### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 h abeas relief on his claim that, in violation of the p rinciples f irst announced in Penry v. Lynaugh , 1 Texas’s former special i ssues did n ot p r ovide an adequate vehicle for U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 (Penry I

) , 492 U

. S. 302 ( 1989)

. Case: 11-70007 Document: 00512391115 Page: 1 Date Filed: 09/30/2013Nos. 11-70007

the jury to give full consideration and effect t o h i s m itigating evidence. 2 The State of Texas appeals, and Jones cross-appeals t he district court’s h olding that his claim t hat the presence of uniformed officers duri n g h i s t r i al denied him a fair tri a l w a s procedurally defaulted. Jones also seeks a certificate of appealability (COA) on t wo claims, c apric i o u s n e ss in his sentencing and ineffective assistance of c ounsel. W e affirm the grant of h a b e a s r e l ief. We vacate the COA issued on Jones’s fair-trial claim regarding uniformed officers’ attendance at trial, d ismiss his cross-appeal, and r emand to the d i strict court for further proceedings because the district court d id not satisfy t h e threshold inquiry required b efore a C OA may issue. We dismiss, as moot, Jones’s application for a C OA on his capriciousness c laim and d eny a COA o n h i s ineffective assistance of counsel claim. I At the punishment phase of Jones’s trial, after he was found g u i l t y of capital murder for k illing O f fi c e r S o b o l eski, t he jury f ound that Jones acted deliberately and that there w as a probability that Jones would commit c riminal acts of violence that c o n s t itute a continuing threat to society. These findings resulted in a s entence of d eath under t hen-existing Texas law. The judgment

was affirmed on direct appeal by the Texas Court of Criminal Appeals (TCCA), and the United S t ates Supreme Court de n i e d Jones’s petition for a writ of certiorari. 3 A On January 27, 1997, the TCCA appointed counsel t o represent Jones in pursuing an application for a writ of habeas corpus. The order mandated that

2 Jones v . Tha ler , N o. H

- 09- 1825, 2011 U

. S

. D is t. L EX IS 21262, at *15- 16 ( S. D

. Tex. M ar. 3, 2011)

.

3 Jones v . Sta te , No. 71, 369 ( Tex. Crim

. Ap p. M ay 4, 1994) ( en banc) , cert. deni ed , 514 U

. S. 1067 ( 1995)

. 2 Case: 11-70007 Document: 00512391115 Page: 2 Date Filed: 09/30/2013Nos. 11-70007

an application f

or a writ of habeas corpus be f i led no l a ter than 180 days after the date of appoin t m e n t

. Because t his date, July 26, 1997, fell on a Saturday, the deadline actually fell on the next business day, July 28, 1 997. 4 P rior to the deadline, the TCCA granted leav e f o r J o n es’s counsel “to file an incomplete application for writ o f h a b e a s corpus on o r before April 24, 1 997, 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 t h e trial court or this Court u n t i l t he 180 day period for filing applicant’s original application, and any extension of this period granted by t he trial court, has elapsed,” a nd i t a lso 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-Convicti o n W r i t of H abeas Corpus Pursuant t o Article 11.071 of the Texas C ode of Criminal Procedure” (Amended Application), which was received and filed on July 28, 19 9 7

. Al s o on July 28, 1997, Jones filed a document entitled “Errata and Corrections to A mended Application for Post-Conviction Writ of Ha b e as C orpus Pursuant to Article 11.071 of the Texas C ode of C riminal Procedure” (Errata). The Errata consisted of a list of various omissions a nd errors a s well as the entire text of Jones’s fairt r i a l c l a i m r e g a r ding uniformed officers at trial, which J ones asserts w as omitted from the Amended Application due to a computer error. On Octo b e r 2 4 , 1997, Jones filed a Motion to Supplement, which sought leave to file an a ttached “Supplemental Application for Post-Conviction Writ of Habeas Corpus P ursuant to Article 11

. 0 7 1 of the Texas Code o f Criminal Procedure” (Supplemental Application) “as a c orrected version of the A mended Application

. . . and Errata

. . . previously filed.” In the m otion, and on appeal,

4 See Ex pa rte Reynoso , 257 S. W. 3d 715, 721 ( Tex. Crim

. Ap p . 2008)

. 3 Case: 11-70007 Document: 00512391115 Page: 3 Date Filed: 09/30/2013Nos. 11-70007

Jones asserts that the Amended Application and E rrata were consolidated into t h e S upplemental Application for simplification and to avoid confusion. Th e motion a sserted t hat t he Supplemental Application “contain[ed] no new claims

o r m a tters not previously raised i n the [A]mended [A]pplication an d [ E ] r r a t a a n d work[ed] no surprise to the State.” On October 27, 1997, the trial court granted leave t o file the S upplemental Application and o rdered that the Supplemental Application “shall be deemed as an o riginal part of the o r i g inal and amended applications previously filed, and not as a successor application.” Ultimately, t he TCCA denied habeas r elief on t he claims presented in the Amended Application based upon the trial c ourt’s findings and conclusions and t h e T C C A’ s o w n review. 5 The TCCA also reviewed the S upplemental Appl i c a t i o n and held that “[b]ecause [it] was filed after the deadline provided for an initial application for habeas corpus , ” t h a t i t w a s “ a subsequent a pplication.” 6 The TCCA determined that the Supplemental Applica t ion did not meet any of the excepti o n s f

o r submission of a subsequent a pplication and dismissed it as an abuse of the writ. 7 The TCCA also “expressly reject[ed] all findin g s a n d conclusions related t o this claim and den[ied] all motions pending t hat relate[d] to the claim.” 8 T he TCCA’s order did not expressly reference the Errata, which had been f

iled on the last day of the d eadline for filing, but a fter the A mended Application had been filed. B

5 Ex p a rte Jones , N os . W R

- 6 2 , 589- 01 & WR- 62, 589- 02, 2005 Tex. Crim

. Ap p . U np ub. LEX IS 391, at *1- 2 ( Tex. Crim

. Ap p . O ct. 26, 2005)

.

6 Id.

7 Id. at *2.

8 Id. 4 Case: 11-70007 Document: 00512391115 Page: 4 Date Filed: 09/30/2013Nos. 11-70007

Subsequently, Jones f

iled another application f or a writ of habeas corpus i n state court, which raised a claim, based o n Penry I , “that the former special issues of t he Texas capital sentencing scheme did not provide a n a dequate vehicle for the j ury to give full considerati on and full e ffect to his mitigating evidence.” In accordance with Texas law at the t i m e of the punishment phase of Jones’s trial, the jury was required to answer two special issues: (1) “Was t he conduct o f the defendant, Shelton Denoria Jones, that caused t he death of the deceased comm i t t ed deliberately a nd with the reasonable expectation that the death of the deceased or another would result?” (2) “ Is there a probability th a t t h e d e fendant, Shelton Denoria Jones, would commit c riminal acts o f violence that constitute a continuing threat to society?” The trial court also gave the jury a supplemental instruction:

You a re instructed that when you deliberate on the questions posed in the special issues, you a re to consider all r el e v a nt mitigating c ircumstances , if any, supported by t he evidence presented in both phases of the trial, whether p resent e d b y t h e State or the defendant. A mitigating circumstance may include, but i s not limited to, a ny aspect of the defendant’s characte r , background, record, or c ircumstances of the crime which you believe could make a d eath sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide h ow m u ch w eight they deserve, and thereafter, give e ffect and consider a t i o n t o them in assessing the d e fendant’s personal culpability, at the time y ou a nswer t he special issue. If you determine, when giving effect to t h e mitigating evidence, if any, that a life sentence, as r eflected by a n egative finding to the issue under consideration, rather than a death sentence, i s an app r opriate response to the personal culpabi l i t y of t he d e fendant, 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 p eaceable, hard-wor king, a g ood high

s c h o o l s t udent, a nd non-violent while incarcerated and a waiting trial. [Jones]
5 Case: 11-70007 Document: 00512391115 Page: 5 Date Filed: 09/30/2013Nos. 11-70007

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 a s an “empty vessel personality, in that a person’s moral structures, this person’s m oral c onvictions,

are very fluid a nd they b asically change from one situation to t h e next depending

on who [he i s] with a nd who is influencing hi m a t t h e t i me.” According to Brown, such a p erson “ d o e s not fit the category of violent people” with whom Brown had contact. Instead, the individual is shaped by the s t rongest i nfluence available to him. “[Y]ou don’t f ind this i ndividual instigating things of a c riminal nature.

. . . You find h i m f o l l o w i ng o r being with a group or w ith at least one other person w h o is more anti-social, consiste ntly anti-social and more
a g g ressive.” Finally, Brown explained h is conclusion that “the shift to t he strongest a uthority doesn’t happen o n the second-to-second basis.” T he shift may take a matter of days. The TCCA denied relief on this habeas application, holding that there was
no P enry error b ecause the jury could give full and meaningful effect to Jones’s mitigation evidence within the scope of the former special issues. 1 0The TCCA concluded “that [Jones’ s ] m itigation evidence, w hile meeting the Tennard [ v. Dretke 1 1 ] standard for relevance, had ‘only a tenuous c o nnection—some arguable relevance—to [Jo n e s ’s] moral culpability.’” 1 2 The TCCA characterized the evidence that Jones “ suffers from p s ychological irregularities or deficits,

9 Jones v . Sta te , N o. 71, 369, s lip op . ¶ 19 (Tex. C rim

. Ap p . M ay 4, 1994) ( en banc)

.
1 0 Ex p a rte Jones , N o. AP- 75, 896, 2009 Tex. Crim

. Ap p . U np ub. LEX IS 480, at *1, *22 ( Tex. Crim

. Ap p . June 10, 2009)

.

1 1 542 U

. S. 274 (2004)

.
1 2 Ex p a rte Jones , 200 9 Tex. Crim

. Ap p . U np ub. LEX IS 480, at *21 ( quoting A bdul

Ka bi r v . Q ua rterm a n , 550 U

. S. 233, 253 n. 14 ( 2007) ) ( s om e internal quotation m ark s om itted )

. 6 Case: 11-70007 Document: 00512391115 Page: 6 Date Filed: 09/30/2013Nos. 11-70007

including wh a t 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 b e Penry evi d ence.” 1 3 The evidence indicated that Jones’s empty-vessel personality made him sus c e p t ib l e t o t h e i n f l u ence of others, and the TCCA felt it particularly relevant that J ones shot Officer S oboleski

“ w i t h o u t provocation o r urging of armed violence by h i s companion.” 1 4 The TCCA determined that the relevant m itigation evidence present in t he c a s e were the “sort of evidence that the Supreme Court has held are within the s cope of the former special issues.” 1 5 C Jones filed t h e present f ederal habea s p e t i t i o n f o llowing the TCCA’s denial of his Penry claim. Following a stay o f t h e c a s e to a llow Jones to raise an additional claim i n state court—a claim that is n ot part of this appeal—the State filed a motion for summary judgment, a nd Jones filed a cross-motion for partial summary judgment. Ruling first on Jones’s Penry claim, the district court d e t e r m i n e d that “Jones’ jury could h ave found that the evidence of Jones ’ psychological issu e s made Jones less morally culpable, y et more likely to be dangerous in the future,” and that “the jury could have found that Jones acted deliberately while s t i ll believing him less culpable based on h is psychological issues.” 1 6 The d istrict court held that “[t]he [TCCA’s] decision t o t h e c o ntrary

was objectively unre a s onable” and that “[t]he supplemental ‘nullification’

1 3 Id. at *20.

1 4 Id. at *20- 21.

1 5 Id. at *21- 22.

1 6 Jones v . Tha l er , N o. H- 09- 1825, 2011 U

. S. Dis t. LEX IS 21262, at *14- 15 (S. D

. Tex. M ar. 3, 2011)

. 7 Case: 11-70007 Document: 00512391115 Page: 7 Date Filed: 09/30/2013Nos. 11-70007

instruction was plainly inadeq u a t e,” thus “Jones [was] entitled t o a new sentencing hearing.” 1 7 In addressing w hether Jones’s fair-trial claim was p rocedurally defaulted, the district court recounted Jones’s state h abeas proceedings and relied on the “plain wording” of the Texas Code of Criminal Procedure. 1 8 The district c o u r t believed that i t was “ clear from the TCCA’s order dismissing Jones’ applications that the TCCA regarded the s keletal and a mended applications as the original application permitted by the s tatute and order, and t he [Errata] as a successive petition seeking to add a new claim after the filing of the original application.” 1 9 The d istrict court s tated that this w as “consistent with a reading of t he statute” and that it was “in no p osition to second guess t h e TCCA on its a p p l i c a t i on of Texas law.” 2 0 Despite holding that Jones’s fair-trial claim was p r o c e d u r ally defaulted, “[b]ecause

. . . reasonable jurists could disagree as to whether Jones complied with t he terms of the April 9, 1997, TCCA order,” the distr i c t court issued a COA on the claim. 2 1 The State a ppealed t h e dist r ict court’s grant of habeas relief on J o n e s ’ s Penry claim, and Jones cross-appealed on t he 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 c ourt’s decision to grant federal h abeas relief to Jones on his Penry claim. On a federal habeas appeal,

we review findings o f f a ct for c l e ar e rror and i ssues of law and mixed issues of

1 7 Id. at *15- 16.

1 8 Id. at *17- 22.

1 9 Id. at *21.

2 0 Id. at *22.

2 1 Id. at *22- 23. 8 Case: 11-70007 Document: 00512391115 Page: 8 Date Filed: 09/30/2013Nos. 11-70007

law and fact d e novo. 2 2 T his habeas p roceeding i s governed by the Antiterrorism and Effective D eath Penalty Act ( AEDPA) because Jones filed his federal habeas petition af

t e r A EDPA’s effective date of April 24, 1996. Under AEDPA, the availability of federal habeas relief is limited for c laims previously “adjudicated

on the merits in Stat e c o u r t p roceedings.” 2 3 AEDPA prohibits a federal court from granting habeas relief to a state prisoner o n a claim a d j u d i c ated on the merits in a s tate court p r o c eeding unless t he p e titioner shows that the state court decision: ( 1) “ was contrary to, or involved an unreasonable application of, clearly established Federal l aw, as determined by the Supreme C o u r t of the United States”; or (2) “was b ased on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 2 4 With respect to the first standard, the Supreme Court has explained: Under the “contrary to” clause, a federal habeas court m ay grant t h e writ if the state court arrives at a conclusi o n o p p o s ite to that reached by [the Supreme C ourt] on a question of law or if the state court decides a case differently t h an [the Supreme Court] has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the w rit if t h e state court identifies t he correct governing legal p rinciple from [the Supreme Court’s] decisions but unreasonably applies t hat principle to the facts of the prisoner’s case. 2 5 “[A] federal habeas c ourt making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” 2 6 “[A]n unreasonable application of federal law is

2 2 Ri cha rds v . Q ua rterm a n , 566 F. 3d 553, 561 (5th Cir. 2009) ; G uy v . Cockrel l , 343 F

. 3d 348, 351 ( 5th C ir. 2003)

.

2 3 28 U

. S. C. § 2254( d)

.
2 4 Id. ; C ul l en v . Pi nholster , 131 S. Ct. 1388, 1398 ( 2011)

.
2 5 Wi l l i a m s v . Ta

yl or , 529 U

. S. 362, 412- 13 ( 2000)

.
2 6 Id. at 409. 9 Case: 11-70007 Document: 00512391115 Page: 9 Date Filed: 09/30/2013Nos. 11-70007

different from an incorrect application of federal law.” 2 7 Thus, “a f ederal habeas court may not issue the writ s i m p l y b ecause t hat court concludes in its independent judgment that the relevant state-court decision appl i e d c learly established federal l aw erroneously o r incorrectly.” 2 8 For p urposes o f b o th 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.’” 2 9 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 d eath i s t he a ppropriate punishment in a specific case,’ the jury must b e able to c onsider and give e ffect to a ny mitigating evidence relevant to a defendant’s background and character or t he c ircumstances of the crime.” 3 0 Whet h e r m i t i g ating evidence is relevant is governed by the “low threshold” of the general evidentiary standard. 3 1 T hu s , t o b e r e l e v a n t, m itigating 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 p robable or less probable than it would be without the evidence. 3 2

2 7 Id. at 410.

2 8 Id. at 411.

2 9 Pi nhol ster , 131 S. Ct. at 1399 (quoting Lockyer v . A ndra de , 538 U. S. 63, 71- 72 ( 2003) )

.
3 0 P e n r y I , 492 U

. S. 302, 328 ( 1989) ( citation om itted ) ( quoting Woodson v . N orth Ca rol i na , 428 U. S. 280, 305 (1976) )

.

3 1 Tenna rd v . D retke , 542 U

. S. 274, 284- 85 ( 2004)

.
3 2 See i d. at 284. 10 Case: 11-70007 Document: 00512391115 Page: 10 Date Filed: 09/30/2013Nos. 11-70007

The Supreme Court has issued a line of post- Penry I cases explaining this principle. In 2007, in Abdul-Kabir v. Quarterman 3 3 and Brewer v. Q u a rterman , 3 4 the Court ex p ressed its view of the then-current state of Supreme Court jurisprudence. I n 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 t o all mitigating evidence that might provide a basis for refusing to impose the d e a t h penalty on a particular individual, notwithstanding the s everity o f his crime or his potential to commit similar offenses in the future.” 3 5 Declaring that Justice O’C O N N O R ’s o pinion for the Court in P

enry I had “endorsed” the views s he expressed in h e r separate opinion in Franklin v. Lynaugh , 3 6 the Court appr o v i n gly quoted Justice O’C O N N O R ’s language from Franklin concerning Texas’s s pecial ve r dict questions: To the extent that the mitigating evidence

. . . was relevant to one o f t he special verdict questions, the jury w as free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced m itigating evidence about his background or c haracter or the circumstances of the crime that was not relevant t o the special verdict questions, or that had relevance to the defendant’s m oral culpa b i l i t y beyond the scope of t he special verdict questions , the jury instructions would have provided the jury with no vehicle for expressing its “reasoned moral response” to that evidence. 3 7

3 3 550 U

. S. 233 (2007)

.
3 4 550 U

. S. 286 (2007)

.
3 5 A bdul

- Ka bi r , 550 U

. S. at 246.

3 6 487 U

. S. 164 (1988)

.
3 7 F ra nkl i n , 487 U

. S. a t 185 ( O ’C ON N OR , J. , concurring in the jud gm ent) (em p has is ad d ed) , ci ted w i t h a

p prov a l i n A bdul

- Ka bi r , 550 U

. S. at 252- 53.

11 Case: 11-70007 Document: 00512391115 Page: 11 Date Filed: 09/30/2013Nos. 11-70007

In endorsing this language, the Court stated that it w as not a dopting a rule that “a defendant is entitled to special instructions whenever h e can offer mitigating e vidence that h as s ome arguable relevance beyond the special issues.” 3 8Instead, the Court stated: T h e rule that we reaffirm today—a rule that has been c learly established since our decision in P en r y I —is t his: Special instructions are n e cessary when t he jury could not otherwise give meaningful effect to a defendant’s mitigating evidence. The rule is narrower than the standard urged b y [the petitioner in G raham v. Collins 3 9] because special instruction is n ot required w h e n mitigating evidence has only a tenuous connection—“ some arguable relevance”—to t h e d efendant’s moral culpability. But special instruction is necessary when the def e ndant’s evidence may have meaningful relevance to the defendant’s moral culpability “ beyond the scope of the special issues .” 4 0 The Court discussed P enry I a nd explained that i t h ad held that a special issue is insufficient to account for mitigating evidence if that evidence f unctions

as a “two-edged sword” because it is relevant to the sp e c i a l i s s u e only as an aggravating factor but, at the same time, may diminish the defendant’s blameworthiness for the crime. 4 1 The Court then went further in stating: [W]e did not limit o ur holding in Penry I to mitigating evidence that can only be viewed as aggravating. When t he e vidence 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 a dequate consideration of such evidence. 4 2

3 8 A bdul

- Ka bi r , 550 U

. S. at 253 n. 14 ( internal quotation m ark s om itted )

.
3 9 506 U

. S. 461 (1993)

.
4 0 A bdul

- Ka bi r , 550 U

. S. at 253 n. 14 ( em p has is in las t s entence ad d ed)

.
4 1 Id. at 254- 55.

4 2 Id. at 255 ( em p has is ad d ed)

. 12 Case: 11-70007 Document: 00512391115 Page: 12 Date Filed: 09/30/2013Nos. 11-70007

F u r t h e r m o r e , the Court stated: “It i s also clear that Penry I a pplies in cases involving evidence that i s neither double edged nor purely aggravating, because in some case s a d e f

e n dant’s evidence may have mitigating effect beyond its ability to negate the special issues.” 4 3 In Brewer , the Court emphasized that the mitigating evidence must be given “full effect,” not just “sufficient effect.” 4 4 We conclude that the district court d id not err i n granting federal habeas relief o n Jones’s Penry claim because, i n denying the claim, the TCCA unreasonably a pplied clearly established federal law as d e t e r m i ned by the Supreme C ourt. Jones’s empty-vessel e v idence was r elevant to his moral culpability based on the Tennard relevancy standard. 4 5 Evidence of this sort has

m i t i g a t i n g value b ecause “it might serve as a basis for a sentence less tha n death”; 4 6 a fact-finder could r easonably determine that b e c a u se of Jones’s emptyvessel personality, h e was “ l e s s culpable than d efendants who have no such excuse.” 4 7 The TCCA, however, was “unconvinced that [Jones’s] p roffered mitigating evidence was out s i d e t h e scope of the special issues”; the TCCA questioned whet h e r J o n e s c ould be influenced by others in accordance w ith the empty-vessel evidence since he had acted “without provocation or urging of armed violence by h i s c o m p a n i o n” and concluded that Jones’s evidence, “while m e e t i n g t h e T e n n a r d standard for relevance, had ‘only a tenuous connection—some arguable

4 3 Id. at 255 n. 16.

4 4 Brew er v . Q ua rterm a n , 550 U

. S. 286, 295- 96 ( 2007)

.
4 5 See Tenna rd v . D retke , 542 U

. S. 274, 284- 85 ( 2004)

.
4 6 Id. at 287 ( internal quotation m ark s om itted )

.
4 7 Fra nkl in v . Lyna ugh , 487 U

. S. 164, 184 ( 1988) ( O ’C ON N OR , J. , concurri n g i n the jud gm ent) ( quoting Ca l if orni a v . Brow n , 479 U

. S. 538, 545 ( 1987) (O ’C ON N OR , J. , concurring) ) , ci t ed w i th a

p p rov a l i n A bdul

- Ka bi r , 550 U

. S. at 251- 53. 13 Case: 11-70007 Document: 00512391115 Page: 13 Date Filed: 09/30/2013Nos. 11-70007

relevance—to [his] moral c ulpability.’” 4 8 Similarly, the State a r g u e s on appeal that, b ecause there was no evidence that Jones acted a t the d i rection of another when he murdered Officer Soboleski, the empty-vessel evidence is irrelevant to Jones’s m oral culpability. Brown’s testimony did indicate that a person with an empty-vessel personalit y h as moral convictions that “are very fluid and . . . change from o ne situation t o the next depending on who he’s with and who is influencing him at the time,” but Brown did n ot indicate that the influence is as time-sensitive as the State a rgues. Specifically, Brown i ndicated that a c hange i n who is i nfluencing a p e rson 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 cri m e , J o n e s w a s subject t o the influence of a “group or . . . at least o ne other person who [was] more anti-social

. . . and m ore aggressive” than Jones himself. A p e rson w ith an emp t y - v e ssel personality may be influenced by those with whom he associates in the days leading up to h is crime; another person n eed not be directing him a t the particular moment h e c o mmits the crime. Jones’s emptyvessel e vidence has mitigating relevance beyond the scope of the special issues. The Supreme Court has e mphasized the importance of the mitigating relevance of evidence beyond i ts ability to nega t e t he t w o s pecial issues t hat were presented to and answered by the Texas jury. 4 9 As previously discussed, a factfinder could reasonably d etermine that J ones’s act was attrib u t a ble to his empty-vessel personality a nd, thus, he was “less culpable t han defendants who

4 8 Ex p arte Jones , N o. AP- 75, 896, 2009 Tex. Crim

. Ap p . U np ub. LEX IS 480, at *20- 21 ( Tex. Crim

. Ap p . June 10, 2009) ( som e internal quotation m ark s om itted )

.

4 9 See A bdul

- Ka bi r , 550 U

. S. at 252- 53, 253 n. 14, 255 n. 16. 14 Case: 11-70007 Document: 00512391115 Page: 14 Date Filed: 09/30/2013Nos. 11-70007

have no such excuse,” 5 0 regardless of whether he acted deliberately or whether he poses a continuing threat to society. Furthermo r e, while the Supreme Court has “ never denied that gravity has

a place in t h e r e l e v a nce analysis,” it made clear t hat this is true “insofar as evidence of a trivial feature of the defendant’s character or the c ircumstances of the crime is unlikely to have any tendency to m itigate t he defendant’s culpability.” 5 1 As an example, the Court cited evidence concerning how o ften the defendant will take a shower. 5 2 However, t he Court has admonished panels of federal appellate court j u d g es not to act a s filters with regard to what is sufficiently severe; “the q u e s t i o n is simply whether the evidence is o f such a character that it ‘might serve as a basis for a sentence l ess than death.’” 5 3 Jones’s empty- v essel evidence meets t his test because i t “may have m eaningful relevance to [Jones’s] moral culpability ‘beyond the scope o f t h e special issues.’” 5 4 Thus, a special instruction was necessary. 5 5 The TCCA’s decision t o the contrary

was an unreasonable a pplication of c l e a r l y e s t ab l i s h e d f e d e r a l l a w as determined by the Supreme Court. The S t ate’s argument that any Penry error was h armless is foreclosed by our prior decision in Nelson v. Quarterman

. 5 6 III

5 0 F ra nkl i n , 487 U

. S. at 184 (O ’C O N N OR , J. , concu r r i n g i n t he jud gm ent) ( quoting Brow n , 479 U

. S. at 545 ( O ’C ON N OR , J. , concurring) ) , ci t ed w i th ap p rov a l i n A bdul

- Ka bi r , 550 U

. S. at 251- 53.

5 1 Tenna rd , 542 U

. S. at 286 ( em p has is ad d ed).

5 2 Id.

5 3 Id. at 287 ( quoti n g Sk i p p er v . South Ca rol i na , 476 U

. S. 1, 5 ( 1986) ) ( s om e internal quotation m ark s om itted )

.

5 4 A bdul

- Ka bi r , 550 U

. S. at 253 n. 14.

5 5 Id.

5 6 472 F. 3d287, 314 ( 5th Cir. 2006) ( en banc)

. 15 Case: 11-70007 Document: 00512391115 Page: 15 Date Filed: 09/30/2013Nos. 11-70007

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

was denied a fair t r i a l due to the presence o f uniformed police officers as
s p e c tators was procedurally defaulted. We first address t he State’s motion t o vacate the COA and dismiss the cro s s - a p peal. After holding that Jones’s fairtrial c laim was p rocedurally defaulted, the district court issued a C OA “only as to [its] f inding t hat Jones’ f

air trial claim

. . . [was] procedurally defaulted.” 5 7 The State argues that the COA i s invali d b e c ause the district court only determined that the p r o cedural issue is d e batable without, as required, also determining that the constitutional c laim is debatable. Jones arg u e s t hat the district court did determine that the constitutional claim is debatable. He notes that the district court r ecited the appropriate standard of review, and he relies

on one line in t h e d i strict court’s opinion: “The court has carefully considered each o f Jones’ claims and concludes that each of the claims, with the e xception of Jones’ Penry and fair trial cla i m s , is foreclosed by clear, binding p r ecedent, and Jones thus fails to make a ‘substantial s h o w i n g of the denial o f a constitutional right.’” 5 8 Considering the d istrict court’s o pinion as a whole, w e conclude that the district c our t d i d not make the required determination “that jurists of reason would find it debatable whether the petition states a valid claim of t h e denial of

a constitutional right.” 5 9 AEDPA requires t he issuance of a C OA before an appeal may be taken to the c o u r t o f appeals from the final order i n a habeas corpus p roceeding in which the d etention c omplained of a rises out of p r o c e ss

5 7 Jones v . Tha ler , N o. H

- 09- 1825, 2011 U

. S. D is t. LEX IS 21262, at *53 ( S. D

. T ex. M ar. 3, 2011)

.

5 8 Id. at *52.

5 9 See Sl a ck v . M

cD a ni el , 529 U

. S. 473, 484- 85 ( 2000)

.

16 Case: 11-70007 Document: 00512391115 Page: 16 Date Filed: 09/30/2013Nos. 11-70007

issued by a s tate court, 6 0 and “[a] [COA] may i ssue . . . only if the applicant has made a s ubstantial s howing of t he denial of a con s t i t u tional right.” 6 1 Additionally, “ [t]he [COA]

. . . shall i ndicate which specific issue or issues satisfy the showing required.” 6 2 [W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s u nderlying constitutional claim, a COA s hould issue (and an a p p eal of the d istrict court’s order may be taken) if the prisoner s hows, at least, that jurists of reason would f

i n d i t d ebatable whether the petition states a valid claim of t h e denial of a constitutional right, and that jurists of
r e ason would find i t d ebatable whether the d istrict court was correct in its procedural ruling. . . . Determining whether a COA s hould issue w here the petition was dismissed o n procedural g rounds has two components , one directed a t the underlying c onstitutional claims and one directed at the d istrict court’s procedural holding. S ection 2253 mandates that both showings be m ade before the court o f app e a ls may entertain the appeal. Each component o f t he § 2 253(c) sho w i ng is part of a threshold inquiry. 6 3 The section of t he district court’s opini o n d e dicated to Jones’s fair-trial claim i s focused on the procedural-default issue; the district court did not discuss the m erits of J ones’s underlying fair-trial claim. 6 4 The district did observe that “[i]n light of the evidence of J ones’ guilt, including the testimony of an eyewitness who had an opportunity to see Jones at close range, Jones does not

6 0 28 U

. S. C. § 2253( c) ( 1)

.
6 1 Id. § 2253( c) ( 2)

.
6 2 Id. § 2253( c) ( 3)

.
6 3 Sl a ck , 529 U

. S. at 478, 484- 85 ( em p has is ad d ed)

.
6 4 Jones v . Tha l er , N o. H- 09- 1825, 2011 U

. S. Dis t. LEX IS 21262, at *17- 23 (S. D

. Tex. M ar. 3, 2011)

. 17 Case: 11-70007 Document: 00512391115 Page: 17 Date Filed: 09/30/2013Nos. 11-70007

meet this standard.” 6 5 The “standard” t o 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 b eyond a r easonable d oubt.” 6 6 However, this discussion p e rtained to the district c ourt’s conclusion t hat a court may not address a n i ssue that is procedurally d efaulted absent a showing of c ause and prejudice. 6 7 It was not a discussion of the merits o f the claim r egardi n g 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 c ould d isagree

as to whether Jones complied with the t erms of t he April 9 , 1997, TCCA order,” 6 8 not because reasonable jurists could disagree as to that procedural i s sue and because reasonable jurists could find it d ebatable whether the petition states a valid c laim o f the denial of a constitutional right. Jones is correct that the district court recited the correct standard of review from Sla c k i n t h e COA section of its opinion, 6 9 and the COA section did include t he following paragraph: The court has carefully considered each of J o n e s’ claims and concludes that e ach of the claims, with the exception o f Jones’ P enry and fair trial claims, i s foreclosed by clear, binding precedent, and Jones thus fails to make a “su b s t a n t i a l showing of the denial of a constitutional right.” The court grants relief on the merits of t h e Penry claim and concludes that reasonable j urists could d isagree whether J ones’ fair trial claim is procedurally defaulted. The court

6 5 Id

. at *23.

6 6 Id

.
6 7 Id

. at *22- 23.

6 8 Id. at *23.

6 9 Id. at *51- 52. 18 Case: 11-70007 Document: 00512391115 Page: 18 Date Filed: 09/30/2013Nos. 11-70007

therefore c onc l udes that Jones is entitled to a certificate of appealability only on his fair trial claim. 7 0 This section, however, like the section d edicated to t he fair-trial claim, lacks any meaningful discussion o f the merits o f Jones’s underlying fair-trial cl aim. 7 1 Recitation of t he correct standard o f review, and a single sentence that d oes not affirmatively hold that “ jurists of reason w o u l d f ind i t debatable w hether the [fai r-trial claim in Jones’s] petition states a valid claim of the denial of a constitutional right,” is insufficient in light o f the opinion as a whole, which lacks any meaningful discussion of the merits of Jones’s fair-trial claim. Bec a u s e we conclude that the district c ourt did n ot m ake the determination required b y Slack for t he issuance of a C OA on Jones’s fair-trial claim, we vacate t he COA, d ismiss J o n e s ’ s cross-appeal, and remand to the district court for a determination, i n the first instance, of whether jurists of

reaso n would find it debatable w hether 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 th a t t h e only jurisdictional component of AEDPA’s C OA r equirements is t he one requiring the issuance of a COA before an appeal may be taken to the court of appeals, 7 2 “[b]ut callin g a rule nonjurisdictional does not m ean that it is not mandatory or that

a timely objection can be ignored.” 7 3 The State timely raised the issue of the COA’s validity, and we, therefore, address it. 7 4 Though we are not foreclosed from ruling on the q uestion of whether Jones’s c laim w as procedurally defaulted,

7 0 Id. at *52- 53 ( citation om itted )

.
7 1 Id. at *50- 53.

7 2 G onz a l ez v . Tha l er , 132 S. Ct. 641, 649- 50 ( 2012)

.
7 3 Id. at 651.

7 4 See i d. 19 Case: 11-70007 Document: 00512391115 Page: 19 Date Filed: 09/30/2013Nos. 11-70007

we conclude that remand is a ppropriate, f irst, because Jones has not b riefed the merits of t he fair-trial claim on app e a l, and second, because we are unable to benefit f rom the district court’s analysis due to the lack of any d i scussion of the merits of the f

air-trial claim in the district court’s opinion. 7 5 Slack m ade clear that there are “two c omponents” to the “threshold inquiry” mandated by 28 U.S.C. § 2253. 7 6 By remanding to t he district c o urt, we seek to ensure that this “threshold inquiry” is complete. IV Apart from his appeal, Jones filed an a p p l i cation for a COA, which requests that we issue a C OA on two claims. His request f or a COA on h is claim that the supplemental instruction given to the jury at the punishment phase of his trial “injected c apriciousness into the proceeding” in violation of the Eighth and Fourteenth A mendments to the United States Constitution is dismissed as moot. Because we affirm the district court’s grant o f 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 resp e c t to Jones’s second c laim—that he was denied the effective assistance o f c o u n sel because his counsel failed to conduct a reasonable i nv e stigation regarding the search of Brenda Pickrom’s apartment, a sear c h t h a t led to his arrest and the discovery o f e v i d ence used against him—AEDPA mandates that a COA “may i s s u e . . . only i f the applicant has made a substantial showing of the denial of a constitutional right.” 7 7 The applicant m u s t show “that reasonable jurists could debate wheth e r ( o r , for that matter, agree

7 5 C f

. M uni z v . Johns o n , 1 1 4 F. 3d 43, 45 ( 5th Cir. 1997) ( exp laining how this court benef its f rom the d is trict court’s ruling on a CO A ap p lication)

.
7 6 Sl a ck v . McD a ni el , 529 U

. S. 473, 484- 85 ( 2000)

.
7 7 28 U

. S. C. § 2253( c) ( 2)

. 20 Case: 11-70007 Document: 00512391115 Page: 20 Date Filed: 09/30/2013Nos. 11-70007

that) the petition should have been resolved in a different manner or that t he i s s u e s p r e s e n t e d w e r e ‘ a d e quate to d eserve encouragement to proceed further.’” 7 8 “Where a district court has rejected the c o nstitutional c l a i ms on the merits,

. . . [t]he petitioner must demonstrate that reasonable jurists would find the district court’s asse s s m e n t o f t h e constitutional claims debatable or wrong.” 7 9 The COA determination under § 2253(c) r equires an overview of t h e claims in the habeas p etition and a general assessment of their merits. [Appellate courts] l ook to the District Court’s a pplication of AEDPA to petitioner’s constitutional c l aims and ask whether that resolution was d ebatable amongst jurists of r eason. This threshold inquiry does not requi r e f u ll consideration of t he factual or legal bases adduced i n support of the claims. In fact, the statute forbids it. 8 0 In a death-penalty case, any d oubts as to whether a COA should issue must be resolved in the applicant’s favor. 8 1 T h e T C C A concluded that Jones was not entitled to habeas relief on h i s ineffectiv e assistance of counsel claim because he could not demonstrate prejudice as r equired by Strickland v. Washington ; 8 2 this was based on the TCCA’s conclusion that Jones could not claim the pro t e c t ion of the Fourth Amendment because he had no reasonable expectation of privacy in Pickrom’s apartment. Jones was also denied federal habeas r e lief on t his c laim because the district c ourt conclu d e d t h at “it [ was] clear t h at t he investigation Jones claims c o unsel failed t o p e r f o r m would n ot have changed the r e sult of the

7 8 Sl a ck , 529 U

. S. at 484 ( som e internal quotation m ark s om itted )

.
7 9 Id.

8 0 M i l l er- El v . Cockrel l , 537 U

. S. 322, 336 (2003)

.
8 1 M a rti nez v . D retke , 404 F

. 3d 878, 884 ( 5th Cir. 2005)

.
8 2 466 U

. S. 668, 687 ( 1984)

. 21 Case: 11-70007 Document: 00512391115 Page: 21 Date Filed: 09/30/2013Nos. 11-70007

suppression motion.” 8 3 In support of its h old i n g , t he district c ourt determined that “[t]he state court’s conclusion that Jones had no reasonable expectation of
p r iv a c y [w a s ] e ntitled t o deference.” 8 4 The district court noted that Pi c k r o m

—t h e apartment’s lessee—had, on m ultiple occasions, stated that Jones did not have permission to be in t he apartment, a lthough she later contradicted these statements in a n a ffidavit in s u p p o r t of J ones’s s tate habeas petition. 8 5 According to t he distri c t c o urt, the TCCA’s conclusion that Pickrom’s initial statements “were c redible, and that her post hoc att e m p t t o explain these statements away was not credible,” was “not unreasonable.” 8 6 We deny Jones’s application for a COA on his ineffective a s s i s t a n ce of counsel claim because the district court’s resolution of this c laim is not d ebatable amongst jurists o f reason. First, jurists of reason would agree that the TCCA’s credibility findings r e g arding Pickrom’s contradictory statements were not unreasonable and that, consequently, the T CCA’s decision w as not “based on an unreasonable determination o f the facts i n light o f the evidence presented in the State court proceeding.” 8 7 Pickrom gave a statement t o police on the d ate of the search, t estified b efore the grand jury, testified during the suppression hearing, testified during t he gu ilt–innocence phase of Jones’s trial, and gave an affidavit in support of J ones’s state habeas petition. As discussed by the district court, on several occasions, including when under oath a nd subject to cross-examination, Pickrom stated that Jones di d n o t h ave h er c o nsent t o be in the apartment or

8 3 Jones v. Tha l er , No. H

- 09- 1825, 2011 U

. S. D is t. L E XIS 21262, at *34 ( S. D

. Tex. M ar. 3, 2011)

.

8 4 Id. at *33.

8 5 Id. at *32- 33.

8 6 Id. at *33.

8 7 See 28 U

. S. C. § 2254( d) ( 2)

. 22 Case: 11-70007 Document: 00512391115 Page: 22 Date Filed: 09/30/2013Nos. 11-70007

that Jones had no business being t h e r e. Although Pickrom later explained in her affidavit i n s upport of Jones’s state habeas petition that she misunderstood the q uestion, 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 t he protection of the Fourth Amendment d u e to n o t having a reasonable expectation of p rivacy—was not “contrary to, or . . . an unreasonable application of, clearly established Federal law, as d e termined by the S upreme Court of the United States.” 8 8The Supreme Court cases of most r elevance are Minnesota v . Carter 8 9 and M innesota v . O lson , 9 0 w hich concern the right of a houseguest to c laim the p r o t ection o f the Fourth Amendment. In O lson , the Court held that “society recognizes that a houseguest has a legi t imate expectation of privacy in h is host’s home,” w hich entitles t he houseguest to claim the protection of the Fourth A m e n d m ent. 9 1 T he Court described a houseguest

as o ne who “is there with t he permission of his host.” 9 2 I n Ca r t er , the Court clarified that “an o vernight guest in a home may c laim the p r o t e c t i on of the Fourth A mendment, but one who is m erely present with the c o n s e n t of the householdermay not.” 9 3

8 8 See i d. § 2254( d) ( 1)

.
8 9 525 U

. S. 83 ( 1998)

.
9 0 495 U

. S. 91 ( 1990)

.
9 1 Id. at 98, 100.

9 2 Id. at 99.

9 3 Ca rter , 525 U

. S. at 90 ( em p has is ad d ed)

. 23 Case: 11-70007 Document: 00512391115 Page: 23 Date Filed: 09/30/2013Nos. 11-70007

The TCCA conclu d e d t h at Jones did not have Pickrom’s consent to be in the apartment, and Carter a nd O l s o n make c lear that a p erson present in another’s home without c onsent may n ot claim the p rotection of the Fourth Amendment. Because Jones is not entitled to claim the p rotection of the Fourth Amendment, he cannot demonstrate prejudice from h is counsel’s alleged failure to i nvestigate. B ecause he c a n not demonstrate prejudice, jurists o f reason would agree with the district c o u r t ’ s determination t hat the TCCA’s conclusion that Jones’s ineffective assistance of counsel claim m ust fail

—b e cause he had no reasonable expectation of privacy in Pickrom’s apartment—was n ot “c o n t r a ry to,

or . . . an u nreasonable appl i c a t i on of, c learly established Federal law, as determined by the Supreme Court of the United States.” 9 4 We need not reach the question of whether the district c ourt’s resolution of the question of inevitable discovery is debatable amongst jurists of reason because Jones w as not entitled to c l a i m t h e protection of the Fourth Amendmen t

. A d d i t i o n a lly, J ones’s claim, based on Panetti v. Quarterman , 9 5 that the district court should have considered hi s i n e ffective assistance of counsel claim de novo is not supported by Panetti and is without merit. 9 6 * * * For the f oregoing reasons, the district court’s grant of federal habeas relief is AFFIRMED. The COA on Jones’s fair-t r ial claim is VACATED, his crossappeal is DISMISSED, and we REMA ND to t he district court for further proceedings. Jones’s application for a COA on his capriciousness c l a i m i s

9 4 See 28 U

. S. C. § 2254( d) ( 1)

.
9 5 551 U

. S. 930 (2007)

.
9 6 See Pa netti , 551 U. S. at 948, 952- 53 ( h o ld ing that review of the p etitioner’s und erly ing claim w as “unencum bered by the d ef erence AED PA norm ally requires ” becaus e there w as an error in the s tate court’s p roces s, not s im p ly becaus e there w as som e unreas onable ap p lication of fed eral law )

. 24 Case: 11-70007 Document: 00512391115 Page: 24 Date Filed: 09/30/2013Nos. 11-70007

DISMISSED AS MOOT, and his application f or a COA on h i s i n e f fective assistance of counsel claim is DENIED.

25 Case: 11-70007 Document: 00512391115 Page: 25 Date Filed: 09/30/2013