1 Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 2, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-10976

_____________________

EDWARD LEWIS LAGRONE,

Petitioner - Appellant,

versus

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:99-CV-521

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: 1

Edward Lewis LaGrone was convicted of capital murder and

sentenced to death. He seeks a Certificate of Appealability

(“COA”) to appeal the district court’s denial o f federal habeas

relief for nineteen claims. We DENY a COA for each of the claims.

I

LaGrone was convicted of capital murder by a Texas jury in May

1993. The State presented evidence that he impregnated ten-yearold Shakiesha Lloyd. In an attempt to prevent Shakiesha and her2

mother, Pamela Lloyd, from pursuing sexual assault charges against

him, LaGrone went to their residence and shot and killed Shakiesha

and two of her elderly great-aunts.

The Texas Court of Criminal Appeals aff irmed LaGrone’s

conviction and sentence on direct appeal, and the Supre me Court

denied certiorari. L aGrone v. State

, 942 S.W.2d 602 (Tex. Crim.

App.) (en banc), cert. denied , 522 U.S. 917 (1997).

LaGron e filed an application for state habeas relief in

October 1998. The Texas Court of Criminal Appeals adopted the

trial court’s findings of fact and conclusions of law, and denied

relief. E x parte LaGrone

, No. 40,890-01 (Tex. Crim. App. June 23,

1999) (unpublished).

LaGrone filed his federal habeas petition on December 7, 1999,

and an amended petition on March 27, 2002. The district court

adopted the magistrate judge’s recommendation and denied relief.

LaGrone v. Cockrell

, 2002 WL 1968246 (N.D. Tex. Aug. 19, 2002).

The district court also denied LaGrone’s request for a COA.

II

LaGrone now reque sts a COA from this court for nineteen

claims. The State concedes exhaustion of all of the claims except

for the claims of ineffective assistance of counsel on appeal and

actual innocence. The district court noted, however, that the

actual innocence claim was presented in LaGrone’s state h abeas

application. In any event, the district court had jurisdiction to3

deny relief on the merits of any unexhausted claims. S ee 28 U.S.C.

§ 2254(b)(2) (“An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State.”).

“[U]ntil a COA has been issued federal courts of appeals lack

jurisdiction to rule on the m erits of appeals from habeas

petitioners.” M iller-El v. Cockrell

, 123 S.Ct. 1029, 1039 (2003).

To obtain a COA, LaGrone must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); M illerEl

, 123 S.Ct. at 1039; Slack v. McDaniel

, 529 U.S. 473, 483 (2000).

To make such a show ing, he must demonstrate that “reasonable

jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were adequat e to deserve encouragement to

proceed further.” M iller-El

, 123 S.Ct. at 1039 (quoting Slack

, 529

U.S. at 484). Because the district court denied relief on the

merits, rather than on procedural groun ds, LaGrone “must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitut ional claims debatable or wrong.”

Slack , 529 U.S. at 484.

In determining whether to grant a COA, our examination is

limited “to a threshold inquiry into the unde rlying merit of

[LaGrone’s] c laims.” M iller-El

, 123 S.Ct. at 1034. “This

threshold inquiry does not require full consideration of the4

factual or legal bases adduced in support of the claims.” Id . at

1039. Instead, our determination is based on “an overview of the

claims in the habeas petition and a general assessment of their

merits.” I d

. “Any doubt regarding whether to grant a COA is

resolved in favor of the petitioner, and the severity of the

penalty may be considered in making this determination.” Tennard

v. Cockrell , 284 F.3d 591, 594 (5th Cir. 2002).

III

We now turn to consider whether LaGrone has satisfied the

standard for issuance of a COA for each of his claims.

A

Claim 1: Exclusion of Evidence of Pamela Lloyd’s Drug Addiction

LaGrone claims that he was denied due process, a fair trial,

due course of law and equal protection, his right to confront

witnesses against him, and his right to effe ctive assistance of

counsel when the state trial court refused to allow the defense to

present evidence of Pamela Lloyd’s addiction to and abuse of crack

cocaine, and refused to allow the defense an opportunity to prove

the effect that Pamela’s drug use had on the credibility and

reliability of her identification of LaGrone as the perpetrator.

At trial, Pamela Lloyd testified that she heard LaGrone’s

voice inside her home at the time of the murders. Her

identification of his voice was based on her acquaintance with him

for six years prior to the offense, her involvement in a six-month5

relationship with him in 1985, and her numerous telephone

conversations with him in the days preceding the murders, after she

learned that her daughter, Shakiesha, was pregnant. Pamela’s

brother, Dempsey Lloyd, and her son, Charles Lloyd, also identified

LaGrone as the perpetrator.

LaGrone asserts that Dempsey and Ch arles Lloyd did not

identify him as the perpetrator immediately after the murders, and

that they changed their stories to identify him as the sole shooter

shortly before trial. He therefore contends that Pamela’s

identification of him as the shooter was critical to the State’s

case, and that he should have been allowed to fully impeach her

credibility.

In a hearing outside the presence of the jury, Pamela

testified that she had not used drugs on May 30, 1991, the date of

the murders, and that she stopped using cocaine after she learned

of Shakiesha’s pregnancy on May 26, 1991. The trial court ruled

that former Texas Rule of Criminal Evidence 608(b) prohibited

defense counsel from impeaching Pamela with evidence regarding her

use of, and addiction to, crack cocaine.

Dr. Schmitt, the defense psychologist, testified outside the

presenc e of the jury that, in his opinion, a person who had used

crack cocaine for several years and who had stopped for a period of

five days would still be affected psychologically, would be

suffe ring depressive symptoms that would make it difficult to be6

productive or focused, and would have diminished responsiveness to

external stimulation, including voices. The trial court ruled that

Dr. Schmitt’s testimony was not admissible to impeach Pamela’s

testimony.

On direct appeal, t he Texas Court of Criminal Appeals held

that, in order to impeach a witness’s perceptual capacity with

evidence of drug addiction, a party must demonstrate actual drugbased mental impairment during the witness’s observation o f the

crime. 942 S.W.2d at 613. The court reasoned that, since Pamela

was not under the influence of crack cocaine at the time of the

murders, impeachmen t evidence of prior drug use was properly

excluded. I d

. at 613-14. The court also held that the trial

court’s evidentiary rulings were reasonable because the evidence

was prejudicial and collateral an d, therefore, the Confrontation

Clause was not violated. Id . at 614.

Because the state court found the evidence to be inadmissible

under state rules of evidence, the district court refused to review

the state court’s inter pretation of its own law. S ee Weeks v.

Scott

, 55 F.3d 1059, 1063 (5th Cir. 1995) (federal habeas court

does not review state court’s interpretation of its own law).

Instead, the district court held that LaGrone was required to show

that the state court’s evidentiary rulings violated the

Confrontation Clause or that the error so infected the trial with

unfairness as to constitute a denial of due process. S ee Little v.7

Johnson

, 162 F.3d 855, 862 (5th Cir. 1998) (habeas relief not

warranted unless wrongfully excluded evidence “has played a

crucial, critical, and highly significant role in the trial”). The

district court held that Pamela’s testimony was not crucial to the

State’s case, because the totality of her testimony was that she

heard LaGrone, a man she had known for a number of years and had

dated for a period of time, speak one sentence inside of her house

at the time of the murde rs, and there were two other people

(Dempsey and Charles Lloyd) who gave eyewitness identification

testimony. The district court reasoned that, because there was no

evidence that Pamela’s prior drug use would have so inhibited her

powers of perception that she could not recognize a familiar voice,

the limitation of defense counsel’s cross-examination o f Pamela,

and the exclusion of Dr. Schmitt’s testimony regarding the effect

of recent drug use on perceptual capacity, d id not so limit the

defense’s ability to adequately confront Pamela that it constituted

a federal constitutional violation. The district court concluded

that the state court’s decision was not an unreasonable application

of federal law.

Reasona ble jurists would not find the district court’s

assessment of this claim debatable or wrong. Even assuming that

the evidence was excluded erroneously, Pamela’s identification of

LaGrone did not play a “crucial, critical, and highly significant

role in the trial.” Little , 162 F.3d at 862. In addition to her8

identification of LaGrone, the State also presented the testimony

of Dempsey and Charles Lloyd, who identified LaGrone as the

perpetrator. Furthermore, there was evidence that: LaGrone had a

girlfriend buy the murder weapon for him; the same gun was used to

kill all three victims; and LaGrone had a motive to kill Shakiesha

and the ot her family members because he was the father of her

unborn child an d Pamela was pressing charges against him for

sexually assaulting Shakiesha. Because LaGrone has not made a

substantial showing of the denial of a constitutional right, we

deny a COA for this claim.

B

Claim 2: Failure to Disclose Victim Impact Statement

LaGrone claims that he was denied his right to due process and

equal protection as a result of the State’s failure to produce, and

the trial court’s failure to order the production of, Pamela’s

victim impact statement. LaGrone argues that the statement was

relevant and admissible to impeach the reliability and credibility

of Pamela’s identification testimony, because it was further proof

of her incapacity to accurately perceive the events on the morning

of the murders.

Approximately two weeks after the murders, Pamela completed a

“victim impact statement” form. In response to a question asking

how the crime had affected her, she wrote: “afraid, cannot sleep,

lack of appetite, mind comes & goes.” After trial, the State gave9

defense counsel a copy of the statement. LaGrone moved for a new

trial, arguing that the p rosecution had violated a pre-trial

discovery order and Brady v. Maryland

, 373 U.S. 83 (1963), by

failing to disclose the statement prior to trial. The trial court

denied the motion.

On direct appeal, the Texas Court of Criminal Appeals held

that the State had no duty to disclose the statement because it was

not admissible under the Texas Rules of Criminal Evidence, which

prohibit the use of inchoate prior dru g use including “nebulous

withdrawal symptoms” for impeachment. Furthermore, the Court of

Criminal Appeals held that, even assuming the s tatement was

admissible, LaGrone had not met his burden of showing that the

statement was materi a l, because the statement’s “temporal and

logical context” contradicted LaG rone’s attempt to connect the

statement with Pamela’s identification of him. The Court of

Criminal Appeals concluded that LaGrone had failed to establish a

reas onable probability that the outcome of the trial would have

been different if the statement had been disclosed and defense

counsel had used it to impeach Pamela’s testimony. 942 S.W.2d at

615-16.

The district court held that the state court’ s decision was

not an unreasonable application of B rady

. The district court

observed that Pamela’s statement that her mind “comes and goes” was

not material to her identification testimony because the statement10

was not a bout her perception of the murders, but instead was in

response to a question as king her to state how the crime had

affected her. The district court noted that Charles and Dempsey

Lloyd had identified LaGrone by sight as the shooter, and also

noted the evidence that LaGrone had a girlfriend buy the murder

weapon for him, that the same gun k illed all three victims, and

that he had a motive to kill Shakiesha and the others because he

was the father of Shakiesha’s unborn child and Pamela was pressing

charges agai nst him for sexually assaulting Shakiesha. The

district court concluded that, in the light of all of this other

evidence linking LaGrone to the crime, the state court did not

unreasonably apply federal law when it concluded that the slight

impeachment value Pamela’s victim impact statement might have had

was not material.

The district court’s assessment of the materiality of Pamela’s

statement is neither debatable nor wrong. The statement pertains

to the effects of the crime on Pamela and not to her perceptual

capacity at the time of the murders. Because LaGrone has not made

a substantial showing of a Brady violation, we deny a COA for this

claim.

C

Claims 3 and 5: Lack of Parole Instruction

LaGrone claims that the Texas death penalty statute, the Texas

Const itution, and the Texas Code of Criminal Procedure, facially11

and as applied to him, violate due process, equal protection, and

the Eighth Amendment prohibition against cruel and unusual

punishment because they prohibit ed the jury from being informed

about his parole eligibility, while allowi ng the State to use

future dangerousness as a ground to support the death penalty

(claim 3). He also claims that he was denied due process and equal

protection because the trial court did not inform the jury of his

parole ineligibility for thirty-five years if g iven a life

sentence, and the effect of parole laws on his parole eligibility

had he been given a life sentence (claim 5). LaGrone acknowledges

that these claims a re foreclosed by Fifth Circuit precedent.

Nevertheless, he argues that the length of time a defendant will

actually serve on a life sentence is highly relevant to a juror’s

decision on the issue of future dangerousness. His equal

protection argument is based on the fact that, in non-capital

felony cases, Texas law requires that the jury be instructed on

paro le and the minimum sentence the defendant must serve before

becoming eligible for parole.

The state habeas court held that the trial court’s refusal to

instruct the jury on LaGrone’s parole eligibility did not violate

LaGrone’s federal constitutional rights.

The district court held that the state court’s conclusion is

a reasonable application of fed eral law. The district court

observed that LaGrone was convicted of a capital murder that was12

committed in May 1991, before the law changed, effective September

1, 1991, to increase the parole ineligibility period for a life

sentence fo r capital murder to thirty-five years. Thus, had

LaGrone been sentenced to life imprisonmen t, under the law in

effect at the time the murders were committed, he would have been

eligible for parole in only fifteen years. The district court

relied on Fifth Circuit precedent holding that a parole eligibility

instruction is not required in Texas cases, but only in cases where

life-without-parole is a sentencing option. S ee Wheat v. Johnson

,

238 F.3d 357, 361 (5th Cir. 2001); Hughes v. Johnson

, 191 F.3d 607,

617 (5th Cir. 1999). The district court observed further that,

even as suming such an instruction is required, LaGrone’s claim

would be barred by th e non-retroactivity principle of T eague v.

Lane

, 489 U.S. 288 (1989). S ee Clark v. Johnson

, 227 F.3d 273, 282

(5th Cir. 2000) ( Teague bars claim that trial court’s failure to

instruct jury that petitioner would not be eligible for parole for

thirty-five years if sentenced to life imprisonment vio lated

Simmons v. South Carolina , 512 U.S. 154 (1994)).

The distr ict court’s assessment of these claims is not

debatable or wrong. As LaGrone has acknowledged, his claims are

foreclosed by Fifth Circuit precedent. S ee Tigner v. Cockrell

, 264

F.3d 521, 524-26 (5th Cir. 2001) (failure to instruct jury on

parole does not violate due process, the Eighth Amendment, or the

equal protection clause). Because LaGrone has not made a13

substanti al showing of the denial of a constitutional right, we

deny a COA for these claims.

D

Claim 4: Constitutionality of No Life-Without-Parole Option

LaGrone claims that the Texas death penalty statute, the Texas

Constitution, and the Texas Code of Criminal Procedure, facially

and as applied to him, violate due process, equal protection, and

t he Eighth Amendment’s prohibition against cruel and unusual

punishment because they do not provide for a sentence of life

without parole. LaGrone argues that the statutory scheme allows

the State to system atically prove that virtually all capital

defendants constitute a future danger as a result of the State’s

failure to provide a sentence of life without parole and because of

the State’s record of releasing c onvicted felons after they have

served only a very small portion of their sentences.

The district court noted that LaGrone had fail ed to exhaust

this claim in state court, but denied relief on the merits,

pursuant to 28 U.S.C. § 2254(b)(2). The district court held that

the Texas capital sentencin g scheme is not unconstitutional for

failing to provide life without parole as a sentencing option.

The district court’s assessment of this claim is neither

debatable nor wrong. As LaGrone acknowledges, this claim is

foreclosed by Andrade v. McCotter

, 805 F.2d 1190, 1193 (5th Cir.

1986) (rejecting identical claim). Because LaGrone has not made a14

substanti al showing of the denial of a constitutional right, we

deny a COA for this claim.

E

Claim 6: Ineffective Assistance/Parole Instruction

LaGrone claims that he was denied the effective assistance of

counsel and due process because his trial counsel failed to request

a jury instruction explaining that he was ineligible for parole for

thirty-five years and explaining the effect of parole laws on his

parole eligibility. He also argues that his appellate counsel

rendered ineffective assistance by failing to raise the i ssue on

direct appeal.

The state habeas court concluded that, because parole was not

a proper consideration for jury deliberation in a capit al murder

case, and because the trial court would have rightfully denied the

instruction had counsel requested it, trial counsel was not

ineffective for failing to make the request.

The district court noted that LaGrone would have been eligible

for parole after only fifteen years (not thirty-five, as claimed by

LaGrone). It noted further that the jury was informed during the

punishment phase that LaGrone had been conv icted of murder

previously, had received a twenty-year sentence, and had been

released on parole before serving his entire sentence. The

district court concluded that the state court did not unreasonably

apply Strickland v. Washington

, 466 U.S. 668 (1984). The district15

court held that LaGrone had failed to show how trial counsel were

ineffective for failing to request that the jury be informed that,

if LaGrone received a life sentence, he would again become eligible

f or parole, after only fifteen years. Furthermore, the district

court concluded that LaGrone was not prejud iced by counsel’s

failure to request the instruction, because the Constitution does

not require such an instruction. Although the district court held

that LaGrone’s claim of ineffective a ssistance on appeal was not

exhausted, it denied relief on the merits of that claim, holding

that appellate counsel was not ineffective for failing to raise a

nonmeritorious ground on appeal.

The district court’s assessment of this claim is neither

debatable nor wrong. LaGrone’s counsel did not render deficient

performance by failing to request an instruction to which LaGrone

was not entitled. Furthermore, LaGrone was not prejudiced by

counsel’s failure to ask the trial court to inform the jury that,

if LaGrone were sentenced to life imprisonment, he would be

eligible for parole after serving only fifteen years.

F

Claim 7: “Probability”/Reduction of State’s Burden

The jury was instructed to answer the following special issue

on future dangerousness: “Do you find from the evidence beyond a

reasonable doubt that there is a p robability that the Defendant

would commit criminal acts of violence that would constitute a16

continuing threat to society?” (Emphasis added.) LaGrone claims

that he was denied due process because the use of the term

“probability” in this instructio n reduced the State’s burden of

proof on the future dangerousness special issue from “beyond a

reasonable doubt” to only a “probability.”

On direct appeal, the Texas Court of Criminal Appeals held

that the inclusion of the term “probability” in the special issue

on future dangerousness did not lesse n impermissibly the State’s

burden of proof beyond a reasonable doubt. 942 S.W.2d at 618.

The district court held that the state court’s conclusion is

not contrary to clearly established federal law, because LaGrone’s

jury was clearly instructed regarding the State’s burden of proof

beyond a reasonable doubt on the special issues. The district

court noted that the charge at the punishment phase included the

following instructions on the State’s burden of proof on the

special issues:

The burden of proof in this phase of the trial

still rests upon the State and never shifts to

the defendant. The prosecution has the burden

of proving that a “Yes” answer is appropriate

to each question s u bmitted to you in this

phase of the trial beyond a reasonable d oubt

and if it fails to do so as to any question,

you must not answer that question “Yes.” The

law does not require a defendant to prove that

the answer to a question is “No, ” or produce

any evidence at all.

....

In the event a juror has a reasonable doubt

that a “yes” answer is the proper answer to a17 question after considering all the evidence,

and these instructions, that juror should vote

to answer such question “No.”

....

The Court will impose the death penalty if the

jury’s a nswers to all of the questions are

“Yes”; therefore, in order to warrant the

imposition of the death penalty, you must

believe, beyond a reasonable doubt, that the

evidence supports affirmative answers to all

the questions.

Reasonable jurists would not find deb a table the district

court’s assessment of this claim. The jury was clearly instructed

that the State had the burden of proof beyond a reasonable doubt on

all of the special issues. Accordingly, we deny a COA for this

claim.

G

Claim 8: Refusal to Define “Probability”

LaGrone claims that he was denied due process and equal

protection because the trial cour t refused to define the term

“probability”, as used in the s pecial punishment issue on future

dangerousness, and beca use the term “probability” is vague and

indefinite.

On direct appeal, the Texas Court of Crimin al Appeals held

that the term “probability” is not unconstitutionally vague or

indefinite. 942 S.W.2d at 618. The district court held that this

conclusion is not contrary to clearly established federal law.18

The district court’s assessment of this claim is not debatable

wrong. As LaGrone acknowledges, this claim is foreclosed by our

precedent. S ee Hughes v. Johnson

, 191 F.3d 6 07, 615 (5th Cir.

1999) (failure to define “probability” does not make that term

unconstitutionally vague).

H

Claims 9-12: State-sponsored Psychiatric Examination

LaGrone claims that he was denied his Sixth Amendment right to

counsel, his Fifth Amendment right to counsel and right not to

incriminate himself, and his right to due process and equal

protection when he was compelled to submit to a state-sponsored

psychiatric examination on the issue of future dangerousness.

Prior to trial, LaGrone filed a motion seeking independent

expert witnesses in psychiatry and psychology. In support of the

motion, he asserted that his mental and physical condition would be

a significant factor at both the guilt and sentencing phases of

trial. The trial court granted the motion, allowing LaGrone to be

examined by Dr. Schmitt.

In response, the State moved to have LaGrone examined by its

own mental health expert for the purpose of rebutting the testimony

of LaGrone’s expert should he testify on the issue of future

dangerousness. The trial court granted the State’s motion,

ordering that Dr. Coons be allowed to examine LaGrone. The trial

court also ordered the State to notify LaGrone’s counsel in advance19

of the time and place of the examination. Although the trial court

refused to allow LaGrone’s counsel to be present during the

examination by Dr. Coons, it provided that LaGrone could recess the

interview and consult with his counsel. The court ordered Dr.

Coons not to relate anything about the examination to the State,

but instead ordered him to deliver his report to the court for in

camera inspecti on. Finally, the court ordered that, if LaGrone

presented mental health expert testimony at trial, Dr. Coons would

be allowed to o bserve that testimony and, thereafter, his report

would be turned over to the State.

At the punishment phase, LaGrone called Dr. Schmitt as an

expert witness. He testified regarding psychological tests he

administered to LaGrone, as well as information LaGrone told him

regarding his family history and previous drug use. He testified

that, in his opinion, LaGrone would not pose a future danger to

society.

In rebuttal, the State called Dr. Coons, who testified that he

attempted to examine LaGrone pursuant to the co urt’s order, but

that LaGrone refused to be interviewed by him. He testified

further regarding LaGrone’s reasons for refusing to cooperate: Dr.

Coons was hired by the prosecution and probably would not be fair,

and it was unlikely that Dr. Coons’ evaluation would help him.

Because of LaGrone’s lack of cooperation, Dr. Coons was unable to

give an opinion based upon his examination of LaGrone. Instead, in20

response to hypothetical questions and, based upon the tests

administered by Dr. Schmitt and LaGrone’s history, h e testified

that, in his opinion, there is a probability that a person with a

criminal background such as LaGrone’s would pose a continuing

threat to society.

LaGrone argues that he did not waive his Fifth and Sixth

Amendment rights, and that the trial court violated those rights,

as well as the equal protection clause, by ordering him to submit

to the examinat ion by Dr. Coons. He contends that his Fifth and

Sixth Amendment rights were also violated by Dr. Coons’s refusal to

honor his exercise of his Fifth and Sixth Amendment rights; Dr.

Coons’s commenting to the jury that he had exercised those rights;

Dr. Coons’s opinion testimony beyond the scope of his expertise and

qualifications; and the denial of his right to have his attorney

present during Dr. Coons’s examination.

In Estelle v. Smith

, 451 U.S. 454 (1981), the Supreme Court

held that the admission of a psychiatrist’s testimony on future

dangerousness, which was the result of an interview conducted

pursuant to court order, violated Smith’s Fifth Amendment privilege

against self-incrimination because Smith was not advised before the

examination that he had the right to remain silent and that any

statement he made could be use d against him at sentencing. The

Court observed that Smith had not requested the examination and had

not offered any psychological evidence; therefore, Sm ith had no21

indication that the results of the examination would be used as

evidence against him. I d

. at 466-68. The Court also held that

Smith’s Sixth Amendment rights were violated, because his counsel

w as not notified in advance that the examination would encomp ass

the issue of future dangerousness; therefore, Smith was denied the

assistanc e of counsel in deciding whether to submit to the

examination. Id . at 470-71. The Court stated that a different

s ituation would arise where a defendant intends to introduce

psychiatric evidence at the penalty phase. Id . at 472.

In Buchanan v. Kentucky

, 483 U.S. 402, 422-25 (1987), the

Court held that, when the defense requests a psychiatric evaluation

or presents p sychiatric evidence, and trial counsel was aware of

the existence and scope of the examination, the prosecution may “at

the very least” rebut the defense’s presentation with evidence from

the defense-sponsored psychiatric reports.

Our court has held that a defendant’s Fifth and Sixth

Amendment rights are not violated when he is examined by a statesponsored psychiatrist and testimony based on the examination is

admitted at trial, after the defendant first introduces psychiatric

evidence, either on future dangerousness or insanity, the testimony

is admitted only for rebuttal, and defense counsel has received

advance notice of the scope of the examination. See Williams v.

Lynaugh

, 809 F.2d 1063, 1067-69 (5th Cir. 1987); Vardas v. Estelle

,

715 F.2d 206, 208-11 (5th Cir. 1983).22

O n direct appeal, the Texas Court of Criminal Appeals held

that, when a capital murd er defendant indicates an intent to

present a mental health expert at the punishment phase of his

trial, his Fifth and Sixth Amendment rights are not violated by the

trial court allowing a State expert to examine him as well, so long

as his counsel is made aware that the results of the examination

may be used at the punishment phase, and the State’s expert

testifies in rebuttal to defense mental health evidence. 942

S.W.2d at 611-12.

The district court held that the state court did not

unreasonably apply federal law. The district court concluded that

LaGro ne’s Fifth and Sixth Amendment rights were not violated

because LaGrone first introduced psychiatric evidence on the issue

of future dangerousness, the State presented Dr. Coons’s testimony

for rebuttal purposes only, and LaGrone’s counsel had advance

notice of the scope of Dr. Coons’s examination. The district court

held that LaGrone had failed to demonstrate that he has any greater

rights under the due process or equal protection clauses.

The district court’s assessment of this claim is neither

debatable nor wrong. LaGrone has not made a substantial showing

that his federal constitutional rights were violated by Dr. Coons’s

attempt to examine him or by Dr. Coons’s testimony. S ee Williams

,

809 F.2d at 1067-69; Vardas

, 715 F.2d at 208-11. We therefore deny

a COA for these claims.23 I

Claims 13 and 14: Voir Dire/Definition of Common Terms

LaGrone claims that he was denied a fair trial and due process

when the trial court restricted the questioning of five prospective

jurors about their understanding of the term “probabili ty”; and

when the trial court sustained the State’s objection to the

questioning of one prospective juror regarding his understanding of

the term “criminal acts of violence.” LaGrone argues that the

terms “probability” and “criminal acts of violence” are central to

the jury’s understanding of, and answer to, the special punishment

issue on future dangerousness and, because those terms are not

defined by the law, each juror’s understanding of those terms is

important to the outcome of the trial and to counsel in exercising

peremptory challenges.

On direct appeal, the Texas Court o f Criminal Appeals held

that it was within the trial court’s discretion to limit the voir

dire examination regarding undefined term s used in the special

issues. 942 S.W.2d at 609.

The district court held that the state court’s determination

is not contrary to clearly established law. It relied on Fifth

Circu it precedent holding that a criminal trial is not

constitutionally infirm becaus e the state trial judge would not

permit defense counsel to question prospective jurors as to their

understanding of terms included in the special punishment issues.24

See Milton v. Procunier

, 744 F.2d 1091, 1095-96 (5th Cir. 1984)

(tri al court’s refusal to allow counsel to inquire into a

prospective juror’s understanding of the terms “deliberately,”

“probability” and “criminal acts of violence” did not violate due

process or Sixth Amendment rights to trial by jury and counsel).

Because relief for these claims is foreclosed by our

precedent, the district court’s assessment of these claims is not

debatable or wrong. We therefore deny a COA for these claims.

J

Claim 15: Denial of Challenge for Cause

LaGrone claims that he was denied a fair trial and due process

when the trial court denied his challenge for cause to one

prospective juror wh o testified that he did not consider good

family background, economic deprivation, and good jail behavior to

be mitigating circumstances. LaGrone argues that the right to

present mitigating evide nce is hollow if the sentencer will not

give such evidence effect in the sentencing decision.

During voir dire, defense counsel questioned prospective juror

Conner about whether he wou ld consider certain circumstances as

evidence that would mitigate against the imposition of the death

penalty. Although Conner indicated that he would consider evidence

of mental illness, mental retardation, and a history of good deeds

as mitigating factors in as sessing punishment, he stated that he

would not consider evidence of strong family ties or a record of25

good behavior in jail as mitigating evidence and would most likely

not consider evidence of childhood economic deprivation as

mitigating unless it was of an unusual nature. Defense counsel

challenged Co nner for cause, claiming that his inability to

consider these circumstances as mitigating evidence constituted a

bias against the law. The trial court denied the challenge, and

defense counsel later used a peremptory strike to remove Conner

from the panel.

On direct appeal, the Texas Court of Criminal Appeals held

that it was within the trial court’s discretion to deny the

challenge for cause, because LaGrone failed to establish that

Conner was biased against the law. 942 S.W.2d at 616.

The district court stated that a defendant in a capital case

is not entitled to challenge pros pective jurors for cause simply

because they might view the evidence the defendant offers in

mitigation of the death s entence as aggravating instead of

mitigating. It therefore concluded that a prospective juror’s

statement that he does not consider a certain type of evidence as

mitigating does not subject him to a challenge for cause because it

is not evidence that he will be unable to perform his duties as a

juror. The district court held further that, even if the trial

court erred in denying the challenge for cause, LaGrone cannot

prove that the jury was, in fact, not impar tial -- Conner was

struck by defense counsel and did not serve on the jury, and26

LaGrone has identified no other juror who sat on the panel who was

not impartial and/or was subject to a challenge f or cause.

Accordingly, the district court held that the state court’s

determination is not contrary to federal law.

The district court’s assessment of this claim is not debatable

or wrong. The trial court should grant a challenge for cause when

a prospective juror’s views would “prevent or substantially impair

t he performance of his duties as a juror in accordance wit h his

instructions and his oath.” A dams v. Texas

, 44 8 U.S. 38, 45

(1980); Wainwright v. Witt

, 469 U.S. 412, 424 (1985). In a capital

case, a trial court must grant a challenge for cause if a

prospective juror states that he would automatically impose a death

sentence without considering individual aggravating and mitigating

circumstances. Morgan v. Illinois , 504 U.S. 719, 729 (1992); see

also Buchanan v. Angelone

, 522 U.S. 269, 276 (1998) (“the sentencer

may not be precluded from considering, and may not refuse to

consider

, any constitutionally relevant mitigating evidence”)

(emphasis added). The law does not, however, require a juror to

consider any particular circumstance as mitigating. S oria v.

Johnson

, 207 F.3d 232, 244 (5th Cir. 2000) (Soria was not entitled

to challenge prospective jurors for cause who might view his

evidence offered in mitigation as aggravating).

LaGrone exercised a peremptory challenge against Conner,

“whic h is fatal to his claim that his right to an impartial jury27

was violated.” Id . at 245 (citing Ross v. Oklahoma , 487 U.S. 81,

88 (1988)). Although LaGrone states conclusorily that he was

required to accept an objectionable juror because he was out of

peremptory strikes, he has not identified any juror who was not

impartial. Accordingly, LaGrone has not made a substantial showing

that his jury was not impartial. We therefore deny a COA for this

claim.

K

Claim 16: Clemency Procedures

LaGrone claims that his execution after review under current

Texas clemency procedures would violate his rights to substantive

and pro cedural due process, the Eighth Amendment’s prohibition

against cruel and unusual punishment, and international law. He

argues that Texas has arbitrarily and routinely denied persons

sentenced to death any meaningful review of their applications for

commutation. He argues that the Texas clemency procedures are

unconstitutional for the following reasons: Since 1972, the Texas

Board of Pardons and Paroles has held only one live clemency

hearing; decisions of the Board on commutation of death sentences

are made individually by board members, and they vote on cases by

facsimile; every post- Furman death sentence commutation granted in

Texas was sought by state trial officials, for the purpose of

avoiding a re-trial; no commutations of the death penalty have been

granted in cases where the commutation was sought by the convicted28

person; a nd no commutations have been granted for mercy, doubts

about guilt, mental illness or capacity, rehabilitation, or other

humanitaria n reasons. LaGrone concedes that his due process

challenge to the Texas system of commutation for death sentences is

foreclosed by our precedent. S ee Moody v. Rodriguez

, 164 F.3d 893,

894 (5th Cir. 1999).

LaGrone also argues that the State’s failure to provide any

real or meaningful process for commutation violates Article 6, §§

1 and 4 of the International Covenant on Civil and Political Rights

(“ICCPR”), which requires that anyone sentenced to death have the

right to seek pardon or commutation.

The State argues that LaGrone’s claim based on the ICCPR is

not constitutionally cognizable, and that he lacks standing to

raise it, because he has not yet filed any request for clemency and

there is no indication of when, if ever, such a request might be

filed and no way of determining whether, if filed, his request will

be denied. The State argues further that, even if LaGrone could

c omplain about the Texas clemency process, he has no inherent

constitutional right to clemency, and the Fifth Cir cuit has held

that Texas capital clemency procedures provide the minimal

procedu ral safeguards required by federal law. F aulder v. Texas

Board of Pardons & Paroles , 178 F.3d 343, 344-45 (5th Cir. 1999);

Moody v. Rodriguez , 164 F.3d 893, 894 (5th Cir. 1999). Regarding29

international law, the State argues that LaGrone’s interpretation

of the ICCPR is not binding on this court.

The state habeas court concluded that the Texas clemency

process satisfies the minimal procedural safeguards articulated in

Justice O’Connor’s concurring opinion in Ohio Adult Parole

Authority v. Woodard

, 523 U.S. 272, 288-90 (1998). The court also

concluded that the ratification of the ICCPR did not provide

LaGrone with any rights not already provided by the federal

Constitution.

The district court held tha t the state court’s conclusions

were not an unreasonable application of federal law. The district

court concluded that LaGrone had failed to prove a violation of his

due process rights because there is no evidence that LaGrone will

be denied access to the clemency process when the time comes, nor

is there evidence that clemency decisions are made in an arbitrary

manner. The district court held further that LaGrone failed to

show how the Texas clemency process violates international law,

because the Senate has declared Articles 1-27 of the ICCPR not

self-executing, meaning that they cannot be in effect as law in the

United States without action by Congress incorporating the

provisions into domestic law. S ee Beazley v. Johnson

, 242 F.3d

248, 267-68 (5th Cir. 2001).

The district court’s assessment of this claim is not debatable

or wrong. We therefore deny a COA for LaGrone’s clemency claim.30 L

Claim 17: Ineffective Assistance of Counsel/Psychiatric Expert

LaGrone claims that his trial counsel r endered ineffective

assistance by presenting the testimony of psychologist Dr. Schmitt

during the punishment phase.

Dr. Schmitt testified that, based o n his interview and

psychological testing, LaGrone has definite ideas of right and

wrong; but those ideas differ from those of general society because

of the “survival environment” in which LaGrone was raised. He

testified that LaGrone is a bright man with uncultivated talents

and abilities who is capable of being treated; that he believed

LaGrone would seek to improve himself in prison by continuing his

education and developing his artistic talents; and that he believed

LaGrone would not be violent. Although Dr. Schmitt conceded that

LaGrone wou ld be dangerous if he were free to walk away from the

courtroom that day without any psychological treatment, he

emphasized that, if given a life sentence, LaGrone would not be a

future threat to society.

On cross-examination, Dr. Schmitt testified that LaGrone

retaliates when threatened, humiliated, or mistreated. He

reiterated, however, that he believed that LaGrone would get

psychological help and improve himself in prison, and that, without

help, LaGrone would be capable of violence. He testified that when

LaGrone is within a system of clearly-defined rules and31

expectati ons and is under close supervision, his propensity for

violence is greatly diminished.

LaGrone argues that, although Dr. Schmitt’s testimony was

presented supposedly for the purpose of mitigation and to persuade

the jury to answer “no” to the special issue on future danger, Dr.

Schmitt instead testified that LaGrone showed no remorse and that,

if LaGrone were allowed to walk out of the courtroom, Dr. Schmitt

would not feel safe. He asserts that the State was thus able to

prove future danger merely by cross-ex amining the defense’s own

expert. He also argues that, by placing Dr. Schmitt on the witness

stand, his defense counsel opened the door to the State to present

the hypothetical opinion testimony of Dr. Coons, that LaGrone would

constitute a future danger to society even if he spent the rest of

his life in prison society. LaGrone argues that, if the defense

had not presented Dr. Schmitt’s testimony, the State would not have

been permitted to present Dr. Coons’s testimony in rebuttal.

The district court held that the state habeas court’s

determination that LaGrone’s counsel provided reasonably effective

assistance of counsel is not an unreasonable application of

Strickland

, because LaGrone f ailed to establish either deficient

performance or prejudice. The district court stated that, because

Dr. Schmitt’s testimony was, on balance, supportive of the

defense’s goal of a life sentence, defense counsel used sound trial

strategy in deciding to call him as a witness. The district court32

noted that Dr. Coons’s opinion on LaGrone’s future dangerousness

was given in response to a hypothetical question, and was not based

upon an examination of LaGrone. The court stated that LaGrone

presented no authority to support his contention that, had Dr.

Schmitt not testified for the defense at all, the State would have

been prevented from calling Dr. Coons to the stand to answer

hypothetical questions. Even assuming deficient performance, the

district court held that LaGrone failed to establish that there is

a reasonable probability that he would have received a life

sentence had Dr. Schmitt and Dr. Coons not testified: Given that

the jury had already convicted LaGrone of killing three people, and

had heard evidence that he had previously been convicted of murder,

sexually assaulted two teenaged girls, sold illegal drugs, and shot

Dempsey Lloyd twice with a shotgun, there is no reasonable

probability that the jury would have determined that LaGrone would

not be a future danger to society.

Reasonable jurists would not find debat a ble the district

court’s assessment of this claim. LaGrone has not made a

substantial showing that counsel rendered deficient performance by

presenting Dr. Schmitt’s testimony, or that there is a reasonable

probability that the outcome of the punishment pha se would have

been different had counsel not presented the testimony. We

therefore deny a COA for this claim.

M33

Claim 18: Actual Innocence and Selective Prosecution

LaGrone claims that he was denied due process, equal

protection, and a fair trial because he is actually and factually

i nnocent of the crime and because he was selectively prosecut ed.

LaGrone states that all of the identifying witnesses, in their

original statements to the police, said that several men came into

the house on the morning of the murders. None of the witnesses

initially told the police that they saw LaGrone come into the house

and commit the murders. At trial, however, the identifying

witnesses all changed their stories to testify that only one person

entered the house, and that LaGrone was that person. LaGrone

maintains that there was significant evid ence that the original

stories of the witnesses -- that several unidentified men entered

the house and committed the murde rs -- was the truth, as well as

evidence that another person admitted on mor e than one occasion

that he committed the murders. He asserts that one reasonable

inference from the evidence is that the murders may have been

r e lated to Pamela Lloyd’s connections to the drug-trafficking

community.

L aGrone notes that his present counsel have received

information that, since his trial, Pamela Lloyd has been convicted

of and sentenced to prison for the murder of her boyfriend; and

that Dempsey and Charles Ll oyd are both dead, possibly murdered.34

He does not explain how any of this information is relevant to his

actual innocence or selective prosecution claims.

The state habeas court co ncluded that LaGrone had failed to

establish that he was actually innocent of capital murder because

he had not presented any newly discovered evidence. It rejected

LaGrone’s contention that the State created a false impression that

only one person entered the house and committed the murders, on the

ground that LaGrone was not entitled to relief because the jury in

reaching its verdict judged the credibility of witnesses. Finally,

the state habeas court concluded that LaGrone had failed to prove

that he was selectively prosecuted based on the State’s failure to

prosecute the men on the porch, because those men were not

similarly situated to LaGrone, inasmuch as the evidence showed that

LaGrone was either the sole or primary actor.

The district court held that the state court’s conclusions are

neither unreasonable applications of, nor contrary to, federal law.

The district court observed that LaGrone’s actual innocence claim

was raised in his state habeas application and therefore rejected

the State’s argument that the claim was not exhausted. The

district court held that LaGrone’s claim of actual innocence could

not be the basis for habeas relief absent an independent federal

constitutional violation. See Dowthitt v. Johnson , 230 F.3d 733,

741 (5th Cir. 2000) (a clai m of actual innocence is not a ground

for federal habeas relief in the absence of an independent35

constitutional violation, but is merely a gateway through which the

petitioner must pass in order to have an otherwise barred claim

considered on the merits). The district court rejected LaGrone’s

contention t hat the State presented a false impression at trial

that LaGrone was the only person who entered the house and shot and

killed the victims, because LaGrone failed to prove that the State

presented false testimony at trial. The court rejected LaGrone’s

selective prosecution claim because L aGrone failed to prove that

similarly-situated individuals were not prosecuted and thus failed

to establish that the prosecutorial policy had a discriminatory

effect and that it was motivated by a discriminatory purpose. S ee

McCleskey v. Kemp

, 481 U.S. 279, 297, 306-07 (1987). The district

court noted that the State presented evidence that the same shotgun

fired all of the shell cartridges retrieved from the scene;

LaGrone’s girlfriend testified that, at his request, she bought the

shotgun used to commit the murders; and Charles and Dempsey Lloyd,

both of whom were familiar with LaGrone, testified that LaGrone

c ame into the house and began shooting people. Based on this

evidence, it was the State’s theory that only one person killed the

three victims, and that LaGrone was that person. Thus, the

district court concluded that LaGrone failed to show that the State

had a discriminatory purpose in prosecuting him, because the record

indicates that the State prosecuted him because the totality of the

evide nce pointed to him as the perpetrator. The other three men36

were not similarly situated to LaGrone, as the evidence indicates

that one person did the shooting, and there is no evidence that any

person other than LaGrone was the shooter.

The district court’s assessment of this claim is not debatable

among jurists of reason. LaGrone has not made a substantial

showing that he is entitled to relief because he is actually

innocent, or because he was selectively prosecuted. Accordingly,

we a deny a COA for these claims.

N

Claim 19: Denial of Access to State’s File and Evidence

LaGrone’s final claim is that he was denied due process and

equal protection during the state and federal habeas proceedings as

a result of the State’s refusal to grant his state and federal

habeas counsel access to the State’s file and evidence. LaGrone

states that the Tarrant County District Attorney’s office advised

his federal habeas counse l that, once the direct appeal is

complete, the State’s file is closed, and the District Attorney’s

office does not produce material to the attorneys appointed to

represent habeas petitioners. The District Attorney’s office

advised counsel to make any requests for discovery to the Texas

Attorney General’s office; but the Attorney General’s office does

not have possession of the State’s prosecution fi le or evidence.

LaGrone argues that, without access to the State’s file and

evidence, there is no way that state or federal habeas counsel can37

do a complete job of determining whether he has received adequate

r epresentation, whether he was denied exculpatory evidence, or

whether there was other error.

The state habeas court concluded that, because the prosecution

satisfied its obligations under B rady v. Maryland

, and because

there is no general constitutional right to discovery or access to

the prosecution’s files, LaGrone’s claim with respect to the state

habeas proceedings was without merit. The district court held that

the state court’s conclusion is not contrary to federal law,

because LaGrone’s claim is an attack on a proceeding collateral to

his detention and not the detention itself. See Rudd v. Johnson

,

256 F.3d 317, 319-20 (5th Cir. 2001) (rejecting claim of denial of

due process based on lack of access to State’s case file during

state habeas proceeding).

Regarding the lack of access to the State’s file during the

federal h abeas proceeding, the district court noted that the

Supreme Court has never held that the federal Constitution requires

that the State maintain an open file policy. S ee Kyles v. Whitley

,

514 U.S. 419, 437 (1995). The court noted further that LaGrone has

not alleged, much less shown, that any exculpatory, impeachment, or

mitigating evidence was withheld from his counsel. S ee United

States v. Bagley

, 473 U.S. 667, 675 (1985) (“The prosecutor is not

required to deliver his entire file to defense counsel, but only to2 The district court concluded that LaGrone’s federal habeas

petition was untimely filed, but found that equitable tolling was

warranted. Because we have denied LaGrone’s request for a COA, it

is not necessary for us to consider the State’s argument that the

claims are time-barred and that equitable tolling is unwarranted.

38 disclose evidence favorable to the accused that, if suppressed,

would deprive the defendant of a fair trial.”).

The district court’s assessment of this claim is not debatable

or wrong. LaGrone has not made a substantial showing that he was

denied due process or equal protection as a result of counsel’s

lack of access to the prosecution’s files during the state and

federal habeas proceedings. We therefore deny a COA for this

claim.

IV

With respect to each of his nineteen claims, LaGrone has not

made a substantial showing of the denial of a constitutional right.

We therefore deny his request for a COA. 2

COA DENIED.