* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-40072

WILLIAM K. BURNS,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Eastern District of Texas

5:99-CV-15

October 15, 2001

Before DAVIS, JONES and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge. *

William Burns, a Texas death row inmate, seeks a certificate

of probable cause to appeal the district court’s dismissal of his

habeas petition. We deny the certificate.2 William B urns

, h is brother Victor Burns, and a friend, Danny

Ray Harris were accused of robbing and murdering William Burns’

“replacement” at the plant from which petitioner had been fired

shortly before the offense.

3 Burns v. State , 703 S.W.2d 649 (Tex. Crim. App. 1985).

4 Burns v. State , 761 S.W.2d 353 (Tex. Crim. App. 1985).

5 Burns v. Texas , 510 U.S. 838, 114 S.Ct.118 (1993).

2 I.

A.

William Burns was indicted for the capital offense of murder

while in the course of a robbery in 1981. 2 William Burns was

tried, convicted, and sentenced to death that same year, but this

conviction was eventually reversed on appeal by the Texas Court of

Criminal Appeals based on e rror in the jury charge. 3 Burns was

again tried, convicted, and sentenced to death in 1986, but that

conviction was also reversed by the Texas Court of Criminal Appeals

based on the trial court’s exclusion of mitigation evidence. 4

Burns was tried, convicted, and sentenced to death for a third time

in 1989. He appealed to the Texas Court of Criminal Appeals, which

affirmed his conviction in 1992. The United States Supreme Court

denied certiorari in 1993. 5

Burns filed an application for writ of habeas corpus in 1998

in state district court. The state court held an evidentiary

hearing and issued findings of fact and conclusions of law

recommending denial of relief, which the Court of Criminal Appeals6 28 U.S.C. § 2253(c)(2); Slack v. McDanie l , 529 U.S. 473, 484,

120 S.Ct. 1595, 1603 (2000); United States v. Kimler

, 150 F.3d 429,

431 (5th Cir. 1998).

7 Miller v. Johnson

, 200 F.3d 274, 28 0 (5th Cir. 2000)(quoting

Barefoot v. Estelle , 463 U.S. 880, 893 n. 4, 103 S.Ct. 2283, 3394

n. 4 (1983); Hicks v. Johnson , 186 F.3d 634, 636 (5th Cir. 1999),

cert. denied, 528 U.S. 1132, 120 S.Ct. 976 (2000); see also Slack

, 529 U.S. at 484, 120 S.Ct. at 1603-4 ( quoting Barefoot v. Estelle

, 463 U.S. at 893 n. 4; 103 S.Ct. at 3394 n.4).

8 Lamb v. Johnson

, 179 F.3d 352, 356 (5th Cir. 1999), cert denied,

528 U.S. 1013, 120 S.Ct. 522 (1999).

9 Id

.

3 adopted in 1999. Burns then filed a petition for federal habeas

relief. The district court denied relief in 2000, and petitioner

filed the instant application for COA with this court.

B.

A COA may only issue if the petitioner makes a “substantial

showing of the denial of a constitutional right.” 6 This burden can

be met if the issues presented “are debatable among jurists of

reason;

. . . a court could resolve the issues in a different

manner; or

. . . the questions are adequate to deserve

encouragement to proceed further.” 7

A death sentence alone does not justify the automatic issuance

of a COA, although it is a proper consideration. 8 Any doubts as to

whether the COA should issue are to be resolved in the petitioner’s

favor. 9

Burns’ petition was filed after the enactment of the

Antiterrorism and Effective Death Penalty Act (ADEPA). Thus, for10 See Miller , 200 F.3d at 281.

4

questions of law or mixed questions of law and fact adjudicated on

the merits in state court, we may grant federal habeas relief under

28 U.S.C. § 2254(d)(1) only if the state court decision “was

contrary to, or involved an unreasonable application of, clearly

established [Supreme Court precedent].” 10 We now turn to Burns’

specific claims.

II.

A. Failure to introduce mitigating evidence

Burns first argues that his trial counsel was ineffective in

failing to introduce evidence that his brother, Victor Burns,

entered a plea of guilty to the offense in ques tion. Petitioner

contends that this information would have been relevant mitigating

evi dence to be used during the punishment phase. Texas case law

did not permit Burns to introduce this evidence in mitigation. The

Texas Court of Criminal Appeals has stated the following: “We do

not see how the conviction and punishment of a co-defendant could

mitigate appellant’s culpability in the crime. Each defendant

should be judged by h is own conduct and participation and by his

own circumstances.” E vans v. State

, 656 S.W.2d 65, 67 (Tex. Crim.

App. 1983). See also Cordova v. Johnson

, 157 F.3d 380, 383-84 (5 th

Cir. 1998). Burns argues further that even if his co-defendant’s

sentence would not be relevant mitigating eviden ce, his codefendant’s conviction would. The language of E vans

, cited above,5

however, makes it clear that this argument fails as well.

In Lockett v. Ohio

, 438 U.S. 586, 98 S.Ct. 2954 (1978), the

Supreme Court held that the sentencer can generally consider as a

mitigating factor “any aspect of the defendant’s character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.” I d.

at 604, 98 S.Ct. at 2965.

Burns argues that his brother’s guilty plea judicially

establishes that he was the “triggerman” and that, despite the

Texas case-law cited above, his attorney should have proffered this

evidence because it is a relevant “ circumstance of the offense.”

This argument is without merit. Victor Burns plea stated that he

“...int entionally and knowingly cause[d] the death of an

individual, Johnny Lynn Hamlett, by shooting him with a gun....”

No evidence was offered in support of Victor Burns’ conviction, and

it is unclear whether Victor caused the death as a principal or as

an accomplice. The state was entitled to obtain the conviction

without showing that Victor was the triggerman. The plea does not

therefore “judicially estab lish” that Victor Burns was the sole

“triggerman.” Additionally, counsel had very good reason for not

attempting to make such an argument. In William Burns’ statement

to the police, he admitted that he shot the victim. (“I took the

pistol out and I shot through the crack. There were only two

bullets in the pistol and I shot them.”)

Because an attorney cannot be ineffective for failing to raise11 Clark v. Collins , 19 F.3d 959, 966 (5 th Cir. 1994).

12 Burns asserts a separate but related claim that the government

violated Brady v. Maryland in failing to disclose its intent to

dismiss the charges against co-defendant Danny Ray Harris. Brady

, 373 U.S. 83, 83 S.Ct. 1194 (1963). Burns argues that he suffered

prejudice from the state’s failure to disclose this information

because he could have used it as mitigating evidence in the

punishment phase of his trial. Even if the state did not intend to

try Harris and if it had disclosed this intent, this evidence would

not have been admissible under Texas law for the same reason that

the disposition of the charges against Victor Burns were not

admissible. Moreover, this evidence is irrelevant to a defendant’s

character, prior record or the circumstances of the offense.

Lockett v. Ohio

, 438 U.S. at 601-02. See also Penry v. Lynaugh

, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 2951-52 (1989). Because the

evidence was inadmissible, under Texas law and constitutionally

irrelevant to mitigation, the state had no duty to disclose it

under Brady

.

6 meritless objections, 11 petitioner’s trial counsel did not perform

deficiently in failing to raise either of the above arguments. We

cannot, therefore, say that trial counsel was ineffective for

failing to introduce this evidence, and the district court was

correct in reaching this conclusion. 12

B. Eighth Amendment Violations

Petitioner contends that hi s Eighth Amendment rights were

violated because he received a harsher sentence than his cohorts.

Victor Burns received a life sentence as a result of a plea bargain

he entered into with the State, and Danny Ray Har ris was never

tried for the offense. Petitioner therefore argues that his “death

sentence is disproportionate to his culpability in the offense”

because “petitioner neither possessed a weapon nor fired a shot at

the victim.” As discussed above, whether petitioner actually shot7

the victim is a disputed issue.

In finding that petitioner’s de ath sentence was not

disproportionate in light of his moral culpability, the magistrate

judge entered proposed findings and recommendations which summarize

the resolution of this issue perfectly:

“Disparate sentencing appears to some degree inherent in

our system. The Supreme Court has repeatedly reminded us

of this fact and has consistently held that, even in the

special context of t he death penalty, there is nothing

unconstitutional about it.” United States v. Ives , 984

F.2d 649, 650 n.3 (5 th Cir. 1993). Thus, the mere fact

that other perpetrators were treated more leniently does

not render Burns’ death sentence a violation of the

Constitution and laws of the United States. Absent such

a violation, the Court cannot grant habeas corpus relief.

Magistrate Judge’s Proposed Findings and Recommended Disposition,

at 5.

Burns has proffered no fact or persuasive legal argument that

would lead us to conclude that reasonable jurists could find the

district court’s decision on t his issue (which adopted the

magistrate’s findings reproduced above) debatable or wrong.

C. Juror problems

1. Ineffective assistance of counsel in failing to strike a

potential juror.

Burns argues that his trial counsel was ineffective in failing

to exercise a peremptory challenge against juror Tennyson. This

argument is based on Tennyson’s statement during voir dire that his

religious beliefs lead him to the conclusion that “if a person take

a life then his life should be took [sic].” Burns argues that his8

lawyer should have stricken Tennyson from the jury because he held

an intractable belief that death is the only punishment he would

consider. This argument fails.

Burns failed to object to the magistrate judg e’s findings

(adopted by the district court) rejecting this ineffective

assistance of counsel claim. The district court therefore reviewed

Burns’ claim only for plain error and held that the magistrate

judge’s finding (that trial counsel’s failure to excuse Tennyson

was not ineffective assistance of counsel) was not debatable among

jurists of reason. This conclusion is sound because the record

shows that although Tennyson did state that he believed in a “life

for a life,” he expressed that belief only upon questioning by the

prosecutor regarding his prior written statement th at he could

never, under any circumstances, return a verdict which assessed the

death penalty. Tennyson also indicated that he would render a

decision according to the law and the evidence and would answer

“no” to the special assessment questions (if he thought that was

the proper answer) even if that would result in a sentence contrary

to his religious teachings.

Additionally, Tennyson made several statements favorable to

the defendant, including that he would require the State to produce

at least two witnesses against the accused and that he interpreted

“beyond a reasonable doubt” to mean “where you don’t have any doubt

whatsoever.” Tennyson’s trial counsel testified at the state

habeas proceeding that, in addition to the above statements, he did9

not strike Tennyson because he was involved in a missionary

program. One of Burns’ punishment witnesses in the sentencing

phase was involved in similar work, and Burns’ trial counsel felt

that Tennyson might be able to identify with that witness.

When we look at al l of Tennyson’s voir dire testimony--

particularly in light of counsel’s testimony at the habeas hearing-

-it is clear that Burns’ trial counsel was not ineffective in

failing to strike Tennyson. Reasonable jurists would not argue

otherwise.

2. Juror bias as a matter of law

Burns next argues that the acceptance of juror Tennyson

resulted in an unfair trial, since he describes Tennyson as holding

an intractable belief that the death penalty is the only punishment

he would consider. This claim fails for two reasons. First, trial

counsel made no obje ction to Tennyson as a juror. As the

magistrate judge correctly observed, “absent a contemporaneous

objection, federal habeas corpus review of claims about the

composition of jury panels is barred.” S ee Huffman v. Wainwright

,

651 F.2d 347, 349 (5 th Cir. 1981). Second, the evidence indicates

that Tennyson was not, in fact, biased, as discussed above.

Rather, Tennyson was a person who believed that the death penalty

is appropriate in murder cases, but would follow the law and

evidence, and consider mitigating evidence in deciding whether to

assess that punishment.10

3. Improper (for cause) dismissal of a member of the venire

Relying on Witherspoon v. Illinois , 391 U.S. 510, 521-22, 88

S.Ct. 1770, 1776-77 (1968), Burns next argues that prospective

juror McKay was im properly excluded from service because of her

views opposing the death penalty. Although Ms. McKay did state

that she was “closer to being totally against the death penalty,”

t he record shows that she was stricken for general unsuitability

rather than for anti-death penalty sentiments.

The prosecutor asked McKay whether she would be able to answer

the three special assessment questions truthfully and she responded

that she had not read the questions. After several confused

responses, the trial court gave petitioner’s counsel an opportunity

to rehabilitate McKay by asking, “Would you refuse to find a person

guilty even if the evidence overwhelmingly showed him to be

guilty?” McKay responded, “I don’t know ahead of time.” When

asked about the three special punishment issues again, McKay

responded again that she had not read them. The trial court then

gave McKay an opportunity to read the questions. After an extended

period of time, the trial judge made the following comments:

Sir, have the record reflect this venire man is over

distraught just from having to answer the question or

read the questions. She is obviously not capable of

making a decision. The court excuses her upon challenge

from the State.

...

Mr. Court Reporter, you will have in your notes the

amount of

-- inordinate time this venire man too k just

sitting [here] attempting to decide how she was going to

answer the question. The record shall reflect when the13 See

, e.g.

, Wainwright v. Witt , 469 U.S. 412, 424-26, 105 S.Ct.

844, 852-53 (1985).

11 court asked her to read the three questions she became

distraught and began to cry and shake her head.

Obviously not a fit person for jury service, obviously

not.

A federal habeas court gives substantial deference t o the

trial judge’s decisions on juror bias and suitability

. 13 The

petitioner has presented no facts or persuasive legal authority

calling into question the trial judge’s decision to exclude juror

McKay.

III.

For the reasons stated above, we deny Burns’s motion for a

certificate of appealability.