In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-70014

______________

DONELL O’KEITH JACKSON,

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 Southern District of Texas

m H-02-CV-2601

_________________________

Before DAVIS, SMITH, and DENNIS, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

DonellJackson requests a certificate of appealability (“COA”) from the denial of his

claim for federal habeas corpusrelief 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 5TH CIR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited

(continued...)

*

(...continued)

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

F I L E D

May 11, 2006

Charles R. Fulbruge III

Clerk
2

find the rejection of them debatable. As for

the claim on which we grant a COA, and the

claim for which no COA isrequired, we affirm

on the merits.

I.

Jackson was charged with killing his victim

for remuneration. The victim had previously

testified before a grand jury in itsinvestigation

of Jackson’s friend, David Smith. Smith indicated in a taped statement that he did not

know Jackson was going to shoot the victim.

When the police played Smith’s statement for

Jackson during interrogation, Jackson allegedly replied that Smith had paid himto commit

the murder. Jackson then made a taped confession. To shift the blame, Jackson at trial

claimed the police had told him to say that

Smith had paid him.

Jackson was convicted by a jury of capital

murder. At sentencing, the state introduced

evidence of prior offenses, and Jackson presented evidence of a favorable home life and a

learning disability. The jury sentenced him to

death, finding that he posed a threat of future

dangerousness and that the mitigating evidence

was inadequate to warrant a life sentence.

The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct

appeal. Jackson filed a concurrent petition for

writ 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.

Jacksonfiled a federalhabeas petitionunder

§ 2254, alleging twenty-two points 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 Effective Death Penalty Act of 1996

(“AEDPA”), whichrequires, as a jurisdictional

prerequisite to appeal, that Jackson obtain a

COA. Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). A COA will issue 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, for that matter,

agree that) the petition should have been resolved [by the district court] in a different

manner or that the issues presented were ‘adequate to deserve encouragement to proceed

further.’” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983)).

Although the COA determination requires

a threshold inquiry into the merits of a petitioner’s claim, it does not involve a full canvassing of the factual or legal bases for relief.

See Miller-El, 537 U.S. at 336-37. We do not

inquire whether Jackson will succeed on appeal, or even whether any reasonable jurist

would ultimately grant Jackson’s petition.

Rather, we ask only whether the federal district court’s resolution of Jackson’s claims is

debatable among jurists of reason.1

When assessing whether jurists of reason

could debate the denial of Jackson’s habeas

petition, we are mindful ofthe deferentialstandard of review the district court must apply

under AEDPA. See Miniel v. Cockrell,

1 Miller-El, 537 U.S. at 338 (stating that “a

claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case hasreceived full consideration, that

petitioner will not prevail”).
3

339 F.3d 331, 336 (5th Cir. 2003). The district court must defer to the state court’s adjudication of a defendant’s claims on the merits

unlessthe state court’s decision was “contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States, or

. . .was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1), (2).

A state court’s decision is “contrary to”

clearly established federal law if it reaches a

result in direct conflict with Supreme Court

precedent, either by drawing a contrary legal

conclusion or basing a contrary judgment on

materially indistinguishable facts. Miniel,

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 established federal law if it is

“objectively unreasonable.” Id. Therefore, it

is not enough for the reviewing court to believe that the state court applied Supreme

Court precedent incorrectly;2rather, the application must be outside the range of reasonable

judgment permitted by the particular rule.3

It is the ultimate legal conclusion reached

by the state court, not every step of itsreasoning process, that should be tested for unreasonableness. See Santellan v. Cockrell, 271

F.3d 190, 193 (5th Cir. 2001). Finally,

AEDPApresumesthat the state court’sfactual

findings are correct; the defendant hasthe burden of proving otherwise by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III.

Jacksonmakes eightseparate 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 misconduct. Specifically, he maintains that, to shift

blame to Smith, police told him to say that he

received money for the victim’s murder; Jackson alleges that discrepancies between the details of his confession and statements made by

Smith compel the conclusion that police coerced a confession. 

The Fifth Amendment provides that no

person “shallbe compelled in any criminal case

to be a witness against himself.” U.S. CONST.

amend. V. “[A] confession, in order to be

admissible, must be free and voluntary: that is,

must not be extracted by any sort of threats or

violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion

of any improper influence.” Bram v. United

States, 168 U.S. 532, 542-43 (1897) (quoting

3 RUSSELL ON CRIMES 478 (6th ed.)).

Asthe district court noted, the admissibility

of Jackson’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 promises were made to Jackson in

exchange for his confession. This credibility

determination is squarely within 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 of reasonable

judgment can depend in part on the nature of the

relevant rule . . . . The more general the rule, the

more leeway courts have in reaching outcomes in

case by case determinations.”).
4

of the jury,

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 petition

that would satisfy this rigorous standard,

reasonable jurists could not disagree with the

denial of a COA on this issue. 

B.

Jackson contends that the alleged discrepancies between his confession 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 maintains that he is actually

innocent of capital murder.

A claimof actual innocence based on newly

discovered evidence is not cognizable for

purposes of federal habeas corpus absent an

independent constitutional violation. Herrera

v. Collins, 954 F.2d 1029, 1034 (5th Cir.

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 violation of the ConstitutionSSnot to correct errors of fact.” Herrera,

506 U.S. at 399. A petitioner may prove actualinnocence to overcome a proceduraldefault,

allowing a federal habeas court to reach the

merits of an otherwise barred constitutional

claim. Schlup v. Delo, 513 U.S. 298, 316

(1995).

Jackson does not allege actual innocence

to remove a procedural bar to a separate constitutional claim. Rather, he submits evidence,

consisting of testimonial discrepancies and

expert opinion that he may suffer from a learning disability and other psychological problems, to diminish the probative value of his

confession. He seeks only to remove the

evidentiary basis of the jury’s conclusion that

he committed 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 substantial 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 its

peremptory challengesin a racially discriminatory manner, in violation of his Fourteenth

Amendment rights under Batson v. Kentucky,

476 U.S. 79 (1986). The Batson Court held

that a defendant must first make a prima facie

showing that the prosecutor is exercising his

strikes based on the prospective juror’s race.

See id. at 96-97. 

“Once the defendant makes a prima facie

showing, the burden shifts to the State to

come forward with a neutral explanation for

challenging [minority] jurors.” Id. at 97. If

the state is unable to offer a race-neutral explanation, the defendant’s sentence should be

reversed. See id. at 100. If the state advances

putatively neutralreasons, the defendant bears

the ultimate burden of proving that those reasons are pretextual. See id. at 94 n.18.

InMiller-El, theCourtreversed this court’s

denial of a COA on a Batson claim, finding

that it was debatable among jurists of reason

whether Miller-Elwould succeed in hisfederal

habeas case. Miller-El, 537 U.S. at 348. The

Court noted that deference to the state court is

often appropriate for Batson claims, because

whether the defendant has carried his burden 4

See United States v. Cathey, 259 F.3d 365,

368 (5th Cir. 2001).
5

of proof will often turn on the credibility ofthe

prosecutor exercising the strikes, and “a reviewing court, which analyzes only the transcriptsfrom voir dire, is not as well positioned

asthe trial court isto make credibility determinations.” Id. at 339. Such deference, however, does not mean that a COA shall never

issue; rather, “[a] federal court can disagree

with a state court’s credibility determination

and, when guided by AEDPA, conclude the

decision was unreasonable or that the factual

premise wasincorrect by clear and convincing

evidence.” Id. at 340.

Miller-El, therefore, did not alter the standardsfor evaluating requestsfor a COA under

AEDPA, nor did it articulate a new test for

reviewing Batson claims; rather, it spoke only

to “the type and quantum of record evidence”

needed to establish eligibility for a COA. Murphy v. Dretke, 416 F.3d 427, 439 (5th Cir.

2005) (describing Miller-El v. Dretke, 125 S.

Ct. 2317 (2005) (“Miller-El II”)), cert. denied, 126 S. Ct. 1028 (2006). 

In Miller-El, the Court found a number of

circumstancesin the record that supported the

Batson claim. To succeed on a Batson claim,

however, a petitioner need not submit each

type of evidence addressed by Miller-El. Apetitioner is also not limited to the types of evidence considered by the Court in Miller-El.

There, the Court found the following factual

circumstances persuasive in determining that a

COA should issue:

(1) the State used 10 of its 14 peremptory

strikes against African-Americans, and only

one ultimately served on the jury;

(2) the trial court conducted a Batson

hearing two years after voir dire, so the

court had no occasion to judge the prosecutor’s credibility;

(3) the race-neutral reasons provided for

striking certain black jurors applied equally

well to white jurors who went unchallenged; 

(4) the State used disparate questioning for

white and black jurors, prefacing its questions to more than half the prospective

black jurors with an explicit description of

Texas’s executionprocedures(compared to

6% of whites), and informed 94% of whites

of the statutory minimum sentence (compared to 12.5% of blacks); 

(5) the State requested a jury shuffle when

a predominant number of African-Americans sat at the front of the panel; and 

(6) evidence suggested that, historically, a

culture of bias against African-American

jurors suffused the District Attorney’s office, including the formal training of assistant district attorneys on how to exclude

minorities from juries.

Miller-El, 537 U.S. at 342-47. 

To support his Batson claim, Jackson presents two types of evidence that are similar to

the first and third circumstances examined in

Miller-El. First, he points out that 5 of the 11

(or 45%) of the peremptory strikes 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 reason for striking prospective

jurors, Miller-El, 537 U.S. at 342, Jackson fails to

present this court with sufficient statistical information to make that determination. He contends

(continued...)
6

asserts that some of the race-neutral reasons

provided forstriking certain black veniremembers applied equally to white venire members

who went unchallenged and were selected for

the jury. He also contends that the prosecutor’s reasons for striking the five black venire

members were pretextual because the proffered reasons did not accuratelyreflect the voir

dire testimony of the members.

The Court in Miller-El stated that, when

the prosecution’s reasons for striking black

jurors could apply equally well to white jurors

who were ultimately empaneled, “the application of these rationales to the venire might

have been selective and based on racial considerations.” Id. at 343. In particular, the Court

noted that similarly-situated white and black

potential jurors expressed ambivalence about

the death penalty. Id.

A COA determination under § 2253(c) requires “an overview of claims in the habeas

petition and a general assessment of the merits.” Miller-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.. 

After our threshold inquiry into the merits

of Jackson’s claim, we conclude that reasonable jurists could debate whether the state’s

use of peremptory strikes against black venire

members was race-based and thus in violation

of Batson. We therefore grant a COA on this

claim. After reviewing the briefs and record in

full, however, we deny Jackson’s claim for

habeas relief, finding the state habeas court’s

determinations to be consistent with federal

law as established by the Supreme Court.

2.

Jackson objects to the strikes of five black

jurorsSSMariaBrooks,LeeDavis, MyrtleGibson, Ingrid Poindexter, and Laverne Reid. We

consider each of these briefly in turn.

a.

The state indicated it struck Brooks because she stated she would have difficulty deciding that the state had proved future dangerousness;6

she expressed opposition to the

death penalty; she said her religion taught her

not to sit in judgment of another person.

Though Jackson cites Terry Arnold as an example of a white juror who was empaneled despite expressing similar reservations about

sitting in judgment of another,7 Arnold’s res

5

(...continued)

that 5 of the 11 peremptory strikes were used

against black members of the venire, but without

other information concerning the composition of

the jury pool this statistic has little meaning.

6When 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 ofsomeone else,

but if necessary, will do so.” The following exchange occurred between the Court and Arnold on

this subject:

Q. Do you have any 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. Arnold also did not express

hesitancy about being able to find future dangerousness.

b.

The state’s reason for striking Davis was

his apparent opposition to the death penalty

and his indication that he would hold the prosecution to an elevated standard in capital cases.8

Jackson does not compare Davis to an

empaneled white juror, but rather argues that

Davis’s answers suggest he would be able to

apply the correct burden of proof fairly in a

capital case. Even though Davis softened his

statement that he would require proof of guilt

to a certainty, the state was entitled to conclude that he might require it to prove guilt by

an elevated standard even if that 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 system,

because she thought she might know the defendant 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 religious 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

felt about the possibility of serving on a jury in a

case involving the death penalty. He replied, “I

would have to really 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

require 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 convincedSSI’d have to be

more 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 State could have been mistaken or maybe

(continued...)

8

(...continued)

there is a possibility that someone else could

have done it orSS

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 questionSSI mean, what’s reasonable to you seems

to be a hundred percent.

A. Okay. It maySSmaybeSSmaybe a hundred

percent is being a little critical, but I have to

beSSthe balanceSSI have to be convinced in the

balance and maybeSSmaybe a hundred

percentSSI 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 notSSmaybe

saying a hundred percent is not the right way

for me to say that, but I have to beSSthe

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 contentions on the

merits,Jackson arguesthat Gibson’s comment

about the unfair treatment of black people is

substantially similar to white empaneled juror

Kevin Chapman’s comment that the justice

system treats marihuana users unfairly.9

d.

Asfor Poindexter, the state pointsto strong

language10 in her questionnaire opposing the

death penalty and stating that life imprisonment is a worse punishment than death. Jackson again points to Chapman, who initially

stated he would hold the state to a higher burden of proof in capital cases but later clarified

that he understood that the applicable burden

of proof was beyond a reasonable doubt in all

cases.11

e.

Reid’s testimony suggested that she

thought that to prove future dangerousness,

the state would have to demonstrate that the

defendant would commit murder in the future.12 She also expressed confusion over the

specialissues. Jackson argues that Reid equivocated in her testimony, that the state rushed

Reid through her voir dire, and that empaneled

juror Brian Summers indicated similar confusion 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 ultimately served on the jury despite making such a

statement lends no support to Jackson’s Batson

claim. As stated by the federal habeas 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 rejection 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 long as we have capital punishment.” These

statements alone are justification for the state to

want Poindexter excused from the jury, even

though she later said she would have no problem

imposing the death penalty in certain cases.

11 The state pressed Chapman on raising the

(continued...)

11(...continued)

burden of proof: “SoSSand you can correct if I’m

wrongSSin a capital case you would want to raise

the burden of proof, raise the threshold of what a

reasonable 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

opened up before I said that, it’s a reasonable

doubt no matter what kind of case you’re doing.”

We agree with the district court that Chapman

made 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 commitSSdid do

it, did repeat it. But if the person didn’t repeat it,

then I don’t see how the State could prove it.”

13 After being asked a lengthy question by the

state concerning Special Issue No. 2, Summers

asked, “Do ISScould 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

get the death penalty and who should get life in

prison?”, Summers responded, “Yes, I do.”

(continued...)
9

Jackson also contendsthat the prosecutor’s

reason for striking Reid based on the fact that

she did not know that murder-for-hire was a

capitaloffense, wassimilarto statementsmade

by empaneled juror Chapman. Given the

strong statements made by Reid concerning

her reluctance to find future dangerousness,

the state certainly had a valid race-neutral

reason to use a peremptory challenge for Reid.

3.

AEDPA requires that the trial court’s decision be an “unreasonable application” of

clearly established federal law or based on an

“unreasonable determination” of the facts in

light of the trial record. 28 U.S.C. § 2254-

(d)(1), (2). Jackson does not present substantial evidence of racial bias in jury selection beyond questionable distinctions in juror testimony. The trial court’s decision to permit the

state to exercise its peremptory strikes asit did

falls well within the “the range of reasonable

judgment” afforded by AEDPA. See Yarborough, 541 U.S. at 664. Therefore, Jackson’s

request for habeasrelief on thisissue is denied.

D.

Jackson contendsthat the trial court should

have instructed the jury that any unadjudicated

extraneous offenses introduced during the

punishment phase needed to be proven beyond

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

for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and

proved beyond a reasonable doubt,” and Ring

v. Arizona, 536 U.S. 548, 609 (2002), which

extended Apprendi to capital cases. Jackson’s

claim is barred by the non-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989),

and at any rate, the state court’s refusal to deny a special instruction is not contrary to clearly established federal law as articulated by the

Supreme Court. See 28 U.S.C. § 2254(d)(1).

Therefore, we deny his request for a COA on

that issue.

Under Teague, the relevant inquiry is

“whether a state court considering [the defendant’s] claimat the time his conviction became

final would have felt compelled by existing

precedent to conclude that the rule [he] seeks

was required by the Constitution.” Goeke v.

Branch, 514 U.S. 115, 118 (1995) (internal

quotations omitted).14 Apprendi and Ring

create new rules of constitutional law that are

not retroactively applicable to cases under

federal habeas review.15 Therefore, the only

question left to answer is when Jackson’s

conviction became final.

“A state conviction and sentence become

final for purposes of retroactivity analysis

when the availability of direct appeal to the

state courts has been exhausted and the time

for filing a petition for a writ of certiorari has

elapsed or a timely filed petition has been

finally denied.” Caspari 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. Brown, 305 F.3d 304,

310 (5th Cir. 2002) (“Apprendi creates a new rule

of criminal procedure which 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 retroactively to cases already final on

direct review.”).
10

383, 390 (1994). Jackson’s motion for rehearing was denied on June 9, 1999, so he had

ninety days from that date to file a certiorari

petition. See SUP. CT. R. 13. On September 7, 1999, therefore, Jackson’s conviction

became final, the year before Apprendi was

decided. Therefore, Teague bars Jackson’s

claim.16

We note that even if Teague did not apply

here, Apprendi and Ring would not provide

Jackson with a legal basis for a COA. Ring

states only that “[i]f a State makes an increase

ina defendant’s authorized punishment contingent on the finding of a fact, that factSSno

matter how the State labels itSSmust be found

by a jury beyond a reasonable doubt.” Ring,

536 U.S. at 602 (emphasis added). 

The onlyfact capable ofelevating Jackson’s

charge to capital murder was proof of remuneration.17 The state introduced evidence of

unadjudicated offenses only to prove future

dangerousness in the sentencing phase, where

the jury must exercise its discretion to decide

whether to impose a death sentence or life imprisonment without parole.18

Therefore, Jackson invites usto answer the

unresolved question whether Ring and Apprendi apply to any fact found by a jury that

bears on its ultimate decision to impose death,

or merely those facts that increase the authorized punishment to death. Because the trial

court’s decision not to require such an instruction is not contrary to clearly established SupremeCourt precedent, we would in anyevent

deny a COA. 

E.

Similarly, Jackson asserts that the mere admission of evidence of unadjudicated, extraneous offenses violates his rights under the

Eighth and Fourteenth Amendments and justifies a COA. Because Jackson cites no authority specifically for this proposition, the argument is waived for inadequate briefing.19

Even if the argument were not waived,

Jackson would not be entitled to a COA. If he

cannot prove that a COA should issue as to

whether unadjudicated extraneous offenses

need to be proven beyond a reasonable doubt,

then a fortiori he cannot prove that a COA

should issue as to whether such offenses are

perse inadmissible. Because he does not point

to any Supreme Court precedent foreclosing

the trial court’s decision to permit evidence of

unadjudicated extraneous offenses, he cannot

make a substantial showing of a denial of a

16 Jackson appears to concede that Teague bars

his claim. His brief states that “[p]etitioner’s issue

rests not on Apprendi 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

thisissue presents only a claimunder Apprendi and

Ring, which is procedurally barred.

17 See TEX.PENALCODE§ 19.03(a)(3) (“A person commits[capitalmurder]iftheperson commits

murder as defined under [the relevant statute] and

. . . the person commits the murder for remuneration.”).

18 See TEX. CODE CRIM. PROC. art. 37.071

§ 2(b)(1).

19 See L & A Contracting Co. v. S. Concrete

Servs., 17 F.3d 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 trial court refused, in violation of his

Eighth and Fourteenth Amendment rights, to

instruct the jury that failure to reach a verdict

on either of two special issues would automatically result in a life sentence. The Texas Code

of Criminal Procedure providesthat if the jury

is unable to answer a specialissue unanimously

in the affirmative or negative, “the court shall

sentence the defendant to confinement in the

institutional division of the Texas Department

of CriminalJustice for life imprisonment without parole.” TEX. CODE CRIM. PROC. 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 prospective juror of the effect of a failure of a jury to

agree on [special] issues[.]” Id. at § 2(a).

Jackson maintains that this provision violates

the Eighth and Fourteenth Amendments by

failing to inform a capital sentencing jury of

relevant state sentencing law.

This claim is without merit. In Jones v.

United States, 527 U.S. 373, 381-82 (1999),

the Court held that the Eighth Amendment

does not require a court to instruct a capital

jury about the consequences of deadlock. The

Court noted that the Eighth Amendment requires that a death sentence not be arbitrarily

imposed, id. at 381, but rejected the argument

that “a death sentence is arbitrary within the

meaning of the Eighth Amendment if the jury

is not given any bit of information that might

possibly influence an individual juror’s voting

behavior,” id. at 382. Because Jones controls, reasonable jurists would not disagree

with the district court’sresolution ofthisissue.

We deny a COA on this question.

G.

Jackson alleges the trial court violated his

Eighth Amendment rights by failing to instruct

the jury that it could consider mitigating evidence even if it did not relate to moral blameworthiness. Specifically, Jackson argued at

the punishment phase that the jury should

receive the following instruction:

The term“mitigating” evidence or “mitigating” factor as used herein means any type

of evidence relating to the defendant’s

background, character orthe circumstances

of the crime that would militate in favor of

a life sentence rather than a death sentence.

Evidence may be mitigating even if it does

not relate in any way to the defendant’s

moral culpability or moralblameworthiness

for the capital murder listed in the indictment.

Instead, the court gave the following instruction (in relevant part):

A mitigating circumstance may include, but

is not limited to, any aspect of the defendant’s character, background, record,

emotionalinstability, intelligence or circumstance ofthe crime which you 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”), cert. denied, 126 S. Ct. 1434 (2006); see also Williams v.

Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987)

(holding 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

case . . . . In answering Special Issue No.

2 you shall consider mitigating evidence to

be evidence that a juror might regard as

reducing the defendant’s moral blameworthiness, including evidence of the defendant’s background, character, record,

emotional instability, intelligence, or the

circumstance of the offense that mitigates

against the imposition of the death penalty.

Jackson apparently reasons that, by merely

including background, character, and circumstances of the offense as modifiers of the general category of moral blameworthiness, instead of expressing these criteria in the conjunctive, the state unconstitutionally limited

the scope of the mitigating instruction for

Special Issue 2.

The Texas Code of Criminal Procedure

provides that the court shall instruct the jury

(should the jurymake certain preliminary findings) that it shall consider “all of the evidence,

including the circumstances of the offense, the

defendant’s character and background, and the

personalmoral culpabilityofthe defendant,” in

determining whether a defendant should receive life without parole instead of death.

TEX.CODECRIM. PROC. art. 37.071 § 2(e)(1).

Later, however, the Code defines “mitigating

evidence” for purposes of this section as

“evidence that a juror might regard asreducing

the defendant’s moral blameworthiness.” Id.

§ 2(f)(4).

Relevant mitigating evidence must be within the “effective reach” of the jury during punishment. Johnson v. Texas, 509 U.S. 350, 368

(1993) (internal quotation omitted). “[I]n a

capital case, the sentencer must . . . be able to

consider and give effect to [mitigating] evidence in imposing [a] sentence, so that the

sentence imposed . . . reflects a reasoned moral response to the defendant’s background,

character, and crime.” Penry v. Johnson, 532

U.S. 782, 788 (2001) (internal quotations

omitted). The sentencing instructions must

provide the jury with an adequate vehicle to

consider Jackson’s evidence and come to a

reasoned moral conclusion. See id. at 800.

The trial court’s determination that the instructionswere constitutionally adequate is not

“contrary to” clearly established federal law as

articulated by the Supreme Court. In fact, in

Johnson the Court approved of a mitigating

instructionunderthe predecessorstatute to the

current provisions of the Texas Code that was

less specific in its articulation of the relevant

mitigating factors:

In determining each of these [Special] Issues, you may take into consideration all

the evidence submitted to you in the trial of

this case, whether aggravating or mitigating

in nature, that is, all the evidence in the first

part of the trial when you were called upon

to determine the guilt or innocence of the

Defendant and all the evidence, if any, in

the second part of the trial wherein you are

called upon to determine the answersto the

Special Issues.

Johnson, 509 U.S. at 355.

Neither was the instruction an “unreasonable application” of clearly established federal

law. In Beazley v. Johnson, 242 F.3d 248,

260 (5th Cir. 2001), we held that the current

statute “does not unconstitutionally ‘preclude[] [the jury] from considering, as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death’”

(citing Lockett v. Ohio, 438 U.S. 586, 604
13

(1978)). We noted that the definition of

mitigating evidence in § 2(f)(4) does not put

any relevant evidence beyond the effective

reach of the jury, because “[v]irtually any

mitigating evidence is capable of being viewed

as having some bearing on the defendant’s

‘moral culpability’ apart from its relevance to

the particular concerns embodied in the Texas

special issues.” Id. (citing Graham v. Collins,

506 U.S. 461, 476 (1993)). 

This circuit has declined to articulate a precise test for what qualifies as “objectively unreasonable” under AEDPA.21 Where, however, a state court reaches a conclusion consistent with this circuit’s precedent, it presumptively falls within the broad discretion afforded

the state court under § 2254(d)(1), because we

presumably would consider our own case law

as within “the range of reasonable judgment”

afforded by Supreme Court decisions. See

Yarborough, 541 U.S. at 664.

Furthermore, the trial court could reasonably have concluded that the mitigating evidence offered by JacksonSSthat he was loved

and admired by his family, assisted his grandmother, and provided help at his church and

Sunday schoolSSall sufficiently related to his

“moral blameworthiness” as to come within

the effective reach of the jury. Therefore, reasonable jurists could not disagree with the district court’s application of AEDPA’s deferential “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 hismotion for

appointment of an expert in false confessions

to support his claim that his confession was

coerced and therefore inadmissible. Where

expert services are “reasonably necessary” to

mount a defense in a post-conviction proceeding, the district court may authorize the defense attorneys to obtain 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 interviews of Jackson and Smith raised a question

as to the existence of remuneration. Specifically, when the police first interviewed Smith,

he made no mention of paying Jackson for the

murder. Only after Jackson confessed were

police able to establishremuneration byfurther

questioning Smith.

The state responds by noting that ruling on

a motion to provide expert assistance is within

the discretion of the district court. Hill v.

Johnson, 210 F.3d 481, 487 (5th Cir. 2000).

Also, the state argues that any testimony rendered by the expert would be procedurally

barred in a federal habeas proceeding because

it was never presented in state court. Finally,

because the jury’s credibility determination 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’ emerges from [the] process [of applying

the standard in individual cases] over time, this

elaboration will be more useful and meaningful

than any definition we might choose to impose ab

initio.”).

22 An indigent defendant is entitled to the provision of all reasonably necessary services under,

inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B);

Fuller v. Johnson, 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

“reasonably necessary.”
14

son has not presented evidence to rebut that

presumption and make necessary the appointment 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 for 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 meritless claim, or (c) when the

sought after assistance would only supplement

prior evidence.” Smith v. Dretke, 422 F.3d

269, 288 (5th Cir. 2005) (internal citations

omitted).

The district court did not abuse its discretion. At trial, Jackson testified that the police

told him to confess that Smith paid him for

murder in exchange for a lesser charge. The

defense also presented two expert witnesses

who testified that Jackson had a learning disability and was below average in intelligence,

and thatJacksonwas prone to self-deprecation

and other antisocial behaviors. Therefore, the

testimony of a false confession expert would

merely have supplemented other evidence already available to and considered by the jury.

See id. at 288-89 (finding no abuse where expert testimony would merely reinforce testimony already given by defendant).

Even if we were inclined to agree as an initial matter that a false confession expert’s testimonywasreasonablynecessaryforJackson’s

defense, the relevant statute vests discretion

squarely in the district court.23 Therefore, we

affirm the denial of Jackson’s motion for

expert assistance.

For the above reasons, Jackson’s request

for a COA is GRANTED in part and DENIED

in part. The judgment on the issue on which

we grant a COA, and on the claim for 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 defendant’s attorneys to obtain

such services on behalf of the defendant”) (emphasis added). See also Smith, 422 F.3d at 289

(noting that change in AEDPA fromthemandatory

“shall” to discretionary “may” language in

§ 848(q)(9) “can only reasonably be construed as

changing a mandatory granting of funds to a discretionary granting of funds even if the reasonable

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 apply 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

judgment of a State court

shall not 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 federal 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 of the

two phrases is implicated.

Whatever “deference”

Congress 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

noted 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

legal 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

state 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

Fruit 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. 1996)); 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 believe, 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 law 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.