IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 11-70007

SHELTON DENORIA JONES,

Petitioner–Appellee

Cross-Appellant,

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellant

Cross-Appellee.

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-1825

Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Shelton Jones, convicted and sentenced to death for the capital murder of

Houston Police Sergeant Bruno Soboleski, was granted federal habeas relief on

his claim that, in violation of the principles first announced in Penry v.

Lynaugh,

1 Texas’s former special issues did not provide an adequate vehicle for

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1

(Penry I), 492 U.S. 302 (1989).

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the jury to give full consideration and effect to his mitigating evidence.2 The

State of Texas appeals, and Jones cross-appeals the district court’s holding that

his claim that the presence of uniformed officers during his trial denied him a

fair trial was procedurally defaulted. Jones also seeks a certificate of

appealability (COA) on two claims, capriciousness in his sentencing and

ineffective assistance of counsel. We affirm the grant of habeas relief. We

vacate the COA issued on Jones’s fair-trial claim regarding uniformed officers’

attendance at trial, dismiss his cross-appeal, and remand to the district court for

further proceedings because the district court did not satisfy the threshold

inquiry required before a COA may issue. We dismiss, as moot, Jones’s

application for a COA on his capriciousness claim and deny a COA on his

ineffective assistance of counsel claim.

I

At the punishment phase of Jones’s trial, after he was found guilty of

capital murder for killing Officer Soboleski, the jury found that Jones acted

deliberately and that there was a probability that Jones would commit criminal

acts of violence that constitute a continuing threat to society. These findings

resulted in a sentence of death under then-existing Texas law. The judgment

was affirmed on direct appeal by the Texas Court of Criminal Appeals (TCCA),

and the United States Supreme Court denied Jones’s petition for a writ of

certiorari.3

A

On January 27, 1997, the TCCA appointed counsel to represent Jones in

pursuing an application for a writ of habeas corpus. The order mandated that

2 Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *15-16 (S.D. Tex.

Mar. 3, 2011).

3 Jones v. State, No. 71,369 (Tex. Crim. App. May 4, 1994) (en banc), cert. denied, 514

U.S. 1067 (1995).

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an application for a writ of habeas corpus be filed no later than 180 days after

the date of appointment. Because this date, July 26, 1997, fell on a Saturday,

the deadline actually fell on the next business day, July 28, 1997.4 Prior to the

deadline, the TCCA granted leave for Jones’s counsel “to file an incomplete

application for writ of habeas corpus on or before April 24, 1997, with leave to

file a supplemental and/or amended application before July 26, 1997.” The order

stated that “[a]ny incomplete application shall not be considered by the trial

court or this Court until the 180 day period for filing applicant’s original

application, and any extension of this period granted by the trial court, has

elapsed,” and it also stated that “[a]ny supplemented application shall be

deemed an original, not a successor, application.”

Jones filed a skeletal application on April 23, 1997 and, on July 25, 1997,

mailed an “Amended Application for Post-Conviction Writ of Habeas Corpus

Pursuant to Article 11.071 of the Texas Code of Criminal Procedure” (Amended

Application), which was received and filed on July 28, 1997. Also on July 28,

1997, Jones filed a document entitled “Errata and Corrections to Amended

Application for Post-Conviction Writ of Habeas Corpus Pursuant to Article

11.071 of the Texas Code of Criminal Procedure” (Errata). The Errata consisted

of a list of various omissions and errors as well as the entire text of Jones’s fairtrial claim regarding uniformed officers at trial, which Jones asserts was omitted

from the Amended Application due to a computer error.

On October 24, 1997, Jones filed a Motion to Supplement, which sought

leave to file an attached “Supplemental Application for Post-Conviction Writ of

Habeas Corpus Pursuant to Article 11.071 of the Texas Code of Criminal

Procedure” (Supplemental Application) “as a corrected version of the Amended 

Application . . . and Errata . . . previously filed.” In the motion, and on appeal,

4 See Ex parte Reynoso, 257 S.W.3d 715, 721 (Tex. Crim. App. 2008).

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Jones asserts that the Amended Application and Errata were consolidated into

the Supplemental Application for simplification and to avoid confusion. The

motion asserted that the Supplemental Application “contain[ed] no new claims

or matters not previously raised in the [A]mended [A]pplication and [E]rrata and

work[ed] no surprise to the State.” On October 27, 1997, the trial court granted

leave to file the Supplemental Application and ordered that the Supplemental

Application “shall be deemed as an original part of the original and amended

applications previously filed, and not as a successor application.”

Ultimately, the TCCA denied habeas relief on the claims presented in the

Amended Application based upon the trial court’s findings and conclusions and

theTCCA’s own review.5 The TCCA also reviewed the Supplemental Application

and held that “[b]ecause [it] was filed after the deadline provided for an initial

application for habeas corpus,” that it was “a subsequent application.”6 The

TCCA determined that the Supplemental Application did not meet any of the

exceptions for submission of a subsequent application and dismissed it as an

abuse of the writ.7 The TCCA also “expressly reject[ed] all findings and

conclusions related to this claim and den[ied] all motions pending that relate[d]

to the claim.”8 The TCCA’s order did not expressly reference the Errata, which

had been filed on the last day of the deadline for filing, but after the Amended

Application had been filed.

B

5 Ex parte Jones, Nos. WR-62,589-01 & WR-62,589-02, 2005 Tex. Crim. App. Unpub.

LEXIS 391, at *1-2 (Tex. Crim. App. Oct. 26, 2005).

6

Id.

7

Id. at *2.

8

Id.

4

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Subsequently, Jones filed another application for a writ of habeas corpus

in state court, which raised a claim, based on Penry I, “that the former special

issues of the Texas capital sentencing scheme did not provide an adequate

vehicle for the jury to give full consideration and full effect to his mitigating

evidence.” In accordance with Texas law at the time of the punishment phase

of Jones’s trial, the jury was required to answer two special issues:

(1) “Was the conduct of the defendant, Shelton Denoria Jones, that

caused the death of the deceased committed deliberately and with

the reasonable expectation that the death of the deceased or another

would result?”

(2) “Is there a probability that the defendant, Shelton Denoria

Jones, would commit criminal acts of violence that constitute a

continuing threat to society?”

The trial court also gave the jury a supplemental instruction:

You are instructed that when you deliberate on the questions

posed in the special issues, you are to consider all relevant

mitigating circumstances, if any, supported by the evidence

presented in both phases of the trial, whether presented by the

State or the defendant. A mitigating circumstance may include, but

is not limited to, any aspect of the defendant’s character,

background, record, or circumstances of the crime which you believe

could make a death sentence inappropriate in this case. If you find

that there are any mitigating circumstances in this case, you must

decide how much weight they deserve, and thereafter, give effect

and consideration to them in assessing the defendant’s personal

culpability, at the time you answer the special issue. If you

determine, when giving effect to the mitigating evidence, if any, that

a life sentence, as reflected by a negative finding to the issue under

consideration, rather than a death sentence, is an appropriate

response to the personal culpability of the defendant, then a

negative finding should be given to one of the special issues.

In affirming Jones’s conviction on direct appeal, the TCCA characterized

Jones’s mitigation evidence: “[Jones] produced numerous character witnesses

during trial who testified that he was peaceable, hard-working, a good high

school student, and non-violent while incarcerated and awaiting trial. [Jones]

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also called a psychologist who testified [Jones’s] personality could be termed as

an ‘empty vessel’ personality.”9 The referenced psychologist was Dr. Jerome

Brown. Brown testified that Jones has a “fairly rare” personality type that “does

not fit into any known mental disorder.” He described it as an “empty vessel

personality, in that a person’s moral structures, this person’s moral convictions,

are very fluid and they basically change from one situation to the next depending

on who [he is] with and who is influencing him at the time.” According to

Brown, such a person “does not fit the category of violent people” with whom

Brown had contact. Instead, the individual is shaped by the strongest influence

available to him. “[Y]ou don’t find this individual instigating things of a criminal

nature. . . . You find him following or being with a group or with at least one

other person who is more anti-social, consistently anti-social and more

aggressive.” Finally, Brown explained his conclusion that “the shift to the

strongest authority doesn’t happen on the second-to-second basis.” The shift

may take a matter of days.

The TCCA denied relief on this habeas application, holding that there was

no Penry error because the jury could give full and meaningful effect to Jones’s

mitigation evidence within the scope of the former special issues.10 The TCCA

concluded “that [Jones’s] mitigation evidence, while meeting the Tennard [v.

Dretke11] standard for relevance, had ‘only a tenuous connection—some arguable

relevance—to [Jones’s] moral culpability.’”12 The TCCA characterized the

evidence that Jones “suffers from psychological irregularities or deficits,

9 Jones v. State, No. 71,369, slip op. ¶ 19 (Tex. Crim. App. May 4, 1994) (en banc).

10 Ex parte Jones, No. AP-75,896, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *1, *22

(Tex. Crim. App. June 10, 2009).

11

542 U.S. 274 (2004).

12 Ex parte Jones, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *21 (quoting AbdulKabir v. Quarterman, 550 U.S. 233, 253 n.14 (2007)) (some internal quotation marks omitted).

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including what his psychologist expert witness described as ‘empty vessel

syndrome,’” as “a far-cry from the sort of psychological mitigation evidence that

has been determined to be Penry evidence.”13 The evidence indicated that

Jones’s empty-vessel personality made him susceptible to the influence of others,

and the TCCA felt it particularly relevant that Jones shot Officer Soboleski

“without provocation or urging of armed violence by his companion.”14 The

TCCA determined that the relevant mitigation evidence present in the case were

the “sort of evidence that the Supreme Court has held are within the scope of the

former special issues.”15

C

Jones filed the present federal habeas petition following the TCCA’s denial

of his Penry claim. Following a stay of the case to allow Jones to raise an

additional claim in state court—a claim that is not part of this appeal—the State

filed a motion for summary judgment, and Jones filed a cross-motion for partial

summary judgment. Ruling first on Jones’s Penry claim, the district court

determined that “Jones’ jury could have found that the evidence of Jones’

psychological issues made Jones less morally culpable, yet more likely to be

dangerous in the future,” and that “the jury could have found that Jones acted

deliberately while still believing him less culpable based on his psychological

issues.”16 The district court held that “[t]he [TCCA’s] decision to the contrary

was objectively unreasonable” and that “[t]he supplemental ‘nullification’

13

Id. at *20.

14

Id. at *20-21.

15

Id. at *21-22.

16 Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *14-15 (S.D. Tex.

Mar. 3, 2011).

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instruction was plainly inadequate,” thus “Jones [was] entitled to a new

sentencing hearing.”17

In addressing whether Jones’s fair-trial claim was procedurally defaulted,

the district court recounted Jones’s state habeas proceedings and relied on the

“plain wording” of the Texas Code of Criminal Procedure.18 The district court

believed that it was “clear from the TCCA’s order dismissing Jones’ applications

that the TCCA regarded the skeletal and amended applications as the original

application permitted by the statute and order, and the [Errata] as a successive

petition seeking to add a new claim after the filing of the original application.”19

The district court stated that this was “consistent with a reading of the statute”

and that it was “in no position to second guess the TCCA on its application of

Texas law.”20 Despite holding that Jones’s fair-trial claim was procedurally

defaulted, “[b]ecause . . . reasonable jurists could disagree as to whether Jones

complied with the terms of the April 9, 1997, TCCA order,” the district court

issued a COA on the claim.21 The State appealed the district court’s grant of

habeas relief on Jones’s Penry claim, and Jones cross-appealed on the issue of

whether his fair-trial claim was procedurally defaulted. Jones has also applied

to this court for issuance of a COA on two additional claims.

II

We first consider the State’s appeal of the district court’s decision to grant

federal habeas relief to Jones on his Penry claim. On a federal habeas appeal,

we review findings of fact for clear error and issues of law and mixed issues of

17

Id. at *15-16.

18

Id. at *17-22.

19

Id. at *21.

20

Id. at *22.

21

Id. at *22-23.

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law and fact de novo.22 This habeas proceeding is governed by the Antiterrorism

and Effective Death Penalty Act (AEDPA) because Jones filed his federal habeas

petition after AEDPA’s effective date of April 24, 1996. Under AEDPA, the

availability of federal habeas relief is limited for claims previously “adjudicated

on the merits in State court proceedings.”23 AEDPA prohibits a federal court

from granting habeas relief to a state prisoner on a claim adjudicated on the

merits in a state court proceeding unless the petitioner shows that the state

court decision: (1) “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) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.”24

With respect to the first standard, the Supreme Court has explained:

Under the “contrary to” clause, a federal habeas court may grant the

writ 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 Supreme Court] has on a

set of materially indistinguishable facts. Under the “unreasonable

application” clause, 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.25

“[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.”26“[A]n unreasonable application of federal law is

22 Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009); Guy v. Cockrell, 343 F.3d

348, 351 (5th Cir. 2003).

23

28 U.S.C. § 2254(d).

24

Id.; Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

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

26

Id. at 409.

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different from an incorrect application of federal law.”27 Thus, “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.”28 For purposes of both the

“contrary to” and “unreasonable application” inquiries, “[s]tate-court decisions

are measured against [the Supreme Court’s] precedents as of ‘the time the state

court renders its decision.’”29

As of June 10, 2009, the date of the TCCA’s decision, the Supreme Court

had clearly established that, “[i]n order to ensure ‘reliability in the

determination that death is the appropriate punishment in a specific case,’ the

jury must be able to consider and give effect to any mitigating evidence relevant

to a defendant’s background and character or the circumstances of the crime.”30

Whether mitigating evidence is relevant is governed by the “low threshold” of the

general evidentiary standard.31 Thus,to be relevant, mitigating evidence merely

needs to have a tendency to make the existence of a fact or circumstance that a

fact-finder could reasonably deem to have mitigating value more probable or less

probable than it would be without the evidence.32

27

Id. at 410.

28

Id. at 411.

29Pinholster, 131 S. Ct. at 1399 (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).

30 Penry I, 492 U.S. 302, 328 (1989) (citation omitted) (quoting Woodson v. North

Carolina, 428 U.S. 280, 305 (1976)).

31 Tennard v. Dretke, 542 U.S. 274, 284-85 (2004).

32 See id. at 284.

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The Supreme Court has issued a line of post-Penry I cases explaining this

principle. In 2007, in Abdul-Kabir v. Quarterman33and Brewer v. Quarterman,

34

the Court expressed its view of the then-current state of Supreme Court

jurisprudence. In Abdul-Kabir, the Court stated that, well before Penry I, the

Court’s cases “had firmly established that sentencing juries must be able to give

meaningful consideration and effect to all mitigating evidence that might

provide a basis for refusing to impose the death penalty on a particular

individual, notwithstanding the severity of his crime or his potential to commit

similar offenses in the future.”35 Declaring that Justice O’CONNOR’s opinion for

the Court in Penry I had “endorsed” the views she expressed in her separate

opinion in Franklin v. Lynaugh,

36

the Court approvingly quoted Justice

O’CONNOR’s language from Franklin concerning Texas’s special verdict

questions:

To the extent that the mitigating evidence . . . was relevant to one

of the special verdict questions, the jury was free to give effect to

that evidence by returning a negative answer to that question. If,

however, petitioner had introduced mitigating evidence about his

background or character or the circumstances of the crime that was

not relevant to the special verdict questions, or that had relevance

to the defendant’s moral culpability beyond the scope of the special

verdict questions, the jury instructions would have provided the jury

with no vehicle for expressing its “reasoned moral response” to that

evidence.37

33

550 U.S. 233 (2007).

34

550 U.S. 286 (2007).

35 Abdul-Kabir, 550 U.S. at 246.

36

487 U.S. 164 (1988).

37 Franklin, 487 U.S. at 185 (O’CONNOR, J., concurring in the judgment) (emphasis

added), cited with approval in Abdul-Kabir, 550 U.S. at 252-53.

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In endorsing this language, the Court stated that it was not adopting a

rule that “a defendant is entitled to special instructions whenever he can offer

mitigating evidence that has some arguable relevance beyond the special

issues.”38 Instead, the Court stated:

The rule that we reaffirm today—a rule that has been clearly

established since our decision in Penry I—is this: Special

instructions are necessary when the jury could not otherwise give

meaningful effect to a defendant’s mitigating evidence. The rule is

narrower than the standard urged by [the petitioner in Graham v.

Collins39] because special instruction is not required when

mitigating evidence has only a tenuous connection—“some arguable

relevance”—to the defendant’s moral culpability. But special

instruction is necessary when the defendant’s evidence may have

meaningful relevance to the defendant’s moral culpability “beyond

the scope of the special issues.”40

The Court discussed Penry I and explained that it had held that a special

issue is insufficient to account for mitigating evidence if that evidence functions

as a “two-edged sword” because it is relevant to the special issue only as an

aggravating factor but, at the same time, may diminish the defendant’s

blameworthiness for the crime.41 The Court then went further in stating:

[W]e did not limit our holding in Penry I to mitigating evidence that

can only be viewed as aggravating. When the evidence proffered is

doubled edged, or is as likely to be viewed as aggravating as it is as

mitigating, the statute most obviously fails to provide for adequate

consideration of such evidence.42

38 Abdul-Kabir, 550 U.S. at 253 n.14 (internal quotation marks omitted).

39

506 U.S. 461 (1993).

40 Abdul-Kabir, 550 U.S. at 253 n.14 (emphasis in last sentence added).

41

Id. at 254-55.

42

Id. at 255 (emphasis added).

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Furthermore, the Court stated: “It is also clear that Penry I applies in cases

involving evidence that is neither double edged nor purely aggravating, because

in some cases a defendant’s evidence may have mitigating effect beyond its

ability to negate the special issues.”43In Brewer, the Court emphasized that the

mitigating evidence must be given “full effect,” not just “sufficient effect.”44

We conclude that the district court did not err in granting federal habeas

relief on Jones’s Penry claim because, in denying the claim, the TCCA

unreasonably applied clearly established federal law as determined by the

Supreme Court. Jones’s empty-vessel evidence was relevant to his moral

culpability based on the Tennard relevancy standard.45 Evidence of this sort has

mitigating value because “it might serve as a basis for a sentence less than

death”;46a fact-finder could reasonably determine that because of Jones’s emptyvessel personality, he was “less culpable than defendants who have no such

excuse.”47

The TCCA, however, was “unconvinced that [Jones’s] proffered mitigating

evidence was outside the scope of the special issues”; the TCCA questioned

whether Jones could be influenced by others in accordance with the empty-vessel

evidence since he had acted “without provocation or urging of armed violence by

his companion” and concluded that Jones’s evidence, “while meeting theTennard

standard for relevance, had ‘only a tenuous connection—some arguable

43

Id. at 255 n.16.

44 Brewer v. Quarterman, 550 U.S. 286, 295-96 (2007).

45 See Tennard v. Dretke, 542 U.S. 274, 284-85 (2004).

46

Id. at 287 (internal quotation marks omitted).

47 Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O’CONNOR, J., concurring in the

judgment) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’CONNOR, J., concurring)),

cited with approval in Abdul-Kabir, 550 U.S. at 251-53.

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relevance—to [his] moral culpability.’”48 Similarly, the State argues on appeal

that, because there was no evidence that Jones acted at the direction of another

when he murdered Officer Soboleski, the empty-vessel evidence is irrelevant to

Jones’s moral culpability. Brown’s testimony did indicate that a person with an

empty-vessel personality has moral convictions that “are very fluid

and . . . change from one situation to the next depending on who he’s with and

who is influencing him at the time,” but Brown did not indicate that the

influence is as time-sensitive as the State argues. Specifically, Brown indicated

that a change in who is influencing a person with an empty-vessel personality

“doesn’t happen on the second-to-second basis.” Although Jones may not have

been under direct influence at the time of the murder, a reasonable fact-finder

could view the evidence as supporting a claim that, in the days leading up to his

crime, Jones was subject to the influence of a “group or . . . at least one other

person who [was] more anti-social . . . and more aggressive” than Jones himself. 

A person with an empty-vessel personality may be influenced by those with

whom he associates in the days leading up to his crime; another person need not

be directing him at the particular moment he commits the crime. Jones’s emptyvessel evidence has mitigating relevance beyond the scope of the special issues. 

The Supreme Court has emphasized the importance of the mitigating relevance

of evidence beyond its ability to negate the two special issues that were

presented to and answered by the Texas jury.49 As previously discussed, a factfinder could reasonably determine that Jones’s act was attributable to his

empty-vessel personality and, thus, he was “less culpable than defendants who

48 Ex parte Jones, No. AP-75,896, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *20-21

(Tex. Crim. App. June 10, 2009) (some internal quotation marks omitted).

49 See Abdul-Kabir, 550 U.S. at 252-53, 253 n.14, 255 n.16.

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have no such excuse,”50

regardless of whether he acted deliberately or whether

he poses a continuing threat to society.

Furthermore, while the Supreme Court has “never denied that gravity has

a place in the relevance analysis,” it made clear that this is true “insofar as

evidence of a trivial feature of the defendant’s character or the circumstances of

the crime is unlikely to have any tendency to mitigate the defendant’s

culpability.”51 As an example, the Court cited evidence concerning how often the

defendant will take a shower.52

 However, the Court has admonished panels of

federal appellate court judges not to act as filters with regard to what is

sufficiently severe; “the question is simply whether the evidence is of such a

character that it ‘might serve as a basis for a sentence less than death.’”53

Jones’s

empty-vessel evidence meets this test because it “may have meaningful

relevance to [Jones’s] moral culpability ‘beyond the scope of the special issues.’”54

Thus, a special instruction was necessary.55 The TCCA’s decision to the contrary

was an unreasonable application of clearly established federallaw as determined

by the Supreme Court. The State’s argument that any Penry error was harmless

is foreclosed by our prior decision in Nelson v. Quarterman.

56

III

50 Franklin, 487 U.S. at 184 (O’CONNOR, J., concurring in the judgment) (quoting

Brown, 479 U.S. at 545 (O’CONNOR, J., concurring)), cited with approval in Abdul-Kabir, 550

U.S. at 251-53.

51 Tennard, 542 U.S. at 286 (emphasis added).

52

Id.

53

Id. at 287 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)) (some internal

quotation marks omitted).

54 Abdul-Kabir, 550 U.S. at 253 n.14.

55

Id.

56

472 F.3d 287, 314 (5th Cir. 2006) (en banc).

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Jones has cross-appealed the district court’s holding that his claim that he

was denied a fair trial due to the presence of uniformed police officers as

spectators was procedurally defaulted. We first address the State’s motion to

vacate the COA and dismiss the cross-appeal. After holding that Jones’s fairtrial claim was procedurally defaulted, the district court issued a COA “only as

to [its] finding that Jones’ fair trial claim . . . [was] procedurally defaulted.”57

The State argues that the COA is invalid because the district court only

determined that the procedural issue is debatable without, as required, also

determining that the constitutional claim is debatable. Jones argues that the

district court did determine that the constitutional claim is debatable. He notes

that the district court recited the appropriate standard of review, and he relies

on one line in the district court’s opinion: “The court has carefully considered

each of Jones’ claims and concludes that each of the claims, with the exception

of Jones’ Penry and fair trial claims, is foreclosed by clear, binding precedent,

and Jones thus fails to make a ‘substantial showing of the denial of a

constitutional right.’”58

Considering the district court’s opinion as a whole, we conclude that the

district court did not make the required determination “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of

a constitutional right.”59 AEDPA requires the issuance of a COA before an

appeal may be taken to the court of appeals from the final order in a habeas

corpus proceeding in which the detention complained of arises out of process

57 Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *53 (S.D. Tex. Mar.

3, 2011).

58

Id. at *52.

59 See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

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issued by a state court,60

and “[a] [COA] may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.”61

Additionally, “[t]he [COA] . . . shall indicate which specific issue or issues satisfy

the showing required.”62

[W]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional

claim, a COA should issue (and an appeal of the district court’s

order may be taken) if the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right, and that jurists of

reason would find it debatable whether the district court was correct

in its procedural ruling. . . .

Determining whether a COA should issue where the petition

was dismissed on procedural grounds has two components, one

directed at the underlying constitutional claims and one directed at

the district court’s procedural holding. Section 2253 mandates that

both showings be made before the court of appeals may entertain

the appeal. Each component of the § 2253(c) showing is part of a

threshold inquiry.63

The section of the district court’s opinion dedicated to Jones’s fair-trial

claim is focused on the procedural-default issue; the district court did not discuss

the merits of Jones’s underlying fair-trial claim.64 The district did observe that

“[i]n light of the evidence of Jones’ guilt, including the testimony of an

eyewitness who had an opportunity to see Jones at close range, Jones does not

60

28 U.S.C. § 2253(c)(1).

61

Id. § 2253(c)(2).

62

Id. § 2253(c)(3).

63 Slack, 529 U.S. at 478, 484-85 (emphasis added).

64 Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *17-23 (S.D. Tex.

Mar. 3, 2011).

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meet this standard.”65

 The “standard” to which the district court referred was

an “actual innocence” standard, which the district court said was tantamount to

“it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.”66 However, this discussion pertained to the

district court’s conclusion that a court may not address an issue that is

procedurally defaulted absent a showing of cause and prejudice.67It was not a

discussion of the merits of the claim regarding uniformed police officers’

attendance at trial. 

At the conclusion of the discussion of Jones’s fair-trial claim, the district

court said it was issuing a COA “[b]ecause . . . reasonable jurists could disagree

as to whether Jones complied with the terms of the April 9, 1997, TCCA order,”68

not because reasonable jurists could disagree as to that procedural issue and

because reasonable jurists could find it debatable whether the petition states a

valid claim of the denial of a constitutional right. Jones is correct that the

district court recited the correct standard of review from Slack in the COA

section of its opinion,69and the COA section did include the following paragraph:

The court has carefully considered each of Jones’ claims and

concludes that each of the claims, with the exception of Jones’ Penry

and fair trial claims, is foreclosed by clear, binding precedent, and

Jones thus fails to make a “substantial showing of the denial of a

constitutional right.” The court grants relief on the merits of the

Penry claim and concludes that reasonable jurists could disagree

whether Jones’ fair trial claim is procedurally defaulted. The court

65

Id. at *23.

66

Id.

67

Id. at *22-23.

68

Id. at *23.

69

Id. at *51-52.

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therefore concludes that Jones is entitled to a certificate of

appealability only on his fair trial claim.70

This section, however, like the section dedicated to the fair-trial claim, lacks any

meaningful discussion of the merits of Jones’s underlying fair-trial claim.71

Recitation of the correct standard of review, and a single sentence that does not

affirmatively hold that “jurists of reason would find it debatable whether the

[fair-trial claim in Jones’s] petition states a valid claim of the denial of a

constitutional right,” is insufficient in light of the opinion as a whole, which

lacks any meaningful discussion of the merits of Jones’s fair-trial claim.

Because we conclude that the district court did not make the

determination required by Slack for the issuance of a COA on Jones’s fair-trial

claim, we vacate the COA, dismiss Jones’s cross-appeal, and remand to the

district court for a determination, in the first instance, of whether jurists of

reason would find it debatable whether the fair-trial claim raised in Jones’s

federal habeas petition states a valid claim of the denial of a constitutional right. 

We recognize that the Supreme Court has held that the only

jurisdictional component of AEDPA’s COA requirements is the one requiring the

issuance of a COA before an appeal may be taken to the court of appeals,72

“[b]ut

calling a rule nonjurisdictional does not mean that it is not mandatory or that

a timely objection can be ignored.”73 The State timely raised the issue of the

COA’s validity, and we, therefore, address it.74 Though we are not foreclosed

from ruling on the question of whether Jones’s claim was procedurally defaulted,

70

Id. at *52-53 (citation omitted).

71

Id. at *50-53.

72 Gonzalez v. Thaler, 132 S. Ct. 641, 649-50 (2012).

73

Id. at 651.

74 See id.

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we conclude that remand is appropriate, first, because Jones has not briefed the

merits of the fair-trial claim on appeal, and second, because we are unable to

benefit from the district court’s analysis due to the lack of any discussion of the

merits of the fair-trial claim in the district court’s opinion.75 Slack made clear

that there are “two components” to the “threshold inquiry” mandated by 28

U.S.C. § 2253.76 By remanding to the district court, we seek to ensure that this

“threshold inquiry” is complete.

IV

Apart from his appeal, Jones filed an application for a COA, which

requests that we issue a COA on two claims. His request for a COA on his claim

that the supplemental instruction given to the jury at the punishment phase of

his trial “injected capriciousness into the proceeding” in violation of the Eighth

and Fourteenth Amendments to the United States Constitution is dismissed as

moot. Because we affirm the district court’s grant of federal habeas relief on

Jones’s Penry claim—which overturned Jones’s death sentence—he has already

been granted the relief requested on his capriciousness claim.

With respect to Jones’s second claim—that he was denied the effective

assistance of counsel because his counsel failed to conduct a reasonable

investigation regarding the search of Brenda Pickrom’s apartment, a search that

led to his arrest and the discovery of evidence used against him—AEDPA

mandates that a COA “may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”77 The applicant must

show “that reasonable jurists could debate whether (or, for that matter, agree

75 Cf. Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (explaining how this court

benefits from the district court’s ruling on a COA application).

76 Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

77

28 U.S.C. § 2253(c)(2).

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that) the petition should have been resolved in a different manner or that the

issues presented were ‘adequate to deserve encouragement to proceed further.’”78

“Where a district court has rejected the constitutional claims on the

merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find

the district court’s assessment ofthe constitutional claims debatable or wrong.”79

The COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their

merits. [Appellate courts] look to the District Court’s application of

AEDPA to petitioner’s constitutional claims and ask whether that

resolution was debatable amongst jurists of reason. This threshold

inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims. In fact, the statute forbids

it.80

In a death-penalty case, any doubts as to whether a COA should issue must be

resolved in the applicant’s favor.81

The TCCA concluded that Jones was not entitled to habeas relief on his

ineffective assistance of counsel claim because he could not demonstrate

prejudice as required by Strickland v. Washington;

82

this was based on the

TCCA’s conclusion that Jones could not claim the protection of the Fourth

Amendment because he had no reasonable expectation of privacy in Pickrom’s

apartment. Jones was also denied federal habeas relief on this claim because

the district court concluded that “it [was] clear that the investigation Jones

claims counsel failed to perform would not have changed the result of the

78 Slack, 529 U.S. at 484 (some internal quotation marks omitted).

79

Id.

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

81 Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).

82

466 U.S. 668, 687 (1984).

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suppression motion.”83

In support of its holding, the district court determined

that “[t]he state court’s conclusion that Jones had no reasonable expectation of

privacy [was] entitled to deference.”84 The district court noted that Pickrom—the

apartment’s lessee—had, on multiple occasions, stated that Jones did not have

permission to be in the apartment, although she later contradicted these

statements in an affidavit in support of Jones’s state habeas petition.85

According to the district court, the TCCA’s conclusion that Pickrom’s initial

statements “were credible, and that her post hoc attempt to explain these

statements away was not credible,” was “not unreasonable.”86

We deny Jones’s application for a COA on his ineffective assistance of

counsel claim because the district court’s resolution of this claim is not debatable

amongst jurists of reason. First, jurists of reason would agree that the TCCA’s

credibility findings regarding Pickrom’s contradictory statements were not

unreasonable and that, consequently, the TCCA’s decision was not “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.”87 Pickrom gave a statement to police on the date of the

search, testified before the grand jury, testified during the suppression hearing,

testified during the guilt–innocence phase of Jones’s trial, and gave an affidavit

in support of Jones’s state habeas petition. As discussed by the district court, on

several occasions, including when under oath and subject to cross-examination,

Pickrom stated that Jones did not have her consent to be in the apartment or

83 Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *34 (S.D. Tex. Mar.

3, 2011).

84

Id. at *33.

85

Id. at *32-33.

86

Id. at *33.

87 See 28 U.S.C. § 2254(d)(2).

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that Jones had no business being there. Although Pickrom later explained in

her affidavit in support of Jones’s state habeas petition that she misunderstood

the question, it was not unreasonable for the TCCA to conclude that her earlier

statements were credible while her post hoc attempted explanation was not. 

Second, in light of the TCCA’s credibility findings, jurists of reason would

agree that the TCCA’s conclusion that Jones’s ineffective assistance of counsel

claim must fail because he could not demonstrate prejudice—because he could

not assert the protection of the Fourth Amendment due to not having a

reasonable expectation of privacy—was not “contrary to, or . . . an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.”88 The Supreme Court cases of most relevance are

Minnesota v. Carter89and Minnesota v. Olson,

90 which concern the right of a

houseguest to claim the protection of the Fourth Amendment. In Olson, the

Court held that “society recognizes that a houseguest has a legitimate

expectation of privacy in his host’s home,” which entitles the houseguest to claim

the protection of the Fourth Amendment.91 The Court described a houseguest

as one who “is there with the permission of his host.”92

In Carter, the Court

clarified that “an overnight guest in a home may claim the protection of the

Fourth Amendment, but one who is merely present with the consent of the

householder may not.”93

88 See id. § 2254(d)(1).

89

525 U.S. 83 (1998).

90

495 U.S. 91 (1990).

91

Id. at 98, 100.

92

Id. at 99.

93 Carter, 525 U.S. at 90 (emphasis added).

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The TCCA concluded that Jones did not have Pickrom’s consent to be in

the apartment, and Carter and Olson make clear that a person present in

another’s home without consent may not claim the protection of the Fourth

Amendment. Because Jones is not entitled to claim the protection of the Fourth

Amendment, he cannot demonstrate prejudice from his counsel’s alleged failure

to investigate. Because he cannot demonstrate prejudice, jurists of reason would

agree with the district court’s determination that the TCCA’s conclusion that

Jones’s ineffective assistance of counsel claim must fail—because he had no

reasonable expectation of privacy in Pickrom’s apartment—was not “contrary to,

or . . . an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”94

We need not reach the question of whether the district court’s resolution

of the question of inevitable discovery is debatable amongst jurists of reason

because Jones was not entitled to claim the protection of the Fourth

Amendment. Additionally, Jones’s claim, based on Panetti v. Quarterman,

95

that

the district court should have considered his ineffective assistance of counsel

claim de novo is not supported by Panetti and is without merit.96

* * *

For the foregoing reasons, the district court’s grant of federal habeas relief

is AFFIRMED. The COA on Jones’s fair-trial claim is VACATED, his crossappeal is DISMISSED, and we REMAND to the district court for further

proceedings. Jones’s application for a COA on his capriciousness claim is

94 See 28 U.S.C. § 2254(d)(1).

95

551 U.S. 930 (2007).

96 See Panetti, 551 U.S. at 948, 952-53 (holding that review of the petitioner’s

underlying claim was “unencumbered by the deference AEDPA normally requires” because

there was an error in the state court’s process, not simply because there was some

unreasonable application of federal law).

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DISMISSED AS MOOT, and his application for a COA on his ineffective

assistance of counsel claim is DENIED. 

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