IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEON DAVID DORSEY IV, §

PETITIONER, §

vs. § No. 3:04-CV-1175-K

 §

NATHANIEL QUARTERMAN, § 

DIRECTOR, TEXAS DEPARTMENT OF §

CRIMINAL JUSTICE, § 

CORRECTIONAL INSTITUTIONS §

DIVISION, §

RESPONDENT. §

MEMORANDUM OPINION AND ORDER

DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Leon David Dorsey, sentenced to death for capital murder, petitions the Court for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence

are unconstitutional in several respects. The Court denies Petitioner’s petition for a writ of habeas

corpus.

I. HISTORY OF THE CASE

A jury convicted petitioner of capital murder, and his punishment was assessed at death by

lethal injection. State v. Dorsey, No. F98-69472-L (Criminal District Court No. 5, Dallas, Texas,

May 25, 2000). The Texas Court of Criminal Appeals affirmed both the conviction and the death

sentence in an unpublished opinion. Dorsey v. State, No. 73, 836 (Tex. Crim. App. October 2,

2002). Petitioner filed a state application for writ of habeas corpus on May 6, 2002. The Court of

Criminal Appeals denied relief in an unpublished order. Ex parte Dorsey, No. 58,161-01 (Tex.

Crim. App. February 18, 2004). 

 

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Petitioner filed the instant federal writ of habeas corpus on December 20, 2004, challenging

his conviction and death sentence. Respondent filed an answer on March 2, 2005 and furnished the

state court records. 

II. ISSUES

Petitioner asserts that he is being held unlawfully by respondent on the following nine claims

raised in twelve grounds for relief :

A. The trial court violated petitioner’s right to an impartial jury, right to be free

from cruel and unusual punishment, and right to due process oflaw under the

Sixth, Eighth, and Fourteenth Amendments in denying petitioner’s motion for

a mistrial after a juror viewed an exhibit intended for record purposes only

(ground one);

B. Petitioner was denied his Sixth Amendment right to effective assistance of

counsel because trial counsel permitted a juror to view an exhibit that had not

been entered into evidence (ground two);

C. The evidence is legally insufficient to support the jury’s verdict to the future

dangerousness punishment special issue (ground three);

D. The trial court erred in denying four of petitioner’s challenges for cause

(grounds four through seven);

E. The State exercised its peremptory challenges during voir dire in a racially

discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79

(1986) (ground eight);

F. The punishment special issues are unconstitutional under the Fifth, Sixth,

Eighth, and Fourteenth Amendments because several terms are not defined

for the jury in the jury charge (ground nine);

G. Petitioner’s rights under the Eighth and Fourteenth Amendments were

violated by the Texas “12-10" rule because the jury was not informed of the

effect of one holdout juror at punishment with respect to the punishment

special issues (ground ten); 

H. Texas’ death penalty scheme is unconstitutional under the Fifth, Eighth, and

Fourteenth Amendments because it cannot simultaneously restrict a jury’s

 

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discretion to impose the death penalty while allowing unlimited discretion to

consider all evidence that militates against the imposition ofthe death penalty

(ground eleven); and

I. Petitioner is entitled to relief under the Fifth and Fourteenth Amendments

based on the cumulative effect of all the foregoing constitutional errors

(ground twelve).

III. STANDARD OF REVIEW

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition. 

Title I of the AEDPA substantially changed the way federal courts handle habeas corpus

actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain

relief

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.

“In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term

of art that refers to whether a court’s disposition of the case was substantive, as opposed to procedural.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner’s

state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89

(Tex. Crim. App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on

 

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the merits). The court of appeals also considered the merits of petitioner’s claims raised on direct

appeal. See Sims II. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact.

Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established

Federal law, within the meaning of § 2254(d)(1), “if the state court arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000).

With respect to the “unreasonable application” standard, Williams instructs that a writ must

issue “if the state court identifies the correct governing legal principle from [the] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; accord Penry

v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies

Supreme Court precedent if it “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.” 529 U.S. at 407. “[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; accord Penry, 532 U.S. at 793.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th

Cir. 2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless

they were ‘based on an unreasonable determination of the facts in light of the evidence presented in

the state court proceeding.’” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The

resolution of factual issues by the state court is presumptively correct and will not be disturbed

 

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unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). The Supreme Court has held that, when claim was dismissed by a state court pursuant

to an independent and adequate state procedural rule, federal habeas review of that claim is barred

unless the prisoner can establish either cause for the default as well as actual prejudice as a result of

the alleged violation of federal law or that failure to consider the claims would result in a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v.

Reed, 489 U.S. 255, 262 (1989). To satisfy the independent and adequate requirements, the

dismissal of a claim must “clearly and expressly” indicate that it rests on state grounds which bar

relief, and the bar must be strictly and regularly followed by state courts and applied to the majority

of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5 Cir. 2001), citing Amos v. Scott, 61 F.3d th

333, 338-39 (5 Cir. 1995). th

IV. FACTUAL BACKGROUND

The Court of Criminal Appeals recited the following factual background in its opinion on

direct appeal:

The evidence presented at trial showed that, around midnight on April 4, 1994,

two employees at a Blockbuster Video store in Dallas were robbed and murdered.

The in-store video camera recorded the crime and shows that the perpetrator was a

black male with short hair. Employee Brad Lindsey was shot once in the back;

employee James Armstrong was shot twice. Later that day, appellant admitted

committing the robbery and murders to his girlfriend, Arrietta Washington, and to an

acquaintance, Antwan Hamilton. In an interview with a newspaper reporter,

Appellant stated that he had burned the jacket and would not disclose the location of

the murder weapon. Washington braided extensions into appellant’s hair as a

disguise. Later that week, she reported appellant’s admissions to the police. The

police interviewed appellant, but he denied any involvement. At the time, police

erroneously believed appellant was too tall to be the perpetrator, and he was not

charged with the crime, which remained unsolved until the case was re-opened in

1998.

 

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During the 1998 investigation, police sent the videotape of the robbery-murder

to the F.B.I. for an analysis of the perpetrator’s height. Based on the new estimate

of the perpetrator’s height and accurate information about appellant’s height, police

questioned appellant again, and he confessed. While awaiting trial, appellant again

confessed to this offense during an interview with Dallas Morning News reporter

Jason Sickles. A week before trial, appellant admitted committing the murders to

inmate Raymond Carriere. Appellant also sent a letter to another inmate, Rodrick

Finley, offering him $5,000 to take the blame for the murders. The police had

previously of [sic] suspected Finley of committing the crime.

* * *

Washington and Hamilton both testified that the distinctive jacket of unusual design

and colors worn by the shooter in the videotape looked just like one often worn by

appellant before the offense. They also stated that they neversaw appellant wear that

particular jacket after the offense. Washington also testified that appellant wore his

hair in the same style as that of the shooter at the time of the offense, but that she had

altered the appearance of appellant’s hair after the offense by adding braid

extensions. According to the F.B.I. expert who analyzed the videotape, the shooter

was between 5'71/2" tall and 6" tall. Appellant is 5'10" tall. 

Dorsey, slip op. at 2-4 (footnotes omitted). 

V. PROCEDURAL ISSUES

Respondent concedes that petitioner has sufficiently exhausted available state remedies on

the twelve grounds presented in the instant federal petition. Nevertheless, respondent asserts that

a portion of petitioner’s first ground and his sixth through eleventh grounds for relief are

procedurally barred on federal habeas review because they were denied at the state level on an

independent and adequate state law ground. Respondent also initially asserts that petitioner’s twelfth

ground for relief is also procedurally barred, but does not make this argument in the body of the

response, and a review of the state habeas record reveals that this claim was not denied on a state

procedural ground, but was decided on its merits by the state habeas court. (Response at 3, 58-60

State Habeas Transcript at 359).

 

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At the state habeas level, the habeas court concluded that petitioner’s claims regarding his

Eighth Amendment juror bias claim, two of his denied challenges for cause, his Batson claim, his

claim regarding the lack of definitions for terms in the punishment charge, his claim regarding the

Texas “12-10" rule, and his claim regarding the constitutionality of the Texas death penalty scheme

were procedurally barred because they were not raised on direct appeal (SHTr.:314-15, 338, 342-43,

349, 353-54, 357-58). Alternatively, the state habeas court also denied these claims on their merits.

This Court has located no Fifth Circuit case addressing whether this state procedural ground, that

one is procedurally barred from raising claims at the state habeas level because they were not, and

should have been, raised on direct appeal, is one that is an independent and adequate state procedural

ground. The Texas Court of Criminal Appeals on this issue, however, has consistently held that the

state writ is available to review a claim that there was a denial of a fundamental federal constitutional

right, even if the claim was not raised on direct appeal. See Ex Parte Goodman, 816 S.W.2d 383, 385

(Tex. Crim. App. 1991); Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990); Ex parte

Banks, 769 S.W.2d 539, 541 (Tex. Crim. App. 1989); Ex parte Bravo, 702 S.W.2d 189 (Tex. Crim.

App. 1982). For that reason, this Court declines to hold that the federal constitutional claims

petitioner raises in these grounds for relief are procedurally barred because it has not been shown that

this state procedural rule is strictly and regularly followed by state courts. The Court will address

all of petitioner’s grounds on their merits.

 

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VI. EXAMINATION OF THE GROUNDS FOR RELIEF

A. Juror Bias Claim

In his first ground for relief, petitioner claims that the trial court violated his constitutional

rights when it denied his motion for mistrial after one of the jurors deciding his case viewed an

exhibit which was intended to be for record purposes only. Petitioner argues that this violated his

Sixth Amendment right to an impartial jury, his Eighth Amendment right to be free from cruel and

unusual punishment, and his Fourteenth Amendment right to due process. 

During the guilt phase of petitioner’s trial, a reporter for the Dallas Morning News testified

regarding an interview he had with petitioner, while petitioner was in jail, in which petitioner

confessed to murdering the two victims in the instant case. (R. 34:7-9, 12-28, 34-42). An edited

portion of the tape recorded interview was played to the jury. (R. 34:12-13). A redacted transcript

of this interview was admitted into evidence, and an unredacted transcript, containing further

discussions between petitioner and the reporter, was admitted for record purposes only. (R. 40:

state’s exhibits #110, 123).

Shortly after the jury began its deliberations, the jury foreman informed the trial judge, by

way of a written note, that he believed there was an exhibit in the jury room that shouldn’t be there.

(R. 35:75). Subsequently, all of the members of the jury were questioned in chambers by the trial

judge. Juror Karen Quinton testified that she skimmed through the unredacted transcript (State’s

exhibit 123) until she reached pages nine through eleven, when she realized that it contained

information not testified to by the reporter at trial. In particular, she read about petitioner having had

trouble in school, being mad at a teacher, and thinking about taking a gun to class (R. 35:77-79). She

then stopped reading and told the jury foreman that she did not believe that the jury should have this

 

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exhibit. (R. 75, 80-81). The foreman, Mark Pennington, testified in camera that Quinton had told

him that the exhibit had some information on “priors,” but that she had not said anything specific

and that he had not read the exhibit himself. (R. 35:75, 83). Both Quinton and Pennington testified

that they could put aside what they had read or heard, would not consider it in their deliberations,

would be fair and impartial, and would not discuss this matter with the other jurors. (R. 35:81-82,

83-84). All of the other ten jurors were also questioned by the trial judge, two of the jurors stated

that they knew that the exhibit contained the entire transcript of the interview, but none of the jurors

had read the exhibit, heard anything Quinton said to Pennington about it, or been told any

information about the exhibit. (R. 35:85-102). Defense counsel made a motion for mistrial, which

was denied by the trial court. (R. 35:103-05). 

On direct appeal, the Court of Criminal Appeals overruled this claim. Comparing this

incident to the situation where a motion for new trial is filed based on the jury’s receipt of “other

evidence,” that court looked to the state statute that controlled motions for new trial based on juries

receiving evidence other than that presented at trial. According to that statute, and case law

interpreting that statute, a motion for new trial should be granted where a jury receives other

evidence during deliberations that is detrimental to the accused. Applying this law to the instant

case, the Court of Criminal Appeals held that the “other evidence” of the unredacted interview read

by Juror Quinton, regardless whether it was detrimental to petitioner, was not actually “received by

the jury” because it was viewed in part and only by one juror. Accordingly, the Court of Criminal

Appeals held that the trial court did not abuse its discretion when it denied petitioner’s motion for

mistrial. Dorsey, slip op. at 11-13; see also Garza v. State, 630 S.W.2d 272, 276 (Tex. Crim. App.

1981); Stephenson v. State, 571 S.W.2d 174, 176 (Tex. Crim. App. 1978). At the state habeas level,

 

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trial court concluded that, given the overwhelming amount of evidence supporting the guilty verdict,

petitioner’s constitutional rights to due process and a fair and impartial jury and his right to be free

from cruel and unusual punishment were not violated because one juror was aware that petitioner

had committed other, more minor crimes. (SHTr.:320-21). Looking at this issue for a second time,

the Court of Criminal Appeals adopted the trial court’s conclusion and denied relief. See Ex parte

Dorsey, No. 58,161-01, slip op. at 2.

These decisions are not contrary to federal law. The Supreme Court has stated that, with

respect to claims that there was an impermissible outside influence on the jury, due process “means

a jury capable and willing to decide a case solely on the evidence before it.” Smith v. Phillips, 455

U.S. 209, 217 (1982). The Supreme Court has further stated that, with such claims, the issue that

must be decided is whether the intrusion prejudiced the defendant in that it affected the jury’s

deliberations and thereby its verdict. United States v. Olano, 507 U.S. 725, 739 (1993). In making

this determination, it should be presumed that juries follow the instructions given to them by the

court. Id., citing Richardson v. Marsh, 481 U.S. 200, 206 (1987), Francis v. Franklin, 471 U.S. 307,

324 n. 9 (1985). Moreover, in the context of a federal habeas review, the Fifth Circuit has held that,

even where there has been an extrinsic influence on the jury in violation of the Sixth and Fourteenth

Amendments, such error is subject to a harmless error analysis. Pyles v. Johnson, 136 F.3d 986,

992-93 (5th Cir. 1998). Accordingly, relief would not be warranted unless the influence had a

substantial and injurious effect or influence on the jury’s verdict. Id., citing Brecht v. Abrahamson,

507 U.S. 619, 635 (1993).

The Fifth Circuit has stated that an impermissible extrinsic influence on a jury occurs when

an outside factual matter is disclosed in the jury room which taints the jury’s deliberations. See

 

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United States v. O’Keefe, 722 F.2d 1175, 1179 (5 Cir. 1984), citing United States v. Winkle, 587 th

F.2d 705, 714 (5 Cir. 1979). In the case at hand, there is little, if any, evidence that the exhibit that th

was erroneously given to the jury was an extrinsic influence on the jury’s deliberations or verdict,

as only one juror saw any part of the exhibit, she did not tell any of the other jurors what she read,

and she was instructed by the trial judge to set aside any knowledge she had about the exhibit and

not to consider it during jury deliberations (R. 35:81-4), an instruction she presumably followed.

But, even were this considered to be an actual extrinsic influence on the jury, petitioner has failed

to establish that any influence had a substantial and injurious effect on the jury’s verdict. In that

regard, Juror Quinton testified in the hearing before the trial court that she only remembered reading

something about petitioner’s problems in school and the fact that he considered taking a gun to

school. The evidence presented to the jury at the guilt phase of the trial included evidence that

petitioner confessed to the murders to his girlfriend, an acquaintance, the police, and a newspaper

reporter. These confessions were corroborated by the videotape from the store showing a man

matching petitioner’s description. And, in the confession to the reporter, petitioner not only

acknowledged committing the murders and confessing to his girlfriend, he also stated that he began

to wear his hair braided to disguise his appearance and burned the jacket he was wearing at the time

of the murders. (R. 34:27-8). Petitioner also stated in this interview with the newspaper reporter that

he had killed the victims because they had “studded” up on him by not cooperating fully (R. 34:37).

Given all of this evidence before the jury supporting petitioner’s guilt, petitioner has failed to show

that one juror’s knowledge of a less serious prior bad act committed by petitioner when he was a

child had a substantial and injurious effect on the jury’s verdict. This claim is denied.

 

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B. Ineffective Assistance of Counsel Claim

In his second ground for relief, petitioner claims that his Sixth Amendment right to effective

assistance of counsel was violated because his trial counsel failed to prevent the unredacted version

of the transcript of petitioner’s interview with a newspaper reporter from being sent to the jury room

during deliberations. Petitioner contends that counsel were derelict in their duty to inspect all of the

exhibits before the trial court sent them to the jury room and that, because of this, an exhibit that was

not admitted into evidence was sent to the jury room during deliberations after the jury requested that

it be given all of the evidence.

The Sixth Amendment to the United States Constitution provides criminal defendants a right

to effective assistance of counsel during trial. U.S. Const., art. VI. To successfully state a claim of

ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1)

that counsel’s performance was deficient and (2) that the deficient performance prejudiced his

defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong

of this test requires a finding that counsel’s performance was constitutionally effective. Id. at 696.

To determine whether counsel’s performance is constitutionally deficient, courts “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable assistance.” Strickland,

466 U.S. at 689. To establish prejudice, a petitioner 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.” Id. at 694.

On direct appeal, the Court of Criminal Appeals rejected this argument, holding that

petitioner had not proven that his counsel was ineffective under the Strickland standard because no

 

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prejudice had been shown. Dorsey, slip op. at 14-5. This conclusion is not an unreasonable

application of the Strickland standard. As this Court noted earlier, only one juror read any part of

the exhibit that was erroneously sent to the jury room, she read only a limited part of the exhibit, and

she was instructed not to consider the exhibit in her deliberations. This did not amount to an

extrinsic influence on the jury that had an effect on the deliberations or verdict. Therefore, prejudice

has not been shown because petitioner has failed to establish a reasonable probability that, had the

exhibit not been sent to the jury room, the result in the trial would have been different. Petitioner

is not entitled to relief on this claim, and it is therefore denied.

C. Sufficiency of the Evidence Claim

In his third ground for relief, petitioner asserts that the evidence supporting the jury’s answer

to one of the punishment special issues is legally insufficient. Specifically, petitioner argues that,

considering the fact that, had petitioner received a life sentence, he would not have been eligible for

parole for thirty-five years, the evidence presented at trial is legally insufficient to support a finding

that there is a reasonable probability that petitioner would constitute a future danger in prison

society.

Pursuant to Article 37.071 of the Texas Code of Criminal Procedure, the jury at petitioner’s

trial was required to answer the following two special issues or questions at the punishment phase

of petitioner’s trial:

Do you find from the evidence beyond a reasonable doubt that there is a

probability that the defendant, Leon David Dorsey IV, would commit criminal acts

of violence that would constitute a continuing threat to society?

Do you find, taking into consideration all of the evidence, including the

circumstances of the offense, the defendant’s character and background, and the

personal moral culpability of the defendant, that there is a sufficient mitigating

 

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circumstance or circumstances to warrant that a sentence of life imprisonment rather

than a death sentence be imposed?

(Transcript at 236-37). The jury answered the first question “yes.” (Id.). 

On direct appeal, the Court of Criminal Appeals held that the evidence presented at trial was

sufficient to support this answer. In reaching its decision, the court recounted the following evidence

presented at the punishment phase of the trial:

Although appellant was only eighteen when he committed the instant offense,

he had a history of criminal conduct. At fourteen, he took a gun to school and

discharged it in a classroom. At fifteen, appellant lived on an Air Force base and

committed several property crimes, including a residential robbery, theft from a

vehicle, and a theft of some items from lockers at the base gymnasium. When police

investigated and found stolen items at appellant’s home, they also discovered 20 to

25 bullet holes in the basement wall of his house and numerous spent shells. At

sixteen, appellant fired a gun at a young couple in another car and verbally threatened

to kill them. At eighteen, four months before the instant offense, appellant was

arrested for unauthorized use of a motor vehicle. He was convicted, and his sentence

was probated. Five months after committing the instant offense, appellant killed a

convenience clerk during a robbery in Ennis, Texas. Appellant pled guilty to the

Ennis murder and, pursuant to a plea agreement, was sentenced to sixty years

imprisonment. During his interview with Dallas Morning News reporter Sickles,

appellant admitted to “possibly” killing as many as nine people, “more or less.”

While in prison, appellant was involved in a fist fight, “beat up guards,” attempted

to stab another inmate, and was in possession of weapons, including a sharpened

spoon and a sharpened eight-inch steel rod. Appellant also belonged to a prison gang

known for violent activities.

Dorsey, slip op. at 7-8. The Court of Criminal Appeals’ decision is not an unreasonable application

of federal law.

Federal courts have extremely limited habeas review of claims based on the sufficiency of

the evidence, and the standard for reviewing such claims is supplied by Jackson v. Virginia, 443 U.S.

307 (1979). When reviewing such claims against the underlying conviction, the relevant question

“is whether, after viewing the evidence in the light most favorable to the prosecution, any rational

 

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trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319. The Jackson standard is also applicable when reviewing claims that the

evidence to support an affirmative answer to the future dangerousness special issue is insufficient.

See Martinez v. Johnson, 255 F.3d 229, 245 (5 Cir. 2001); Green v. Johnson, 160 F.3d 1029, 1046 th

(5 Cir. 1998). Federal courts apply the Jackson “standard looking to the state’s substantive law, th

giving great weight to the state court’s determination.” Miller v. Johnson, 200 F.3d 274, 286 (5th

Cir. 2000). Further, under Jackson, “the assessment of the credibility of witnesses is generally

beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). “Determining the weight

and credibility of the evidence is within the sole province of the jury.” United States v. Martinez,

975 F.2d 159, 161 (5th Cir. 1992).

Petitioner contends that the evidence is insufficient to support the jury’s answer to the first

special issue under the Jackson standard because the evidence presented to the jury revealed that

petitioner had committed no serious acts of violence in prison and was instead capable of living

peaceably in the prison environment, the environment under which he would be required to live for

at least thirty-five years before becoming eligible for parole if given a life sentence. Petitioner also

contends that the evidence is insufficient to support the jury’s answer to the future dangerousness

special issue because the State presented no psychiatric opinion testimony regarding petitioner’s

future dangerousness.

But, contrary to petitioner’s argument, the circumstances of the offense alone may be legally

sufficient to support an affirmative answer to the future dangerousness special issue. Miller v.

Johnson, 200 F.3d at 290. And, petitioner has pointed to no legal precedent requiring that the State

present psychiatric testimony regarding a defendant’s future dangerousness in order for a jury’s

 

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verdict on the future dangerousness special issue to be considered supported by legally sufficient

evidence. Moreover, while petitioner characterizes the evidence presented to the jury as reflecting

that he was capable of a peaceful existence in the prison environment, in actuality the evidence

presented established that, after petitioner was convicted and sent to prison for the murder of the

convenience store clerk, he continued to violate prison rules, both major and minor (R. 36:138-43;

R. 37:50-5, 62-77, 85-8, 92-6, 103-06). Furthermore, as noted by the Court of Criminal Appeals in

its decision on direct appeal, it was proven at the penalty phase of the trial that Petitioner murdered

another person five months after the killings at the Blockbuster and Petitioner himself told a reporter

that he “possibly” killed nine or more people. Dorsey, slip op. at 7-8. Given the evidence supporting

the jury’s decision, it cannot be said that the state court’s decision is an unreasonable application of

the Jackson standard. This claim is without merit, and it is denied.

D. Claims regarding Petitioner’s Challenges for Cause

In his fourth through seventh grounds for relief, petitioner claims that the trial court erred

when it denied his challenges for cause to four members of the venire. Petitioner contends that his

rights under the Sixth, Eighth, and Fourteenth Amendments were violated when the trial court denied

petitioner’s challenges for cause to veniremembers Don Merrifield, Michael O’Keefe, Alan Brunson,

and Russell Staten. In particular, petitioner asserts that Merrifield was challengeable because he had

a bias in favor of the death penalty and O’Keefe, Brunson, and Staten were challengeable because

they refused to consider youth as a mitigating factor when considering the appropriate penalty for

a capital murder defendant.

The Court of Criminal Appeals addressed these claims in two separate reviews. Specifically,

on direct appeal, the Court of Criminal Appeals held that the trial court had not erred in denying the

 

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defense’s challenge for cause to Juror Merrifield because, after questioning from the trial judge and

after the judge explained the state’s burden of proof at the punishment phase of the trial, Merrifield

stated that he could follow the law and would require the state to prove beyond a reasonable doubt

that petitioner would be a future danger to society before he would answer the first special issue

“yes.” The Court of Criminal Appeals further held on direct appeal that the trial court had not

abused its discretion in denying the defense challenge for cause to Juror O’Keefe because he would

not consider youth as mitigating evidence because a venire member is not subject to a challenge for

cause because he gives no weight to age as a mitigating factor. Dorsey, slip op. at 18-9. Then, at the

state habeas level, the state habeas court concluded that petitioner’s constitutional rights were not

violated when the trial court denied the challenge for cause to Merrifield because Merrifield did not

have a bias in favor of the death penalty in that he had stated that he could give a life sentence if

presented with sufficient mitigating evidence, he believed that jurors should keep an open mind

regarding the punishment special issues, and he would hold the State to its burden of proof with

respect to the first special issue. (SHTr.:340-41). The state habeas court further concluded that

petitioner’s constitutional rights were not violated when the trial court denied the challenges for

cause to O’Keefe, Brunson, and Staten because the law does not require jurors to consider any

particular fact or circumstance mitigating. (SHTr.:341-42). When the Court of Criminal Appeals

reviewed these issues for the second time, it adopted these conclusions of the state habeas court.

These conclusions are not contrary to federal law. The standard for determining whether a

veniremember may be excluded for cause is whether his views would “prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions and his oath.”

Wainwright v. Witt, 469 U.S. 412, 424 (1985). With respect to the alleged bias towards the death

 

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penalty, the Supreme Court has held that due process requires that a jury determining sentencing at

a capital murder trial must be impartial and that, therefore, a defendant may challenge for cause any

prospective juror who would automatically vote to impose death if the defendant is convicted of a

capital offense. Morgan v. Illinois, 504 U.S. 719, 730 (1992). With respect to the consideration of

mitigating evidence, a state’s sentencing guidelines must not be preclude jurors from considering,

as a mitigating factor, any aspect of a defendant’s character or background, including a defendant’s

youth. Johnson v. Texas, 509 U.S. 350, 367 (1993); Lockett v. Ohio, 438 U.S. 586 (1978). However,

a defendant in a capital case is not entitled to challenge prospective jurors for cause simply because

they might view the evidence the defendant offers in mitigation of a death sentence as aggravating

evidence instead. Soria v. Johnson, 207 F.3d 232, 244 (5 Cir. 2000). th

In the case at hand, Juror Merrifield initially stated that a person who intentionally kills

someone should receive the death penalty (R. 14:169-70), but, after the law was explained to him,

he later stated that he could assess a life sentence if presented with sufficient mitigating evidence,

and he would require the State to meet its burden of proof with respect to the future dangerousness

special issue before he would answer the issue in the affirmative. (R. 14:154-55, 210). Accordingly,

the record before this Court indicates that, contrary to petitioner’s contention, Merrifield was not

challengeable for cause because he did not state that he would automatically vote for the death

penalty should petitioner be convicted.

Furthermore, while Jurors O’Keefe, Brunson, and Staten all expressed personal reluctance

to consider a defendant’s youth as a mitigating factor, (R. 23:79; R. 26:242; R. 29:106), the jury

itself was not prevented from considering petitioner’s youth as a mitigating factor, either through

the future dangerousness or the mitigating special issues. Thus, no Supreme Court precedent was

 

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violated when the trial court declined to grant the defense challenges for cause to these jurors.

Moreover, as noted earlier, the Fifth Circuit has specifically stated that a juror is not challengeable

for cause because he might view a factor as aggravating, rather than mitigating. Following this

reasoning, a prospective juror’s statement that he does not consider a certain type of evidence as

mitigating does not subject him to a challenge for cause because it is not evidence that he will be

unable to perform his duties as a juror. See Wainwright v. Witt, 469 U.S. at 424.

Moreover, even if the trial court erred in denying defense counsel’s challenges for cause to

these four potential jurors, petitioner cannot establish a federal constitutional violation because he

has failed to prove that the jury in his capital murder trial was, in fact, not an impartial one. Ross

v. Oklahoma, 487 U.S. 81 (1988), addressed a case where a capital murder defendant used a

peremptory challenge to remove a potential juror from the jury panel for his trial after his challenge

for cause was denied by the trial court. On appeal, Ross argued that, because the juror was excusable

for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968), his right to an impartial jury and to due

process of law were violated because the trial court did not excuse him from the panel. Ross, 487

U.S. at 83-84. The Supreme Court held that Ross’s federal constitutional claims were without merit

because any claim that a jury was not impartial or that due process has been denied because a court

erred in not granting a challenge for cause must focus on the jurors who sat on the jury, not jurors

who were removed, even if peremptory challenges were used to remove the jurors, because the loss

of a peremptory challenge is not a violation of a constitutional right. Id. at 85, 88-89.

Thus, in the instant case, even assuming for the purpose of argument that these

veniremembers should have been excused for cause, petitioner acknowledges that they were all

peremptorily struck by defense counsel and did not serve on the jury. (R. 14:216; R. 23:84; R.

 

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26:257; R. 29:108). While petitioner has summarily stated that he was forced to accept Juror Lara

Schmukler, who was not an acceptable juror to him, he has not alleged, much less shown, that Juror

Schmukler was not an impartial juror. Accordingly, petitioner’s claim that his constitutional rights

were violated because the trial court did not grant these challenges for cause is without merit. These

grounds for relief are without merit, and they are denied.

E. Batson claim

In his eighth ground for relief, petitioner alleges that the State exercised a peremptory

challenge during jury selection in a racially discriminatory manner in violation of Batson v.

Kentucky, 476 U.S. 79 (1986). Specifically, petitioner asserts that he was denied equal protection

under the law in violation of the Fourteenth Amendment when the State used a peremptory challenge

to prevent an African-American man, Jerry Riley, from sitting on the jury and failed to articulate a

credible race-neutral explanation for the strike. 

In Strauder v. West Virginia, 100 U.S. 303 (1880), the Supreme Court held that when a black

defendant has been tried by a jury from which members of his own race have been purposely

excluded, he has been denied equal protection of the law. In Batson v. Kentucky, 476 U.S. 79

(1986), the Court reaffirmed this holding and further held that the Equal Protection clause forbids

a prosecutor from using his peremptory challenges to challenge potential jurors solely on account

of their race. Id. at 88. The Court also held that, in order to establish a claim of purposeful racial

discrimination in the jury selection process by the use of peremptory challenges by the prosecutor,

a criminal defendant must first make out a prima facie case of purposeful discrimination by first

showing that he is a member of a racial group capable of being singled out for differential treatment

and that the prosecutor has exercised peremptory challenges to remove from the jury panel members

 

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of his race. A defendant must then show that these facts and other circumstances raise an inference

that the prosecutor used the practice to exclude veniremembers based on their race. Once this

showing has been made, the burden then shifts to the State to provide a race-neutral explanation for

challenging the jurors. Id. at 96. If the State presents a racially-neutral explanation for a strike, the

trial court must decide whether the defendant has carried his burden of proving purposeful racial

discrimination. Id. at 98; Purkett v. Elem, 514 U.S. 765, 767-68 (1995).

In making the decision as to whether the defendant has met his burden of proof, the

truthfulness of the prosecutor’s explanation must be determined by assessing the credibility and

demeanor of the State’s attorney. Hernandez v. New York, 500 U.S. 352, 365 (1991). This judgment

is one which lies “peculiarly within a trial judge’s province.” Id. The standard of review is “clear

error,” and a trial court’s ruling should not be considered clearly erroneous unless a reviewing court

has the firm conviction that a mistake has been committed. United States v. Cobb, 975 F.2d 152,

154-56 (5 Cir. 1992), citing Hernandez, 500 U.S. at 369. th

After veniremember Jerry Riley was questioned by both the State and the defense during voir

dire, the State attempted to challenge him for cause on the basis that he could not give the minimum

sentence in a murder case, he would not find a defendant not guilty if the State failed to establish the

correct cause of death, and he would automatically answer the first special issue “yes” if a defendant

was convicted of capital murder. (R. 16:203). The trial court questioned Riley again and then denied

the State’s challenge for cause. (R. 16:205-215). The prosecutor then indicated that he intended to

peremptorily strike Riley, and defense counsel made a Batson objection because Riley is AfricanAmerican. (R. 16:215). The prosecutor explained that Rileywas not an acceptable jurorfor the State

because he had a friend who had been convicted and had spent twenty years in prison for murder,

 

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and there were similarities between that case and petitioner’s case that concerned the State. In

particular, Riley was at a party where a murder occurred; Riley’s friend, Rodney, who committed

the murder, was around the same age as petitioner when he committed murder; Rodney had told

Riley that he did not mean to shoot the person, although the victim was shot in the back; Rodney

confessed to Riley the following day, and Riley encouraged him to turn himself in to police; Riley

did not testify at his friend Rodney’s trial; and Riley has resumed his friendship with Rodney after

he was paroled and believes him to be doing fine with a monitor on his leg. (R. 16:216-18). The

prosecutor went on to state that his primary concern with the similarities in the case was the fact that

Riley had remained friends with Rodney, converses with him regularly, and believes that he is doing

“fine.” (R. 16:219). The prosecutor also reiterated the previous reasons he gave for the challenge

for cause. (R. 16:218-19). Defense counsel responded that Riley has stated that his friend had

received “what he deserved” and perhapsless that what he deserved,Riley stayed at the scene to help

the victim, and he did not speak to the police at the scene because others had already told the police

that Rodney shot the victim. Defense counsel further stated that Riley’s responses indicated that he

acted as a responsible citizen and that, therefore, the reason given by the State for striking Riley was

suspicious. (R. 16:220). The trial court then sustained the peremptory strike over the Batson

challenge, finding that the reasons given were racially neutral and Juror Riley’s rights had not been

violated. (R. 16:220).

At the state habeas level, the state court concluded that petitioner had failed to establish a

Batson violation because the explanations for the peremptory strike given by the prosecution were

race-neutral and that petitioner had failed to meet his burden of establishing that the State’s reasons

for the strike were pretextual in nature. (SHTr.:345-48). This conclusion is not an unreasonable

 

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application of the Batson standard because the reasons given by the State for striking Riley are

facially race-neutral and petitioner has failed to show that they were pretextual in nature.

Petitioner contends that the reasons given by the State for striking Juror Riley were pretextual

in nature because: 1) there is nothing in the record that indicates that the similarities between

petitioner’s case and the murder committed byRiley’sfriend would affect Riley’s ability to be a fair

and impartial juror; and 2) the prosecutor did not ask Riley if any similarity would influence him.

(Petition at 98-9). These concerns, however, do not rise to the level of establishing that the trial

court’s determination that the reasons for the strike were not race-based was a clearly erroneous

determination because they are not sufficient proof to a reviewing court that a mistake has been

committed. See Cobb, 975 F.2d at 154-56. 

This Court is mindful that the Supreme Court recently handed down a decision in which it

reversed the conviction of a man convicted in Dallas County, Texas on the basis of Batson. In

Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2340 (2005), the Supreme Court held that the

state court findings that the reasons articulated for several peremptory strikes were race-neutral and

nonpretextual were shown to be incorrect by clear and convincing evidence. In Miller-El, however,

the Court based its decision on the fact that Miller-El had presented evidence that: 1) ten of eleven

African-American veniremembers had been peremptorily struck by the State, leaving one AfricanAmerican on the jury; 2) the reasons given for peremptorily striking the African-Americans, such

as certain answers to questions, applied equally to similar non-blacks who were permitted to serve

on the panel; 3) the State shuffled the jury two different times when a large number of AfricanAmericans were in the front of the venire panel; 4) the State posed contrasting questions to blacks

and non-blacks, using graphic descriptions of the death penalty to African-Americans and bland

 

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language to others; and 5) the Dallas County District Attorney’s office had, for decades preceding

Miller-El’s trial, followed a policy of systematically excluding African-Americans from juries. Id.

at 2325-30, 2332-39.

In the case at hand, however, while petitioner was convicted in Dallas County, Texas,

petitioner has presented no evidence concerning the racial make-up of the jury that sat in his trial and

no evidence about the percentage of African-Americans who were struck by the State. The record

before this Court is that the defense challenged three other peremptory strikes on the basis of Batson

(R. 23:149-60; R. 25:53-8; R. 27:78-88), unsuccessfully, but there is no other evidence before this

Court about the racial make-up of the jury or the race of other jurors who were either accepted or

struck by the State. And, the reasons given for the other three Batson-challenged strikes were

different. The prosecutor stated that he struck Juror Hooper because he was not a strong advocate

of the death penalty and believed it had been misused (R. 23:150-52); struck Juror Davis because

he did not want to put anyone on death row, did not believe the death penalty was a deterrent, and

had a daughter who went to jail whom he believed was innocent (R. 25:53-6); and struck Juror Alee

because she had had several arrests and stated on her questionnaire that she believed that police

officers were dangerous and prejudiced. (R. 27:78-81). Petitioner has never raised as a claim on

appeal the denial of any of these Batson challenges. 

Petitioner has presented no evidence that African-American veniremembers were questioned

in a different manner than white jurors or that there were white jurors who were accepted by the

State who had a background similar to Juror Riley (i.e. having a friend convicted of murder) or who

answered the State’s questions in a similar manner. Without such evidence, petitioner has failed to

meet his burden of proving purposeful racial discrimination such that the trial court’s determination

 

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that the reasons given by the prosecution for striking Juror Riley would be considered clearly

erroneous. Petitioner has not presented sufficient evidence to support his argument that this Court

should find that the state court conclusions with regard to this issue are unreasonable ones. This

claim is without merit, and it is therefore denied.

F. Special Issues’ Terms Claim

In his ninth ground for relief, petitioner claims that the special issues that a capital jury is

required to answer at the punishment phase of a Texas death penalty trial are unconstitutional

because a number of terms used are not defined for the jury. In particular, petitioner complains that

the terms “probability,” “criminal acts of violence,” “continuing threat to society,” and “mitigating

circumstances” are unconstitutionally vague terms that were contained in the special issues the jury

was required to answer but were not defined for the jury.

As noted earlier, at the punishment phase of the trial, the jury was required to answer the

following two special issues:

Do you find from the evidence beyond a reasonable doubt that there is a

probability that the defendant, Leon David Dorsey IV, would commit criminal acts

of violence that would constitute a continuing threat to society?

Do you find, taking into consideration all of the evidence, including the

circumstances of the offense, the defendant’s character and background, and the

personal moral culpability of the defendant, that there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life imprisonment rather

than a death sentence be imposed?

(Tr.: 236-37). Petitioner contends that the failure to define certain terms in these special issues

violates the constitutional requirement that a statutory aggravating circumstance “genuinely” narrow

the class of persons eligible for the death penalty and “reasonably justify the imposition of our most

severe penalty.” (Petition at 101-102). See Zant v. Stephens, 462 U.S. 862, 878 (1983); Godfrey v.

 

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Georgia, 466 U.S. 420 (1980). Petitioner argues that definitions of these terms would have been,

in essence, limiting instructions on the jury’s sentencing discretion.

The Fifth Circuit has consistently held that these terms are not unconstitutionally vague and

can instead be understood in their common meaning. Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th

Cir. 1996) (noting the long line of Fifth Circuit cases holding that the terms in the Texas punishment

special issues need not be defined in the jury instructions); James v. Collins, 987 F.2d 1116, 1119-20

(5 Cir. 1993) (not necessary to define “deliberately,” “probability,” “criminal acts of violence,” or th

continuing threat to society”); Nethery v. Collins, 993 F.2d 1154, 1162 (5 Cir. 1993) (not necessary

th

to define “deliberately,” probability,” or “society”); Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5

th

Cir. 1987) (holding that “deliberately” need not be defined as its common meaning is sufficiently

clear to allow jury to answer special issues). Indeed, in Milton v. Procunier, 744 F.2d 1091, 1095-96

(5 Cir 1984), the Fifth Circuit noted that the term “probability” has a plain meaning such that the th

discretion left to the jury in answering the future dangerousness issue is no more than the discretion

that exists in the jury system itself.

The Supreme Court has held that the future dangerousness special issue that the jury in the

instant case was required to answer passes constitutional muster. Jurek v. Texas, 428 U.S. 262

(1976). And, while the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 322-25 (1989), held that

the future dangerousness special issue given to the jury in petitioner’s case standing alone does not

allow juries to consider adequately certain mitigating evidence such as mental retardation, the

Supreme Court has never determined that the federal constitution requires that terms used in that

issue be given specific definitions. Moreover, with respect to petitioner’s claim that the phrase

“mitigating evidence” is unconstitutionally vague, included in the punishment jury charge was the

 

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statement that, with regard to the second special issue: “in arriving at your answer, you shall consider

mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral

blameworthiness.” (Tr.:232-233). Contrary to petitioner’s argument, the term “mitigating evidence”

was defined for the jury.

The state habeas court concluded that petitioner’s constitutional rights were not violated by

the omission of definitions of the terms “probability,” “criminal acts of violence,” and “continuing

threat to society.” (SHTr.:350-51). Given the long line of Fifth Circuit precedents supporting this

decision, it cannot be said that this decision at the state habeas level denying this claim for relief is

contrary to clearly established federal law. The state habeas court further concluded that “mitigating

evidence” was defined for the jury and therefore this claim was without merit. (SHTr.:349-50). This

conclusion is not contrary to federal law. Accordingly, this claim is without merit, and it is denied.

G. Mitigation Special Issue Claim

In his tenth claim, petitioner asserts that he was denied his constitutional rights under the

Eighth and Fourteenth Amendments because the jury in his trial was misled about the effect of a

“no” vote by a single juror to the future dangerousness special issue or a “yes” vote by a single juror

to the mitigation special issue. Petitioner contends that, because the parties are not allowed to inform

the jury that one hold-out juror on either special issue would result in a life sentence, but the jury is

instead instructed that ten “no” votes on the first special issue or ten “yes” votes on the second

special issue are required to impose a life sentence, jurors may feel coerced into voting in such a way

that imposes the death sentence, believing that a single vote would have no effect.

As noted earlier, the jury in petitioner’s case was required to answer two special issues, those

being the future dangerousness issue and the mitigation issue. The jurors were instructed that they

 

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could not answer the future dangerousness issue “yes” or the mitigation issue “no” unless all twelve

jurors were unanimous in that decision. They also were instructed that they could not answer the

future dangerousness special issue “no” or the mitigation special issue “yes,” unless at least ten

jurors agreed with that answer, which would then result in a life sentence. (Tr.:3). This is commonly

known as the “12-10" rule. However, under Texas state law, if the jury fails to reach a decision

regarding either special issue in a capital murder case, the defendant will receive a life sentence. By

law, none of the parties are permitted to inform the jury this result should the jury fail to reach a

verdict. TEX. CODE CRIM. PROC. ANN. art 37.071 § 2(a)(1), (g) (Vernon 1993). 

The defense filed a motion with the court asking that the Texas capital sentencing scheme

be ruled unconstitutional because, among other things, the “12-10" rule violates the Eighth and

Fourteenth Amendments. This motion was denied by the trial court. (Tr.:185-89). In this motion,

and in his federal petition, petitioner cites Mills v. Maryland, 486 U.S. 367, 383 (1988), a case in

which the Supreme Court struck down Maryland’s capital sentencing system because a single juror

could preclude the jury from considering certain evidence to be mitigating and the jury could be

prevented from considering mitigating factors if the twelve jurors did not agree on what the specific

facts were. At the state habeas level, the trial court, citing both Mills and Jones v. United States, 527

U.S. 373 (1999), concluded that the “12-10" rule as dictated by Article 37.071 does not violate the

federal constitution because it is not constitutionally required that a jury be informed of the

consequences of a deadlock. (SHTr.:354-57). This conclusion is not an unreasonable application

of federal law. 

In Jones v. United States, the United States Supreme Court addressed the question of

whether a federal death penalty defendant’s Eighth Amendment rights were violated because the

 

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jurors in his case were not given a jury instruction at the punishment phase of the trial regarding the

consequences of a jury deadlock at punishment. Because Jones was a federal death penalty case,

under the federal death penalty statute, the jury was required to consider all aggravating and

mitigating factors and determine whether the aggravating factors outweighed the mitigating factors.

All aggravating factors in a federal death penalty case must be proven beyond a reasonable doubt,

whereas the jury may consider a mitigating circumstance so long as one juror finds that its existence

has been established by a preponderance of the evidence. In Jones, the jury unanimously found the

existence of two statutory and two non-statutory aggravating factors beyond a reasonable doubt and

various jurors found the existence of ten mitigating factors. After weighing these factors, the jury

unanimously recommended that Jones be sentenced to death. The jury did not receive an instruction

requested by the defense which informed the jurors that if they were unable to reach an unanimous

decision with regard to the sentence to be imposed, the judge should be informed and would then

impose a sentence of life imprisonment without possibility of parole. Jones, 527 U.S. at 376-80.

Although the Supreme Court in Jones acknowledged that it had previously held that a death

sentence could not be imposed arbitrarily, that a jury must be given a vehicle in which all relevant

mitigating evidence may be considered at the punishment phase of a capital murder trial, and that

a jury cannot be affirmatively misled regarding its role in the sentencing process, the Court held that

the Eighth Amendment was not violated simply because the jury was not informed of the

consequences of a deadlock on the issue of punishment. Specifically, the Court held that the federal

constitution was not violated because: 1) the jury in Jones’ case was not misled about its role at

punishment; 2) the object of the jury system is to secure unanimity by a dialogue among the jurors;

and 3) in a capital sentencing proceeding the government has a strong interest in having the jury

 

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express the conscience of the community that might be undermined if the jury was informed about

the consequences of a deadlock. Id. at 382. Moreover, although four justices dissented in Jones

because they believed that an instruction regarding the effect of a jury deadlock was constitutionally

required in the case, in the dissenting opinion authored by Justice Ginsburg, it is not disputed that

the Eighth Amendment does not require that a jury be instructed as to the consequences of a failure

to agree, but it is instead argued that such an instruction was necessary in Jones because of particular

instructions given to the jury in that case which, the dissent argued, created a reasonable probability

that the jurors in that case mistakenly believed that Jones could be sentenced to something less that

life without parole for his crime. Jones, 527 U.S. at 418, n. 20. Because those instructions were

peculiar to that case, both the majority and the dissenting opinions in Jones make clear that the

Supreme Court does not consider it a requirement of the Eighth Amendment that a capital jury be

informed of the consequences of a failure to agree with respect to its verdict at the punishment phase

of the trial.

Although Jones did not specifically address Petitioner’s Fourteenth Amendment claim, since

Jones was handed down by the Supreme Court, the Fifth Circuit has held that an argument that the

“12-10" rule in Texas violated a capital murder defendant’s Eighth and Fourteenth Amendments was

without merit. Alexander v. Johnson, 211 F.3d 895, 897, n. 5 (5 Cir. 2000). Moreover, the Fifth th

Circuit has also consistently held that any ruling that the “12-10" rule violated the federal

constitution would be a it would be a new constitutional rule of criminal procedure as defined in

Teague v. Lane, 489 U.S. 288, 311-13 (1989), that did not place certain kinds of individual conduct

beyond the power of the criminal law-making authority to proscribe and was not a watershed rule

of criminal procedure, and therefore could not form the basis for federal habeas corpus relief. See

 

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Hughes v. Dretke, 2005 WL 1384580 (5 Cir. June 10, 2005); Alexander, 211 F.3d at 897; Davis v. th

Scott, 51 F.3d 457, 467 (5 Cir. 1995); Webb v. Collins, 2 F.3d 93 (5 Cir. 1993). Accordingly, this th th

ground for relief is without merit, and it is denied.

H. Texas’ Death Penalty Scheme Claim

In his eleventh ground for relief, petitioner claims that Texas’ death penalty scheme is

unconstitutional under the Fifth, Eighth, and Fourteenth Amendments. Petitioner contends that

Texas’ statutory scheme which addresses the death penalty is unconstitutional because it is

impossible to both simultaneously restrict a jury’s discretion to impose the death penalty and allow

the jury unlimited discretion to consider all evidence militating against the imposition of the death

penalty.

As support for this argument, Petitioner cites Justice Blackmun’s dissent in Callins v.

Collins, 510 U.S. 1141 (1994). Petitioner argues that this Court should declare that the death

penalty as applied to him is unconstitutional because, as Justice Blackmun argued in Callins v.

Collins, no death penalty statute can adequately follow Supreme Court precedent and both eliminate

all arbitrariness from the assessment of the death penalty and provide the sentencer with sufficient

discretion to consider and act upon the unique circumstances of each defendant.

Petitioner was indicted and tried for capital murder for killing a person during the course of

committing or attempting to commit a robbery, one of the subsets of murder that is eligible for the

death penalty in Texas. (Tr. 2; TEX. PEN. CODE ANN. § 19.03 (Vernon 1994)). Contrary to

Petitioner’s argument, the Supreme Court upheld a version of the Texas death penalty statute in

Jurek v. Texas, 428 U.S. 262 (1976), which, like the version of the statute under which Petitioner

was tried and sentenced, narrowed the class of offenders who were subject to a death sentence to a

 

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specific subset of murder defendants. Thus, the Supreme Court has specifically ruled that the

manner in which Texas narrows the class of murderers eligible for the death penalty passes

constitutional muster by eliminating arbitrariness in the determination of who is eligible to received

the death penalty.

With regard to Petitioner’s allegation that the Texas death penalty scheme fails to allow

adequate discretion in considering mitigating evidence, the Supreme Court did note in Tuilaepa v.

California, 512 U.S. 967, 974 (1994) that, “[i]n providing for individualized sentencing, it must be

recognized that the States may adopt capital sentencing processes that rely upon the jury, in its sound

judgment, to exercise wide discretion.” Moreover, citing Zant v. Stephens, 462 U.S. 862, 875

(1983), the Court in Tuilaepa specifically stated that a sentencer may be given unbridled discretion

in determining whether to impose the death penalty once it is determined that the defendant is a

member of the class that is eligible to receive the death penalty. Tuilaepa, 512 U.S. at 979-980.

These cases illustrate the requirement that, so long as the class of murder defendants is sufficiently

tailored to avoid arbitrariness and a state provides a vehicle that is sufficient for the jury to consider

all relevant punishment evidence, both aggravating and mitigating, a state capital sentencing statute

will be considered constitutional. 

With respect to the special issues given to the jury to answer in Petitioner’s case, in Jurek the

Supreme Court approved of the Texas future dangerousness issue and has continued to do so in

subsequent cases. See Pulley v. Harris, 465 U.S. 37, 50-1 (1984). And, although in Penry v. Texas,

429 U.S. 302, 324-5 (1989), the Supreme Court held that certain mitigating evidence could not be

adequately considered within the scope of the future dangerousness issue that the jury in Petitioner’s

trial received, Petitioner was tried after the Texas legislature amended Article 37.071 in order to

 

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address the Supreme Court’s concerns in Penry and added the mitigation special issue which

petitioner’s jury received. The Supreme Court has since implicitly approved of the new mitigation

issue as an adequate vehicle for the consideration of all mitigating evidence. See Penry v. Texas, 532

U.S. 782, 803 (2001) (Penry II). Specifically, in Penry II, the Supreme Court made the following

comments regarding the mitigation issue added to the statute in 1991:

A clearly drafted catchall instruction on mitigating evidence also might

have complied with Penry I. Texas’ current capital sentencing scheme

(revised after Penry’ssecond trial and sentencing) provides a helpful frame

of reference. Texas now requires the jury to decide ‘[w]hether, taking into

consideration all of the evidence, including the circumstances of the

offense, the defendant’s character and background, and the personal moral

culpability of the defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment rather than

a death sentence be imposed.’ Penry’s counsel, while not conceding the

issue, admitted that he ‘would find a tough time saying that [Penry I] was

not complied with under the new procedure.’ At the very least, the brevity

and clarity of this instruction highlight the confusing nature of the

supplemental instruction actually given, and indicate that the trial court had

adequate alternatives available to it as it drafted the instructions for Penry’s

trial.

Penry, 532 U.S. at 803. (internal citations omitted).

Thus, through various decisions, the Supreme Court has held that the Texas statute that

establishes the subset of murderers eligible for the death penalty is constitutional and that the future

dangerousness punishment special issue is a constitutionally adequate vehicle for juries to consider

aggravating and most mitigating evidence. Moreover, in Penry II, the Supreme Court indicated that,

unlike other jury instructions and special issues, the mitigation special issue given to and answered

by the jury in Petitioner’s case is an adequate vehicle for juries to consider all mitigating evidence.

The Fifth Circuit also recently held an identical claim to be both without merit. Hughes v.

Dretke, 412 F.3d 582, 593-94 (5 Cir. 2005), cert. denied, 126 S.Ct. 1347 (2006). Furthermore, the th

 

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Fifth Circuit in Hughes held that this claim was procedurally barred under Teague v. Lane, 489 U.S.

288 (1989), because even if the claim was found to have merit, it would constitute a new

constitutional rule of criminal procedure that would not be applicable retroactively to cases on

collateral review. Hughes, 412 F.3d at 594; see also Teague, 489 U.S. at 311-13. When the state

habeas court addressed this claim on its merits, that court concluded, based on prior case law from

the Court of Criminal Appeals, that the Texas death penalty scheme does not constitute cruel and

unusual punishment and does not violate petitioner’s right to due process. (SHTr.:358). This

conclusion is not contrary to established federal law, and this claim is therefore denied.

I. Cumulative Error Claim

In his twelfth and final claim for relief, petitioner alleges that he is entitled to habeas relief

based on the cumulative effect of all the constitutional violations alleged in his petition. Specifically,

petitioner asserts that, even if his constitutional claims do not, own their own, justify reversing the

trial court’s judgment, when their cumulative effect is considered, the constitutional errors that

occurred at petitioner’s trial so permeated the trial that petitioner was deprived of the “fundamental

fairness” implicit under the Fifth and Fourteenth Amendments.

In Derden v. McNeel, 978 F.2d 1453 (5 Cir. 1992), the Fifth Circuit held that in order for th

a federal habeas petitioner to prevail on a claim of cumulative error at a state trial, he must establish

that: 1) the individual errors involved matters of constitutional dimension rather than mere violations

of state law; 2) the errors were not procedurally defaulted for habeas purposes; and 3) the

constitutional errors so infected the entire trial that the resulting conviction violates due process. Id.

at 1458.

 

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As this Court has held in this opinion, the claims raised by petitioner are without merit and

therefore do not establish any constitutional errors which infected the trial such that petitioner’s

conviction and sentence violate his due process rights. The state habeas court also concluded that

therewas no cumulative error because petitioner had failed to establish any constitutional violations.

(SHTr.:359). This conclusion is not contrary to federal law, and it is denied.

 

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IT IS THEREFORE ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and

is hereby, DENIED.

The Clerk of Court shall transmit a true copy of this Order to Petitioner and to Counsel for

Respondent.

SO ORDERED this 31 day of July, 2006. st

 

ED KINKEADE

UNITED STATES DISTRICT JUDGE

 

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