* 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. 08-70001

DERRICK LAMONE JOHNSON

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

Dallas Division

(3:03-CV-2606)

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner Derrick Lamone Johnson (“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 the district

court (1) erred in denying his claim that the trial court’s failure to define

“society” as including “prison” in connection with the special instruction on

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2008

Charles R. Fulbruge III

Clerk
No. 08-70001

2

“continuing threatto society” violated his due process rights under the Fifth and

Fourteenth Amendments; (2) erred in concluding that the trial court’s refusal to

allow the jury to consider Petitioner’s eligibility for parole in considering

whether he would be a continuing threat to society violated his Fifth and

Fourteenth Amendment rights; and (3) erred in concluding that the cumulative

effect of the violations asserted above did not violate his Fifth and Fourteenth

Amendment rights. We conclude that reasonable jurists would not disagree with

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

Petitioner’s request for a COA.

I.

Petitioner was convicted of capital murder in the 282nd District Court,

Dallas County, Texas, and sentenced to death by lethal injection. His conviction

and sentence were affirmed on direct appeal by the Texas Court of Criminal

Appeals. Petitioner’s application for state post-conviction relief was denied.

Petitioner thereafter filed an application for a writ of habeas corpus in the

federal district court which was also denied. Petitioner now seeks a certificate

of appealability from this court.

The facts produced by the State were summarized by the Texas Court of

Criminal Appeals. Based on that summary, the circumstances surrounding this

crime are as follows: Petitioner and Marcus Maxwell kidnaped a young woman,

LaTausha Curry, in Dallas, Texas, on January 21, 1999. She was never again

seen alive. In a written confession and a verbal statement, Petitioner admitted

that, with his accomplice, he had sexually assaulted and killed Curry, and he

accurately told the police where the as-yet-undiscovered body could be found.

Petitioner’s fingerprints were matched to fingerprints found in Curry’s car, and

his DNA to seminal fluid found on Curry’s pants.
No. 08-70001

1 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. § 2253(c)(1)).

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

3

Curry’s assault and murder occurred during an ongoing crime spree. At

around midnight on January 22, shortly after murdering Curry, Petitioner and

his accomplice robbed Stella Wilson at gunpoint at a gas station. Within two

hours after that robbery, the men, driving Curry’s vehicle, chased and collided

with Tanya Robinson while she was driving home from work. Robinson was able

to call the police, who joined the chase but were unable to apprehend the men

at that point.

Petitioner was later arrested and charged with the capital murder of

Curry, on evidence gathered from the car and eyewitness accounts of some of

that night’s events. He was found guilty. During the sentencing phase, the

State presented evidence of Petitioner’s prior crimes, including the abduction,

sexual assault, and attempted strangulation of Renee Williams by Petitioner and

an accomplice. The jury sentenced Petitioner to death by lethal injection.

II.

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

denial of habeas relief. 28 U.S.C. § 2253(c)(1). “This is a jurisdictional

prerequisite because the COA statute 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 . . . .’”1 According to the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has

made a substantial showing of the denial of a constitutional right.”2 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
No. 08-70001

3 Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)),

quoted in Miller-El, 537 U.S. at 335. See also Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.

2000). 

4 Miller-El, 537 U.S. at 336–37. 

5

Id. at 337; see also Slack, 529 U.S. at 484. 

6

Id. at 338 (quoting Slack, 529 U.S. at 484). 

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

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

4

manner or that the issues presented were ‘adequate to deserve encouragement

to proceed further.’”3 The Supreme Court has explained:

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

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.4

In sum, Petitioner need not show that the appeal will ultimately succeed.5

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

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

6

“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

determination.”7 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 thatthe 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
No. 08-70001

8 Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir. 2008) (quoting Jackson v. Dretke,

450 F.3d 614, 616 (5th Cir. 2006)) (alterations in original). 

5

presented are adequate to deserve encouragement to proceed

further.”8

III.

Petitioner first argues that the trial court’s failure to define “society” as

including “prison” violated his due process rights under the Fifth and Fourteenth

Amendments. Texas Code of Criminal Procedure article 37.071(b)(1) requires

that the following issue be submitted to the jury on conclusion of the

presentation of evidence: “whether there is a probability that the defendant

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

to society.” Special Issue No. 1, which the jury must answer, reads as follows:

“Do you find from the evidence beyond a reasonable doubt that there is a

probability thatthe defendant, DerrickLamone Johnson, would commit criminal

acts of violence that would constitute a continuing threat to society?” Petitioner

acknowledges that courts have refused to define the term “society,” reasoning

that the term has a common understanding and that such explanation would be

redundant.

Before the trial court, state appellate court and the federal district court

Petitioner argued that the term “continuing threat to society” was vague, in

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner

argued to the district court that the trial court’s failure to define certain critical

terms, including “continuing threatto society,”thereby unconstitutionally failed

to narrow the class of persons eligible for the death penalty. The argument

made before the state courts and the federal district court regarding this phrase,

however, did not include the specific argument he makes to us that “continuing

threat to society” should include “prison.” 
No. 08-70001

6

The first time that Petitioner made his argument that “society” should

have been defined to include “prison” was in his Motion for New Trial in the

federal district court. Motions for a new trial, however, “‘cannot be used to raise

arguments which could, and should, have been made before the judgment issued.

Moreover,they cannot be used to argue a case under a new legaltheory.’” Simon

v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (quoting FDIC v. Meyer,

781 F.2d 1260, 1268 (7th Cir. 1986) (citations omitted)). In the state courts, and

in his pre-judgment arguments to the district court, Petitioner argued generally

that “society” was vague and ambiguous. He cannot now change his argument

in post-judgment motions and on appeal. Because he failed to bring his

argument in a timely manner, a writ of habeas corpus cannot be issued on it.

“An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that — (A) the applicant has exhausted the remedies available in the courts of

the State . . . .” 28 U.S.C. § 2254(b)(1). “ To exhaust his state remedies, a habeas

petitioner must fairly present the substance of his claim to the state courts. . .

. . The exhaustion requirement is not met if the petitioner presents new legal

theories or factual claims in his federal habeas petition.” Finley v. Johnson,

243 F.3d 215, 219 (5th Cir. 2001) (citing Picard v. Connor, 404 U.S. 270, 275–76

(1971); Anderson v. Harless, 459 U.S. 4, 6-7 (1982)). Consequently, Johnson’s

failure to raise this claim in the Texas courts means that he has failed to

exhaust state court remedies as required by section 2254(b). Id. See also Jones

v. Johnson, 171 F.3d 270, 276–77 (5th Cir. 1999); Nobles v. Johnson, 127 F.3d

409, 419–22 (5th Cir. 1997).

Furthermore, Johnson is now precluded from returning to the Texas courts

by the Texas Code of Criminal Procedure, which prohibits a successive state

habeas application unless, e.g.,“the current claims and issues have not been and

could not have been presented previously in a timely initial application or in a
No. 08-70001

9 Alternatively, it is also clear that jurists of reason would not disagree with the district

court’s conclusion that “society” or “continuing threat to society” need not be defined. As the

district court noted and amply supported with citations, “[t]his Circuit has consistently

approved the use of the term[] . . . ‘continuing threat to society’ without definition over

objections that they are unconstitutionally vague as used in these sentencing instructions.”

Johnson v. Quarterman, 2007 WL 2735638, *26 (N.D. Tex. 2007); see, e.g., Leal v. Dretke, 428

F.3d 543, 553 (5th Cir. 2005). The district court correctly concluded that it was bound on this

issue by Circuit precedent. 

10 It should be noted that at the time of Petitioner’s trial, Texas law required any

person serving a life sentence to serve at least 40 years before becoming eligible for parole.

7

previously considered application . . . because the factual or legal basis for the

claim was unavailable on the date the applicant filed the previous application.”

TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a)(1). See, e.g., Nobles, 127 F.3d at

422 (discussing article 11.071, § 5). “[T]his bar represents an additional adequate

state procedural ground which bars federal review of his claim. If a petitioner

fails to exhaust state remedies, but the court to which he would be required to

return to meet the exhaustion requirement would now find the claim

procedurally barred, then there has been a procedural default for purposes of

federal habeas corpus relief.” Finley, 243 F.3d at 220 (citations omitted).

Because the argumentthat“society” should include “prison”is differentfrom the

vagueness argument and was raised for the first time in Petitioner’s Motion for

New Trial, we are precluded from considering it. Therefore, Petitioner’s “society”

argument does not warrant the issuance of a COA.9

IV.

Petitioner next argues that the trial court’s refusal to allow the jury to

consider his eligibility for parole violated his due process rights under the Fifth

and Fourteenth Amendments. He complained that the sentencing jury was not

allowed to fairly consider his future dangerousness in light ofthe factthat Texas

law required him to serve a mandatory forty years before being eligible for

parole.10 The trial court instructed the jury as follows:
No. 08-70001

Johnson, 2007 WL 2735638 at *11. Under current Texas law, which is inapplicable here, life

without parole is now the alternative sentence to a death sentence. See TEX. CODE CRIM.

PROC. ANN. art. 37.071. 

11 Johnson, 2007 WL 2735638 at *6 (emphasis in original). 

12 Id at *11 (N.D. Tex. 2007) (quoting Simmons, 512 U.S. 154, 168-69 (1994)) (emphasis

added).

8

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

to imprisonment in the institutional division of the 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

conducttime. 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 law

[sic] will depend on decisions made by prison and parole authorities,

but eligibility for parole does not guarantee that parole will be

granted. You are further instructed that you cannot consider how

long the defendant might be required to serve a sentence that is

imposed. Such matters come within the exclusive jurisdiction of the

Board of Pardons and Paroles and are no concern of yours.11

Petitioner alleges that the italicized portion of the instruction misled the jury

into thinking that he could be released sooner than the law permits. He argues

that the jury should have been instructed specifically on his parole eligibility

after forty years. 

The district court quoted the following rule from Simmons v. South

Carolina:

[I]f the State rests its case for imposing the death penalty at least

in part on the premise that the defendant will be dangerous in the

future, the fact that the alternative sentence to death is life without

parole will necessarily undercutthe State’s argument regarding the

threat the defendant poses to society.12

Therefore, as the district court concluded, “Simmons requires that the jury be

instructed aboutthe defendant’s parole eligibility ‘only where state law provides
No. 08-70001

13 Id. (quoting Simmons, 512 U.S. at 156, and citing Ramdass v. Angelone, 530 U.S.

156, 166 (2000); Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002)) (emphasis added). 

14 Id. at *11-12 (citing Miller v. Johnson, 200 F.3d 274, 290–91 (5th Cir. 2000)

(“[B]ecause Miller would have been eligible for parole under Texas law if sentenced to life, we

find his reliance on Simmons ‘unavailing.’”)).

15 Id. at *12 (citing Woods, 307 F.3d at 361-62; Coleman v. Quarterman, 456 F.3d 537,

544-45 (5th Cir.2006); Hughes v. Dretke, 412 F.3d 582, 591-92 (5th Cir.2005)).

16 481 F.3d at 298. 

17 Id. 

9

for life imprisonment without possibility of parole as an alternative to the death

penalty.’”13 The Simmons rule just described does not apply to this case because

under Texas law Petitioner would have been eligible for parole.14 Furthermore,

following this Circuit’s precedent, the district court explained that “any

extension of Simmons would be barred under the non-retroactivity doctrine

announced in Teague [v. Lane, 489 U.S. 288 (1989)].”15

Petitioner argues that this Circuit’s cases holding that Simmons is

inapplicable should not be applied to his case because the wording of the jury

instruction cautioned the jury to not consider the forty year minimum, and so in

this context, the jury instruction was misleading. But this same issue was

recently addressed by this Court in Turner v. Quarterman, 481 F.3d 292 (5th

Cir. 2007). Turner argued that “where the state court did inform the jury that

[he] would not be eligible for parole for forty years, it was a violation of due

process and Simmons for the court then to inform the jury not to consider parole

eligibility.”16 We concluded that Simmons was inapplicable and thatin deciding

future dangerousness, parole eligibility is irrelevant because the jury is entitled

to consider that the inmate still poses a danger to other inmates.17 The

argument Petitioner makes is the same as the one we rejected in Turner. We,

therefore, deny a COA on this claim.
No. 08-70001

18 Johnson, 2007 WL 2735638 at *31.

19 Turner, 481 F.3d at 301 (quoting Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993)).

10

V.

Finally, Petitioner requests a COA on his claim that the cumulative affect

of the above violations denied his due process. We agree with the district court

that “[t]here are no errors of a constitutional dimension properly before the

court.”18 In this Circuit, “where individual allegations of error are not of

constitutional stature or are not errors,there is ‘nothing to cumulate.’”19 Jurists

of reason would not disagree with this conclusion that there was no error. We

deny a COA on this claim.

CONCLUSION

For the reasons stated above, Johnson’s application for a COA is denied.

COA DENIED.