IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-20101

_______________

KARLA FAYE TUCKER,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

July 2, 1997

ON PETITION FOR REHEARING

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Since the panel opinion was issued in this case, see Tucker v.

Johnson

, No. 97-20101, 1997 WL 295707 (5th Cir. June 3, 1997), the

Supreme Court has held §§ 101-106 of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132,

110 Stat. 1214, 1217-21 (1996) (codified at 28 U.S.C. §§ 2244,

2253-2254), inapplicable to habeas corpus petitions filed before

the act’s effective date of April 24, 1996. See Lindh v. Murphy

,1 The AEDPA would apply to capital habeas cases pending in a state that had

qualified for the expedited procedures set forth in § 107 of the AEDPA, 110 Stat.

at 1221-26 (codified at 28 U.S.C. §§ 2261-2266). S ee Lindh

, 65 U.S.L.W. at 4559.

Texas, however, has not yet satisfied § 107's requirements, so the AEDPA does not

govern the instant capital h abeas case. S ee Green v. Johnson

, No. 96-50669,

1997 WL 359070, at *2-*3 (5th Cir. June 27, 1997).

2 No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997). 1 As petitioner’s habeas petition pre-dated the act, she is not subject to

it.

The standard for granting a certifica t e of appealability

(“COA”) under the AEDPA, see 28 U.S.C. § 2253(c)(2), is the same as

the standard for granting a certificate of probable cause, see

28 U.S.C.A. § 2253 (West 1994), under our pre-AEDPA jurisprudence.

See Drinkard v. Johnson

, 97 F.3d 751, 756 (5th Cir. 1 996), cert.

denied , 117 S. Ct. 1114 (1997). Nonetheless, we did consider the

deferential standards of the AEDPA in making our determination

whether to grant a COA. See Tucker , 1997 WL 295707, at *3.

Although we ultimately conclude that Tucker is not entitled to

an appeal under the pre-AEDPA standards of review, Lindh substantially changes our reasoning. Accordingly, treating Tucker's

suggestion for rehearing en banc as a petition for panel rehearing,

we grant rehearing, withdraw our prior opinion, and substitute the

following:

Karla Tucker, proceeding in forma pauperis

, appeals the denial

of her petition for writ of habeas corpus. Concluding that she has

failed to make a substan tial showing of the denial of a federal3

right, we deny her a certificate of probable cause (“CPC”).

I.

A.

On June 12, 1983, Tucker spent most of the day using drugs and

alcohol with her boyfriend, Danny Garrett (“D anny”); her sister,

Kari Burrell (“Kari”); Kari’s ex-husband, Ronnie Burrell

(“Ronnie”); and James Leibrant. Kari and Ronnie left in the

evening. In the early morning hours of June 13, Tucker, Danny, and

Leibrant decided to go to Jerry Dean’s home and steal his motorcycle.

They entered Dean’s apartment using a key that Tucker had

stolen. In the bedroom, they found Dean and Deborah Thornton.

When Dean begged for his life, Tucker began to “pick” him with an

axe. She later told Kari that she received sexual gratification

with every swing of t he axe. At one point, Leibrant entered the

bedroom to find Tucker attempting to pull the axe out of Dean by

using her foot on him as leverage. After she pulled the axe from

his body, she lifted it above her head, smiled at Leibrant, and

swung it into Dean again.

Tucker and Danny then used the axe on Thornton until, when

Thornton begged for the end, Danny embedded the axe in her throat.

Danny and Tucker took Dean’s truck, wallet, and motorcycle. They

stored the stolen property with Danny’s brother, Doug Garrett

(“Doug”).

Tucker boasted about her actions to Kari and Doug and4

expressed pleasure while watching a television news repor t about

the killings. Kari and Doug went to the police and reported

Tucker’s statements. Doug was fitted with a hidden microphone and

recorded a ninety-minute discussion with Tucker and Danny about the

murders.

B.

A jury convicted Tucker of capital murder. S ee T EX

. P EN

. C ODE

A NN

. § 19.03(a)(2) (Vernon 1994). At the sentencing phase, the

jury was instructed to consider t he two statutorily-mandated

special issues, as required by then-existing law:

(1) whether the conduct of the defendant that caused

the death of the deceased was committed deliberately and

with the reasonable ex pectation that the death of the

deceased or another would result;

(2) whether there is a probability that the defendant would commit crimi nal acts of violence that would

constitute a continuing threat to society; . . . .

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071(b) (Vernon 1981). The jury

answered each special issu e in the affirmative, and the court

sentenced Tucker to death.

The c onviction and sentence were affirmed on direct appeal,

see Tucker v. Texas

, 771 S.W.2d 523 (Tex. Crim. App. 1988) (en

banc), whereupon Tucker sought state habeas relief, raising the

issues she raises in her federal habeas petition. After a remand

to the trial court for an evidentiary hearing, the Texas Court of

Criminal Appeals denied habeas relief.

Tucker then filed a federal habeas petition, alleging

ineffective assistance of counsel and constitutional errors in the2 Tucker did not raise the arguments about Leibrant's testimony in her

application for a CPC before the district court or before us, so we consider them

waived. S ee Lockhart v. Johnson

, 104 F.3d 54, 56 (5th Cir. 1997), cert. denied

, 1997 WL 194865 (U.S. June 27, 1997) (No. 96-8577).

3 Section 102 of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996) (codified

at 28 U.S.C. § 2253), amended 28 U.S.C. § 2253 t o require a certificate of

appealability (“COA”) be fore a final order in a habeas proceeding can be

appealed. In light of L indh v. Murphy

, No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S.

June 23, 1997), howe ver, this requirement does not apply to habeas petitions

filed prior to April 2 4, 1996, the effective date of the AEDPA. S ee Green v.

Johnson , No. 96-50669, 1997 WL 359070, at *3 (5th Cir. June 27, 1997). Tucker

filed her habeas petition prior to April 24, 1996.

5 jur y instructions and challenging the state’s use of Leibrant's

testimony at trial

. 2 The district court granted summary judgment

for the state, dismissed the petition, and denied a CPC.

II.

In order to appeal, a habeas petitioner must receive a CPC.

See 28 U.S.C.A. § 2253 (West 1994). 3 We may not grant a CPC unless

the applicant has made a “'substantial showing of the denial of [a]

federal right.'” B arefoot v. Estelle

, 463 U.S. 880, 893 (1983)

(quoting Stewart v. Beto , 454 F.2d 268, 270 n.2 (5th Cir. 1971)).

The petitioner must show “that the issues are d ebatable among

jurists of reason; that a court could resolve the issues [i n a

different manner]; or that the questions are adequate to deserve

encouragement to proceed further.” Sawyers v. Collins

, 986 F.2d

1493, 1497 (5th Cir. 1993) (quoting Barefoot

, 463 U.S. at 893 n.4)

(internal quotation marks omitted).6 III.

A.

Tucker’s first two issues on appeal are intertwined. First,

she argues that trial counsel rendere d ineffective assistance of

counsel by proposing the voluntary intoxication instruction

contained in T EX

. P EN

. C ODE A NN

. § 8.04(b) (Vernon 1994). Specifically, counsel requested, and the court gave, the fol lowing

instruction:

Evidence of temporary insanity of the defendant

caused by intoxication may be introduced by the defendant

in mitigation of the penalty attached to the offense for

which she is being tried.

. . . .

Temporary insanity caused by intoxication means that

the defendant’s mental capacity was so disturbed from the

introduction of a substance into her body that the

defendant did not know that her conduct was wrong or was incapable of conforming her conduct to the requirements

of the law she allegedly violated.

Tucker

, 771 S.W.2d at 533. She asserts that this instruction

p revented the jury from considering the mitigating evidence of

intoxication unless that intoxication rose to the level of

temporary insanity. B ut see Drinkard v. Johnson

, 97 F.3d 751, 756-

6 4 (5th Cir. 1996) (rejecting this argument), cert. den ied

,

117 S. Ct. 1114 (1997).

Tucker’s second argument is that her counsel was ineffective

during juror voir dire. Both the prosecution and the defense

questioned each juror at length about whether he would be willing

to weigh temporary insanity caused by voluntary intoxication as a

mitigating factor. Tucker argues that counsel should not have4 Although Carter was influenced by our erroneous view of the applicability

of the AEDPA to cases pend ing when the act became effective, it presumably

remains precedent in this circuit to the extent that it “do[es] not conflict with

Lindh 's conclusion that the chapter 153 amendments do not apply retroactively.”

Green , 1997 WL 359070, at *3 n.2.

7 pre sented this version of the law to the jurors and should have

objected to the prosecution's comments.

B.

To establish ineffective assistance, Tucker must demonstrate

both deficient performance by her counsel and prejudice resulting

from that deficiency. S ee Strickland v. Washington

, 466 U.S. 668,

687 (1984). We compare counsel’s performance to an objective

standard of reasonablenes s, mindful of the strong presumption of

adequacy. We will not find inadequate representation merely

because, with the benefit of hindsight, we disagree with counsel's

strategic choices. See Garland v. Maggio , 717 F.2d 199, 206 (5th

Cir. 1983) (on rehearing).

Applying the prejudice prong in the context of counsel's

performance at sentencing, we ask whether the petitio ner has

demonstrated “a 'reas onable probability' that the jury would not

have imposed the death sentence in the absence of errors by

counsel.” C arter v. Johnson

, 110 F.3d 1098, 1110 (5th Cir. 1997). 4

Failure to establish either prong defeats the claim. S ee Washington , 466 U.S. at 697.

C.

As the state habeas court found, trial counsel’s strategy was8

to “highlight evidence of [Tucker]'s temporary insanity resulting

from voluntary intoxication at the time of the offense, rather than

evidence of her mere voluntary intoxication which did not result in

temporary insanity.” Considering the horrific details of the

murders and Tucker’s own state ment that she received sexual

gratification from plunging the axe into her victims, trial counsel

reasonably could have believed that evidence of mere vo luntary

intoxication would not persuade the jury to spare Tucker's life.

Counsel' s strategy of arguing that Tucker was temporarily

insane at the time of the murders was reasonable, though unsuccessful, and easily satisfies the sta ndard for effective assistance.

No reasonable jurist would disagree, and Tucker has not made a

substantial showing of the denial of a federal right.

IV.

A.

Tucker's third cont ention is that the § 8.04 voluntary

intoxication instruction violated the Eighth and Fourteenth

Amendments bec ause it impermissibly prevented the jury from

considering the mitigating effect of non-insane voluntary intoxication. Our analysis of this claim is complicated by the doctrine of

procedural default.

A federal habeas court may not consider a state p risoner’s

claim if the state based its reje c tion of that claim on an

independent and adequate state gr ound. S ee Martin v. Maxey

,

98 F.3d 844, 847 (5th Cir. 1996). The procedural bar will not be9

considered “adequate” unless it is applied “strictly or regularly”

to the “ vast majority of similar claims .” Amos v. Scott , 61 F.3d

333, 339 (5th Cir.), cert. denied , 116 S. Ct. 557 (1995).

Tucker challenged the constitutionali t y of the § 8.04(b)

instruction on direct appeal. S ee Tucker

, 771 S.W.2d at 533-34.

The Texas Court of Criminal Appeals denied re lief because Tucker

had requested the instruction, and t hus the doctrine of invited

error barred her claim. S ee Capistran v. Texas

, 759 S.W.2d 121,

124-25 (Tex. Crim. App. [Panel Op.] 1982) (on rehearing) (explaining the invited error doctrine). The district court refused to

address the merits of this claim, reasoning that it was barred by

procedural default.

Our determination whether Tucker is entit led to a CPC is

complicated by the district court’s reliance on the procedural bar.

In such cases, we refuse to grant a CPC when the petitioner fails

to make a showing that he can overcome the bar. S ee Jacobs v.

Scott

, 31 F.3d 1319, 1328 (5th Cir. 1994). Even when the petitioner can make such a showing, we still refuse to grant a CPC when

t he underlying claim is not “debatable among jurists of reason.”

Sawyers , 986 F.2d at 1502.

B.

A habeas petitioner can overcome a procedural default by

showing cause and prejudice for that default. S ee Murray v.

Carrier

, 477 U.S. 478, 488 (1986). Tucker argues that counsel’s

ineffective assistance constitutes cause excusing the procedural5 The state habeas court rejected this argument on the ground that Tucker

failed to request a definition of “deliberately” at trial, although she did

request that the cou rt distinguish “deliberately” from “intentionally.” The

state did not plead this procedural default before the distric t court, so we

consider it waived. S ee United States v. Marcello

, 876 F.2d 1147, 1153 (5th Cir.

1989).

10 default. As we have found that Tucker has not made a substantial

showing that counsel was ineffective in requesting the instruction,

we must reject this argument. Therefore, because Tucker has not

shown that she can overcome the procedural default, we deny her a

CPC on this issue.

V.

Tucker’s fourth, sixth, and seventh arguments are based on

Penry v. Lynaugh , 492 U.S. 302 (1989). She argues that the Texas

sentencing scheme, as applied through the jury instructions, was

unconstitutional because (1) the jury received no guidance on how

to consider mitigating evidence; (2) the court failed to define

“deliberately”; 5 and (3) the jury was pre vented from considering

her mitigating evidence.

Instructional error of this sort does not amount to a

constitutional violation “unless there is a reasonable likelihood

that the jury applied the challenged instruction in a way that

prevents the consideration of constitutionally relevant mitigating

evidence.” L ackey v. Scott

, 28 F.3d 486, 489 (5th Cir . 1994)

(internal quotation marks omitte d ) (quoting Johnson v. Texas

,

509 U.S. 350, 367 (1993)). Furthermore, the mitigating evidence

“must demonstrate a 'uniquely severe permanent handicap[] with11

which the defendant was burdened through no fault of his own.'”

Turner v. Johnson

, 106 F.3d 1178, 1189 (5th Cir. 1997) (quoting

Graham v. Collins , 950 F.2d 1009, 1029 (5th Cir. 1992) (en banc),

aff’d , 506 U.S. 461 (1993)).

Tucker’s mitigating evidence consisted of her (1) history of

chronic drug and alcohol abuse from age eight; (2) intoxication at

the time of the offence; (3) young age of twenty-three; and

(4) arrested emotional development caused by chronic drug use. We

have held that intoxication and youth are not valid Penry evidence.

See id. (youth); Lackey , 28 F.3d at 489 (voluntary intoxication).

Similarly, self-inflicted chronic drug and alcohol abuse and the

resulting arrested emotional development do not constitute a unique

handicap “with which the defendant was burdened through no fault of

his own.” Tucker has not made a substantial showing of the denial

of a federal right with respect to these claims.

VI.

Tucker’s fifth contention is that her counsel was ineffective

for failing to request a mitigation-of-punishment jury instruction.

We have concluded already that Tucker was not entitled to a

mitigation-of-punishment instruction and that counsel made a

reasonable strategic choice to concentrate the jury’s attention on

the possibility that Tucker was temporarily insane at the time of

the murders. No rational jurist would conclude otherwise.

The application for a CPC is DENIED.