* 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that this opinion should not be published and is not precedent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 circumstances set forth in 5TH CIR.

R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

March 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-70021

 

RONALD RAY HOWARD

Petitioner - Appellant

v.

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 

No. 03-CV-48

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

KING, Chief Judge:*

Petitioner-Appellant Ronald Ray Howard seeks a certificate

of appealability (COA) to appeal the district court’s dismissal

of his 28 U.S.C. § 2254 habeas corpus petition. Because Howard

cannot make a substantial showing of the denial of a

constitutional right, we DENY his application for a COA.

I. BACKGROUND
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On April 11, 1992, Howard was driving an automobile that he

had stolen three days earlier when Department of Public Safety

Trooper Bill Davidson noticed that the right headlight of the

vehicle was broken. Davidson pulled Howard over to the side of

the road, called in the license plate, and got out of his police

car. As Davidson approached the driver-side window, Howard shot

him in the neck, inflicting a fatal wound. Howard then drove

off.

Law enforcement officers arrested Howard on the night of the

shooting. Later that month, a grand jury indicted him for

capital murder. Given the overwhelming evidence of guilt--e.g.,

multiple confessions by Howard (to the police, the grand jury,

and fellow inmates), numerous eye witnesses, and evidence that at

the time of his arrest Howard possessed ammunition matching the

firearm used to kill Trooper Davidson--Howard’s counsel did not

contest the State’s evidence at the guilt phase of his trial. 

The jury convicted Howard of capital murder. 

Following a separate punishment phase, the jury answered the

special issues in a manner requiring the imposition of the death

penalty. Consequently, the trial court sentenced Howard to

death. On direct review, however, the Texas Court of Criminal

Appeals overturned the sentence, finding that the trial court

erroneously dismissed a prospective juror over her ability to

answer Texas’s special issues. Howard v. State, 941 S.W.2d 102

(Tex. Crim. App. 1996). After a second punishment phase, a new
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jury answered Texas’s special issues in a manner again requiring

the imposition of a death sentence. Again, the trial court

sentenced Howard to death. The Court of Criminal Appeals

affirmed the judgment on direct appeal, and the United States

Supreme Court denied Howard’s petition for certiorari. Howard v.

Texas, 535 U.S. 1065 (2002).

While his second direct appeal was pending, Howard filed a

state application for habeas relief. The state habeas court

entered findings of fact and conclusions of law recommending the

denial of Howard’s state habeas application. The Court of

Criminal Appeals subsequently denied Howard’s application.

On May 5, 2003, Howard filed a petition for habeas relief in

the United States District Court for the Southern District of

Texas. In his federal habeas petition, which was prepared with

the assistance of newly court-appointed counsel, Howard alleged

that his trial counsel provided ineffective assistance of counsel

by not contesting the State’s evidence at the guilt phase of his

original trial. In addition, Howard argued that he was denied

effective assistance of counsel during his second punishment

phase because his attorney: (1) failed to object during voir dire

when the prosecution informed potential jurors of Howard’s first

death sentence; (2) failed to strike a juror whose husband and

brother were law enforcement officers; (3) entered into an

agreement with the prosecution that allowed Howard’s extraneous

offenses into evidence without objection; and (4) failed to
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object to numerous prosecution exhibits. On March 19, 2004, the

district court rejected Howard’s claims, denied his habeas

petition, and denied a COA on all of his claims. Howard now

seeks a COA from this court only with respect to his argument

that his trial attorney provided ineffective assistance of

counsel at the second punishment phase by not objecting when the

prosecution repeatedly informed potential jurors that Howard had

been sentenced to death at the original punishment phase of his

trial.

II. DISCUSSION

A. Standard of Review

Howard’s claim is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA) because he filed his § 2254

petition on May 5, 2003, after AEDPA’s April 24, 1996 effective

date. See Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir. 1999)

(citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). Under AEDPA,

a state habeas petitioner may appeal a district court’s dismissal

of his petition only if the district court or the court of

appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004);

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (explaining that

a COA is a “jurisdictional prerequisite” without which “federal

courts of appeals lack jurisdiction to rule on the merits of

appeals from habeas petitioners”). “[W]hen a habeas applicant

seeks permission to initiate appellate review of the dismissal of
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his petition, the court of appeals should limit its examination

to a threshold inquiry into the underlying merit of his claims.” 

Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S.

473, 481 (2000)). “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims. In fact, the statute forbids it.” Id. at 336.

A COA will be granted “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2004). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El, 537

U.S. at 327 (citing Slack, 529 U.S. at 484). In other words,

“[t]he petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. at 338. Hence, “[t]he question is the

debatability of the underlying constitutional claim, not the

resolution of that debate.” Id. at 342. “[A] claim can be

debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full

consideration, that petitioner will not prevail.” Id. at 338. 

Finally, any doubt as to whether a COA should issue in a deathpenalty case must be resolved in favor of the petitioner. Newton
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v. Dretke, 371 F.3d 250, 254 (5th Cir. 2004); Medellin v. Dretke,

371 F.3d 270, 275 (5th Cir. 2004) (per curiam).

In determining whether the district court’s denial of

Howard’s petition was debatable, we must keep in mind the

deferential standard of review that AEDPA requires a district

court to apply when considering a petition for habeas relief. 

Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003); see also

Miller-El, 537 U.S. at 336-37 (“We look to the District Court’s

application of AEDPA to petitioner’s constitutional claims and

ask whether that resolution was debatable amongst jurists of

reason.”). Under AEDPA, a federal court is not to grant a writ

of habeas corpus “with respect to any claim that was adjudicated

on the merits in State court proceedings” unless it determines

that the state court’s adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). A state

court’s decision is contrary to Supreme Court precedent if: (1)

“the state court arrives at a conclusion opposite to that reached

by [the Supreme Court] on a question of law”; or (2) “the state

court confronts facts that are materially indistinguishable from

a relevant Supreme Court precedent and arrives at a result

opposite to [that of the Supreme Court].” Williams v. Taylor,

529 U.S. 362, 405 (2000) (opinion of O’Connor, J.) (interpreting
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the statutory language “contrary to, or involved an unreasonable

application of”). “A state court’s decision is an unreasonable

application of clearly established federal law whenever the state

court identifies the correct governing legal principle from the

Supreme Court's decisions but applies that principle to the facts

of the prisoner's case in an objectively unreasonable manner.” 

Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal

quotation marks omitted); accord Williams, 529 U.S. at 409. “An

unreasonable application may also occur if ‘the state court

either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.’” Young, 356 F.3d at 623 (alteration in

original) (quoting Williams, 529 U.S. at 407).

“[A] determination of a factual issue made by a State court

shall be presumed to be correct” unless the petitioner rebuts the

presumption “by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). This presumption of correctness attaches not only

to explicit findings, but also to “unarticulated findings which

are necessary to the state court’s conclusions of mixed law and

fact.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)

(quotation marks omitted). A writ of habeas corpus may issue if

the state court’s adjudication of a claim “resulted in a decision

that was based on an unreasonable determination of the facts in
2 “[B]oth the performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law and fact.” 

Strickland, 466 U.S. at 698.

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light of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d)(2).

We review the district court’s findings of fact for clear

error and its conclusions of law de novo. Collier v. Cockrell,

300 F.3d 577, 582 (5th Cir. 2002).

B. Analysis

Under clearly established federal law as determined by the

Supreme Court, a federal habeas petitioner who alleges

ineffective assistance of counsel must demonstrate that: (1) his

counsel’s performance was constitutionally deficient; and (2) the

deficient performance resulted in actual prejudice. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Riley v. Cockrell, 339

F.3d 308, 315 (5th Cir. 2003). “To establish deficient

performance, a petitioner must demonstrate that counsel’s

representation ‘fell below an objective standard of

reasonableness.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003)

(quoting Strickland, 466 U.S. at 688). “[T]o establish

prejudice, a ‘defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.’”2 Id. at 534 (quoting Strickland, 466 U.S. at
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694). “Failure to prove either deficient performance or actual

prejudice is fatal to an ineffective assistance claim.” Carter

v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997).

Howard requests a COA only on the claim that his attorney

provided ineffective assistance of counsel at his second

punishment phase because he allowed the prosecution to inform

potential jurors during voir dire that a previous jury had

sentenced Howard to death for murdering Davidson. On state

habeas review, Howard’s trial counsel explained via sworn

affidavit why he decided to allow the potential jurors to learn

of Howard’s first death sentence during voir dire:

Because of the pre-trial publicity in this cause, I was

concerned that some or many of the prospective jurors

would be aware that Mr. Howard had been previously

sentenced to death. Since voir dire would be my only

opportunity to question jurors about this matter, I

made a tactical decision to question prospective jurors

about whether or not they could disregard something

which a prior jury had done and make an independent

determination of the issues involved in the trial of

this punishment cause. I discussed this with Mr.

Howard and he agreed with this strategy decision. 

Also, this decision was motivated in part by our

concern that when we put on evidence in the trial that

Mr. Howard had a good prison record since the last

trial, it would become evident to jurors that he had

been confined on death row. I felt that this decision

was sound trial strategy in this cause.

Howard has never disputed the truth of his trial counsel’s

affidavit, and the state habeas court explicitly acknowledged it

as true. In addition, the state habeas court made the following

“findings of fact”:

6. That [Howard’s] defense attorney made no objection
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to the veniremen being informed that [his]

original sentence [was] death.

7. That the issue of querying veniremen on the

question of the original sentence was discussed

prior to voir dire by [Howard’s] defense counsel

and the prosecuting attorney.

8. That [Howard’s] defense counsel felt that there

was a strong likelihood that some prospective

jurors might already be aware of [Howard’s]

original sentence of death, or might become aware

of same when evidence was presented as to

[Howard’s] good conduct while in prison, where he

was held on death row.

9. That [Howard’s] defense counsel felt, as a matter

of trial strategy, that it was in [Howard’s] best

interest to exercise this opportunity to question

prospective jurors about the effect of this

knowledge and their ability to make an independent

decision upon the issues which would be submitted

to the jury at the conclusion of the punishment

phase of the trial without being improperly

influenced by the previous verdict.

10. That the decision by [Howard’s] defense counsel

not to object to the prosecuting attorney

informing prospective jurors as to the prior

punishment verdict was a conscious decision after

considerable deliberation by defense counsel and

was a reasonable trial strategy given the

circumstances of the case.

11. That [Howard’s] defense counsel’s decision not to

object to the prosecuting attorney’s presentation

of this information to prospective jurors was

sound trial strategy.

12. That [Howard’s] defense counsel felt that he would

have to delve into the effect on each jury

panelist or risk the possibility that they knew or

would learn of the previous verdict and if they

were impermissibly influenced by the knowledge he

would have missed an opportunity to disqualify

those panelists.

13. That even if [Howard’s] defense counsel’s decision

not to object to the jurors being informed of the
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first jury verdict had been error, this Court

finds, beyond a reasonable doubt, that the result

of [his] punishment phase of the trial in Nueces

County would not have been different. 

The state habeas court also made these “conclusions of law”:

5. [Howard’s] defense counsel did not provide

ineffective assistance of counsel at the

punishment phase of the trial in Nueces County in

violation of the United States and Texas

Constitutions.

6. [Howard] was not denied ineffective assistance of

counsel.

Thus, the state habeas court considered and rejected Howard’s

ineffective assistance of counsel claim on the merits.

The federal district court denied Howard’s petition for

habeas relief on this ineffective assistance of counsel claim

because Howard failed to show that the state habeas court’s

decision was based on an unreasonable determination of the facts

or that the state decision was contrary to, or an unreasonable

application of, clearly established federal law. The district

court’s conclusion is not debatable among jurists of reason. As

the state habeas court found, the district court recognized, and

Howard does not dispute, Howard’s trial counsel made a strategic

decision to allow the potential jurors to learn of Howard’s

previous death sentence because: (1) he believed that some, or

many, of the jurors may have already known of the prior sentence

given the high level of publicity surrounding the case; and (2)

he wanted to show that Howard had been well behaved while in

prison, which might have revealed that Howard had been on death
3 Howard cites two cases in his COA application to

support his claim that his trial counsel’s performance was

deficient: United States v. Williams, 568 F.2d 464 (5th Cir.

1978), and Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir. 1983). 

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row. Furthermore, trial counsel decided to allow the jury to be

informed of the prior sentence during voir dire, as opposed to

testimony later in the sentencing proceedings, because it offered

him the only opportunity to question potential jurors about the

issue and to eliminate those jurors who expressed that they might

not be able to make an independent determination. Moreover,

trial counsel discussed these tactics with Howard, who agreed to

the strategy. “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Medellin, 371 F.3d at 277

(alteration in original) (quoting Strickland, 466 U.S. at 690). 

“A conscious and informed decision on trial tactics and strategy

cannot be the basis for constitutionally ineffective assistance

of counsel unless it is so ill chosen that it permeates the

entire trial with obvious unfairness.” United States v. Jones,

287 F.3d 325, 331 (5th Cir. 2002) (quoting Garland v. Maggio, 717

F.2d 199, 206 (5th Cir. 1983)). Given the “strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance,” reasonable jurists could not debate the

district court’s conclusion that the state court did not

unreasonably apply clearly established federal law when it found

that Howard’s trial counsel’s performance was not deficient.3
We question the applicability of these cases to Howard’s COA

application because they were decided before Strickland and

appear to be distinguishable. Regardless, neither case involved

AEDPA’s standard of review, and even if Williams and Arthur could

be read to support Howard’s argument that his trial counsel

performed deficiently, they do nothing to suggest that the state

court’s opposite conclusion was contrary to, or involved an

unreasonable application of, clearly established federal law as

determined by the Supreme Court.

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Strickland, 466 U.S. at 689. Because jurists of reason could not

debate the district court’s findings with respect to the state

court’s adjudication of Strickland’s deficiency prong, we need

not address the question of prejudice. See, e.g., Ramirez v.

Dretke, 2005 WL 174643, at *6 (5th Cir. Jan. 27, 2005).

III. CONCLUSION

For the forgoing reasons, we DENY Howard’s application for a

COA.