* 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. 07-70015

TERRY LEE HANKINS

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 Northern District of Texas

USDC No. 4:04-CV-875-Y

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Petitioner Terry Lee Hankins (“Petitioner”) seeks a certificate of

appealability (“COA”) and permission to appeal the district court's denial of

habeas corpus relief under 28 U.S.C. § 2254. Petitioner asserts that: (1) the

district court erred in denying his ineffective assistance of counsel claims when

his counsel failed to properly and adequately present mitigating evidence from

Petitioner’s childhood; failed to employ an expertto gather, analyze, and present

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-70015

1 See Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App.), cert. denied, 543 U.S. 944

(2004). 

2

the mitigating evidence; failed to have Petitioner tested by a qualified forensic

psychologist; and failed to object to the court’s jury instruction on mitigation; (2)

the district court erred in ruling that the jury instruction on the mitigation issue

did not violate the Eighth and Fourteenth Amendments; (3) Article

37.071(2)(e)(1) of the Texas Code of Criminal Procedure, relating to mitigation,

is unconstitutional because it does not place a burden of proof on the state; and

(4) the lethal injection method of execution used by the State of Texas violates

the Eighth Amendment. We conclude that reasonable jurists would not disagree

with the district court’s assessment of Petitioner’s claims, and we deny

Petitioner’s request for a COA. 

I.

Petitioner was convicted by a jury of the capital murders of two of his

wife’s children, and his punishment was assessed at death by lethal injection.

Petitioner appealed the conviction to theTexas Court of Criminal Appeals, which

affirmed the conviction, and the United States Supreme Court denied certiorari.1

Petitioner filed a state application for writ of habeas corpus, which was denied

by the state court. That denial was also affirmed by the Texas Court of Criminal

Appeals. 

Petitioner then petitioned the federal district court for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, contending that his conviction and

sentence are unconstitutional in several respects. The district court denied the

petition for a writ of habeas corpus and also declined to issue a COA. 

The gruesome facts adduced in this case will not be recounted here in full.

Suffice it to say, the state produced overwhelming evidence at the guilt phase of

the trial establishing that Petitioner killed his wife, Tammy Hankins, and her

two children, Kevin Galley and Ashley Mason. He left the naked bodies of the
No. 07-70015

2 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals from — the final order in a

habeas corpus proceeding in which the detention complained of arises out of process issued by

a state court.”). 

3 Haynes v. Quarterman, 526 F.3d 189, 192 (5th Cir. 2008) (citing Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (quoting 28 U.S.C. § 2253(c)(1))). 

4 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000). 

3

children and the body of their mother in the trailer in which they lived. There

was also evidence thatPetitioner engaged in sexual activity with and around the

dead bodies. In the punishment phase of the trial, Petitioner also confessed to

killing his half-sister, Pearl Sevenstar, with whom he fathered a son. He lied to

others about his sister’s whereabouts, saying that he had sent her to a home for

pregnant mentally-challenged women, when in fact he had stored her dead body

in a plastic container. He also admitted to killing his father, Earnie Hankins.

He told people his father had moved out of state, when in fact his father’s

mummified remains were in his trailer surrounded by air fresheners. The

defense counsel called several mitigating witnesses. We will discuss that

testimony below. 

II.

Petitioner must obtain a COA before he can appeal the district court’s

denial of habeas relief.2“This is a jurisdictional prerequisite because the

[Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] mandates

that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an

appeal may not be taken to the court of appeals . . . .’”3 According to AEDPA, a

COA may not issue unless “the applicant has made a substantial showing of the

denial of a constitutional right.”4 This standard requires a showing that

“‘reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues
No. 07-70015

5 Miller-El, 537 U.S. at 336 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983));

Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000). 

6 Miller-El, 537 U.S. at 336. In order to be entitled to relief on the merits, Petitioner

must show that the state court’s adjudication of the claim 

(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). 

7 Haynes, 526 F.3d at 192–93 (citing Miller-El, 537 U.S. at 336–37). 

8 Miller-El, 537 U.S. at 377 (citing Barefoot, 463 U.S. at 893 n.4); see also Slack, 529

U.S. at 484. 

9 Haynes, 526 U.S. at 193 (citing Miller-El, 537 U.S. at 338). 

4

presented were ‘adequate to deserve encouragement to proceed further.’”5 This

determination “requires an overview of the claims in the habeas petition and a

general assessment of their merits.”6

The Supreme Court has explained:

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

claims in the habeas petition and a general assessment of their

merits. We look to the district court's application of AEDPA to

petitioner's constitutional claims and ask whether that resolution

was debatable amongst jurists of reason. This threshold inquiry

does not require full consideration of the factual or legal bases

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

When a court of appeals side steps this process by first deciding the

merits of an appeal, and then justifying its denial of a COA based on

its adjudication of the actual merits, it is in essence deciding an

appeal without jurisdiction.7

In sum, Petitioner need not show that the appeal will ultimately succeed.8

Instead, Petitioner “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”9

“Any doubt regarding whether to grant a COA is resolved in favor of the

petitioner, and the severity of the penalty may be considered in making this
No. 07-70015

10 ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (citing Fuller v. Johnson,

114 F.3d 491, 495 (5th Cir. 1997)). 

11 Haynes, 526 F.3d at 193 (quoting Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir.

2006)). 

12 Thomas v. Lynaugh, 812 F.2d 225, 229 (5th Cir. 1987) (citing Cuyler v. Sullivan, 446

U.S. 335, 344–45 (1980)). 

13 466 U.S. 668 (1984). 

5

determination.”10 With regard to claims adjudicated on the merits in state court,

“‘[o]ur role is to determine not whether [Petitioner] is entitled to relief, but

whether the district court's conclusion that the state court adjudication was not

contrary to or an unreasonable application of clearly established federal law is

one about which jurists of reason could disagree or as to which jurists could

conclude that the issues presented are adequate to deserve encouragement to

proceed further.’”11

III.

A.

First, Petitioner contends that his counsel was ineffective because counsel

should have presented at his trial all of the detailed mitigating facts submitted

with his state habeas petition. Second, Petitioner argues that counsel should

have employed a “mitigation specialist” to conduct the mitigation investigation

rather than conducting it themselves. Third, Petitioner argues that counsel

should have had him tested by a qualified forensic psychologist. For these three

reasons, Petitioner alleges that counsel provided ineffective assistance in

violation of the Sixth Amendment, with respect to the mitigation issue. 

The Sixth Amendment guarantees a defendant in a criminal case

reasonably effective assistance of counsel.12 The standard against which counsel

is measured is setforth inStrickland v. Washington.

13 Petitioner must establish

(1) that counsel’s performance was deficient in that it fell below an

objective standard of reasonable professional service; and (2) that
No. 07-70015

14 Thomas, 812 F.2d at 229 (citing Strickland, 466 U.S. at 697–98). 

15 Strickland, 466 U.S. at 689. 

16 Id.

17 Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (internal citations and quotations

omitted). 

18 Petitioner’s step-mothers refused to testify, and Petitioner declined counsel’s offer to

subpoena them. 

6

this deficient performance prejudiced the defense such that there is

a reasonable probability that the outcome of the trial has been

undermined and the result would have been different.14

“Judicial scrutiny of counsel’s performance must be highly deferential,”15 and

counsel’s performance is subjectto a “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’”16 The prejudice

component of the Strickland test focuses on “whether counsel’s deficient

performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.”17

As to the first and second issues, the district court, agreeing with the state

habeas court, concluded thatthe evidence which was presented to the jury on the

mitigation issue was sufficient. It reasoned that much of the evidence Petitioner

complains was not presented was either redundant or was closely related to

evidence that was presented. The state court found that other evidence could

not be presented because certain witnesses refused to testify and because

Petitioner declined to have them subpoenaed.18 Additionally, some evidence

could only have been presented if Petitioner had agreed to testify. 

The district court noted that seven family members and friends, three

officers from the Tarrant County jail, and a clinical psychologist and former
No. 07-70015

19 The mitigating evidence Hankins complains his counsel did not produce at trial was

provided to the state habeas court through the report of a court-appointed forensic

psychologist, Dr. Kelly Goodness. The psychologist, in turn, obtained some of this information

from Hankins, and Petitioner did not establish what witnesses would have provided this

information at trial, except to argue that counsel could have had a psychologist testify. We

conclude supra however, that the state and district courts did not err in concluding that

counsel’s decision not to have a psychologist testify was sound trial strategy. 

7

employee of the Texas Department of Criminal Justice testified during the

punishment phase of the trial. Additionally, a spiral notebook in which

Petitioner made notes about his personal background was admitted into

evidence. This evidence clearly demonstrated that Petitioner endured verbal

and physical abuse from his father (who also kept him from his mother as a

child), was involved in incestuous relationships, was raised in poverty, abused

drugs and alcohol, had physical handicaps for which he was teased as a child,

and completed school only through the ninth grade. Petitioner’s mother also

testified thatPetitioner’s father physically abused her and threatened to kill her

and that she abused alcohol when Petitioner was young. 

Petitioner claims that counsel should have presented certain other

evidence to the jury. Although some evidence of each of these issues was

presented, he argues counsel should have presented further evidence of:

substance abuse by his mother and other family members, his father’s abuse of

his mother, his being kept away from his mother by his father, his physical

deformities, the history of incest in his family, the poverty in which he was

raised, his poor relationships with other family members, his own substance

abuse, and his troubled school-life.19 We agree with the state habeas court and

district court that additional evidence on these issues would not have made a

difference. 

The state habeas court determined that although not all evidence from

counsel’s investigation was presented, counsel employed sound trial strategy and

presented all evidence they believed would be favorable to Petitioner. The state
No. 07-70015

20 See United States v. Masat, 896 F.2d 88, 92 (5th Cir. 1990) (declining to permit a

defendant to avoid conviction on the ground that his lawyer did exactly what he asked him to

do); see also Strickland, 466 U.S. at 691 (“The reasonableness of counsel’s actions may be

determined or substantially influenced by the defendant’s own statements or actions.”). 

21 See Williams v. Lynaugh, 809 F.2d 1063, 1067–69 (5th Cir. 1987) (state can present

psychiatric testimony in rebuttal if defendantfirstintroduces psychiatric evidence on the issue

of future dangerousness or insanity). 

8

habeas court also found that counsel did an adequate job investigating, and

there was no requirement that a mitigation specialist be hired. The district

court agreed with the state habeas court and concluded that it was not error

under Strickland for counsel to decline to present redundant evidence, to

subpoena witnesses over Petitioner’s direction not to do so,20 or to decline to call

Petitioner as a witness because it would have opened him up to damaging cross

examination about his numerous, revolting violent criminal acts. 

Regarding Petitioner’s argumentthat counsel should have had him tested

by a qualified forensic psychologist,the district court explained that counsel had

retained a psychiatrist who examined Petitioner and recommended that he

not be psychologically tested because the results would be harmful to his case.

The district court determined under Strickland that counsel’s decision not to

have Petitioner tested by a psychologist was an informed decision based on

sound trial strategy because it prevented the state from having its own

psychologist examine Petitioner and offering evidence based on an independent

mental health expert examination.21

Our review of the record persuades us that reasonable jurists would not

disagree with the state court and the district court’s application of Strickland on

these three points. Reasonable jurists would agree that counsel performed

within the wide range of reasonable professional assistance for the reasons just

stated. The district court also agreed with the state court that with the

extensive aggravating evidence adduced at trial, there was no reasonable
No. 07-70015

22 See Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir. 1989) (finding no ineffective

assistance where counsel did not present character witnesses “[g]iven the weakness of such

testimony when juxtaposed with the overwhelming evidence of guilt, the horrifying nature of

the crime, and the abundant impeachment material available to the state.”). 

23 See TEX. CODE CRIM. PROC. Art. 37.071 §§ (2)(b), (2)(d)(1) (Vernon 1991). 

24 Id. at § (2)(d)(1). 

9

probability that further evidence of Petitioner’s abusive upbringing and

testimony from a psychologistthat he was a substance abuser with an anti-social

personality disorder would have resulted in a life sentence. We are satisfied that

jurists of reason would not disagree.22

B.

Petitioner argues next that he is entitled to relief because of an erroneous

jury instruction. At the punishment phase of the trial, the following instruction

was given to the jury: 

In deliberating on Special Issue No. 1 and Special Issue No. 2, the

jury shall consider all evidence admitted at the guilt or innocence

stage and the punishment stage, including evidence of the

defendant’s background or character or circumstances ofthe offense

that militates for or mitigates against the imposition of the death

penalty.

The relevant Texas statute provides that such a charge shall be given to the jury

with respectto the first special issue, concerning “future dangerousness,” but not

the second special issue, concerning whether mitigating evidence exists such

that a defendant should receive life imprisonmentinstead ofthe death penalty.23

As to the future dangerousness special issue, Texas law provides:

The court shall charge the jury that: . . . in deliberating on the

issues submitted under Subsection (b) of this article, it shall

consider all evidence admitted at the guilt or innocence stage and

the punishment stage, including evidence of the defendant’s

background or character or the circumstances of the offense that

militates for or mitigates against the imposition of the death

penalty.24
No. 07-70015

25 Id. at § (e)(1). 

10

As to the mitigation issue special issue, however, Texas law instructs that:

The court shall instruct the jury that if the jury returns an

affirmative finding to each issue submitted under Subsection (b) of

this article, it shall answer the following issue: Whether, 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.25

Petitioner objects to the instruction given to the extent that it directs the jury

to consider evidence that militates in favor ofthe death penalty during the jury’s

consideration ofthe mitigation issue. Petitioner contends that the court violated

the Eighth andFourteenth Amendments by giving this jury instruction and that

his Sixth Amendment rights were violated because counsel did not object to the

instruction. 

The state habeas court, in considering these claims, concluded that the

jury instruction did not violate the Eighth or Fourteenth Amendments. The

court reasoned that although the Constitution requires that a capital jury be

given a vehicle to consider relevant mitigating evidence, it does not require that

jurors be given an opportunity to consider mitigating evidence apart from all

other evidence adduced at trial. The federal district court determined that the

state habeas court did not err in this conclusion. 

Petitioner argues that the jury should have been able to consider

mitigating evidence in isolation from evidence of aggravating circumstances, and

thus the Eighth and Fourteenth Amendments were violated. But, “[t]he

Supreme Court has never precluded the use of aggravating circumstances as
No. 07-70015

26 Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998) (quoting Tuilaepa

v. Ca., 512 U.S. 967, 971–74 (1994)). 

27 Boyde v. California, 494 U.S. 370, 377 (1990). See also Franklin v. Lynaugh, 487 U.S.

164, 179 (1988) (the Supreme Court has never held that a specific method for balancing

mitigating and aggravating factors in capital sentencing is constitutionally required); Zant v.

Stephens, 462 U.S. 862, 890 (1983). Additionally, The Texas Court of Criminal Appeals has

squarely stated that 

[T]he mitigation issue does not require the jury to consider or find any

aggravating circumstances . . . . While the[] cases have some language

indicating that the mitigation question does not involve aggravating

circumstances, such language should properly be viewed as simply observing

that the issue does not require their consideration. Such an observation does

not, however, preclude permitting the jury to consider aggravating factors in

making its evaluation. We disavow any language in those cases that suggests

otherwise . . . . In determining whether to dispense mercy to a defendant after

it has already found the eligibility factors in the State’s favor, the jury is not,

and should not be, required to look at mitigating evidence in a vacuum . . .

[]consistent with Supreme Court precedent. 

Mosley, 983 S.W.2d at 263 n.18 (emphasis in original)(citations omitted). 

28 Petitioner also contends in his brief to this Court that the instruction violated Texas

law, but to be cognizable on federal habeas, there would have to have been a violation of a

federal right. See Smith v. McCotter, 786 F.2d 697, 702–03 (5th Cir. 1986) (citing Baldwin v.

Blackburn, 653 F.2d 942, 948 (5th Cir. 1981), cert. denied, 456 U.S. 950, reh’g denied, 457 U.S.

1112 (1982) (holding that a failure to comply with state law requirements presents a federal

habeas issue only if it involves federal constitutional issues)). Thus, to the extent that

11

part of the process of an individualized determination of culpability,” that is,

“whether a defendant should in fact receive a death sentence ‘on the basis of the

character of the individual and the circumstances of the crime.’”26 The Supreme

Court has explained:

Petitioner suggests that the jury must have freedom to decline to

impose the death penalty even if the jury decides that the

aggravating circumstances ‘outweigh’ the mitigating circumstances.

But there is no such constitutional requirement of unfettered

sentencing discretion in the jury, and States are free to structure

and shape consideration of mitigating evidence . . . .27

The district court in this case aptly noted: “The fact that the challenged jury

instruction was not the one provided for in the relevant Texas statute does not

render it unconstitutional.”28 Based on the above authorities, we are satisfied
No. 07-70015

Petitioner alleges that his incarcerationis the result of a violation of Texas procedural statutes,

yet the instruction given was not unconstitutional, his claim is not cognizable under federal

habeas review. 

29 See Boyde, 494 U.S. at 377; Franklin, 487 U.S. at 179; Zant, 462 U.S. at 890; Blystone

v. Pennsylvania, 494 U.S. 299, 307 (1990). 

12

that reasonable jurists would not disagree that the jury instruction did not

violate the Eighth or Fourteenth Amendments.29

As to Petitioner’s Sixth Amendment claim based on counsel’s failure to

object to the instruction, the Texas Court of Criminal Appeals, adopting the

findings of fact and conclusions of law of the lower court, concluded that the jury

instruction was not erroneous and that trial counsel was not deficient in failing

to object to this jury charge because such an objection would have been

overruled. The state habeas court further concluded that, given the amount and

type of evidence presented at trial, Petitioner had failed to establish a reasonable

probability that, had an objection been made and sustained, the result of the

trial would have been different. The district court agreed, explaining that

Petitioner did not establish prejudice due to counsel’s failure to object to the

charge. Given the vast evidence of Petitioner’s heinous acts, reasonable jurists

would agree that had the jury been instructed to only consider mitigating

evidence in deciding the mitigation special issue no reasonable probability exists

that the jury would have answered the mitigation question in the affirmative,

thereby reducing his sentence to a life sentence.

C.

Petitioner also argues that a lack of adequate mitigation evidence to avoid

a death sentence must be established by the state by proof beyond a reasonable

doubt. The Texas Code of Criminal Procedure Article 37.071(2)(e)(1), in force at

the time of trial, provides:

The court shall instruct the jury that if the jury returns an

affirmative finding to each issue submitted under Subsection (b) of
No. 07-70015

30 TEX. CODE CRIM. PROC. Art. 37.071 § (2)(e)(1) (Vernon 2001). Though inapplicable

in this case, this article was amended in 2005 to reflect a sentence of “life imprisonment

without parole” as the alternative sentence to death. 

31 See Allen v. State, 108 S.W.3d 281, 285 (Tex. Crim App. 2003); Rayford v. State, 125

S.W.3d 521, 529–30 (Tex. Crim. App. 2004). 

32 See Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2003) (holding that there is no

constitutional requirement that Texas’s mitigation issue be assigned a burden of proof);

Grandos v. Quarterman, 455 F.3d 529, 536–37 (5th Cir.), cert. denied, 127 S.Ct. 732 (2006)

(holding that a petitioner’s Sixth Amendment rights are not violated when state law does not

require the prosecution to prove the absence of mitigating factors beyond a reasonable doubt).

33 Rowell, 398 F.3d at 378.

34 Id.

13

this article [finding defendant to be a continuing threat to society

and that defendant actually caused the death, intended to kill, or

anticipated that a human life would be taken], it shall answer the

following issue: Whether taking into consideration all of the

evidence, including the circumstances of the offense, the defendant’s

character and background, and the personal moral culpability ofthe

defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment

rather than a death sentence be imposed.30

The state habeas court, citing precedent from the Texas Court of Criminal

Appeals, held that the absence of a burden of proof on this issue did not render

the statute unconstitutional.31 The district court also found no violation of

federal law, citing to this Court’s precedent.32In Rowell v. Dretke, this Court

explained: “No Supreme Court or Circuit precedent constitutionally requires

that Texas’s mitigation special issue be assigned a burden of proof.”33 The

district court in Rowell “explained that no burden of proof exists for either the

defendant or the State to prove or disprove mitigating evidence at the

punishment phase.”34 Thus, we held that “reasonable jurists would not be able

to debate whether this issue should have been resolved in a different manner by
No. 07-70015

35 Id.

36 128 S.Ct. 1520 (2008). 

37 Id. at 1533–37. 

14

the district court.”35 Therefore, jurists of reason would not disagree with the

district court’s conclusion that a burden of proof is not constitutionally required

on the mitigation issue. 

D.

Petitioner also argues that Texas’s method of lethal injection, which

incorporates the use of sodium thiopental, pancuronium bromide, and potassium

chloride, violates the Eighth Amendment’s protections against cruel and unusual

punishment. The state habeas court and the federal district court both found

thatthis method of execution did not violate the Eighth Amendment. This issue

has now been definitively resolved by the United States Supreme Court in Baze

v. Rees.

36 In that case, the Supreme Court held that Kentucky’s use of the same

three-drug protocol in lethal injections does not offend the Eighth Amendment.37

Thus, the district court’s conclusion is not one debatable by jurists of reason, in

light of Baze.

IV.

For the foregoing reasons, Petitioner’s application for COA is denied. 

DENIED.