IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARLTON AKEE TURNER, §

 §

Petitioner, §

 § 

VS. §

 § Civil Action No. 3:04-CV-2232-D

 §

DOUGLAS DRETKE, Director, Texas § 

Department of Criminal Justice, §

Institutional Division, §

 §

Respondent. §

MEMORANDUM OPINION

 AND ORDER 

Petitioner Carlton Akee Turner (“Turner”), convicted and

sentenced to death for capital murder, petitions the court for a

writ of habeas corpus based on seven claims. The court holds that

one claim is procedurally barred and that Turner is not otherwise

entitled to relief under the standards prescribed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. The court therefore denies Turner’s petition for a

writ of habeas corpus and dismisses this action with prejudice.

I

The background facts of Turner’s case are described by the

Texas Court of Criminal Appeals in its published opinion on direct

appeal. See Turner v. State, 87 S.W.3d 111, 113 (Tex. Crim. App.

2002), cert. denied, 538 U.S. 965 (2003). The court adds to that

discussion pertinent trial evidence and procedural history

necessary to understand the court’s disposition of this petition.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 1 of 41 PageID 193
1Pursuant to Tex. Code Crim. Proc. Ann. art. 11.071 § 4(a)

(Vernon Supp. 2006), “[a]n application for a writ of habeas corpus

. . . must be filed in the convicting court not later than the

180th day after the date the convicting court appoints counsel

. . . or not later than the 45th day after the date the state’s

original brief is filed on direct appeal with the court of criminal

appeals, whichever date is later.”

- 2 -

On the morning of August 8, 1998, 19-year old Turner shot and

killed both of his parents in their home in Dallas, Texas, where he

also resided. Id. After moving their bodies to the garage, he

went shopping with his parents’ cash and credit cards. Id. Turner

was tried for and found guilty of capital murder. Id. Based on

the jury’s answers to the two punishment-phase special issues, the

trial court sentenced Turner to death. Id. The Texas Court of

Criminal Appeals affirmed his conviction and sentence on direct

appeal on July 12, 2002, id. at 118, and the Supreme Court of the

United States denied his petition for a writ of certiorari on April

7, 2003, see Turner v. Texas, 538 U.S. 965 (2003).

While the direct appeal was pending in the Texas Court of

Criminal Appeals, Turner applied on September 28, 2001 for a writ

of habeas corpus in the state habeas court.1

 After determining

that there were no controverted, previously unresolved factual

issues requiring a hearing, the state habeas court on September 13,

2002 entered its findings of fact and conclusions of law,

recommending that all relief be denied. See Ex parte Turner, No.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 2 of 41 PageID 194
2Throughout the remainder of this opinion, except as the

context otherwise requires, the court will refer to the “state

habeas court” as a single tribunal, although it recognizes that the

Texas Criminal Court of Appeals independently determined that

habeas relief should be denied.

3Relying on Ex parte Ramos, 977 S.W.2d 616 (Tex. Crim. App.

1998) (en banc), the state habeas court held that all but two of

Turner’s grounds for relief were procedurally barred because they

were then being litigated on direct appeal. See State Hab. Find.

Nos. 4, 50, 72, 88, 98. Respondent conceded at oral argument

before this court that it does not rely on this procedural bar, and

the court need not address it before reaching the merits of

Turner’s petition. See Fisher v. Texas, 169 F.3d 295, 301 (5th

Cir. 1999) (“A state waives a procedural bar defense by failing to

raise the defense in the district court.”).

- 3 -

W99-00220-MS(A) (282nd Dist. Ct., Dallas County, Tex.).2 On

September 29, 2004 the Texas Court of Criminal Appeals denied

relief in an unpublished order based on the state habeas court’s

findings and conclusions and on its own review of the record. Ex

parte Turner, No.59,908-01 (Tex. Crim. App. Sept. 29, 2004) (per

curiam).

On October 15, 2004 Turner filed in this court a motion for

appointment of counsel and, subsequently, a motion to proceed in

forma pauperis, each of which the court granted. On May 25, 2005

he filed the instant petition for a writ of habeas corpus. Turner

seeks relief on the following seven grounds:3

1. Turner was denied effective assistance of counsel,

in violation of the Sixth and Fourteenth Amendments

to the United States Constitution, by his trial

counsels’ failure to object during the State’s voir

dire of prospective jurors that the parole laws

that required him to serve at least 40 actual years

prior to parole eligibility were subject to change

in the event he received a life sentence.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 3 of 41 PageID 195
- 4 -

2. The State’s instructions to eight jurors that the

40-year minimum for parole eligibility may not

apply to Turner in the future because the parole

laws might change deprived him of his rights

pursuant to the Eighth and Fourteenth Amendments to

the United States Constitution to such a degree

that he was deprived of a fair and impartial trial.

3. The trial court’s instructions to the jury that

they were not to consider the actual amount of time

Turner would have to serve in arriving at their

verdict deprived him of a fair and impartial trial,

in violation of the Due Process Clause of the

Fourteenth Amendment and the Eighth Amendment of

the United States Constitution.

4. The trial court’s instructions to the jury at the

punishment phase of Turner’s trial, which failed to

define vague terms in the special issues submitted

to the jury, violated his right to a fair and

impartial trial, in violation of the Due Process

Clause of the Fourteenth Amendment and the Eighth

and Sixth Amendments to the United States

Constitution.

5. The Texas death penalty statute, which fails to

inform jurors that the effect of the jury’s failure

to reach a unanimous verdict on any issue at the

punishment phase of the trial would result in a

life sentence, fundamentally violated Turner’s

rights against cruel and unusual punishment and to

due process of law, under the Eighth and Fourteenth

Amendments to the United States Constitution.

6. Dallas County’s venire selection process violated

his rights to an impartial jury consisting of a

representative cross-section of the community,

under the Sixth and Fourteenth Amendments to the

United States Constitution.

7. The cumulative effect of the above-enumerated

constitutional violations denied him due process of

law, in violation of the Fifth and Fourteenth

Amendments to the United States Constitution, even

if no separate infraction by itself rose to that

magnitude.

Respondent answered on August 15, 2005. Turner filed his

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 4 of 41 PageID 196
- 5 -

reply brief on October 11, 2005. The court heard oral argument on

March 10, 2006.

II

A

Turner’s habeas petition is governed by AEDPA. 28 U.S.C.

§ 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim——

(1) resulted in a decision that was

contrary to, or involved an

unreasonable application of, clearly

established Federal law, as

determined by the Supreme Court of

the United States; or 

(2) resulted in a decision that was

based on an unreasonable

determination of the facts in light

of the evidence presented in the

State court proceeding.

Id. This court’s determination requires deference to the state

habeas court’s adjudication of Turner’s claim unless the

adjudication is flawed under at least one of these provisos. See,

e.g., Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001); Wheat

v. Johnson, 238 F.3d 357, 360 (5th Cir. 2001). “[A] federal

court’s review of a claim adjudicated in a state court is

deferential . . . .” Summers v. Dretke, 431 F.3d 861, 868 (5th

Cir. 2005).

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 5 of 41 PageID 197
- 6 -

Under the “contrary to” clause [of §

2254(d)(1)], a federal habeas court may grant

[a writ of habeas corpus] if the state court

arrives at a conclusion opposite to that

reached by [the Supreme Court of the United

States] on a question of law or if the state

court decides a case differently than [the

Supreme Court] has on a set of materially

indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “A

‘run-of-the-mill state-court decision applying the correct legal

rule’ would not fit within this exception as ‘diametrically

different’ or ‘opposite in character or nature’ from Supreme Court

precedent.” Beazley v. Johnson, 242 F.3d 248, 256 (5th Cir. 2001)

(quoting Williams, 529 U.S. at 406).

“Under the ‘unreasonable application’ clause [of

§ 2254(d)(1)], a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Williams, 529 U.S.

at 413. “[A] federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s

application of clearly established federal law was objectively

unreasonable.” Id. at 409. “A state court’s decision will be

based on an unreasonable application of clearly established federal

law when it is objectively unreasonable.” Kutzner, 242 F.3d at

608. “[A]n unreasonable application of federal law is different

from an incorrect application of federal law.” Williams, 529 U.S.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 6 of 41 PageID 198
- 7 -

at 410. “Under § 2254(d)(1)’s ‘unreasonable application’ clause,

then, a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 411. “[A] federal court is not to

substitute its judgment for that of the state court. Rather under

AEDPA, federal habeas relief is proper only if the state habeas

court applied federal law in an ‘objectively unreasonable’ manner.”

Schaetzle v. Cockrell, 343 F.3d 440, 447 (5th Cir. 2003). 

Moreover, “‘a federal habeas court is authorized by Section

2254(d) to review only a state court’s “decision,” and not the

written opinion explaining that decision.’” Summers, 431 F.3d at

868 (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.

2003); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (per

curiam) (en banc)). When, as here, the Texas Court of Criminal

Appeals denies a habeas petition without written order on findings

of the trial court, this court “(1) assumes that the state court

applied the proper ‘clearly established Federal law’; and (2) then

determines whether its decision was ‘contrary to’ or ‘an

objectively unreasonable application of’ that law.” Schaetzle, 343

F.3d at 443 (citing Catalan v. Cockrell, 315 F.3d 491, 493 & n.3

(5th Cir. 2002); Robertson v. Cain, 324 F.3d 297, 303 (5th Cir.

2003)).

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 7 of 41 PageID 199
- 8 -

“Factual findings of the state court are presumed to be

correct . . . .” Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir.

2001). A federal habeas court must “defer to them unless they were

based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.” Id. (internal

quotation marks omitted) (quoting Chambers v. Johnson, 218 F.3d

360, 363 (5th Cir. 2000)). “When challenging a state court’s

factual determinations, a petitioner must rebut this presumption of

correctness by ‘clear and convincing evidence.’” Barnes v.

Johnson, 160 F.3d 218, 222 (5th Cir. 1998) (quoting 28 U.S.C.

§ 2254(e)(1)).

B

Turner argues in his brief, and he emphasized at oral argument

before this court, that the state habeas court did not “adjudicate”

his claims within the meaning of 28 U.S.C. § 2254(d). He bases

this argument on the fact that, despite his request for a hearing,

the state habeas court did not hold one, did not, as allowed by

Texas law, require affidavits, depositions, or interrogatories to

resolve any factual allegations that he raised, and adopted

verbatim the State’s proposed findings of fact and conclusions of

law. Turner maintains on this basis that this court should

evaluate his claims without the deference usually accorded state

findings. The court disagrees. 

In a June 19, 2002 order, the state habeas court declined to

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 8 of 41 PageID 200
- 9 -

convene a hearing because it found “that there are no controverted,

previously unresolved facts material to the legality of [Turner’s]

confinement which require an evidentiary hearing.” R. 84. It

provided the parties 30 days’ notice that it would decide his

application after considering proposed findings of fact and

conclusions of law and without hearing oral argument. Turner does

not explicitly contest the validity of the finding that no hearing

or additional evidence was necessary and, given the nature of the

claims before this court that are not procedurally defaulted (i.e.,

claims 1-5 and 7), it does not appear that any claim necessitated

an evidentiary hearing because the factual predicates for the

claims are evident from the trial record.

Moreover, even if the court assumes there are contested fact

issues, the rule is well settled that the presumption of

correctness of § 2254(d) is not affected merely because the state

habeas court conducts a paper hearing. Carter v. Johnson, 131 F.3d

452, 460 n.13 (5th Cir. 1997). Findings based exclusively on

affidavits are generally sufficient to warrant the presumption.

Id. (citing cases). This is particularly true when, as here, the

state habeas judge is the same judge who presided at trial. See

May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992) (discussing state

hearing as full and fair under pre-AEDPA standard). Ultimately,

each case must be judged on its own facts. Carter, 131 F.3d at 460

n.13 (“‘[I]t is necessary to examine in each case whether a paper

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 9 of 41 PageID 201
- 10 -

hearing is appropriate to the resolution of the factual disputes

underlying the petitioner’s claim.’”) (quoting May, 955 F.2d at

312)). 

Finally, the Fifth Circuit has rejected the contention that

habeas findings adopted verbatim from those submitted by the State

are not entitled to deference. See Nichols v. Scott, 69 F.3d 1255,

1277 (5th Cir. 1995) (relying on Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 571 (1985), in which the Supreme Court stated

that, “even when the trial judge adopts the proposed findings

verbatim, the findings . . . may be reversed only if clearly

erroneous.”); see also Trevino v. Johnson, 168 F.3d 173, 180 (5th

Cir. 1999) (rejecting due process challenge to state habeas court’s

verbatim adoption of district attorney’s proposed findings of fact

and conclusions of law only three hours after they were filed with

court); James v. Collins, 987 F.2d 1116, 1122-23 (5th Cir. 1993)

(rejecting challenge to according deference to habeas findings by

Texas court that were adopted verbatim under pre-AEDPA federal

habeas statute). 

Accordingly, the court will review the state habeas court’s

findings of fact and conclusions of law with the deference to which

they are entitled under AEDPA.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 10 of 41 PageID 202
- 11 -

III

In two related claims, Turner challenges the State’s comments

during voir dire about the possibility of changes in Texas parole

law. In claim 1 he maintains that his trial counsels’ failure to

object to these comments deprived him of his right to effective

assistance of counsel.

A

During voir dire the State discussed with prospective jurors

the issue of parole eligibility. It stated that the trial court

would instruct them not to consider parole eligibility in deciding

Turner’s punishment. Both the State and Turner advised the jury

that Texas law required that, if Turner was convicted and sentenced

to life in prison, he would serve at least 40 actual calendar

years, without consideration for good time, before he would be

eligible for parole. Turner complains that the State went beyond

explaining the applicable law, beyond determining whether

veniremembers could follow the law, and explained to persons who

later became trial jurors that the reason the trial court would

instruct them not to consider the 40-year minimum was that the

Texas Legislature could change the law at any time, thereby making

the minimum inapplicable to Turner. He also maintains that the

prosecutor exacerbated the error by attesting to several changes in

the parole laws that he had seen during his tenure and suggesting

that it could reasonably be expected that there would be other

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 11 of 41 PageID 203
4The opinion issued in Burton on October 25, 2000 was

withdrawn on rehearing and replaced by another unpublished opinion

in Burton v. State, No. 73,204 (Tex. Crim. App. March 7, 2001) (on

rehearing) (unpublished opinion). See Turner, 87 S.W.3d at 115

(addressing procedural history of Burton).

- 12 -

changes. Turner posits that this approach resulted in the State’s

instructing the jury contrary to existing parole law that it knew

would be included in the punishment phase jury charge.

Turner asserts that Texas law precluded the State from arguing

contrary to the law contained in the jury instructions and from

inviting jurors to disregard the law. Relying on Burton v. State,

No. 73,204 (Tex. Crim. App. Oct. 25, 2000) (unpublished opinion),4

he argues that the State encouraged the jury to disregard the trial

court’s instructions and compounded its error by telling several

veniremembers who became jurors that the trial court’s instruction

to disregard the 40-year minimum was based on the fact that the law

could change. Turner posits that the State invited, if not

encouraged, these jurors to disregard the law completely and to

consider the 40-year eligibility law to be meaningless. He argues

that this is significant because half his jury deliberated while

under the clear impression that he might not serve 40 calendar

years before being released. Turner posits that, if even one of

the six discussed this with other jurors, the entire jury may have

been infected.

The state habeas court for several reasons denied Turner’s

ineffective assistance of counsel claim. In relevant part, it

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 12 of 41 PageID 204
- 13 -

found that Turner had failed to meet the first prong of Strickland

v. Washington, 466 U.S. 668 (1984), which required that he show

deficient performance by his counsel in failing to object to the

prosecution’s parole remarks. State Hab. Find. Nos. 37-39.

Specifically, it found that to establish that his counsel were

ineffective for failing to lodge an objection, Turner was obligated

to demonstrate that the trial court would have erred in overruling

the objection, id. at 6. The court also found that Turner had

failed to show that his counsels’ objection would have been

properly sustained, id. at 36, or that an objection would have been

improperly overruled, because he did not demonstrate that “the

prosecutor’s comment was an inappropriate explanation of [the trial

court’s] parole law instruction,” id. at 11. It ultimately found

that Turner’s counsel were “not deficient for failing to object to

the prosecutor’s parole remarks.” Id. at 39.

B

“If a state court has already rejected an

ineffective-assistance claim, a federal court may grant habeas

relief if the decision was ‘contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’” Yarborough

v. Gentry, 524 U.S. 1, 5 (2003) (per curiam) (quoting 28 U.S.C.

§ 2254(d)(1)). “Where, as here, the state court’s application of

governing federal law is challenged, it must be shown to be not

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 13 of 41 PageID 205
- 14 -

only erroneous, but objectively unreasonable.” Id. (citing cases).

“The clearly established federal law that sets the standard

for ineffective assistance claims is Strickland v. Washington

. . . .” Catalan, 315 F.3d at 492. Under the Strickland test the

following showing is necessary to demonstrate ineffective

assistance:

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced

the defense. This requires showing that

counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose

result is reliable. 

Strickland, 466 U.S. at 687. 

To establish ineffectiveness, a defendant must

show that counsel’s representation fell below

an objective standard of reasonableness. To

establish prejudice he 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.

Williams, 529 U.S. at 390-91 (internal citations and quotation

marks omitted) (quoting Strickland, 466 U.S. at 688, 694). If

Turner fails to meet either prong of the Strickland test, the court

need not address the other component. See Strickland, 466 U.S. at

697; Carter, 131 F.3d at 463 (“Failure to prove either deficient

performance or actual prejudice is fatal to an ineffective

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 14 of 41 PageID 206
- 15 -

assistance claim.”). 

Courts “indulge a strong presumption” that counsel’s conduct

falls within the range of reasonable assistance. Strickland, 466

U.S. at 689. Courts must “not fall prey to ‘the distorting effect

of hindsight’ but must be ‘highly deferential’ to counsel’s

performance.” Carter, 131 F.3d at 463 (quoting Strickland, 466

U.S. at 689-90). Moreover, when a defendant seeks a writ of habeas

corpus based on ineffective assistance,

[i]t bears repeating that the test for federal

habeas purposes is not whether [Turner] made

that showing. Instead, the test is whether

the state court’s decision——that [Turner] did

not make the Strickland-showing——was contrary

to, or an unreasonable application of, the

standards provided by the clearly established

federal law (Strickland), for succeeding on

his [ineffective assistance] claim.

Schaetzle, 343 F.3d at 444. 

C

To understand why Turner’s ineffective assistance claim fails

on federal habeas review, it is necessary to clarify at the outset

the predicate for the claim. Although this ground of his petition

is perhaps influenced by the rationale for, and the arguments made

in support of, related claim 2 (and perhaps claim 3), Turner’s

first claim is based on the premise that his trial counsel were

ineffective for failing to object to conduct that he contends

violated Texas law. This is pellucid from reading his brief.

Apart from reciting his right under federal and state law to

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 15 of 41 PageID 207
- 16 -

effective assistance of counsel, the balance of the argument in

support of claim 1 is based on the premise that the State’s

comments violated Texas law. See P. Br. 6-8. 

To succeed in this court on his ineffective assistance claim,

he must show that the state habeas court’s decision that he did not

satisfy the first prong of Strickland was contrary to, or an

unreasonable application of, the standards provided by the clearly

established federal law (i.e., Strickland). Because Turner relies

on Texas law to argue that his counsel were ineffective, he cannot

make this showing unless he can demonstrate as a threshold matter

that their objections to the prosecution’s parole statements would

have had merit under Texas law. His counsel could not have been

constitutionally ineffective if their objections to such comments

would not have been sustainable. See Green v. Johnson, 160 F.3d

1029, 1037 (5th Cir. 1998) (holding that failure to make frivolous

objection does not cause counsel’s performance to fall below

objective standard of reasonableness); McCoy v. Lynaugh, 874 F.2d

954, 963 (5th Cir. 1989) (same). Turner cannot meet this

requirement. 

The Texas Court of Criminal Appeals explicitly rejected on

direct appeal Turner’s contention “that his counsel were

ineffective for not objecting to the prosecution’s voir dire

comments to several veniremembers and eventual jurors that the jury

could not consider a life-sentenced appellant’s parole eligibility

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 16 of 41 PageID 208
- 17 -

because of possible future legislative changes to the parole laws.”

Turner, 87 S.W.3d at 113; see also id. at 116 (overruling this

claim of error). It also rejected his argument “that these

prosecutorial comments were also ‘fundamental error’ because they

denied him a fair punishment hearing under the Eighth and

Fourteenth Amendments.” Id. at 113; see also id. at 116

(overruling this claim of error). The court recounted the

prosecution’s statements to three jurors as typifying the comments

to which Turner objected. Id. at 113-15. It began by rejecting

his reliance on the court’s unpublished Burton opinion because the

decision had been withdrawn and the replacement opinion was also

unpublished and thus lacked precedential value. Id. at 115. After

examining the State’s comments in the context of the entire voir

dire, the court held that “[o]n this record, we cannot say that

counsel was ineffective for failing to object to the prosecutor’s

voir dire comments since, viewed in the context of the entire voir

dire, they were not objectionable.” Id. at 116 (citing Strickland,

466 U.S. at 687-94).

Accordingly, in this case there is an authoritative

determination by the highest criminal court of the State of Texas

that Turner’s counsels’ objections, had they been made, would have

lacked merit. It follows that his counsel could not have rendered

ineffective assistance by failing to interpose the objections, and

Turner has failed at a threshold level to show that the state

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 17 of 41 PageID 209
5

The trial court instructed the jury:

You are instructed that under the law

applicable to this case, if the defendant is

sentenced to imprisonment in the Institutional

Division of the Texas Department of Criminal

Justice for life, the defendant will become

eligible for release on parole, but not until

the actual time served by the defendant equals

40 years, without any consideration of good

conduct time. It cannot accurately be

predicted how the parole laws might be applied

to this defendant if the defendant is

sentenced to a term of imprisonment for life

because the application of those laws will

depend on decisions made by prison and parole

authorities, but eligibility for parole does

not guarantee that parole will be granted.

Turner, 87 S.W.3d at 116.

- 18 -

habeas court’s decision rejecting this claim was contrary to, or

involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United

States.

IV

In claim 2 Turner contends that the prosecution’s statements

deprived him of a fair and impartial trial, in violation of the

Eighth Amendment prohibition against arbitrary imposition of the

death penalty and Fourteenth Amendment guarantee of due process. 

A 

Turner contends that the State’s comments implied that,

despite the trial court’s instruction that he would serve at least

40 years if assessed a life sentence,5 the instruction might “be a

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 18 of 41 PageID 210
- 19 -

complete sham,” P. Br. 8, because Texas parole law could change,

and Turner might serve a shorter sentence before becoming eligible

for release on parole. He maintains that under Simmons v. South

Carolina, 512 U.S. 154 (1994) (plurality opinion), “due process

affords a capital defendant the right to answer future

dangerousness allegations with accurate information regarding their

parole ineligibility.” P. Br. 8. Turner reasons that the

prospective jurors should not have been told during voir dire that,

in assessing future dangerousness, they would not be allowed to

consider that the defendant would serve at least 40 calendar years

before becoming eligible for parole, and that the reason they could

not consider this is that the law could change, making the 40-year

minimum inapplicable. According to Turner, because under Simmons

the actual duration of the period of incarceration is indisputably

relevant when the jury considers future dangerousness, the

prosecution should not be allowed to convey that the 40-year

minimum may never apply if a life sentence is assessed. He reasons

that, although the jury was informed of the 40-year minimum, “this

information was sabotaged where six of the jurors were then told

that the reason they could not consider that minimum was that the

jury could not count on that minimum ever being applied to [him].”

Id. at 10. Turner concludes that capital defendants are entitled

to an opportunity for each juror to consider and give effect to

circumstances that mitigate against imposition of the death

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 19 of 41 PageID 211
6

Although Turner posits that both his Eighth and Fourteenth

Amendment rights, as interpreted by Simmons, were violated, the

Supreme Court in Simmons considered only the Due Process Clause of

the Fourteenth Amendment. Simmons, 512 U.S. at 156. In fact, in

Simmons the plurality expressly declined to reach the Eighth

Amendment issue. Id. at 162 n.4.

- 20 -

sentence. Informing jurors that they could not consider the 40-

year minimum, because it might not apply, is inconsistent with the

principle that due process guides the path that leads to a sentence

of death. Therefore, the information the prosecution provided

jurors violated his Eighth and Fourteenth Amendment rights, as

interpreted by the Supreme Court in Simmons.6

The state habeas court rejected Turner’s claim. In pertinent

part, it found that his argument was not factually correct, that

the prosecution’s statements reinforced the trial court’s

instruction that Turner would not be released for at least 40

years, and that the prosecutor confirmed to each juror that the 40-

year minimum period applied. See State Hab. Find. Nos. 53-55. It

also found that the comments “actually conformed to the jury charge

and did not violate the Eighth Amendment or the Supreme Court

ruling in Simmons.” Id. at 64. 

In particular, the court found that the prosecution’s

statements that the parole laws might change neither undermined the

stated 40-year minimum, id. at 56, nor that Turner showed that they

sabotaged the trial court’s instructions about the 40-year minimum

id. at 63. According to the state habeas court, the prosecution’s

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 20 of 41 PageID 212
7

Effective September 1, 2005 a defendant found guilty of a

capital felony in a case in which the prosecution seeks the death

penalty is no longer entitled under Texas law to parole, if given

a life sentence. See Tex. Penal Code Ann. § 12.31(a) (Vernon Supp.

2005). The Texas Criminal Procedure was also amended to reflect

this change. See Tex. Code Crim. Proc. Ann. art. 37.071

§ 2(e)(2)(B) (Vernon Supp. 2005). The amended statute provides

that the court must charge the jury in capital cases “that a

defendant sentenced to confinement for life without parole under

this article is ineligible for release from the department on

parole.” Id.

- 21 -

purpose in telling the prospective jurors that the law might change

may well have been to give them a rational basis to follow the

court’s instruction not to speculate on how much, beyond 40 years,

the defendant would actually serve. Id. at 57. The prosecutor

merely stated the recognized truth about parole statutes that they

are frequently amended, never suggested that the jurors ignore the

40-year minimum, and instead reinforced the court’s instruction

that Turner would be incarcerated for the first 40 years of a life

sentence. Id. at 58.

The state habeas court also found that Simmons was

inapplicable to Turner’s case because Simmons applies only to

defendants who are parole ineligible; the Supreme Court, in Ramdass

v. Angelone, 530 U.S. 156 (2000) (plurality opinion), expressly

refused to extend the rationale of Simmons to cases where the

defendant is parole eligible; and Turner was eligible for parole,

if given a life sentence. State Hab. Find. Nos. 59-60.7

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 21 of 41 PageID 213
- 22 -

B

1

Turner’s claim must be rejected at a preliminary level. A

fundamental premise of this claim is that the prosecution informed

eight veniremembers who became trial jurors that Texas parole law

could change and that Turner might serve a sentence shorter than 40

years. The state habeas court specifically found that this claim

was not factually correct, that the prosecution’s statements

reinforced the trial court’s instruction that Turner would not be

released for at least 40 years, and that the prosecutor confirmed

to each juror that the 40-year minimum period applied. In support,

the court cited statements that the prosecution made to each of the

eight veniremembers in question. See State Hab. Find. No. 54. The

court also found that the prosecutor merely stated the recognized

truth about parole statutes that they are frequently amended, never

suggested that the jurors ignore the 40-year minimum, and instead

reinforced the court’s instruction that Turner would be

incarcerated for the first 40 years of a life sentence. It also

found that the comments actually conformed to the jury charge. 

This court must presume that these factual findings are

correct, and Turner is obligated to rebut this presumption of

correctness by clear and convincing evidence. See, e.g., Summers,

431 F.3d at 868 (holding that state court’s factual findings are

presumed to be correct and that, in federal court, petitioner has

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 22 of 41 PageID 214
- 23 -

burden to rebut this presumption with clear and convincing

evidence). Turner has made no attempt in his habeas petition or

brief to demonstrate clear error. Accordingly, claim 2 must be

denied on the ground that Turner’s allegations concerning what the

prosecution told the prospective jurors is not factually supported

by the trial record.

2

Even if the court assumes arguendo that Turner has shown clear

error and that the factual predicate for his claim is established,

claim 2 also fails because the state habeas court did not

unreasonably apply clearly established federal law, as determined

by the Supreme Court of the United States. The state habeas court

found Simmons to be inapplicable because it pertains only to

defendants who are parole ineligible, and Turner was eligible for

parole. It concluded that the Supreme Court expressly refused in

Ramdass to extend the rationale of Simmons to cases where the

defendant is parole eligible. Turner relies on Simmons as the

source of clearly established law that grants a capital defendant

a due process right to answer future dangerousness allegations with

accurate information regarding parole eligibility, and that the

length of his potential incarceration if given a life sentence is

indisputably relevant to the issue of future dangerousness. See P.

Br. 8-10. The state habeas court did not unreasonably apply

clearly established federal law, as determined by the Supreme Court

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 23 of 41 PageID 215
8

See supra note 5 for the text of the instruction. 

Under the Texas law that took effect on September 1, 1999 (and

that has since been superseded effective September 1, 2005, see

supra note 7), the trial court was required to give this

instruction at the defendant’s request. See Tex. Code Crim. Proc.

Ann. art. 37.071 § 2(e)(2)(B) (Vernon 1981 & Supp. 2005). The

instruction was not mandatory, however, at the time of Turner’s

trial. See Turner, 87 S.W.3d at 113 (“The record reflects that

appellant committed this offense before September 1, 1999, so he

was not entitled to the parole law jury instruction currently

mandated by Article 37.071, Section 2(e)(2)(B), or to any other

judicially-crafted parole law jury instruction.”). In fact, the

trial record “reflect[ed] that neither party objected to this

instruction in the charge,” id., and it was “silent on how the

parole law jury instruction became part of the trial court’s

charge,” id. at 116.

- 24 -

of the United States, in concluding that Simmons does not apply in

this case, in which Turner would have been eligible for parole if

given a life sentence. “Simmons applies only to instances where,

as a legal matter, there is no possibility of parole if the jury

decides the appropriate sentence is life in prison.” Ramdass, 530

U.S. at 169. “[T]he Fifth Circuit has repeatedly refused to extend

the rule in Simmons beyond those situations in which a capital

murder defendant is statutorily ineligible for parole.” Green, 160

F.3d at 1045 (quoting district court’s opinion below).

V

Turner complains in claim 3 that the trial court’s instruction

that, in arriving at its verdict, the jury was not to consider the

actual amount of time Turner would be required to serve, deprived

him of a fair and impartial trial, in violation of the Due Process

Clause of the Eighth and Fourteenth Amendments.8 

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 24 of 41 PageID 216
- 25 -

A

Turner contends that, under Simmons, the length of a capital

defendant’s incarceration is “indisputably relevant” to the issue

of future dangerousness, and a jury making such a determination

“should be allowed to consider the fact that a defendant will spend

at least 40 years incarcerated before becoming eligible for parole

consideration.” P. Br. 14 (emphasis omitted). He urges that the

reasoning in Simmons applies equally to a capital defendant’s 40-

year parole ineligibility as it did to life-long parole

ineligibility, and he was thus entitled to an instruction that

permitted the jury to consider the possibility of his parole. Id.

The state habeas court rejected Turner’s contention. As it did in

rejecting claim 2, it concluded that Simmons applies only when the

state law prohibits a capital defendant’s release on parole. See

State Hab. Find. No. 75. 

B

The Fifth Circuit has not only consistently held that the

Constitution does not require that capital juries be informed about

parole eligibility, it has re-affirmed this position several times.

See Woods v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002);

Johnson v. Cockrell, 306 F.3d 249, 256-57 (5th Cir. 2002); Collier

v. Cockrell, 300 F.3d 577, 582-83 (5th Cir. 2002). In Woods the

panel interpreted Simmons “to require that a jury be informed about

the defendant’s parole eligibility only when (1) the state argues

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 25 of 41 PageID 217
9The special issues included:

Do you find from the evidence beyond a

reasonable doubt that there is a probability

that the defendant, Carlton Akee Turner, would

commit criminal acts of violence that would

constitute a continuing threat to society?

Do you find, taking into consideration all of

- 26 -

that a defendant represents a future danger to society, and (2) the

defendant is legally ineligible for parole.” Woods, 307 F.3d at

361. Indeed, as this court noted supra at § IV(B)(2), in Ramdass

the Court held that “Simmons applies only to instances where, as a

legal matter, there is no possibility of parole if the jury decides

the appropriate sentence is life in prison.” Ramdass, 530 U.S. at

169. Because Turner was statutorily eligible for parole, Simmons

did not require that the trial court instruct the jury to consider

his parole ineligibility. The state habeas court’s finding was

thus neither contrary to, nor an unreasonable application of,

clearly established federal law.

VI

Turner avers in claim 4 that he is entitled to habeas relief

because the jury instructions at the punishment phase contained

unconstitutionally vague terms, in violation of his Sixth, Eighth,

and Fourteenth Amendment rights. 

A

The trial court submitted to the jury the familiar special

issues prescribed by the Texas Code of Criminal Procedure.9

 Turner

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 26 of 41 PageID 218
the evidence, including the circumstances of

the offense, the defendant’s character and

background, and the personal moral culpability

of the defendant, Carlton Akee Turner, that

there is a sufficient mitigating circumstance

or circumstances to warrant that a sentence of

life imprisonment rather than a death sentence

be imposed?

R. 71-72; see Tex. Code Crim. Proc. Ann. art. 37.071 §§ 2(b)(1),

(e)(1) (Vernon 1981 & Supp. 2005).

- 27 -

contends that, as applied at his sentencing proceeding, the special

issues functioned as aggravating circumstances because they

“circumscribe[d] the class of persons eligible for the death

penalty.” Zant v. Stephens, 462 U.S. 862, 878 (1983). He relies

on the Supreme Court’s conclusion in Maynard v. Cartwright, 486

U.S. 356 (1988), that “[a] sentence of death may not be imposed

using a vague aggravating factor unless the state court cures such

vagueness by applying a valid limiting construction, thereby

providing the sentencer specific and detailed guidance concerning

its scope.” P. Br. 22. Turner complains that the word

“probability” and the phrases “criminal acts of violence” and

“continuing threat to society” have no common or uniform meaning,

and that they are therefore unconstitutionally vague, in

contravention of Maynard v. Cartwright. 

The state habeas court concluded, in pertinent part, that the

challenged terms require no special definitions. St. Hab. Find.

No. 89. It also found that Turner’s complaint “is grounded on the

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 27 of 41 PageID 219
- 28 -

incorrect assertion that the special punishment issues in article

37.071 function as aggravating circumstances.” Id. at 90. Rather,

the aggravating circumstances that determine death-eligibility are

found in Tex. Penal Code Ann. § 19.03 (Vernon 2003 & Supp. 2005),

which defines the offense of capital murder. Id. at 91. The

special issues do not determine death eligibility; they permit the

jury to make an individualized determination of the appropriateness

of the death penalty. Id. at 92. The trial court’s refusal to

provide the requested definitions posed no constitutional problems.

Id. at 93. The future dangerousness issue did not violate due

process or the Eighth or Sixth Amendment. Id. at 94.

B

In assessing whether the state habeas court’s determination is

contrary to, or an unreasonable application of, clearly established

federal law, as determined by the Supreme Court, the court notes

that the Fifth Circuit has consistently rejected similar complaints

regarding the alleged vagueness of the very terms of which Turner

complains, as well as similar terms. See Hughes v. Johnson, 191

F.3d 607, 615 (5th Cir. 1999) (holding that term “probability,” as

used in Texas capital sentencing special issues, does not require

definition); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir.

1996) (rejecting argument that terms used in special issues are

“aggravating factors” and unconstitutionally vague absent

definition); James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993)

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 28 of 41 PageID 220
- 29 -

(holding that terms “deliberately,” “probability,” “criminal acts

of violence,” and “continuing threat to society” “have a

common-sense core of meaning that criminal juries should be capable

of understanding”) (internal quotation marks and citation omitted);

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

(concluding that “deliberately,” “probability,” and “criminal acts

of violence” “have a plain meaning of sufficient content that the

discretion left to the jury” is “no more than that inherent in the

jury system itself”).

In Tuilaepa v. California, 512 U.S. 967, 971-73 (1994), the

Supreme Court distinguished two aspects of the capital

decisionmaking process: the eligibility phase and the selection

phase. The Court explained that, with respect to the eligibility

decision, the trier of fact must “convict the defendant of murder

and find one ‘aggravating circumstance’ (or its equivalent) at

either the guilt or penalty phase.” Id. And the “aggravating

circumstance may not be unconstitutionally vague.” Id. (citing

Godfrey v. Georgia, 446 U.S. 420, 428 (1980)). “‘Once the jury

finds that the defendant falls within the legislatively defined

category of persons eligible for the death penalty, the jury is

then free to consider . . . myriad . . . factors to determine

whether death is the appropriate punishment.’” Id. at 979 (quoting

California v. Ramos, 463 U.S. 992, 1008 (1983)). Subsequently, in

Buchanan v. Angelone, 522 U.S. 269, 276 (1998), the Court observed

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 29 of 41 PageID 221
10Texas is a “non-weighing” jurisdiction. See Hughes, 191 F.3d

at 623 (holding that Texas is not weighing state); James, 987 F.2d

at 1120 (recognizing that, unlike a weighing jurisdiction, Texas

sentencing juries are not called upon to weigh statutory

aggravating factors against mitigating evidence). By contrast, a

“weighing” jurisdiction requires a sentencing jury specifically to

find that one or more statutory aggravating factors are present and

then to weigh those factors against all the mitigating evidence to

determine whether the balance favors imposition of the death

penalty. See Williams v. Cain, 125 F.3d 269, 281-83 (5th Cir.

1997) (providing comprehensive discussion of differences between

“weighing” and “non-weighing” jurisdictions). “In a ‘weighing

state,’ the jury’s consideration of an unconstitutionally vague

factor at the final stage of death penalty proceedings violates the

defendant’s constitutional rights under the Fourteenth Amendment

and requires that a resulting death sentence be vacated.” Id. at

281.

- 30 -

that, with regard to the selection phase of a capital sentencing

process, “our decisions suggest that complete jury discretion is

constitutionally permissible.” 

Under the Texas capital sentencing scheme, jurors make the

eligibility decision at the guilt-innocence phase of the trial.

See Johnson v. Texas, 509 U.S. 350, 362 (1993) (holding no

constitutional deficiency in Texas sentencing scheme where statute

narrowed group of eligible offenders); Jurek v. Texas, 428 U.S.

262, 276 (1976) (holding that narrowing function under Texas scheme

was adequately performed at guilt/innocence stage by narrow

categories of murder meeting statutory definition of capital

murder); Woods, 75 F.3d at 1033-34 (recognizing that narrowing

function is performed in Texas at guilt-innocence phase).10 The

sentencing special issues thus do not perform the narrowing

function required of the eligibility decision described in Tuilaepa

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 30 of 41 PageID 222
- 31 -

and require no definition. See West v. Johnson, 92 F.3d 1385, 1406

(5th Cir. 1996) (rejecting argument that Texas capital sentencing

special issues work as aggravating factors and, therefore, require

detailed definitions of terms employed therein); Woods, 75 F.3d at

1033-34 (rejecting argument that terms employed in Texas capital

sentencing special issues are aggravating factors and, absent

definitions of same, are unconstitutionally vague). 

There is thus no clearly established federal law, as

determined by the Supreme Court, declaring unconstitutionally vague

any of the terms contained in the Texas special issues. Turner is

not entitled to habeas relief on this basis. To the contrary, on

several occasions the Supreme Court has at least implicitly

acknowledged the propriety and commonsense meaning of the terms

employed in the Texas capital sentencing scheme. See Johnson, 509

U.S. at 362-66 (recognizing broad scope of mitigating evidence that

can be properly considered under commonsense meaning of terms

employed in Texas capital sentencing special issues); Pulley v.

Harris, 465 U.S. 37, 50 n.10 (1984) (recognizing that terms

employed in Texas capital sentencing special issues are not

impermissibly vague and have commonsense core meaning); Jurek, 428

U.S. at 264-65 (White, J., concurring) (recognizing that terms

employed in Texas capital sentencing special issues have broad,

commonsense meaning).

The state habeas court’s conclusion is thus consonant with

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 31 of 41 PageID 223
- 32 -

this circuit’s construction of the relevant Supreme Court cases

concerning the vagueness of jury instructions in death penalty

cases. In sum, clearly established federal law, as determined by

the Supreme Court, does not require that Texas courts define

“probability,” “criminal acts of violence,” or “continuing threat

to society” when used in the special issues. The court therefore

denies habeas relief based on claim 4.

VII

Turner maintains in claim 5 that the jury instruction at the

punishment phase of his trial, which, consistent with the Texas

Code of Criminal Procedure, did not inform jurors that their

failure to reach a verdict would result in a life sentence,

violates the Eighth and Fourteenth Amendments. 

A

At the conclusion of the punishment phase, the trial court

instructed the jury as follows, pursuant to Tex. Code Crim. Proc.

Ann. art. 37.071 §§ 2(d)(2), (f)(2) ((Vernon 1981 & Supp. 2005):

If you have not answered “yes” to special

issue one then you shall not proceed to answer

special issue two.

. . . .

You may not answer special issue one “yes”

unless the jury agrees unanimously, and you

may not answer special issue one “no” unless

10 or more members of the jury agree.

. . . .

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 32 of 41 PageID 224
11See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000)

(per curiam) (“In Texas, this is commonly called the ‘10-12

Rule.’”).

- 33 -

You may not answer special issue two “no”

unless the jury agrees unanimously, and you

may not answer special issue two “yes” unless

10 or more members of the jury agree.

R. 65-67; see, e.g., Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)

(Vernon 1981 & Supp. 2005) (providing that “[t]he court shall

charge the jury that: . . . (2) it may not answer any [special

issue] ‘yes’ unless it agrees unanimously and it may not answer any

issue ‘no’ unless 10 or more jurors agree”). 

Turner alleges that the so-called 10-12 Rule11 of the Texas

capital sentencing paradigm fails to inform jurors that their

deliberations can in one of the two following ways result in a

capital defendant’s receiving a life sentence: one way is to answer

the special issues in a manner that results in such a sentence; the

other is to fail to reach a verdict, which has the same effect as

ten jurors’ voting for the defendant in answer to the second

special issue. Turner contends that Texas law that forbids the

court and parties from advising the jury of the effect of their

failure to reach a verdict violates the Eighth Amendment, as

interpreted in Mills v. Maryland, 486 U.S. 367 (1988), because it

leaves jurors to believe that their individual votes in favor of a

life sentence are worthless unless nine other jurors join them. He

complains that the instruction “generates the danger that confused

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 33 of 41 PageID 225
12Turner also cites to Lowenfield v. Phelps, 484 U.S. 231, 239-

40 (1988), without explanation. Turner refers the court to pages

in Lowenfield that concern whether a supplemental jury instruction

was coercive. No supplemental jury instruction was given at

Turner’s trial. Because Turner makes no clear contention with

respect to Lowenfield, the court declines to consider it further.

- 34 -

jurors otherwise predisposed to hold-out on voting for a death

sentence will conform to a ‘majority-rule’ mentality.” P. Br. 26.

Turner maintains that the jury should be informed that its failure

to garner the requisite number of votes to answer either special

issue results in a life sentence.12 

The state habeas court rejected Turner’s contention. In

pertinent part, it distinguished Mills, State Hab. Find. No. 102,

and it found that Turner had failed to demonstrate that the 10-12

Rule and the rule against informing jurors of the effect of a

deadlocked jury were unconstitutional, id. at 107. The court

concluded that neither rule violated the Due Process Clause of the

Eighth Amendment. Id. at 108.

B 

Fifth Circuit precedent forecloses federal habeas relief on

this ground. See, e.g., Alexander v. Johnson, 211 F.3d 895, 897

(5th Cir. 2000) (per curiam) (rejecting both Fourteenth and Eighth

Amendment challenges, identical to those raised here, to Texas 10-

12 Rule); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996)

(holding Texas capital sentencing scheme “wholly dissimilar to that

involved in Mills”); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 34 of 41 PageID 226
- 35 -

Cir. 1994) (holding Mills inapplicable to Texas capital sentencing

scheme). As noted by the state habeas court, Mills is inapposite

to the Texas sentencing regime. State Hab. Find. No. 102. In

Mills the Supreme Court found Eighth Amendment error where the jury

charge prevented jurors from acting on mitigating evidence unless

they unanimously agreed that a particular factor was mitigating.

Mills, 486 U.S. at 380. As a consequence, a single juror could

impose a death sentence. Id. at 384. Unlike Mills, however,

pursuant to Tex. Crim. Code Proc. Ann. art. 37.071 § 2(f)(3)

(Vernon 1981 & Supp. 2005), the trial court informed the jurors

that they need not agree on what particular evidence supports their

individual answers to the special issues. R. 66, 67. Jurors could

thus give effect to any mitigating evidence. Furthermore, the

trial court specifically instructed the jury pursuant to Tex. Code

Crim. Proc. Ann. art. 37.071 §§ 2(d)(2), (f)(2), (g) (Vernon 1981

& Supp. 2005) that imposition of a death sentence required

unanimous answers to the special issues. Id.

Turner’s contention that the Eighth Amendment defects in the

10-12 Rule would be cured by an instruction explaining the

consequences of a deadlock is also without merit. In Jones v.

United States, 527 U.S. 373, 381-84 (1999), the Supreme Court

rejected this argument with respect to the federal death penalty

scheme. In Jones the Court held that the Eighth Amendment does not

require that a jury be instructed as to the effect of a “breakdown

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 35 of 41 PageID 227
- 36 -

in the deliberative process,” because (1) the refusal to give such

an instruction does not affirmatively mislead the jury regarding

the effect of its verdict and (2) such an instruction might well

undermine the strong governmental interest in having the jury

express the conscience of the community on the ultimate question of

life or death. Id. at 382. Although Jones was limited to an

Eighth Amendment challenge, after the Supreme Court decided Jones,

the Fifth Circuit held that an argument identical to Turner’s——that

the 10-12 Rule in Texas violated a capital murder defendant’s

Eighth and Fourteenth Amendments——lacked merit. See Alexander, 211

F.3d at 897.

Because clearly established federal law, as determined by the

Supreme Court, does not require a jury instruction about the

consequences of garnering insufficient votes for either special

issue, the state habeas court’s findings are not contrary to or an

unreasonable application of clearly established federal law. Claim

5 is therefore denied.

C

Alternatively, the Fifth Circuit has consistently held that

any ruling that the 10-12 Rule violates the Eighth and Fourteenth

Amendments would be a new rule as defined in Teague v. Lane, 489

U.S. 288, 301 (1989) (plurality opinion), that could not form the

basis for federal habeas corpus relief. See, e.g., Webb v.

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 36 of 41 PageID 228
13The Fifth Circuit recently stated that “[f]or AEDPA purposes,

clearly established federal law is ‘whatever would qualify as an

old rule under our Teague jurisprudence,’ as long as the old rule

was decided by the [Supreme] Court.” Coleman v. Dretke, 409 F.3d

665, 668 (5th Cir. 2005) (en banc) (per curiam) (quoting Williams,

529 U.S. at 412). Accordingly, even assuming arguendo that the

Texas 10-12 Rule violated the Constitution, as a new rule under

Teague, the state habeas court’s decision would not be “contrary

to” or involve “an unreasonable application[] of clearly

established federal law.” 28 U.S.C. § 2254(d)(1) (emphasis added).

- 37 -

Collins, 2 F.3d 93, 95 (5th Cir. 1993) (per curiam).13 

VIII

Turner asserts in claim 6 that the Dallas County venire

selection process violates his rights to an impartial jury

consisting of a representative cross-section of the community

because Hispanics, persons 18 to 34 years old, and persons from

households with incomes under $35,000 are underrepresented in the

jury pool. The state habeas court declined to consider the merits

of Turner’s contention because he failed to raise it at trial and,

pursuant to the Texas contemporaneous objection rule, procedurally

defaulted the claim. See State Hab. Find. Nos. 109-111. 

This court “will not review a question of federal law decided

by a state court if the decision of that state court rests on a

state ground that is both independent of the merits of the federal

claim and adequate to support that judgment.” Amos v. Scott, 61

F.3d 333, 338 (5th Cir. 1995) (emphasis omitted). This

‘independent and adequate state law’ doctrine applies to procedural

grounds and affects federal review of claims that are raised on

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 37 of 41 PageID 229
- 38 -

habeas review. Id. “To satisfy the ‘independent’ and ‘adequate’

requirements, the dismissal must ‘clearly and expressly’ indicate

that it rests on state grounds which bar relief, and the bar must

be strictly or regularly followed by state courts, and applied to

the majority of similar claims.” Finley v. Johnson, 243 F.3d 215,

218 (5th Cir. 2001) (citing Amos, 61 F.3d at 338-39). 

First, the state habeas court “clearly and expressly” declined

to review Turner’s constitutional claim with respect to the Dallas

County venire selection process because of the contemporaneous

objection rule. See State Hab. Find. Nos. 109-111 (stating that

Turner did not raise venire selection complaint at trial, failure

to object at trial waived error for review, and complaint was

therefore procedurally barred). And the state habeas court’s

discussion in the alternative of the merits of Turner’s complaint

does not nullify its holding of procedural default. See Cardenas

v. Dretke, 405 F.3d 244, 249 (5th Cir.), petition for cert. filed,

___ U.S.L.W. ___ (U.S. July 12, 2005) (No. 05-5304). 

Second, the contemporaneous objection rule is well established

and has long been recognized under Texas law. See Hogue v.

Johnson, 131 F.3d 466, 488 (5th Cir. 1997). Texas courts apply the

rule evenhandedly to the vast majority of similar claims. Id. The

Texas contemporaneous objection rule thus constitutes an adequate

and independent state ground that procedurally bars federal habeas

review of Turner’s claim. See Rowell v. Dretke, 398 F.3d 370, 375

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 38 of 41 PageID 230
- 39 -

(5th Cir.) (concluding same), cert. denied, ___U.S. ___, 126 S.Ct.

103 (2005). 

Because Turner defaulted this federal claim in state court

pursuant to an independent and adequate state procedural rule, this

court may not review it unless Turner can demonstrate either

“cause for the default and actual prejudice as a result of the

alleged violation of federal law, or . . . that failure to consider

the claims will result in a fundamental miscarriage of justice.”

Stokes v. Anderson, 123 F.3d 858, 859 (5th Cir. 1997) (citing

Coleman v. Thompson, 501 U.S. 722 (1991)). “In general, to show

cause, a petitioner must demonstrate ‘that some objective factor

external to the defense impeded counsel’s efforts to comply with

the State’s procedural rule.’” Meanes v. Johnson, 138 F.3d 1007,

1011 (5th Cir. 1998) (quoting Murray v. Carrier, 477 U.S. 478, 488

(1986)). To show prejudice, the petitioner must demonstrate, “not

merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions.” United States v. Frady, 456 U.S. 152,

170 (1982) (emphasis omitted). Turner does not allege, much less

demonstrate, cause and prejudice. Alternatively, to demonstrate a

“fundamental miscarriage of justice,” the petitioner must establish

“actual innocence.” See Neville v. Dretke, 423 F.3d 474, 480-81

(5th Cir. 2005) (citing Sawyer v. Whitley, 505 U.S. 333, 336

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 39 of 41 PageID 231
- 40 -

(1992)). Turner also fails to allege a risk of a fundamental

miscarriage of justice and has not adduced evidence of actual

innocence. Accordingly, claim 6 is procedurally defaulted.

IX

Finally, Turner contends in claim 7 that the cumulative effect

of the above-enumerated constitutional violations denied him due

process of law, in violation of the Fifth and Fourteenth

Amendments, even if no separate infraction by itself rose to that

magnitude.

In Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992) (en banc),

the Fifth Circuit held that in order for a federal habeas

petitioner to prevail on a claim of cumulative error, he must

establish that the state trial court committed an error, the error

was not procedurally barred from habeas corpus review, and the

error rises to a constitutional dimension. Id. at 1458; see Hughes

v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005) (“‘Meritless claims or

claims that are not prejudicial or claims that are procedurally

barred cannot be cumulated.’”) (quoting Westley v. Johnson, 83 F.3d

714, 726 (5th Cir. 1996)) (alteration omitted)). Turner has not

presented specific arguments or reasoning that establish that he is

entitled to relief. He merely requests that if no single

constitutional violation is sufficient of itself to obtain a writ,

the court consider their cumulative effect. See P. Br. 31-32.

Furthermore, “[f]ederal habeas relief is only available for

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 40 of 41 PageID 232
- 41 -

cumulative errors that are of a constitutional dimension.” Coble

v. Dretke, 417 F.3d 508, 218 (5th Cir. 2005). Turner has not

identified errors of constitutional dimension. 

The state habeas court found that his individual claims were

without merit and therefore concluded that he had failed to show

that he was denied due process. See State Hab. Find. Nos. 141-143.

Accordingly, this court cannot say that the state habeas court’s

rejection of Turner’s cumulative error claim was objectively

unreasonable.

* * *

Turner’s habeas petition is denied, and this action is

dismissed with prejudice by judgment filed today.

SO ORDERED.

March 20, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

 Case 3:04-cv-02232-D Document 25 Filed 03/20/06 Page 41 of 41 PageID 233