* Pursuant to 5 TH C IR

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the l imited

circumstances set forth in 5 TH C IR

. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50418

MIGUEL A. RICHARDSON,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(5:98-CV-775)

January 23, 2001

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge: *

Petit i oner, Miguel Richardson (“Richardson”), appeals the district court’s denial of a

certificate of appealability (“COA”). Because we find that the district court did not err in denying

the COA, we affirm the ruling and vacate the stay of execution.

FACTUAL & PROCEDURAL HISTORY

On September 18, 1981, Richardson was convicted of capital murder under Texas Penal Code

Ann. § 19.03 and sentenced to death for the March 31, 1979, murder of John G. Ebbert, a securityguard at a Holiday Inn in San Antonio, Texas. During voir dire, the state trial court excused s ua

sponte a prospective juror, William Noble (“Noble”), who stated that he had already prejudged the

case and that he was opposed to the death penalty. At the penalty phase of Richardson’s trial, Dr.

Robert Rast, an exper t witness and psychiatrist for the State, testified that although he had not

examined Richardson, Richardson was a “threat to society” and a “psychopath.” The State notified

Dr. Rast that it would call him as a witness one day before h e gave his testimony, and it promptly

notified Richardson regarding the proposed testimony.

On June 1, 1994, the Texas Court of Criminal Appeals (“CCA”) affirmed Richardson’s

conviction and death sentence, and it denied Richardson’s motion for re hearing on September 21,

1994. Richardson filed a petition for a writ of habeas corpus in the 175 th District Court of Bexar

County . That court conducted a four-day evidentiary hearing on April 29 through May 2, 1997, in

which Richardson presented evidenc e o f a childhood history of sexual and physical abuse and

evide nce regarding the absence of written guidelines and protocols regulating lethal injections in

Texas. Richardson’s petition, however, was denied.

On October 8, 1998, Richardson filed a petition for COA in federal district court. The district

court denied relief on March 28, 2000. Richardson filed a Motion to Alter and Amend the Judgment

of the District Court on April 11, 2000, which was denied on April 16, 2000. Richardson now

appeals.

DISCUSSION

This Court may not issue a COA “unless the State court’s adjudication of the claim resulted

in ‘a decision that was contrary to, or involved an unre aso nable application of clearly established

Federal law, as determined by the Supreme Court

. . . ; or resulted in a decision that was based onan unreasonable determination of the facts in light of the evidence pre sented in the State court

proce eding.” K

nox v. Johnson

, No. 99-41068, slip op. at 5280 (5 th Cir. filed August 21, 2000)

(citing 28 U.S.C. § 2254(d)).

The Supreme Court recently announced in Slack v. McDaniel somewhat different standards

for the issuance of a COA under AEDPA. It noted that “[w]here a district court has rej ected the

constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate that reasonable jurists would find the district court's assessment of the

constitutional claims debatable or wrong.” 120 S. Ct. 1595, 1603-04 (2000).

Moreover, “[w]hen the district court denies a habeas petition on procedural grounds without

reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows,

at least, that jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id. In addition, this Court will defer to a state court’s

factual findings “unless they were ‘based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings.’” Knox v. Johnson

, No. 99-41068, slip op. at 5280

(citing Chambers v. Johnson , 218 F.3d 360, 363 (5 th Cir. 2000)).

I. Whether the trial court violated Richardson’s Fifth and Sixth Amendment Rights by

dismissing a venireperson

Richardson argues that the state trial court erred when it excluded Noble, whom Richardson

argues qualifies under Witherspoon v. Illino is because he expressed opposition to the death penalty.

391 U.S. 510, 521-23 (1968). Richardson also argues that the CCA erred when it held that the trial

court harmles sly erred when it excused Noble. The CCA determined that although the trial court1 Richardson cites Gray v. Mississippi , 481 U.S. 648, 668 (1987).

2 Richardson complains that the state trial court erred in permitting Dr. Rast, a “surprise witness,”

to testify, thereby depriving him of effective assistance of counsel and violating his due process rights.

Upon review of the transcript of the evidentiary hearing conducted by the court on this issue, we find

no error and decline to elaborate further. asked Noble whether he had formed an opinion regarding Richardson’s guilt or innocence, the trial

court did no t ask him whether that opinion would influence his verdict as required by Tex. Code

Crim. Proc. 35.16(a)(10).

Contrary to Richardson’s assertion that Noble was excus ed because he opposed the death

penalty in violation of Witherspoon , Noble was in fact excused sua sponte by the trial court during

voir dire because the court believed that he had already prejudged the case. Moreover, although

Richardson notes that a Witherspoon error may never be harmless error, 1 the CCA stated that Noble’s

dismissal was error because Texas law holds that a juror must be asked whether his conclusion will

influence his verdict. R ichardson v. State

, 744 S.W.2d 65, 68 (Tex.Cr.App. 1987). The CCA’s

holding, therefore, regarding error had nothing to do with a Witherspoon violation.

T he CCA, however, concluded that this error was harmless because Richardson had not

shown that he was harmed by the trial court’s action since the State had not used all of its peremptory

challenges. I d. at 68-69. Thus, we affirm the trial court’s ruling on this issue since reasonable jurists

would not find the district court’s assessment of the alleged Witherspoon claim debatable or wrong.

II. Whether Dr. Rast’s testimony violated Richardson’s Fifth and Sixth Amendment Rights

Richardson’s main argument for this issue is that Gardner v. Florida , 430 U.S. 349 (1977),

applies to this case and that G ray v. Netherland

, 518 U.S. 152 (1996), is inapplicable. 2 Dr. Rast

testified in par t t hat Richardson was a “threat to society” and a “psychopath,” yet he candidlyadmitted that he had not examined him. Richardson asserts that G ardner

, in which the Court held that

the trial court denied petitioner’s due process rights because it sentenced him “to death on the basis

of information which he had no opportunity to deny or explain,” is controlling precedent.

Gardner is distinguishable from the instant case because the confidential portions of the

presentence report remained undisclosed to all parties in that case. Moreover, the defense received

no opportuni ty at trial to examine the confidential report. Here, however, although Richardson was

not aware of Dr. Rast’s testimony until t he day before he testified, he was afforded a lengthy

opportunity to cross-examine Dr. Rast.

More importantly, this case is governed by Gray v. Netherland which involved the testimony

of two additional witnesses, a medical examiner and a police officer, regarding additional murders the

Petitioner had allegedly committed. Like Richardson, the Petitioner in G ray v. Netherland received

only a day’s notice of the testimony, yet the Court noted that there is “no general constitutional right

to discovery in a criminal case.

. . .” 518 U.S. at 168-171. It held that Petitioner’s notice of evidence

claim regarding the two witnesses was barred by Teague v. Lane

, 489 U.S. 288 (1989), because it

sought “retroactive application of a new rule.” Id

.

Richardson contends that Gray is inapplicable to his case because th e evidence at issue

involved “cumulative wit nesses” instead of a witness who is the State’s sole expert on future

dangerousness. This argument is not persuasive given that the principle behind G ray and the instant

case is the same: notice of evidence claims are T eague

- barred. It matters little how many witnesses

constitute the evidence. Moreover, although Richardson asserts that G ardner is applicable, the Court

in Gray distinguished that case by noting that although “Gardner literally had no opportuni ty to even

see the confidential information

. . . [p]etitioner in t he present case, on the other hand, had the

opportuni ty to hear the testimony of Officer Slezak and Dr. Presswalla in open court, and to cross-3 Richardson also argues that Estelle v. Smith , 451 U.S. 454 (1981) and Gholson v. Estelle , 675

F.3d 784 (5 th Cir. 1982) are instructive. Although these cases involved the admission of testimony

of “surprise witnesses,” these witnesses wer e psychiatrists who had previously interviewed the

defendants and who later testified about the future dangerousness of the defendants based on their

ex aminations. In both cases, however, the courts focused on the lack of an attorney during the

examination as the reason for their holdings. Here, there is no such issue, as Dr. Rast admitted that

he had not interviewed Richardson. examine them.” Gray

, 518 U.S. at 168-6 9. Here, as in G ray

, Richardson was afforded the

opportuni ty of hearing the testimony of Dr. Rast and cross-examining him. The law is, t herefore,

clear that the district court did not err when it granted relief on this issue and reasonable jurists would

not find the district court’s assessment of this issue debatable or wrong. 3

III. Whether the trial court erred by no t giving a Penry instruction even though mitigating

evidence regarding childhood abuse was not presented

Although Richardson admits that he did not present mitigating evidence regarding childhood

sexual and physical abuse at trial because of his fear that a Penry -type instruction would not be given,

he argues that because he presented such evidence at the state habeas corpus hearing, this Court

sho u ld hold that the district court erred by not giving such an instruction. The district court

extensively examined this issue and found that Richardson’s claim lacked merit.

We agree with the district court’s assessment because Richardson cites no precedent stating

that a trial judge erred by not giving a Penry -type instruction when there was nothing about which

to instruct. S ee Boyd v. Johnson

, 167 F.3d 907, 912 (5 th Cir. 1999) (“A petitioner cannot base a

Penry claim on evidence that could have been but was not proffered at trial.”); see also Woods v.

Johnson , 75 F.3d 1017, 1033 (5 th Cir. 1996) (“We have consistently held that a Penry v. Lynaugh

,

492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), claim may not be predicated on ‘evidence’

which was not offered or tendered (conditionally or otherwise) at trial.”). Hence, the trial court didnot err in denying a COA on this issue.

IV. Whether the lack of written guidelines and protocol s for executions by lethal injection in

Texas violates Richardson’s Eighth Amendment rights

Richardson creatively argues that the lack of written guidelines and protocols to administer

executions by lethal injection in Texas violates his Eighth Amendment rights against cruel and unusual

punishment. Richardson present ed the testimony of two experts, a criminologist and

ane st hesiologist/pharmacologist, at the state habeas corpus hearing. They testified regarding the

effects of extreme pain and suffering as a result of lethal injection and specific instances which

resulted in extreme pain and suffering invo lving lethal injection, respectively. However, as the district

court points out, this Court has upheld the use of lethal injec tion as a method of executi on. S ee

Woolls v. McCotter , 798 F.2d 695, 697 (5 th Cir. 1986); see also Kelly v. Lynaugh , 862 F.2d 1126,

1135 (5 th Cir. 1988) (stating that this Court has already rejected the argument that lethal injection is

cruel and unusual punishment even when administered by an unqualified person). Moreover, as the

district court further notes, Richardson is in essence petitioning for the application of a new rule

which is barred by Teague

.

We also agree w it h t he dist rict court’s assessment that the expert testimony given by Drs.

Edward Brunner and Deborah Denno at the state habeas corpus hearing is not helpful on this issue.

Although the district court emphasizes that the experts were unable to testify how lethal injections

are administered in Texas, we agree with its finding that the experts failed to show how the lack of

written procedures results in extreme pain and suffering.

For example, Dr. Denno , t he criminologist, testified that there have been 11 botched

executions out of 115 total executions in Texas by lethal injection. Dr. Denno admitted that sevenout of these eleven botched executions resulted not because of a lack o f written procedures, but

because the o fficials took care to find a suitable vein on individuals who were long-time intravenous

drug users and who had much vein-scarring. Accordingly, there are only four out of a total of 115

executions administered by lethal injection which may be deemed “botched” according to Dr. Denno.

It is unclear whether these failed efforts occurred because of a lack of written procedures or because

of human error. Richardson’s evidence is insufficient to show that Texas violates individuals’ Eighth

Amendment rights because of a lack of w rit ten guidelines in administering executions by lethal

injection.

Dr. Brunner was also unable to explain the link between written guidelines and decreased pain

and suffering during lethal injection. In addition, he noted that there is nothing to indicate that Texas

is doing anything incorrectly in administering lethal injection. Thus, the district court did not err by

denying a COA for this issue.

CONCLUSION

Because we find that Richardson’s Fifth and Sixth Amendment rights were not violated when

the state trial court excused venireperson Noble and when Dr. Rast testified during the penalty phase

of the trial, Richardson’s Eighth Amendment rights were not violated by a lack of written guidelines

and protocol s for executions by lethal injection in Texas, and the state trial court did not err by not

giving a Penry instruction, we aff irm the district court’s denial of a COA and vacate the stay of

execution.

AFFIRMED. STAY OF EXECUTION VACATED.