* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70006

KHRISTIAN OLIVER

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court 

for the Eastern District of Texas, Beaumont Division

No. 1:04-cv-00041-RHC

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Khristian Oliver (“Oliver”) seeks habeas corpus relief from his conviction

and sentence of death for the murder of Joe Collins (“Collins”). After denying

habeas relief on all claims, the district court granted Oliver a certificate of

appealability (“COA”) on two issues: (1) whether he suffered a denial of his right

to an impartial jury under the Sixth Amendment when jurors consulted Biblical

scripture that called for death as the punishment for murder, and (2) whether

United States Court of Appeals

Fifth Circuit

F I L E D

November 16, 2007

Charles R. Fulbruge III

Clerk
No. 06-70006

2

Oliver suffered a denial of his right to a punishment determination based upon

discretion carefully guided by law under the Eighth Amendment because several

jurors consulted the Bible during deliberations. Oliver appeals the denial of a

COA for three of his claims and the denial of habeas relief for the claims in

which he received a COA. He also seeks either a stay and abatement of the

federal proceeding so that he may go back to state court for an evidentiary

hearing or a federal evidentiary hearing regarding his Bible-related claims.

After reviewing the record, we DENY Oliver’s request for a COA on his three

additional claims. We also DENY Oliver’s request for a stay and abatement for

a state hearing and his request for a federal evidentiary hearing on his Biblerelated claims. Finally, we set this case for oral argument regarding the

remaining claims and direct the parties to focus on specific issues, as discussed

below.

I. FACTUAL AND PROCEDURAL BACKGROUND

The district court recounted the facts as follows:

Oliver began a crime spree about a year and [a] half before the

incident which resulted in his conviction in this case. There were

over a dozen burglaries and many of them involved the use of

weapons. On March 17, 1998, Oliver, his girlfriend Sonya Reed,

Bennie Rubalcaba (age 16) and his brother, Lonny Rubalcaba (age

15), stopped at the house of the victim, Joe Collins, in rural

Nagcodoches County. Oliver and Lonny Rubalcaba went to

burglarize the house, carrying Oliver’s .380 caliber pistol, a handful

of bullets and bolt cutters. Reed and Bennie Rubalcaba stayed in

the truck. While the two were in the house, Collins came home.

Collins shot Lonny Rubalcaba in the leg as he and Oliver were

trying to escape. Oliver then shot Collins five times. At least two

of the shots were fired while the victim lay on his back on the

ground outside his house. As Bennie Rubalcaba helped his brother

Lonny back to the truck he turned and saw Oliver striking Collins

several times in the head with a rifle butt, while Collins was lying

on the ground. Collins’s skull was severely fractured and his face

was disfigured nearly beyond recognition.
No. 06-70006

3

Oliver then joined the group in the truck. The group took

Lonny Rubalcaba to the hospital and went to the Sheriff’s office and

filed reports saying that someone had driven by and shot Lonny

while they were all at a farm. The next day, deputies picked up

Bennie Rubalcaba and questioned him. Bennie then gave a written

statement admitting what had actually happened. The same

morning, police questioned Lonny Rubalcaba, who, after originally

repeating the story aboutthe farm, gave a second written statement

coinciding with his brother’s second statement. Police located Oliver

and Reed at a Houston motel and arrested them.

A jury convicted Oliver of capital murder based on his killing of Collins during

the commission of a burglary. The Texas Court of Criminal Appeals (“TCCA”)

affirmed Oliver’s conviction and sentence of death. Oliver v. State, No. 73,837,

slip op. (Tex. Crim. App. April 17, 2002) (unpublished). The United States

Supreme Court denied his petition for a writ of certiorari. Oliver v. Texas, 537

U.S. 1161 (2003). The TCCA denied Oliver’s petition for post-conviction relief,

and the United States Supreme Court again denied his petition for a writ of

certiorari. Oliver v. Texas, 538 U.S. 1001 (2003). On January 21, 2004, Oliver

filed an application for a writ of habeas corpus with the district court. The

Appellee Nathaniel Quarterman (the “Director”) moved for summary judgment

on all of Oliver’s claims. The district court granted the Director’s motions in two

separate orders on September 29, 2005, and November 9, 2005. The court

granted a COA for two issues but denied a COA for the remaining claims. 

II. Analysis

A. Oliver’s requests for a COA

1. Standard for issuing a COA

Because Oliver filed his habeas petition in the district court after the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254, AEDPA governs his petition. See Lindh v.

Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, Oliver must obtain a COA

from either the district court or appellate court before he can appeal the denial
No. 06-70006

4

of habeas relief. See 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To obtain a COA, Oliver must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, if Oliver can

show that the district court’s application of AEDPA to his constitutional claims

is debatable among reasonable jurists, we will issue a COA. Miller-El, 537 U.S.

at 336. 

In deciding whether to grant a COA, we are limited “to a threshold inquiry

into the underlying merit of [the petitioner’s] claims.” Miller-El, 537 U.S. at 327

(citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). Our analysis “requires an

overview of the claims in the habeas petition and a general assessment of their

merits” rather than a “full consideration of the factual or legal bases adduced in

support of the claims.” Id. at 336. “Because the present case involves the death

penalty, any doubts as to whether a COA should issue must be resolved in [the

petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). 

In deciding whether to grant a COA, we recognize that AEDPA imposes

a deferential standard of review on a federal habeas court with respect to claims

adjudicated on the merits in state court. A federal court cannot grant habeas

relief unless the state court adjudication of that claim either:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

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

state court proceeding.

28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S. 510, 520 (2003). A decision

is contrary to clearly established federal law if “the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a question of law”

or “confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [that precedent].”
No. 06-70006

5

(Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision involves an

unreasonable application of Supreme Court precedent if it “unreasonably

extends a legal principle from [Supreme Court precedent]to a new context where

it should not apply or unreasonably refuses to extend that principle to a new

context where it should apply.” Id. at 407. We presume the facts of the case to

be correct unless Oliver meets his burden of rebutting that presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

2. Reasonable jurists would not debate that Apprendi is inapplicable

to the mitigation special question

Oliver argues that the trial court erred in failing to instruct the jury that

the State had the burden of proof beyond a reasonable doubt on the issue of

mitigation during the punishment phase of the trial. He contends that the

Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002), extend the requirement of proof beyond a

reasonable doubt to a jury’s determination of mitigating factors that would

warrant a sentence of life imprisonment instead of death. In Apprendi, the

Court held that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S.

at 490. Oliver contends that Texas’s capital murder statute provides for life

imprisonment as the maximum penalty, and that death is the penalty only ifthe

jury answers both “special issues” questions in the proscribed way. Therefore,

Oliver claims, Texas’s statute violates Apprendi because it allows a jury to

“increase”the maximum penalty to death without the State showing the absence

of mitigating factors beyond a reasonable doubt.

Texas law regarding the death penalty first requires a jury to find the

defendant guilty of a capital felony. See TEX. CODE CRIM.PROC. ANN. art. 37.071

§ 1 (Vernon 2006). If the state seeks the death penalty, then the trial court must
No. 06-70006

6

conduct a second punishment proceeding. Id. § 2(a)(1). During deliberations on

whether to impose the death penalty, the jury must answer two “special issues”

questions: First, “whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a continuing threat to

society,” and second, “whether . . . there is a sufficient mitigating circumstance

or circumstances to warrantthat a sentence of life imprisonment without parole

rather than a death sentence be imposed.” Id. §§ 2(b)(1), (2)(e)(1). The court will

impose the death penalty only ifthe jury unanimously answers the first question

“yes” and the second question “no.” Id. That is, the jury must find that there are

aggravating factors and insufficient mitigating factors. 

Reasonable jurists would not debate that Apprendi is inapplicable to the

jury’s determination of mitigating factors. In Apprendi, the Supreme Court

specifically distinguished between “facts in aggravation of punishment and facts

in mitigation,” stating that burden-of-proof requirements are “absent” from a

scheme that allows a judge to impose a sentence below the maximum penalty

based on mitigating factors. Apprendi, 530 U.S. at 490 n.16 (noting that in

reducing a sentence based on mitigating factors, a judge is “neither exposing the

defendant to a deprivation of liberty greater than that authorized by the verdict

according to statute, nor is the judge imposing upon the defendant a greater

stigma than that accompanying the jury verdict alone”); see also Ring, 536 U.S.

at 597 n.4 (noting that its decision that a sentencing judge may not, sitting

alone, determine the presence or absence of aggravating factors does not extend

to the finding of mitigating circumstances); Rowell v. Dretke, 398 F.3d 370, 376-

77 (5th Cir. 2005) (noting that Ring did not apply to the burden of proof for

mitigating factors because the Court “focused exclusively on certain judicial

findings regarding aggravating factors”). Similarly, in Walton v. Arizona, the

Court stated that“[s]o long as a State’s method of allocating the burdens of proof

does not lessen the State’s burden to prove every element of the offense charged,
No. 06-70006

7

or in this case to prove the existence of aggravating circumstances, a defendant’s

constitutional rights are not violated by placing on him the burden of proving

mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S.

639, 650 (1990), overruled on other grounds, Ring, 536 U.S. at 584. More

recently, the Supreme Court upheld Kansas’s death penalty scheme that placed

the burden of proving the existence of aggravating factors on the state but

required the defendant to offer any mitigating evidence. Kansas v. Marsh, 126

S. Ct. 2516, 2524 (2006); see id. at 2527 (“Significantly, although the defendant

appropriately bears the burden of proffering mitigating circumstances—a burden

of production—he never bears the burden of demonstrating that mitigating

circumstances outweigh aggravating circumstances.”). Plainly, therefore, if a

state’s scheme is constitutional when it places the burden of production for

mitigating factors on the defendant, then Texas’s death penalty statute also

comports with Supreme Court precedent because it leaves open who has the

burden of proof for mitigating factors.

This court’s cases also have upheld Texas’s scheme of not instructing the

jury on who has the burden of proof for mitigating factors. See Granados v.

Quarterman, 455 F.3d 529, 537 (5th Cir.), cert denied, 127 S. Ct. 732 (2006). In

Granados, the court granted a COA to a death penalty habeas applicant on this

very same claim and subsequently rejected the applicant’s argument after

additional briefing. Id. In so doing, the court noted that death—not life

imprisonment—is the maximum sentence for a capital conviction under Texas

law. Id. “Put another way, a finding of mitigating circumstances reduces a

sentence from death, rather than increasing it to death.” Id. Similarly, this

court noted that “[n]o Supreme Court or Circuit precedent constitutionally

requires that Texas’s mitigation special issue be assigned a burden of proof.”

Rowell, 398 F.3d at 378; see also Ortiz v. Quarterman, No. 06-70020, 2007 WL

2936244, at *10 (5th Cir. Oct. 10, 2007) (rejecting a COA for this exact same
No. 06-70006

8

claim); Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007) (same).

Given the extensive Supreme Court and circuit precedent, reasonable jurists

would not debate that Apprendi has no application to Texas’s scheme of leaving

open who has the burden of proof for the mitigation special issue. We therefore

DENY Oliver’s request for a COA on this claim.

3. Reasonable jurists would not debate that Penry II does not apply to

the lack of jury instructions regarding mitigation

Oliver contends that Texas’s “special issues” questions—which place the

burden of proof on the State to show aggravating but not mitigating

factors—sends “mixed signals”to the jury in violation of Penry v. Johnson (Penry

II), 532 U.S. 782, 802 (2001). Oliver argues that failing to assign a burden of

proof for the mitigation factors produces a confusing effect and encourages jurors

to evaluate the evidence in inconsistent ways. 

In Penry II, the Supreme Court struck down a judicially crafted jury

instruction because it was confusing and, in effect, required the jury to answer

the special issues dishonestly in order to give effectto the defendant’s mitigating

evidence. Id. at 801. The Court rejected the instruction as sending “mixed

signals” to the jury. Id. at 802. The Court, however, implicitly upheld Texas’s

current scheme:

A clearly drafted catchall instruction on mitigating evidence also

might have complied with [the Court’s precedents]. Texas’ current

capital sentencing scheme (revised after Penry’s second trial and

sentencing) provides a helpful frame of reference. Texas now

requires the jury to decide “[w]hether, taking into consideration all

of the evidence, including the circumstances of the offense, the

defendant’s character and background, and the personal moral

culpability of the defendant, there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life

imprisonment rather than a death sentence be imposed.” TEX.CODE

CRIM. PROC. ANN. art. 37.071(2)(e)(1) (Vernon Supp. 2001). . . . At

the very least, the brevity and clarity of this instruction highlight

the confusing nature ofthe supplemental instruction actually given,
No. 06-70006

1 The new instruction (now no longer in effect), for crimes committed after September

1, 1999, read:

9

and indicate thatthe trial court had adequate alternatives available

to it as it drafted the instructions for Penry’s trial.

Id. at 803. Far from rejecting the current scheme regarding mitigation,

therefore, the Supreme Court implicitly endorsed it. See, e.g., Coleman v.

Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert denied, 127 S. Ct. 2030

(2007) (quoting Rowell, 398 F.3d at 378) (“[N]o Supreme Court or Circuit

precedent constitutionally requires that Texas’s mitigation special issue be

assigned a burden of proof.”). Oliver has failed to make any plausible argument

that Texas’s mitigation special issue does not allow the jury to consider and give

effect to a defendant’s mitigating evidence. Oliver also points to no other cases

to support his position. Thus, Oliver has failed to explain why the district court’s

decision amounted to a violation of “clearly established federal law, as

determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Reasonable jurists

would not debate that the district court properly rejected Oliver’s claim. We

therefore DENY Oliver’s request for a COA on this claim.

4. Reasonable jurists would not debate that the district court did not

err in rejecting Oliver’s parole instruction claim

Oliver argues that the trial court’s failure to instruct the jury that a life

sentence would require Oliver to spend forty years in prison before becoming

eligible for parole violated the Eighth Amendment’s requirement of heightened

reliability in the jury instructions. He rests his argument on an “evolving

standard regarding parole instructions” that he claims mandated his requested

jury charge. Specifically, he argues that during his trial, in April 1999, the

Texas legislature considered, and then passed, a law requiring an instruction

that notified the jury that the defendant would not be eligible for parole for forty

years. See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(2)(B) (Vernon 1999).1
No. 06-70006

Under the law applicable in this case, if the defendant is sentenced to

imprisonment in the institutional division ofthe Texas Department of Criminal

Justice for life, the defendant will become eligible for release on parole, but not

until the actual time served by the defendant equals 40 years, without

consideration of any good conduct time. It cannot accurately be predicted how

the parole laws might be applied to this defendant if the defendant is sentenced

to a term of imprisonment for life because the application of those laws will

depend on decisions made by prison and parole authorities, but eligibility for

parole does not guarantee that parole will be granted.

See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(2)(B) (Vernon 1999). Texas has since

amended its statutes to provide for life without parole as the alternative to the death penalty

and to instruct the jury of this fact. See id. § 2(e)(2)(B) (Vernon 2006) (The Court shall “charge

the jury that a defendant sentenced to confinement for life without parole under this article

is ineligible for release from the department on parole.”).

10

This law became effective for crimes committed on or after September 1, 1999.

Act approved May 21, 1999, 76th Leg. R.S., ch. 140, § 2, 1999 Tex. Sess. Law.

Serv. 140 (Vernon). Oliver correctly concedes that the amended statute does not

apply retroactively to his trial and instead argues that the legislative hearing

that culminated in the revised jury instruction represented an “evolving

standard” that required the jury to know, even before the law took effect, of

Oliver’s ineligibility for parole for forty years.

In Simmons v. South Carolina, the Supreme Court ruled that a capital

defendant has a constitutional right to inform the jury of his ineligibility for

parole when the state’s statute provides for a life sentence without the

possibility of parole as the alternative to the death penalty. 512 U.S. 154, 168-69

(1994) (plurality opinion). The plurality specifically exempted from its decision

those state statutes that provide for the possibility of parole. Id. at 168 (“In a

State in which parole is available, how the jury’s knowledge of parole availability

will affectthe decision whether or notto impose the death penalty is speculative,

and we shall not lightly second-guess a decision whether or not to inform a jury

of information regarding parole.”). In Ramdass v. Angelone,the Court reiterated

that the Simmons rule applies only when the defendant is ineligible for parole
No. 06-70006

2 The only case that Oliver cites to support his position is Clark v. Tansy, 882 P.2d 527,

533 (N.M. 1994), where the New Mexico Supreme Court held that due process required a jury

instruction that notified the jury as to the length of incarceration the defendant would face

before becoming eligible for parole if he is not sentenced to death. Clark provides little support,

however, because the court explicitly chose not to decide the case on Eighth Amendment

grounds. Id. at 490. Moreover, even if Clark supports Oliver’s position, it is hardly enough

evidence to constitute an “evolving standard.”

11

for life under state law. 530 U.S. 156, 166-67 (2000) (plurality opinion) (holding

that the trial judge did not have to provide a jury instruction on a life sentence

under Simmons because the defendant was not actually parole ineligible at the

time of his capital sentencing). Although the Supreme Court decided these cases

under due process rationale and not the Eighth Amendment, we find them

instructive as to the lack of an evolving standard requiring a jury instruction

regarding a Texas statute that allowed for the possibility of parole.

Indeed, we have rejected similar claims from other habeas petitioners. 

See Thacker v. Dretke, 396 F.3d 607, 617 (5th Cir. 2005) (“Since Simmons was

decided, we have repeatedly held that neither the Due Process clause nor the

Eighth Amendment requires Texas to allow presentation of parole eligibility

issues, becauseTexas does not offer, as an alternative to capital punishment, life

imprisonment without possibility of parole.”) (footnote omitted); Rudd v.

Johnson, 256 F.3d 317, 320-21 (5th Cir. 2001) (rejecting a COA for this exact

same claim); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995) (“We have

consistently held . . . that neither the due process clause nor the Eighth

Amendment compels instructions on parole in Texas.”).

Given this precedent,2reasonable jurists would not debate that there is no

“evolving standard” that required the trial court to provide Oliver’s requested

jury instruction. See Thacker, 396 F.3d at 617 (“Thus, settled precedent makes

pellucid the reasonableness of the state court’s rejection of [the habeas

petitioner’s] argument that Simmons and its progeny require that he be able to

raise parole eligibility with the jury. The district court’s denial of his claims,
No. 06-70006

3 We also note that Oliver’s requested jury instruction would amount to a “new rule” in

violation of the non-retroactivity principle of Teague v. Lane, 489 U.S. 288, 310 (1989). See

Thacker, 396 F.3d at 617 n.15 (“Although [the habeas petitioner] argues at length that

applying Simmons in the way he proposes would merely be an unremarkable application of

existing precedent, this is plainly not the case. Given the volume of caselaw in this circuit

holding that, despite Simmons, the Fourteenth and Eighth Amendments do not require Texas

to allow discussion of parole eligibility in capital trials, a decision to the contrary here would

undoubtedly constitute a ‘new rule’ under Teague and is therefore barred.”). 

12

therefore, is not reasonably debatable and cannot justify the issuance of a

COA.”). We therefore DENY Oliver’s request for a COA on this claim.3

B. Oliver’s claims for which he received a COA

The district court rejected Oliver’s request for habeas relief but granted a

COA on two claims related to several jurors’ alleged use of the Bible during jury

deliberations. Oliver contends that evidence from his state court post-conviction

hearing on his motion for a new trial, as well as additional evidence uncovered

after that hearing, demonstrates that jurors consulted the Bible when

considering whether to impose death or life imprisonment during the

punishment phase of his trial. Oliver argues that any use of the Bible during

jury deliberations violated his rights under the Sixth and Eighth Amendments.

Oliver also asks this court either to stay this proceeding so that the state court

can conduct an additional hearing based on the newly-discovered evidence or

remand to the federal district court for an evidentiary hearing.

1. Oliver’s request for a stay and abatement or for an evidentiary

hearing is without merit

Oliver argues that he is entitled to, and never received, a hearing on the

additional evidence he uncovered from an interview between a foreign journalist

and juror Michael Brenneisen (the “Brenneisen interview”). This interview took

place in February 2002, one month after Oliver had timely submitted his habeas

application to the TCCA. In the interview, Brenneisen stated that jurors relied

on the Bible in making their decision during the punishment phase of
No. 06-70006

4 Oliver claims that Brenneisen’s interview confirms and bolsters the evidence from the

four jurors who testified during the state post-conviction hearing.

5

It is not clear whether the district court relied on the Brenneisen interview in making

its decision on the merits of Oliver’s claim. Instead, the district court focused on whether

Oliver was entitled to a hearing and spent little time analyzing the underlying substantive

issues.

13

deliberations.4 Upon learning of the interview, Oliver submitted to the TCCA

an “Objection[] to Disposition Without Evidentiary Hearing and Motion for

Extension of Time to File Habeas Findings of Fact and Conclusions of Law.”

The TCCA deemed this motion to be a subsequent application for habeas corpus

because Oliver submitted it after the state law deadline for an initial writ of

habeas corpus. The court therefore dismissed the subsequent application as an

abuse of the writ.

Oliver then filed his federal habeas application in the district court. The

court denied his motion to stay the federal proceeding so that he could seek a

hearing in state court based on his “new” evidence. The court determined that

“the appropriate relief [when a habeas applicant asserts that he has not

exhausted his claim in the state court based on newly discovered evidence] . . . is

for the federal court to consider the new evidence, not to remand the case to the

state court.”5 Oliver submitted a transcript of the interview to the district court.

The court denied Oliver’s request for a federal hearing on this issue. In

particular, the court ruled that under 28 U.S.C. § 2254(e)(2), Oliver was not

entitled to a hearing because he did not act with “due diligence” to exhaust his

claim in the state post-conviction hearing. The district court also ruled that

Oliver failed to meet the second prong of § 2254(e)(2) because he failed to show

that “but for relying on the Bible, no reasonable juror would have answered the

special issues in the way that resulted in his receiving a death sentence.” The

district courtthen denied habeas relief on his two claims related to the jury’s use

of the Bible.
No. 06-70006

14

Oliver argues thatthis court should stay and abate the federal proceeding

so that he may go back to the state court and obtain a hearing on his claim. The

flaw in Oliver’s argument, however, is that the state court already refused to

grant him a hearing. The TCCA already considered his request to stay the

proceeding so that he could seek a hearing regarding the information from the

Brenneisen interview, and it deemed Oliver’s request to be a subsequent

application for habeas corpus that is barred under state law. Oliver presents no

arguments as to why the state court would now grant him a hearing. A stay and

abatement, therefore, would amount to nothing more than an unnecessary and

fruitless delay.

Nor is Oliver entitled to a hearing in federal court. The district court

applied the correct standard under § 2254(e)(2) regarding Oliver’s requestfor an

evidentiary hearing in federal court. 

Section 2254 (e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in

State court proceedings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that

was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

As the district court correctly noted, Oliver fails to meet subsection (A)(ii)

because Oliver could have discovered the evidence from the Brenneisen
No. 06-70006

6 We make no decision regarding whether the district court correctly found that Oliver

failed to meet subsection (B) because, “but for relying on the Bible, no reasonable juror would

have answered the special issues in the way that resulted in [Oliver] receiving a death

sentence.” We note, however, that subsection (B) requires the habeas applicant to show that

“no reasonable factfinder would have found the applicant guilty of the underlying offense,” not

that no reasonable factfinder would have imposed the same sentence. 28 U.S.C. §

2254(e)(2)(B) (emphasis added). Oliver’s failure to meet subsection (A) makes the district

court’s application of subsection (B) moot. As to the substance of the district court’s statement

that the jurors did not improperly rely on the Bible in making its decision, the court will

consider this issue after further briefing and oral argument.

7 Oliver claims that he did not call Brenneisen to testify because Brenneisen would have

been hostile to his lawyer and would not have cooperated. This is mere speculation, however,

and does not excuse Oliver’s failure to call Brenneisen—or any of the other jurors—at the

hearing.

15

interview through the exercise of due diligence.6 All Oliver had to do to uncover

Brenneisen’s testimony was to call him to the stand during the state postconviction hearing.7

In sum, Oliver has presented no authority that would allow us to stay and

abate this proceeding so thatthe state court can conduct an evidentiary hearing.

Even if we did stay the federal proceeding, Oliver has failed to show why the

state court would grant him a hearing after it denied the exact same request in

its habeas decision. Further, Oliver failed to meet the stringent standard in

§ 2254(e)(2) that would allow a federal court to conduct an evidentiary hearing.

Congress has decided that a habeas applicant must jump a high hurdle before

a federal court can grant an evidentiary hearing, especially when the applicant

failed to develop the factual basis of his claim in state court. Therefore, we

DENY Oliver’s requestfor a stay and abatement and for an evidentiary hearing.

2. Substantive merits of Oliver’s Bible claims

Oral argument will assist the court in determining if Oliver is entitled to

habeas relief given the evidence presented in the state court post-conviction

hearing regarding the jury’s consultation of the Bible during deliberations.

Specifically, the parties are directed to focus on the following two issues: (1) as
No. 06-70006

16

a matter of law, did the jurors’ consultation of the Bible in the jury room

constitute an external influence that raises a presumption of prejudice under

clearly established federal law, as determined by the Supreme Court of the

United States; and (2) if so, has the state rebutted that presumption here? The

clerk will issue a briefing schedule for the parties to submit supplemental briefs

on these questions and will schedule oral argument in due course.

III. CONCLUSION

We DENY Oliver’s request for a COA on his three claims. We also DENY

Oliver’s request for a stay and abatement or for an evidentiary hearing. The

clerk will issue a briefing schedule and schedule oral argument for Oliver’s

remaining claims.