## In the



# United States Court of Appeals for the Fifth Circuit

_______________ 

### m 05-70014

______________



### D ONELL 

### O’K

EITH 

### J ACKSON 

### ,

Petitioner-Appellant,
VERSUS


### D OUG 

### D RETKE 

### , D IRECTOR , T EXAS D EPARTMENT OF C RIMINAL JUSTICE , C ORRECTIONAL I NSTITUTIONS D IVISION 

### , Respondent-Appellee.



### _________________________ Appeal from the United States District Court fo r the Southern District of Texas 

### m H-02-CV-2601

_________________________

Before D AVIS , S MITH , and D ENNIS , Circuit Judges.
JERRY E. S MITH , Circuit Judge: * Donell Jackson requests a certi ficat e of appealability (“COA”) from the denial of his claim fo r federal habeas corpus relief under 28 U.S.C. § 2254. We deny a COA as to all but two of Jackson’s claims on which a COA is required, because jurists of reason would not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the l imited (continued...) * (...continued)

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## F I L E D May 11, 2006 Charles R. Fulbruge III Clerk2

find the rejectio n of them debatable. As for t he claim on which we grant a COA, and the claim fo r which no COA is required, we affirm on the merits.
I. Jackson was charged wit h killing his vict im fo r rem uneration. The victim had previously testi fied before a grand jury in it s invest igation of Jackson’s friend, David Sm it h. Smit h indicat ed in a taped statement that he did not know Jackson was goi

ng to shoot the victim. When the police played Smith’s statement fo r Jackso n during interrogation, Jackson allegedly replied that Sm

it h had paid him to com

mit the murder. Jackson then made a taped confession. To shift the blame, Jackson at trial claimed the police had told him t o say that Sm it h had paid him. Jackson was convicted by a jury of capital murder. At sentencing, the state intro duced evidence of prior of

fenses, and Jackson presented evidence of a favorable home life and a learning disabilit y. The jury sentenced him t o death, finding that he posed a threat of future dangerousness and t hat the mit igating evidence was inadequate to warrant a life sentence. The Texas Court of Cri

minal Appeals affirmed the conviction and sentence on direct appeal. Jackson filed a concurrent petition for wri t of habeas corpus in the trial court, which entered findings of fact and conclusions of law that were adopted by the Court of Criminal Appeals in an order denying habeas relief. Jackson filed a federal habeas peti tion under § 2254, alleging twenty-two p oints of error. The district court granted summary judgment denying Jackson’s claims, and denied sua sponte a COA as to each claim. Jackson filed a notice of appeal and request for a COA. II. This case is governed by the Antiterrorism and Ef fective Death P enalty Act of 1996 (“AEDPA”), which requires, as a jurisdictional prerequi sit e to appeal , that Jackson obtain a COA. M iller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). A COA will issu e if Jackson makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253- (c)(2). The prevailing standard requires Jackson to demonstrate that “reasonable jurists could debate whether (or, fo r that matter, agree that) the peti

ti on should have been resol ved [by the district court] in a di fferent manner or that the issues presented were ‘adequate to deserve encouragement to procee d further.’” S

lack v. McDaniel , 529 U.S. 473, 484 (2000) (quot ing B arefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983)).
Alt hough the COA determ inat io n requires a th reshold inquiry int o the merit s of a peti

tioner’s claim, it does not invo lv e a full canvassing of th e factual or legal bases fo r relief. See Miller-El , 537 U.S. at 336-37. We do not inquire whether Jackson will succ e ed on appeal, or even whether any reasonable jurist would ult imat e ly grant Jackson’s petition. Rathe r, we ask onl

y whether the federal district court’s resol

ution of Jackson’s claims is debatable amo ng jurists of reason. 1
When assessing whether juri sts of reason could debate the denial of Jacks on’s habeas peti tion, we are mindful of the deferential standard of review the dis tri ct court m ust apply under AEDP A. S

ee Miniel v. Cockrell ,

1 Miller-El , 537 U .S. at 338 (stating that “a claim can be debatable even though every jurist of re ason might agree, after the COA has been granted and the case has re ceived full consideration, that petitioner will not prevail”).3

339 F.3d 331, 336 (5th Cir. 200 3 ). The dist ri ct court m

ust defer to the state court’s adjudication of a defendant’s claims on the merit s unless the state court’s decision was “contrary to, or invo lved an unreasonable application of , clearly established Federal law, as determ ined by the Supreme Court of the Unit ed States, or

. . .was based on an unreasonable determination of the facts in light of the evid ence prese nt ed i n t he State court proceedi ng.” 28 U.S.C. § 2254(d)(1), (2).
A state court’s deci sio n is “contrary to” clearly established federal law if it reaches a result in direct conflict wit h Supreme Court pr ecedent, ei

ther by drawing a contrary legal conclusion or basing a contrary judgment on mat erially indist inguishable facts. M iniel , 339 F.3d at 337 (citing Williams v. Taylor , 529 U .S. 362, 405 (2000)). A state court’s decision is based on an “unreasonable application” of clearly establi shed f ederal law if it is “o bjectively unreasonable.” I d. Therefore, it is not enough fo r the reviewing court to believe th at the state court applied Supreme Court precedent inco rrectl y; 2 rather, the application must be outside the range of reasonable judgment permitted by the particular rule. 3
It is the ult imat e legal conclusion reached by the state court, not every step of it s reasoni n g process, that should be tested fo r unreasonableness. S

ee Santellan v. Cockrell , 271 F.3d 190, 193 (5t h Cir. 2001). Fi nally, AEDPA presumes that the state court’s factual findings are correct; the defendant has the burden of proving oth erwise by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. Jackson makes eight separate arguments for a COA. We deal with each of these in turn.

A. Jackson argues that his confession was involuntary and the product of police misco nduct. Specifically, he maint ains that, to shift blame t o Sm

it h, police told him t o say that he received mo ney fo r the vict im’s murder; Jackson alleges that discrepancies between the details of his confession and statements made by Sm it h c ompel the conclusion that police coerced a confession. The Fift h Amendment provides that no person “shall be com

pelled in any criminal case to be a wit ness against himself.” U.S. C ONST

. amend . V. “ [A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of th reats or vio lence, nor obtai

ned by any direct or implied prom ises, however slight , nor by the exertion of any impr oper i

nfluence.” B ram v. United States , 168 U.S. 532, 542-43 (1897) (quoti ng 3 R USSELL ON C RIMES 478 (6th ed.)).
As the district court noted, the admissibilit y of Jack son ’s confession might be in doubt if the facts he alleges were true. The jury, however, considered the evidence presented by Jackson and the police at trial, and found that no prom ises were ma de to Jackson i n exchange fo r his confession. This credibility determ inat io n is squarely wit hin the province 2 Woodford v. Visciotti , 537 U.S. 19, 24 -25 (2002).

3 Yarborough v. Alvarado , 541 U.S. 652, 664 (2004) (explaining that “the range o f reasonable judgment can depend in part on the nature of the re levant rule

. . . . The more general the rule, the mor e leeway courts have in re aching outcomes in case by case determinations.”).4

of th e j ury, 4 and AEDPA tells us to presume that this finding is correct unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Because Jackson did not present any new evidence in his habeas peti tion that would sati sfy this rigorous standard, reasonable jurists could not disagree wit h the denial of a COA on this issue.

B. Jackson contends that the alleged discrepancies between his confes sio n and Smith’s statements prove that the confession is false, so there was no evidence to establish that Jackson killed the victim for remuneration. Hence, Jackson maint ains that he is actually inno cent of capital murder.
A claim of actual inno cence based on newly disco vered evidence is not cognizable for purposes of federal habeas corpus absent an independent constitutional vio lat io n. H errera v. Collins , 954 F. 2d 1029, 1034 (5th Ci r. 1992), aff’d, 506 U.S. 390 (1993). This rule recognizes that the purpose of federal habeas corpus is “to ensure that individuals are not imprisoned in vio lat ion of the Constitution 

### SS not to correct errors of fact.” H errera , 506 U.S. at 399. A petitioner may prove actual inno cence to overcome a procedural default, allo wing a federal habeas court to reach th e merit s of an oth erwise barred constitutional claim. S chlup v. Delo , 513 U.S. 2 98, 316 (1995). Jackson does not allege actual inno cence to remove a procedural bar to a separate consti tutional claim. Rather, he submits evidence, consisti ng of testi

mo nial discrepancies and expert opi nio n that he may suffer from a learning disabilit y and oth er psychological problems, to diminish the probati ve value of his confession. He seeks only to remove the evidentiary basis of the jury’s conclusion that he com mit ted capital murder; i. e., murder-forhire. Because this is a free-standing actual innocence claim, no reasonable jurist could disagree that Jackson failed to make “a substanti al showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, a COA for this claim is denied.

C. 1. Jackson urges that the state exercised it s peremptory challenges in a racially discriminatory manner, in vio lat io n of his Fourteenth Amendment rights under Batson v. Kentucky , 476 U.S. 79 (1986). The B ats on C ourt held that a defendant must fir st make a prima facie showing that the prosecutor is exercising his stri kes based on the prospecti ve juror ’ s race. See id. at 96-97.
“Once the defendant makes a pri ma faci e showing, the burden shift s to th e State to come f o rward wit h a neutral explanation fo r challenging [minority] jurors.” I d. at 97. If the state is unable to of

fer a race-neutral explanation, the defendant’s sentence should be reversed. S

ee id. at 100. If the state advances putati vely neutral reasons, the defendant bears the ultimate burden of proving that those reasons are pretextual. See id. at 94 n.18.
In Miller-El , the Court reversed this court’s denial of a COA on a B atson claim, finding that it wa s debatable among jurists of reason whether Miller-El would succeed in his federal habeas case. M

iller-El , 537 U.S. at 348. The Court noted that deference to the state court is of ten appropri ate fo r Batson claims, because whether the defendant has carried his bu rden 4 See United States v. Cathey , 259 F.3d 365, 368 (5th Cir. 2001).5

of proof will of

ten turn on the credibilit y of the prosecutor exercising the stri kes, and “a reviewing court, which analyzes only the transcripts from voir dire, is not as well posi tioned as the tri al court is to make credibilit y determinations.” I

d. at 339. Such deference, however, does not mean that a COA shall never is sue; rather, “[a] federal court can disagree wit h a state co urt’s credi bilit y determination and, whe n guided by AEDPA, conclude the decision was unreasona

ble o r that the factual premise was inco rrect by clear and convincing evidence.” Id. at 340. Miller-El , therefore, did not alt er the standards fo r evaluating requests fo r a COA under AEDPA, nor did it articulate a new test for reviewing Batson claims; rather, it spoke only to “t he ty pe and quantum of record evidence” needed to establish eligibilit y fo r a COA. Murphy v. Dretke , 416 F. 3 d 427, 439 (5th Cir. 2005) (describing Miller-El v. Dretke , 125 S. Ct. 2317 (2005) (“

M iller-El II ”)), cert. denied, 126 S. Ct. 1028 (2006).
In Miller-El , the Court fo und a number of circumstances in the record that supported the Batson claim. To succeed on a B atson claim, however, a peti

tioner need not submi

t each ty pe of evidence addressed by Miller-El

. A peti tioner is also not limit ed to the ty pes of evidence considered by the C ourt i n M iller-El

. There, the Court fo und the follo wing factual circumstances persuasive in determ ining that a COA should issue: (1) the State used 10 of it s 14 peremptory stri kes against African-Americans, and only one ultimately served on the jury; (2) t he tri al court conducted a B atson hearing tw o years after voir dire, so the court had no occasion to judge the prosecutor’s credi bilit y; (3) the race-neutral reasons provided fo r stri king certai

n black jurors applied equally well to whit e jurors who went unc hallenged; (4) the State used disparate questioning fo r whit e and black jurors, prefacing it s questions to mo re than half th e prospecti ve black jurors wit h an explicit description of Texas’s execution procedures (com pared to 6% of whit es), and info rmed 94% of whit es of the statutory minimum sen tence (com

pared to 12.5% of blacks); (5) the State requested a jury shuffle when a predom inant number of African-Americans sat at the front of the panel; and (6) evidence sugg e sted that, hist orically, a culture of bias against African-Amer ican jurors suffused the District At torney ’s of

fice, inc luding the fo rmal trai ning of assistant district at t orneys on how to exclude mino ri ti es from juries.
Miller-El , 537 U.S. at 342-47.
To support his Batson claim, Jackson presents two ty

pes of evidence that are similar to the fir st and thir d ci

rcumstances examined in Miller-El

. First, he points out that 5 of the 11 (or 45%) of the peremptory stri kes were against black venire members. 5 Second, he

5 Although statistical evidence alone may raise some debate as to whether the prosecution acted with a race-based re ason for striking prospec t ive jurors, Miller-El , 537 U.S. at 342, Jackson fails to present this court with sufficient statisti cal informa tion to make that determination. He contends (continued...)6

asserts that some of the race-neutral reasons provided fo r stri

king certai

n black venire members applied equa l ly to whit e venire members who went unchallenged and were selected fo r the jury. He also contends t hat the prosecutor’s reasons for striking the five black venire members were pret extual because the proffered reasons did not accurately reflect the voir dire testimony of the members.
T he Court in Miller-El stated that, when the prosecution’s reasons fo r stri king black jurors could apply equally well to whit e jurors who were ult imat ely empaneled, “t he application of these rationa les to the veni re might have been selective and based on racial considerations.” I

d. at 343. In particular, the Court noted that similarly-situated whit e and black potential jurors expressed ambivalenc e about the death penalty. Id.A COA determination under § 2253(c) requires “an ov erview of claims in the habeas peti tion and a general a s sessment of the merit s.” M iller-El , 537 U.S. at 336. This threshold inquiry, however, “does not require full consideration of the factual or legal bases adduced in support of a claim.” Id.

. Aft er our th

reshold inquiry int o the merits of Jackson’s claim, we conclude that reasona ble jurists could debate whether the state’s use of peremptory stri

kes against black venire members was race-based and th us in vio lat io n of Batson

. We therefore grant a COA on this claim. Aft er reviewing the briefs and record in full, however, we deny Jackson’s claim fo r habeas relief, finding the state habeas court’s determ inat io ns to be consistent wit h fed e ral law as established by the Supreme Court.

2. Jackson objects to the strikes of five black jurors



### SSMaria Brooks, Lee Davis, Myrtle Gibson, Ingrid Poi

ndexter, and Laverne Reid. We consider each of these briefly in turn.

a. The state indicated it struck Brooks because she stated she would have difficult y deciding that the state had proved future dangerousness; 6 she expresse d opposi tion to the death penalty; she said her religion taught her not to sit in jud g ment of another person. Though Jackson cit es Terry Arnold as an example of a whit e juror who was empaneled despite expressing similar reservations about sitti ng in judgment of another, 7 Arnold’s res

5 (...continued) that 5 of the 11 peremptory strikes were used ag ainst black members of the venire, but without other information concerning the composition of the jury pool this statistic has little meaning. 6 When asked about predicting Jackson’s future dangerousness, Brooks stated, “I can’t predict the future for anything. We just don’t know the future.” When pressed further by the state, she responded that “no one can see into the future of an individual.”

7 Arnold’s questionnaire stated, “I do not particularly care to stand in judgment of someone else, but if necessary, will do so.” The following exchange occurred between the Court and Arnold on this subject: Q. Do you have a ny convictions that would prevent you from being able to stand in judgment?
A. Not from a religious standpoint or anything. It’s just a personal feeling I have as an individual. (continued...)7

ervations in this respect were less serious than were Brooks’s. Arno ld also did not express hesitancy about being able to find future dangerousness. b. The state’s reason fo r stri king Davis was his apparent opposi

tion to the death penalty and his indication that he would hold the prosecution to an elevated standard in capital cases. 8 Jackson does no t com pare Davis to an empaneled whit e juror, but rather argues that

Davis’s answers suggest he would be able to apply the corre c t burden of proof fairly in a capital case. Even though Davis softened his statement that he would require proof of guilt to a certai

nt y, the state was entitled to conclude that he might require it to prove guilt by an elevated standard even if t hat burden were something less than metaphysical certainty.

c. The state claims it struck Gibson because she stated she believed that black people were treated unfairly by the criminal justice syst em, bec ause she thought she m ight know the defe n dant personally, and because she was unsure about her feelings on the death penalty. 7 (...continued) Q. Well, and it doesn’t have a religious basis .

. . . I need for you to have looked inside yourself, whether it’s a re ligious basis or just personal convictions. Do you feel like you would be able to make the decision in a case if you were in that position? A. I can make a decision, yes, I could.

8 During voir dire the state asked Davis how he f elt about the possibility of serving on a jury in a case involving the death penalty. He replied, “I would have to re ally believe that a hundred percent, have no doubt that the actual crime was committed by a person for me to . . . render a decision of . .

. death in a situation like this. I’d have to be a hundred percent convinced.” Later the state again asked Davis about the burden of proof he would re quire the state to carry in a death penalty case: Q. Do you feel like if the State didn’t prove [the offense] to you a hundred percent or beyond all doubt, that you could find the defendant guilty if you didn’t know a hundred percent?
A. I’d have to be convinced

SS I’d have to be mor e convinced that the person did commit this. I have to be convinced enough to the point where I don’t feel like there is a possibility that the Sta te could have been mistaken or maybe (continued...) 8 (...continued)

there is a possibility that someone else could have done it or

SS Q. Is that beyond, I mean, in your mind, any doubt?
A. What’s reasonable? What’s reasonable to me? Q. Right. And I guess that’s what the question

SS I mean, what’s re asonable to you seems to be a hundred percent.
A. Okay. It may

SSmaybe

SSmaybe a hundred percent is being a little critical, but I have to be

SSthe balance

SS I have to be convinced in the balance and maybe

SSmaybe a hundred percent
SS I don’t know if you actually mean to give you a percentage, you know, I don’t know if that’s fair or not. But I have to be thoroughly convinced enough, and that’s not

S Smaybe saying a hundred percent is not the right way for me to say that, but I hav e to be

SSthe balance, I have to be more convinced that they did it than not and I can’t really give a percentage on that.8

Besides challenging these conte nt io ns on the merit s, Jackson argues that Gibson’s com ment about the unfair treatment of black people is substantially similar t o white empaneled juror Kevin Chapman’s comment that the justice syst em t reats marihuana users unfairly. 9

d. As fo r Poi ndexter, the state poi

nt s to strong language 10 in her questionnaire op p osi ng the death penalty and stati

ng that life imprisonment is a worse punishment than death. Jackson again p oint s to Chapman, who initially stated he would hold the state to a higher burden of proof in capital cases but lat er clarified that he understood that the applicable burden of proof was beyo nd a reasonable doubt in all cases. 11 e. Reid’s te sti

mo ny suggested that she thought t hat to prove f

uture dangerousness, the state would have to de mo nstrate that the defendant wou ld com

mit murder in the future. 12 She also expressed confusion over the special issues. Jackson argues that Reid equivocated in her testi

mo ny, that the state rushed Reid th rough her voir dire, and that empaneled juror Brian Summers indicate d similar confusio n on the special issues. 13

9 We disagree with Jackson’s contention that Chapman’s statement that marihuana users are treated unfairly in the criminal justice system is equivalent. Therefore, the fact that Chapman ultima tely served on th e jury despite making such a statement lends no support to Jackson’s Batson claim. As stated by the federal ha beas court, “[t]here is no evidence that the prosecution would not have struck a white juror expressing the same sentiment” as Gibson, and “the selection of Chapman and re

jection of Gibson as jurors does not demonstrate any racially motivated action by the State.”

10 In her questionnaire, Poindexter stated that she did not believe in the death penalty and thought it is “the most hideous practice of our time.” She also stated that “[w]e can’t call ourselves civilized as l ong as we have capital punishment.” These sta tements alone are justification for the state to want Poindexter excused from the jury, even though s he later said she would have no problem imposing the death penalty in certain cases.

11 The state pressed Chapman on r aising the (continued...) 11 (...continued)

burden of proof: “So

SS and you can correct if I’m wrong SS in a capital case you would want to raise the burden of proof, raise the threshold of what a re asonable doubt is?” Chapman responded, “I said something similar to that, but that’s not what I was saying. I can’t remember exactly my words. I op ened up before I said that, it’s a reasonable doubt no ma tter what kind of case you’re doing.” We agree with the district court that Chapman ma de it plain that he did not intend to say that he would hold the state to a higher burden of proof.

12 When asked whether she thought it was possible to predict whether someone will be dangerous in the future, Reid stated, “No, I don’t think that’s predictable.” She also said that “the State could prove it if that person actually did commit

SS did do it, did repeat it. But if the person didn’t re peat it, then I don’t see how the State could prove it.”

13 After being asked a lengthy question b y the state concerning Special Issue No. 2, S u mmer s asked, “Do I

SS could you take some of the words out in that and condense it?” Jackson contends that this statement indicates Summers’s confusion with Issue No. 2. But, after the state condensed its question and asked, “Do you think that the system that Texas has in place right now is an appropriate way, in your own mind, to determine who should g et the death penalty and who should get lif e in prison?”, Summers re sponded, “Yes, I do.” (continued...)9

Jackson also contends that the prosecutor’s reason for striking Reid based on the fact that she did not know that murder-for-hire was a capital of fense, was similar to statements made by empane led j uror Chapman. Given the strong statements made by Reid concerning her reluctance to find future dang erousness, the state certai

nly had a valid race-neutral reason to use a peremptory challenge fo r Reid.

3. AEDPA requires that the t r ial court’s decisio n be an “unreasonable application” of clearly established federal law or based on an “unreasonable determ

i nation” of the facts in light of the tri al record. 28 U.S.C. § 2254- (d)(1), (2). Jackson does not present substantial evidence of racial bias in jury selection beyo nd qu e stionable distinctions in juror testi

mo ny. The trial court’s decision to permit the state to exercise it s peremptory stri kes as it did falls well within the “the range of reasonable judgment” afforded by AEDPA. See Yarborough , 541 U.S. at 664. Therefore, Jackson’s request fo r habeas relief on this issue is denied.

D. Jackson contends that the tri al court should have inst ructed the jury that any unadjudicated extraneous of

fenses int roduced duri

ng the punishment phase needed to be proven beyo nd a reasonable doubt. Jackson relies on Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), which held that “[o]ther than the fact of prior conviction, any fact that increases the penalty fo r a cri me beyo nd the prescribed statutory maximum mus t b e submitted to a jury, and proved beyo nd a reasonable doubt,” and Ring v. Arizo na , 536 U.S. 548, 609 (2002), whi ch extended Apprendi to capital cases. Jackson’s claim is barred by the non-retroacti vit y principles of Teague v. Lane , 489 U.S. 288 (1989), and at any rate, the state court’s refusal to deny a special inst ruction is not contrary to clearly established federal law as articulated by the Supreme Court. S

ee 28 U.S.C. § 2254(d)(1). Therefore, we deny his request for a COA on that i ssue. Under Teague , the relevant inquiry is “whether a state court considering [the defendant’s] claim at the ti

me his conviction became final would have felt com pelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.” G oeke v. B ranch , 514 U.S. 115, 118 (1995) (i nt ernal quotations om

it ted). 14 A

pprendi and R ing create new rules of constitutional law that are not retroacti

vely applicable to cases under federal habeas review. 1 5 Therefore, the only question left to answer i s when Jackson’s conviction became final.
“A state conviction and sentence become fina l for purposes of retroacti vit y analysis when the availabilit y of direct appe al t o th e state courts has been exhausted and the ti me fo r filing a peti

tion fo r a writ of certiorari has elapsed or a timely filed pet it io n has been fi nally denied.” C

aspari v. Bohlen , 510 U.S.

13 (...continued) Contrary to what Jackson contends, Summers’s statement does not show confusion on Issue No. 2. 14 The Teague rule is subject to limited exceptions not applicable here. See Gilmore v. Taylor , 508 U.S. 333, 345 (1993).

15 See United States v. Brow n , 305 F.3d 304, 310 (5th Cir. 2002) (“

Apprendi creates a new rule of criminal procedure w

hich is not retroactively applicable to initial petitions under § 2255.”); Schriro v. Summerlin , 542 U .S. 348, 358 (2004) (“Ring announced a new procedural rule that does not apply retr oactive ly to cases already final on direct review.”).10

383, 390 (1994). Jackson’s motion for rehearing was d enied on June 9, 1999, so he had ninet y days f

rom that date to f

ile a certiorari peti tion. S ee S UP
. C T
. R. 13. On Septem

ber 7, 1999, therefore, Jackson’s conviction became final, the year before A pprendi was decided. Therefore, T

eague bars Ja ckson ’s claim. 16
We note that even if Teague did not appl y here, A pprendi and Ring would not provide Jackson wit h a legal basis fo r a COA. R ing states only that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding o f a fact, that fact



### S S no mat ter how the State labels it



### SS must be fo und by a jury beyo nd a reasonable doubt.” R ing , 536 U.S. at 602 (em

phasis added). The only fact capable of elevating Jackson’s charge to capital mur der was proof of remuneration. 17 The state int roduced evide nce of unadjudicated of

fenses only to prove future dangerousness in the sentencing phase, where the jury must exercise it s discretion to decide whether to impo se a death sentence or life impri sonment without parole. 18 Therefore, Jackson invit es us to answer the unresolved question whether Ring and Apprendi a pply to any fact fo und by a jury tha t bears on it s ult imat e decision to impo se death, or merely those facts that increase the authorized punishment to death. Because the t ri al court’s decision not to require such an inst ruction is not contrary t o clearly established Supreme Court precedent, we would in any event deny a COA.
E. Si milarly, Jackson asserts that the mere admissio n of evidence of unadjudicated, extraneous of fenses vio lat es his rights unde r th e Eighth and Fourteenth Amendment s and j usti fies a COA. Because Jackson cites no authori ty specifically fo r this proposi tion, the argument is waived for inadequate briefing. 19
Even i f t he argument were not waived, Jackson would not be entitled to a COA. If he canno t prov e that a COA should issue as to whether unadjud icated extraneous offenses need to be proven beyo nd a reasonable doubt, then a fortiori he cannot prove that a COA should issue as to whether such offenses are per se inadmissible. Because he does not point to any Supreme Court pr ecedent f oreclosi ng the tri al court’s decision to permit evidence of unadjudicated extraneous of fenses, he cannot make a substantial showing of a deni al o f a 16 Jackson appears to concede that Teague bars his claim. His brief states that “[p]etitioner’s issue re sts no t on A

pprendi alone, but on Eighth and Fourteenth Amendment protections which are not barred by Teague .” Because Jackson nowhere describes what these protections might be, we assume this issue presents only a claim under Apprendi and Ring , which is procedurally barred.

17 See T EX

. P ENA

L C ODE § 19.03(a)(3) (“A person commits [capital murder] if the person commits murder as defined under [the relevant statute] and

. . . the person commits the murder for re

muneration.”). 18 S ee T EX

. C ODE C RIM

. P ROC

. art. 37.071 § 2(b)(1).

19 See L & A Contracting Co. v. S. Conc rete Servs. , 17 F.3 d 106, 113 (5th Cir. 1994) (stating that failure to cite authority constitutes waiver).11

constitutional right. 20
F. Jackson claims that he deserves a COA because the tri al court refused, in vio lat io n of his Eighth and Fourtee nt h Amendment rights, to inst ruct the jury that failure to reach a verdict on eit her of two special issues would automatically result in a life sentence. The Texas Code of Criminal Procedure provides that if the jury is unable to answer a special issue unanimously in t he affirmat ive o r negative, “the court shall sentence the defendant to confineme nt in t he inst itutional divisio n of the Texas Department of Criminal Justice fo r life imprisonment wit hout parole.” T EX
. C ODE C RIM
. P ROC

. art. 37.071 § 2(g). The Code also provides, however, that “[t]he court, the attorney representing the state, the defendant, or the defendant’s counsel may not inform a juror or a prospecti ve juror of the effect of a failure of a jury to agree on [special] issues[.]” Id. at § 2(a). Jackson maint ains that this provision violates the Eighth and Fourteenth Amendments by failing to info rm a capital sentencing jury of relevant state sentencing law. This claim is wit hout merit

. In J ones v. United States , 527 U.S. 373, 381-82 (1999), th e Court held that the Eighth Amendment does not require a court to instruct a capi tal jury about the consequences of deadlock. The

Court noted that the Eighth Amendment requires that a death sentence not b e arbitrarily impo sed, id. at 381, but rejected the argument that “a death sentence is arbitrary wit hin the meaning of th e Eighth Amendment if the jury is not given any bit of inf

orm ation that m

ight possibly influence an individual juror’s voting behavior,” i d. at 382. Because J ones control s, reasonable jurists wo u ld not disagree wit h the district court’s resol ution of this issue. We deny a COA on this question.

G. Jackson alleges th e tri al court violated his Eighth Amendment rights by failing to inst ruct the jury th at i

t could consider mitigating evidence even if it did not relate to moral blameworthi ness. Specifically, Jackso n argued at the punishment phase that the jury should receive the following instruction: The term “mit igating” evidence or “mit igating” factor as used herein means any type of evidence re l ati

ng to the defendant’s background, character or the circumstanc e s of th e crime that would milit ate in favor of a life sentence rather than a death sentence. Evidence may be mit igating even if it does not relate in any way to the defendant’s mo ral culpabilit y or mo ral blameworthiness fo r the capital murder list ed in the indict

ment

. Instead, the court gave the follo wing instruction (i

n relevant part):
A mit igating circumstance may include, but is no t limit ed to, any aspect of the defendant’s character, backgro u nd, record, emo tional inst abilit y, int ellig ence or circumstance of the crime which yo u believe could make a death sentence inappropriate in this 20 See Brown v. Dretke , 419 F.3d 365, 376 (5th Cir. 2005) (denying a COA on this issue because “there is no constitutional prohibition on the introduction at a trial’s punishment phase of evidence showing that the defendant has engaged in extraneous, unadjudicated, criminal conduct”), c ert. denied, 126 S. Ct. 1434 (2006); see also Williams v. Lynaugh , 814 F.2d 205, 2 08 (5th Cir. 1987) (hol ding that “the admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate the [E]ighth and [F]ourteenth amendments”).12

cas e . . . . In answering Special Issue No. 2 yo u shall consider mit igating evidence to be evidence that a juror might regard as reducing the defendant’s moral blamewort hiness, including evidence of the defendan t ’s background, character, record, emo tional inst abilit y, int elligence, or the circumstance of the of

fense that m

it igates against the impo sit io n of the death penalty. Jackson apparently reasons that, by merelyincluding background, character, and circumstances of the of

fense as mo difiers of the general category of mo ral blameworthiness , ins t ead of expressing these criteria in the conjunctive, the state unconsti tutionally limit ed th e scope of the mit igating instruction for Special Issue 2. The Texas Code of Criminal Procedure provides that the court shall inst ruct the jury (should the jury make certai n preliminary findings) that it shall consider “all of the evidence, including the circumstances of the of fense, the defendant’s character and background, and the personal mo ral culpabilit y of the defendant,” in determ ining whether a defendant should receiv e life without parole instead of death. T EX
. C ODE C RIM
. P ROC

. art. 37.071 § 2(e)(1). Later, however, the Code defines “mit igating evidence” for purposes of this section as “evidence that a juror might regard as reducing the defendant’s mo ral blameworthiness.” I d. § 2(f)(4). Relevant mit igating evidence must be wit hin the “effective reach” of the jury duri ng punishment

. J

ohnson v. Texas , 509 U.S. 350, 368 (1993) (i nt ernal quotation omitted). “[I]n a capital case, the sentencer must

. . . be able to consider and give effect to [m it igati ng] evi

dence in impo s ing [a] sentence, so that the sentence impo sed

. . . reflects a reasoned mo ral response to the def endant’s background, character, and crime.” Penry v. Johnson , 532 U.S. 782, 7 88 (2001) (i nt ernal quotations om it ted). The sentencing instructions must provide the jury wit h an adequate vehicle to consider Jackson’s evide n ce and come to a reasoned moral conclusion. See id. at 800. The tri al court’s determination that the instructions were cons ti

tutionally adequate is not “contrary to” clearly established federal law as articulated by the Supreme Court. In fact, in Johnson the Court approved of a mit igating inst ruction under the predecessor statute to the current provisions of the Texas Code that was less specific in it s articulation of the relevant mit igating factors:
In determ ining each of these [Speci al] Issues, yo u may take into consideration all the evidence submit ted to yo u in the tri al of this case, whether aggravating or mit igating in nature, that is, all the evidence in the fir st part of the tri al when yo u were called upon to determ ine the guilt or innocence of the Defendant and all the evidence, if any, in the second part of the tri al wherein yo u are called upon to determ

ine the answers to the Special Issues. Johnson , 509 U.S. at 355. Neither was the inst ruction an “unreasonable application” of clearly established federal law. In B eazley v. Johnson , 242 F.3d 248, 260 (5th Cir. 2001), we held that the current statute “does not unconsti tutionally ‘preclude[] [the jury] from considering, as a mit igati ng factor, any aspect of a de fendant’s characte r or record and any of th e circumstances of the of

fense that the defendant prof

fers as a basis fo r a sentence less than death’” (citing Lockett v . Ohio , 438 U.S. 586, 60413

(1978)). We noted that the definition of mit igating evidence in § 2(f)(4) does not put any relev a nt evidence beyo nd the effective reach of the jury, because “[v]irtually any mit igating evidence is capable of being viewed as having some bearing on the defendant’s ‘mo ral culpabilit y’ apart from its relevance to the particular concerns embo died in the Texas special issues.” I

d. (citing Graham v. Collins , 506 U.S. 461, 476 (1993)). This circuit has declined to articulate a precise test fo r what qualifies as “objectively unreasonable” under AEDPA. 21 Where, however, a state court reaches a conclusion consistent wit h this c ir cuit’s precedent, it presumpti vely falls wit hin the broad discretion affo rded the state court under § 2254(d)(1), because we presumably would consider our own case law as wit hin “t he range of reasonable ju dgment” affo r ded by Supreme Court decisions. S ee Yarborough , 541 U.S. at 664. Furthermore, th e tri al court could reasonably have concluded that th e m it igating evidence of fered by Jackson



### SS that he was lo ved and admired by his family, assisted his grandmo ther, and provided help at his church and Sunday school



### SS all sufficient ly related to hi s “mo ral blameworthiness” as to come wit hin the effective reach of the jury. Therefore, reasonable jurists could not disagree wit h the district court’s application of AEDPA’s deferent ial “unreasonable application” standard to Jackson’s claim. We deny a COA on this issue.
H. Jackson avers that he is entitled to a COA because the district court denied his mo tion fo r appoi nt ment of an expert in false confessions to support his claim that his confession was coerced and theref

ore i nadmissible. Where expert se rvices are “reasonably necessary” to mo unt a defense in a post-conviction proceeding, the district court may authorize th e defense attorneys to obtai

n such services and shall pay the relevant expenses. 21 U.S.C. § 848(q)(9). 22 Jackson argues that expert assistance was reasonably necessary because the circumstances surrounding the police int erviews of Jackson and Sm it h raised a question as to the existence of remuneration. Specifically, when the police fir st int erviewed Sm it h, he made no ment io n of paying Jackson fo r the murder. Only aft er Jackson confessed were police able to establish remuneration by further questioning Smith. The state responds by noti ng that ruling on a mo tion to provide expert assistance is wit hin the discret io n of the di strict court. H ill v. Johnson , 210 F.3d 481, 487 (5th Cir. 2000). Also , the state argues that any t esti mo ny rendered by the expert would be procedurally barred in a federal habeas proceeding because it was never presented in state court. Finally, because the j u ry ’s credibilit y determ inat io n is entitled to a presumption of correctness, Jack21 See Neal v. Puckett , 286 F.3d 230, 246 n.14 (2002) (en banc) (“To the extent that a nuanced, contextual interpretation of ‘objectively unreasonable’ emer ges from [the] process [of applying the standard in individual cas es] over time, this elaboration will be mor e useful and me aningful than any definition we might choose to impose ab initio.”). 22 An indigent defendant is entitled to the provision of all re as o nably necessary services under, inter alia , § 848(q)(9). 21 U.S.C. § 848(q)(4)(B); Fuller v. Jo hnson , 114 F.3d 491, 502 (5th Cir. 1997). Jackson does not claim indigence, but in any event he would still need to demonstrate, under this section, that provision of a confession expert is “re asonably necessary.”14

son has not presented evidence to rebut that presumption and make necessary the appoi nt

ment of an expert.
A COA is not required to appeal the denial of funds for expert assistance. Hill , 210 F.3d at 487 n.3. Therefore, we may review the claim on direct appeal fo r abuse of discretion. Id. at 487. We will uphold a denial of funding where the petitioner has “(a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a merit less claim, or (c) when the sought aft er assistance would only supplement prior evidence.” Smith v. Dretke , 422 F.3d 269, 288 (5th Cir. 2005) (i nt ernal cit ations om it ted). The dist ri ct court did not abuse its discretion. At tri al, Jackson testi fied that the police told him to confess that Sm it h paid him fo r murder in exchange for a lesser charge. The defense also presented two expert wit nesses who testi fied that Jackson had a learni ng di sabilit y and was below average in intelligence, and that Jackson was prone to self-deprecation and other antisocial behaviors. Therefore, the testi mo ny of a false confession expert would merely have supplemented other evide nce al

ready available to and considered by the jury. See id. at 288-89 (finding no abuse where expert testi mo ny would merely reinforce testimo ny already given by defendant).
Even if we were inclined to agree as an initial mat ter that a false confession expert’s testi mo ny was reasonably necessary fo r Jackson’s defense, the relevant statute vests d iscretion squarely in the district court. 23 Therefore, we affirm the denia l o f Jackson’s motion for expert assistance.
For the above reasons, Jackson’s r equest fo r a COA is GRANTED in part and DENIED in part. The judgment on the i ssue on which we grant a COA, and on the claim fo r which no COA is required, is AFFIRMED.

23 21 U.S.C. § 848(q)(9) (stating that “the court (continued...) 23 (...continued)

may authorize the def

endant’s attorneys to obtain such services on behalf of the defendant”) (empha sis added). S

ee also Smith , 422 F.3d at 289 (noting that change in AEDPA from the mandatory “shall” to discretionary “may” language in § 848(q)(9) “can only re asonably be construed as changing a mandatory granting of funds to a discretionary granting of funds even if the re asonable necessity language is complied with”).-15-

DENNIS, Circuit Judge, concurring:

I respectfully concur in the judgment only. I cannot subscribe fully for several

reasons. First, I respectfully disagree with the majority’s broad, not clearly or immediately qualified, suggestions that AEDPA requires
that federal courts a pply a "deferential standard of review," "defer to the state court's adjudication of a defendant's claims," and
presume that a state court's conclusion "consistent with this circuit's precedent...falls within the
broad discretion afforded the state court under § 2254(d)(1)[.]" The statute cited simply provides that (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judg ment of a State court shall n ot be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]

The statute says nothing about deference, a deferential standard, circuit court precedent, presumptions of correctness, or broad discretion. Although Justice Stevens has spoken of AEDPA as having "plainly sought to

ensure a level of 'deference to-16-

the determinations of state courts,' provided those determinations did not conflict with fe deral law or apply federal law in an unreasonable way[,]," Williams v. Taylor , 529 US 362, 386 (2000)(Stevens, J.), he makes clear that AEDPA
does not intend for us to accord deference in the ordinary and commonly
understood sense. [I]t is significant that the word “deference” does not appear in the text of the statute itself. Neither the legislative history nor the statutory text suggests any difference in the so-called “deference” depending on which o f the two phrases is implicated. Whatever “deference” Cong ress had in mind with respect to both phrases, it surely is not a requirement that federal courts actually defer to a state-court application of the federal law that is, in the independent judgment of the federal court, in error. As Judge Easterbrook no ted with respect to the phrase “contrary to”: “Section 2254(d) requires us to give state courts' opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a lega l question, it is the law ‘as determined by the Supreme Court of the United States' that prevails." Lindh , 96 F.3d, at 869. Williams , 529 US at 386-7. Justice Stevens further states

As Judge Easterbrook has noted, the statute surely does not require the kind of “deference” appropriate in other contexts: “It does not tell us to ‘defer’ to state decisions, as if the Constitution means one thing in Wisconsin and another in Indiana. Nor does it tell us to treat st ate courts the way we treat federal administrative agencies. Deference after the fashion of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), depends on delegation. See Adams Fru it Co. v. Barrett , 494-17-

U .S. 638, 110 S.Ct. 1384 , 108 L.Ed.2d 585 (1990). Congress did not delegate either interpretive or executive power to the state courts. They exercise powers under their domestic law, constrained by the Constitution of the United States. ‘Deference’ to the jurisdictions bound by those constraints is not sensible.” Lindh v. Murphy , 96 F.3d 856, 868 (C.A.7 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Id. at n.13. Although these observations
appear in part II of Justice
Stevens' opinion in Williams v. Taylor , which did not carry a majority, Justice O'Connor, who
wrote part II for the majority,
and Chief Justice Rehnquist,
the only other Justice to write separately, did not disagree with Justice Stevens’ statement that AEDPA "surely does not require the kind of 'deference' appropriate in other contexts" ) Lindh v. Murphy , 96 F.3d 856, 868 (7th Cir. 19 96)); rather, they dispute his interpretation of the phrase “contrary to, or an
unreasonable application of.” I believe that the majority's
treatment of deference in connection with AEDPA, without needed explanation and qualification, is unnecessary and tends to be misleading and confusing. Second, § 2254(e)(1) of AEDPA provides: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness-18-

by clear and convincing evidence. This provision has nothing to
do with fact- finding by the jury at the guilt or penalty phases of a capital murder trial. This section relates only to fact-finding by a state
court in a state habeas proceeding. The applicant here simply did not carry his burden; he failed to present any new evidence in his habeas petition on this point. If he
had done so, I do not believe
that AEDPA authorizes the
federal courts to erect a presumption against the petitioner in habeas proceedings based solely on the jury verdict at trial. Rather, this court would still be bound to determine whether the state court’s determination was reasonable in light of all the evidence presented at the state
court habeas proceeding. The

case the majority cites for the proposition, United States v. Cathey , 259 F.3d 365, 368 (5th Cir. 2001), discusses the issue
in a case heard on direct appeal and, I beli eve, is inapposite here. Third, the jury instruction given by the Texas trial court
at the capital sentencing proceeding required the jury to consider essentially any factor
"that mitigates against the imposition of the death penalty." Under the circumstances and in the
context of this case, the Texas courts' denial of habeas relief-19-

because of the arguable lack of complete perfection in this instruction was not contrary to or an unreasonable application
of federal la w as clearly established by the Supreme Court's decisions. The discussion of Johnson v. Texas , 509 U.S. 350,(1993), which presented a different issue and

was decided with respect to a superseded sentencing regime, is unnecessary and may lead to confusion.
For the reasons given, I respectfully concur in the judgment only.