims, our COA determination hinges on whether “‘reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.’” I d. at 338 (citation and

internal quotati on marks omitted). Stated somewhat similarly, the worthiness of a petition for a COA

-- and concomitantly whether the district court erred in its denial of the petition for a writ of habeas

corpus

-- must be analyzed pursuant to the admittedly deferential st andard articulated by § 2254

(d)(1), which provides in relevant part that a federal district court may not grant habeas relief “unless

the state court adjudication ‘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.’” Tennard v. Dretke , 124 S.Ct. 2562, 2569 (2004) (quoti ng § 2254(d)(1)).

Finally, consistent with the pre-ADEPA standard of review, the district court’s lega l

determinations will be reviewed de novo , and the state court’s factual findings will be reviewed for

clear error. S ee Kunkle

, 352 F.3d at 985 (citing Soffar v. Cockrell

, 300 F.3d 588, 592 (5th Cir.2002)3 Most of these claims app arently dovetail with his ineffective assistance of counsel claim

which the federal district court already granted a COA.

6 (en banc)). Because we are guided by pre-ADEPA standards, this court will summarily presume that

all factual findings which find support in the record are correct, however pre-ADEPA standards do

not mandate deference “to the state court’s legal conclusions.” Id. (citations omitted).

DISCUSSION

A.

Bower asserts that he should be permitted to engage in more substantive discovery. He avers

there remains a significant factual dispute as to who is respo nsible for the four murders, and that

reasonable jurists could disagree as to whether he should be permitted to engage in additional

discovery. He notes that he had moved four times, between March of 1992 and July of 2002, asking

the district court to permit him to engage in more substantive discovery related to his claims that a

great deal of evidence exists that would exculpate him. For example, Bower avers that his state trial

counsel, Jerry Buckner, refused to consult a ballist ics expert, refused to follow leads which would

have implicated an Oklahoma drug gang in the murders, and only relied upon the excu lpatory

evidence provided by the Government, without engaging in a more substantive investigation on his

own. 3

More poin t edly, Bo wer believes that he should have been permitted to engage in greater

discovery prior to the district court addressing his COA petition. He plainly recognizes that Rule

6(a) of the Rules Gov erning Section 2254 Cases vests district courts with discretion to permit

additional discovery for “good cause shown.” However, Bower argues that this standard was not

intended t o circumscribe a party’s ability to garner information that would fully exculpate him.7

Similarly, he maintains that he should have been allowed to further pursue evidence that would have

demonstrated that four other individuals were actually responsible for the murders. He desired the

opportuni ty to compare physical evidence found at the murder scene, with the individuals Bower’s

contends were actually responsible for the murders, and argues that it was erroneous for the district

court not to allow these comparisons to take place. Additionally, he maintains that there remains a

factual dispute as to the motivation underlying the murders, which he avers has never been fully been

addressed, and that if he were permitted the opportunity, he could draw a nexus between the four

members of the Oklahoma drug gang and the murders of Mays, Good, Tate, and Brown.

The que st io n o f whether a COA should issue, based on a district court’s discovery ruling

made in the context of a habeas appeal, is vested within the discretion of the district court and

therefore will only be reviewed by this court for an abuse of discretion

. S ee Rule 6(a) of the Rules

Gover ning § 2254 Cases (“A party shall be entitled to invoke the processes of discovery available

under the Federal Rules of Civil Procedure if

. . . the judge in the exercise of his discretion and for

good cause shown grants leave to do so, but not otherwise.”). We have noted that the dispositive

question in this regard is “whether the district court abused its discretion [by] denying [the discovery

mo t ion, and whether the denial would be deemed] debatable among jurists of reason.” H ill v

.

Johnson

, 210 F.3d 481, 487 (5th Cir. 2000). Moreover, Rule 6(a) mandates that discovery requests

in analogous circumstances are circumscribed by “good cause,” which we have characterized as being

present “‘when a petition for habeas relief establishes a prima facie [case] for relief.’” Id. (quoting

Murphy v. Johnson , 205 F.3d 809, 814 (5th Cir. 2000); s ee also Ward v. Whitley

, 21 F.3d 1355,

1367 (5th Cir. 1994) (“A federal habeas court must allow discovery . . . o nly where a factual dispute,

if resolved in [Bower’s] favor, would entitle him to relief.”) (emphasis added).8

Thus, the question of the propriety of the district court’s discovery ruling is firmly intertwined

with the evidence that was actually presented against Bower. We find that there has been no showing

made that Bower’s contentions, if pro ven t o be true, would necessarily demonstrate that he has

established a prima facie case for relief or that he was actually innocent

-- as would be required under

the abuse of discretion standard. S ee

, e.g.

, In re Bagwell

, 401 F.3d 312, 316 (5th Cir. 2005). This

is particularly so given the exceptionally strong circumstantial case -- which will be discussed in

greater depth below-- that was brought against Bower. See Kutzner v. Cockrell

, 303 F.3d 333, 337

(5th Cir. 2002); see also In re Bagwell

, 401 F.3d at 316 (recog nizing that the strength of the

prosecution’s case agains t t he accused undercut his subsequent actual innocence claim).

Consequently, Bower’s request for a COA as to this claim of error is denied.

B.

Bower argues that he has made a sufficiently persuasive showing that he is actually innocent

of the crimes for which he has been charged. Conceding that the showing necessary to establish

actual innocence under these circumstances is daunting, he nevertheless believes that he has met this

burden. For example, he contends that he has offered a spate of new witness affidavits, that would

implicate others in the crimes. Moreover, he believes that if permitted to present new physical and

ballistics evidence he would be totally exonerated of the charges brought against him.

This court has found that claims of “actual innocence are not cognizable on federal habeas

review.” Graves v. Cockrell

, 351 F.3d 143, 151 (5th Cir. 2003). We have specifically recognized

that an a ct ual innocence claim predicated on newly discovered evidence has “‘never been held to

st at e a ground for federal relief absent an i ndependent constitutional violation occurring in the

underlying state criminal proceeding.’” D owthitt v. Johnson

, 230 F.3d 733, 742 (5th Cir. 2000)9

(emphasis added) (quoting Herrera v. Co llins

, 506 U.S. 390, 400 (1993)). Thus, a habeas petitioner

must first establish that there exists substantial doubt as to his guilt before subsequent questions may

be raised about constitutional infirmities related to his underlying state conviction. Id.

We find, and the record amply supports, the evidence against Bower was simply

overwhelming. For the purposes of disposing o f t his claim, we will briefly reiterate the evidence

brought against Bower seriatim: (1) distinct ammunition --Julio Fiocchi

. 22 caliber ammunition --

similar to the type used in the execution-style murders was found in Bower’s home; (2) Bower had

several conversations with one of the murder vict ims days before the murders, inquiring about

purchasing the ultralight aircraft; (3) on the day of the murders, the four vict ims were to meet with

a potential buyer, in the hangar owned by Bobby Glen Tate; (4) a subsequent search of Bower’s

home recovered two ultralight tires and rims that had the name “Tate” scratched in them; (5) during

the search of Bower’s home, investigators also discovered unidentified blood stains on his boots and

travel bag; (6) ultralight aircraft materials were discovered in Bower’s garage area; (7) fingerprints

of one of the murder victims were found on ultralight tubing found in his garage; (8) he possessed

a receipt for a silencer; (9) numerous magazine articles were found within Bower’s home related to

the commission of murder; and (10) in the days preceding the murders, Bower went to a shooting

range and practiced firing .22 caliber ammunition for approximately fifteen minutes.

In light of the overwhelming evidence, we hold that Bower has not raised substantial doubt

as to his guilt. See Kutzner , 303 F.3d at 333.

C.

Bower contends that he should be granted a COA because the state trial court’s special issue

instructions prevented the jury from giving full consideration to his mitigating evidence particularly10

related to the fact that he was a good and decent family man

, who up until his arrest, had never been

in trouble with the law. To recall, at the time of Bower’s sentencing hearing, Texas juries in capital

cases were simply asked: (1) whether the defendant had acted “deliberately and with the reasonable

expectation that the death of the deceased would result;” and (2) whether “there is a probability that

the defendant would commit criminal acts of violence t hat would constitute a continuing threat to

society.” If the jury found in the affirmative beyond a reasonable doubt as to both special issues, a

sentence of death would be imposed.

The central premise underlying his claim is that the second special issue did not permit the jury

to give effect to mitigating evidence as to Bower’s good character. This argument has been rejected

by this court on several occasions. S ee

, e.g.

, Coble v. Dretke , -- F.3d -- , 2005 WL 1663882 (5th

Cir. July 18, 2005); Boyd v. Johnson

, 167 F.3d 907 (5th Cir. 1999); Barnard v. Co llins

, 958 F.2d 634

(5th Cir. 1992). We have noted that because “t he principal mitigating thrust of good character

evidence is to show that the defendant acted atypically in committing the capital crime, this evidence

can find adequate expression under the second special issue .” B arnard

, 958 F.2d at 640 (emphasis

added); see also Coble , -- F.3d -- , 2005 WL 1663882, at * 14.

Because this court has plainly recognized that good character evidence could have properly

been given effect through the second special issue, we hold that this claim is without merit.

D.

Bower argues

-- irrespective of his challenge to Te xas’ sentencing scheme -- that the

prosecution failed to meet its burden rel ated to whether Bower posed a threat of future

dangerousness as referenced in the second special issue presented to the jury. He asserts that because

the prosecution did not present any evidence during his sentencing hearing, and because he presented11

numerous witnesses who detailed that he was a kind and loving father, reasonable jurists could debate

as to whet her sufficient evidence was presented to the jury to support the future dangerousness

special issue. Bower contends that because the prosecution failed to present any evidence that would

support a finding of future dangerousness, and because there had been n o showing made that he

suffered from a mental infirmit y, or had a criminal record of any sort, ipso facto , he is entitled to a

COA on this ground.

The district court found Bower’s reasoning to be specious as to this COA ground. The court

observed that it would simply be illogical to require the jury to listen to, for a second time during the

s entencing phase of the trial, the entirety of the evidence that was presented during the

guilt/innocence p hase. Given the overwhelming circumstantial evidence presented, which drew a

strong nexus between Bower and the murders, and the brutality with which the murders were carried

out, t he district court found that the jury had been presented with sufficient evidence to make a

determination as to Bower’s threat of future dangerousness.

This court has considered whether sufficient evidence was presented to support the jury’s

findings as to the special issues before it. See

, e.g.

, Martinez v. Johnson

, 191 F.3d 229, 245 (5th Cir.

2001); H ughes v. Johnson

, 191 F.3d 607, 619 (5th Cir. 1999); Green v. Johnson

, 160 F.3d 1029

,

1047 (5th Cir. 1998). Our standard of review under these circumstances is guided by the sufficiency

of evidence standard articulated by the Supreme Court in Jackson v. Virginia

, 443 U.S. 307 (1979).

See Martinez , 191 F.3d at 245 (recognizing the applicability of Jackson when a defendant seeks to

challenge the sufficiency of evidence presented in support of a jury finding related to the special issues

q uestions). Consequently we simply consider “‘whether, after reviewing the evidence in the light

most favorable to the prosecuti on, any rational trier of fact could have found the essential elements12

of the cri m e beyond a reasonable doubt.’” Hughes

, 191 F.3d at 619 (emphasis added) (quoting

Jackson , 443 U.S. at 319).

As referenced above, the case that was presented against Bower was quite encompassing,

as significant amounts of circumstantial evidence tied Bower to this he ino us crime. Given the

foregoing, we hold that a rational fact-finder could clearly find the requisite elements of the crime of

capital murder beyond a reasonable doubt. I d. Moreover, this fact would likely no t be debatable

among jurists of reason, and because of this, Bower’s petition for a COA as to this claim is simply

unavailing.

E.

Finally Bower opines that the prosecutor implicit ly made reference on two occasions during

the course of his closing argument to the fact that Bower never testified on his own behalf during his

trial. First, the prosecutor stated to the jury, in reference to Bower, “Not one single bit of remorse

for what he did. Look at him. Do you see him right now? Do you feel bad for what he did? Does he

feel bad?” Upon objection from Bower’s counsel, the trial court instructed the jury to disregard this

remark. Subsequently however, the prosecutor stated, “You can see him in the courtroom. You can

look at him. He talked to the FBI. He talked to those FBI Agents on three occasions. At one time did

he ever say, ‘Gosh, I don’t know what got into me. I did it and I feel horrible. I’m sorry?’ Never.”

Bower’s counsel moved to strike this second statement, but the trial court overruled the objection.

Bower now believes that the prosecutor’s statement was prejudicial, and had an appreciable effect

on the trial outcom e, because, from his perspective, both statements implicit ly suggested that Bower

was culpable because he had not testified on his own behalf during the trial, and did not show

contrition on the witness stand.4 Upon issuance of this opinion, the Clerk of Court will issue a notice directing the parties

as to briefing of Bower’s COA claims which were granted by the district court.

13 We have noted that it is improper for a prosecutor to argue during the punishment phase that

the accused’s failure to testify during the guilt/innocence phase reflected his bad character. S ee Ward

,

21 F.3d at 1365. However, the fact that a comment was in fact made will not summarily amount to

reversible error, as a matter may only be reversed based on a prosecuto r’s improper statement

regarding the accus ed failure to testify in the context of “collateral review[,] . . . [when] it had

substantial and injurious effect or influence on the outcom e.” Id. Moreover, in order for this court

to make a finding that a statement made by the prosec utor was, in actual i ty , a com m ent on the

accused’s failure to testify, this “court must conclude that the prosecutor’s manifest intention was to

comment on that failure or that the comment was such that the jury would naturally and necessarily

take it to be such a comment.” United States v. Bermea , 30 F.3d 1539, 1564 (5th Cir. 1994).

The record does not clearly manifest that the prosecutor was commenting on Bower’s failure

to testify. Additionally, “[g]iven the overwhelming evidence of guilt and the cautionary instruction

to the jury [regarding the first statement],” Cotton v. Cockrell

, 343 F.3d 746, 752 (5th Cir.2003), the

prosecutor’s allegedly grievous statements did not have a “substantial and injurious effect or influence

in the determination of [Bower’s] guilt.” I d. More pointedly, reasonable jurists could not find this

point debatable.

CONCLUSION

For the foregoing reasons, the district court’s determination is affirmed. Bower’s application

for a COA is denied, except for the grounds that have already been granted pursuant to the district

court’s February 2, 2004 order. 414

AFFIRMED.