IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-70014

CHRISTOPHER DEVON JACKSON, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:15-CV-208

Before CLEMENT, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Christopher Jackson was convicted and sentenced to death for killing

Eric Smith after carjacking the SUV that Smith was driving. Jackson seeks a 

certificate of appealability (“COA”) as to his allegations of ineffective assistance 

of counsel. Finding his arguments unpersuasive, we DENY his request.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 10, 2018

Lyle W. Cayce

Clerk

 Case: 18-70014 Document: 00514753693 Page: 1 Date Filed: 12/10/2018
No. 18-70014

2

FACTS AND PROCEEDINGS

A jury convicted and sentenced Jackson to death for killing Smith while 

committing or attempting to commit robbery. The Texas Court of Criminal 

Appeals (“TCCA”) upheld Jackson’s conviction. Jackson v. State, 2010 WL 

114409 (Tex. Crim. App. Jan. 12, 2010). The Supreme Court denied certiorari. 

Jackson v. Texas, 562 U.S. 844 (2010).

Jackson then filed a state application for habeas corpus. After briefing 

and a hearing, the trial court recommended that the TCCA deny relief and 

submitted proposed findings of fact and conclusions of law. Following its own 

review, the TCCA adopted the trial court’s position and denied Jackson’s 

application. Ex parte Jackson, 2014 WL 5372347 (Tex. Crim. App. Aug. 20, 

2014) (per curiam).

Jackson filed a federal petition for habeas corpus. After briefing was 

complete, and limited discovery, the district court denied habeas relief and a 

COA in a memorandum opinion and order. Jackson now requests a COA from 

this court.

STANDARD OF REVIEW

Jackson’s COA request is governed by the Antiterrorism and Effective 

Death Penalty Act (“AEDPA”). We will grant a COA under AEDPA only if 

Jackson can make a “substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or 

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In a death-penalty case, 

we resolve any doubts over whether a COA is proper in the petitioner’s favor. 

Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). 

In deciding Jackson’s COA question, we must keep in mind the 

extraordinary deference that AEDPA places around the TCCA’s conclusions of 

law and findings of fact—it is through this deferential lens that the district 

 Case: 18-70014 Document: 00514753693 Page: 2 Date Filed: 12/10/2018
No. 18-70014

3

court evaluated Jackson’s constitutional claims. Under AEDPA, a federal court 

cannot grant habeas relief to a state prisoner on any claim adjudicated on its 

merits by the state court unless the 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). And our inquiry is 

“limited to the record that was before the state court” and “focuses on what a 

state court knew and did.” Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011).

A decision is contrary to federal law when it either reaches a conclusion 

opposite to that of the Supreme Court on a question of law, or arrives at an 

opposite result on facts that are materially indistinguishable from those 

confronted by a relevant Supreme Court case. Sprouse v. Stephens, 748 F.3d 

609, 616 (5th Cir. 2014). A decision involves an unreasonable application of 

federal law if it “correctly identifies the governing legal rule but applies it 

unreasonably to the facts of a particular prisoner’s case.” Perez v. Cain, 529 

F.3d 588, 594 (5th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 407–

08 (2000)). The state court’s decision must not just be wrong; it must be 

unreasonable—meaning no “fairminded jurist” could possibly agree with it. 

Harrington v. Richter, 562 U.S. 86, 101 (2011).

On appeal, we review “the district court’s findings of fact for clear error 

and its conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th 

Cir. 2013). An appellate court “will not disturb a district court’s factual findings 

unless they are implausible in light of the record considered as a whole.” Wiley 

v. Epps, 625 F.3d 199, 213 (5th Cir. 2010). “Where there are two permissible 

views of the evidence, the factfinder’s choice between them cannot be clearly 

erroneous.” Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 

574 (1985)).

 Case: 18-70014 Document: 00514753693 Page: 3 Date Filed: 12/10/2018
No. 18-70014

4

DISCUSSION

In the district court, Jackson argued that his counsel performed 

ineffectively by failing to investigate and present mitigating evidence during 

the punishment phase. Jackson had raised the same claim in state court. 

Jackson reasserted the claim in the original state petition, along with

additional grounds for relief not presented to the state court. The district court 

held that the new grounds were procedurally defaulted because they had not 

been exhausted in state court. Aside from a conclusory footnote asserting that 

the district court should not have “split” his claim, Jackson has offered no 

argument contesting the procedural default. 

Jackson’s reply argues that “Respondent[] . . . artificially segregate[es] 

Mr. Jackson’s . . . claim into a supposed ‘exhausted’ and an ‘unexhausted’ 

portion.” But Respondent did no such thing; it simply adopted the same 

framework articulated by the district court. If Jackson had wanted to challenge 

that framework, he should have done so clearly and explicitly in his opening 

brief. Cf. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 n.9 (5th Cir. 1991) 

(“Customarily we decline even to consider arguments raised for the first time 

in a reply brief.”). Accordingly, any challenge to the procedural default is 

waived, and we will consider only the rejection of the claims characterized by 

the district court as properly exhausted. Summers v. Dretke, 431 F.3d 861, 870 

(5th Cir. 2005) (A failure “to adequately brief . . . issues” results in waiver).

We will consider Jackson’s assertion that his trial counsel failed to 

properly investigate, develop, and present mitigation evidence concerning 

Jackson’s mental health. To succeed under Strickland, Jackson must show 

that counsel’s performance was deficient, and that this deficiency prejudiced 

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

The district court painstakingly reviewed the evidence and arguments 

Jackson now wishes trial counsel would have presented to the jury. It cogently 

 Case: 18-70014 Document: 00514753693 Page: 4 Date Filed: 12/10/2018
No. 18-70014

5

explained why the state habeas court rejected these claims and, attentive to 

the deferential standard of review, independently determined that those

conclusions were consistent with Strickland and its progeny. 

There is no reason to repeat that analysis here. In short, trial counsel 

did not abdicate his responsibility to prepare for and conduct the punishment 

phase. He hired experts, called family members and a mitigation investigator 

to the stand to discuss Jackson’s background, and made reasoned decisions 

about what kind of evidence or lines of inquiry he thought would do more harm 

than good. In other words, he had sufficient familiarity with Jackson’s mentalhealth history and family background to make the tactical decisions that he

made about the evidence to put before the jury and the vehicle by which to put 

it. 

And even if the evidence and experts had been presented as Jackson now 

wishes, the jury would still have had to consider Jackson’s long-standing, 

intensifying, and consistent—even throughout the trial—violent behavior. 

Given the weight of this overwhelming evidence, Jackson has not shown any

reasonable probability of a different result at sentencing.

CONCLUSION

The district court’s opinion is thorough and well-reasoned with respect 

to all of the preserved issues. No reasonable jurist could disagree. Jackson’s 

request for COA is DENIED.

 Case: 18-70014 Document: 00514753693 Page: 5 Date Filed: 12/10/2018