IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70001

RAY JASPER, 

 Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:08-CV-735

Before DENNIS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Ray Jasper was convicted of a robbery-related murder and sentenced to

death. He presses his appeal to this court on the single ground that the district

court granted a certificate of appealability (“COA”)—a potential Batson

violation—while also requesting a COA on various issues that the district court

United States Court of Appeals

Fifth Circuit

F I L E D

April 26, 2012

Lyle W. Cayce

Clerk

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.

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rejected. We reject his Batson claim, deny the COA on the remaining issues, and

AFFIRM the district court in all regards.

FACTS AND PROCEEDINGS

Jasper was found guilty of robbery-related capital murder with a deadly

weapon and sentenced to death. He planned and carried out the murder of an

acquaintance and later confessed to his crime. The Texas Court of Criminal

Appeals on direct review outlined the facts of the murder. 

David Alejandro owned and operated a music recording studio

where musicians could have their music professionally recorded for

a fee. This business required the use of various pieces of electronic

equipment such as computers, soundboards and microphones.

[Jasper] and some of his friends frequently recorded their rap music

at the studio. At some point, [Jasper] decided to steal Alejandro’s

equipment in order to make money from its sale. Aware that

Alejandro would be able to identify him, [Jasper] also decided to kill

Alejandro so that there would be no witnesses. He enlisted the help

of two friends to assist in removing the heavy equipment from the

studio.

On November 21, 1998, [Jasper] purchased large bags from an

Academy store. A week later, he and his accomplices drove two vans

to Alejandro’s studio. [Jasper] and one accomplice carried concealed

knives. The three had made an appointment at the studio and

spent about two hours there while Alejandro recorded their music

before they decided it was time to kill him. [Jasper] slashed

Alejandro’s throat from ear to ear, but did not kill him. [Jasper] and

one accomplice continued to attack Alejandro until he died as a

result of multiple stab wounds to his chest and abdomen. [Jasper]

covered the body with a sheet taken earlier from [Jasper’s] bed, and

the group began loading equipment into the vans. [Jasper] fled on

foot when an off-duty police officer arrived to investigate the scene,

but was apprehended days later outside his home. 

On December 2, 1998, [Jasper] confessed to police that he had

planned the crime and recruited two accomplices. His confession

describes events in detail that were later corroborated by [Jasper’s]

girlfriend, Christina Breton, police officers, security guards, and

physical evidence discovered by investigators. Breton testified that

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several days before the commission of the crime, [Jasper] had told

her about his plan to steal Alejandro’s equipment and kill him.

Jasper v. State, 61 S.W.3d 413,417 (Tex. Crim. App. 2001).

On direct review, the Texas Court of Criminal Appeals affirmed his

conviction and his sentence. Id. Jasper did not seek certiorari review from the

U.S. Supreme Court. His application for state habeas corpus relief for ineffective

assistance of counsel was denied. Ex parte Jasper, No. WR-68832-01, 2008 Tex.

Crim. App. Unpub. LEXIS 536 (Aug. 20, 2008). 

Jasper sought a COA in the district court for the Western District of Texas

asserting fourteen grounds for relief. In a comprehensive 187-page opinion, the

district court denied all but one claim. Jasper v. Thaler, 765 F. Supp. 2d 783

(W.D. Tex. 2011). The district court granted a COA on his Batson equal

protection claim for allegedly race-based use of peremptory challenges during

voir dire. Jasper presses his appeal on that front while also seeking a COA on

various other grounds. 

The sole issue on which Jasper was granted a COA was an alleged Batson

violation. In Batson, the Supreme Court held that the use of a peremptory strike

against a venire member on racial grounds violated the Equal Protection Clause.

Batson v. Kentucky, 476 U.S. 79, 89 (1986). It also established a process by which

defendants may contest the use of a purportedly racially motivated peremptory

strike. 

[A] defendant may establish a prima facie case of purposeful

discrimination in selection of the petit jury solely on evidence

concerning the prosecutor’s exercise of peremptory challenges at the

defendant’s trial. To establish such a case, the defendant first must

show that he is a member of a cognizable racial group, and that the

prosecutor has exercised peremptory challenges to remove from the

venire members of the defendant’s race . . . [T]he defendant must

show that these facts and any other relevant circumstances raise an

inference that the prosecutor used that practice to exclude the

veniremen from the petit jury on account of their race. 

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. . . 

Once the defendant makes a prima facie showing, the burden shifts

to the State to come forward with a neutral explanation for

challenging black jurors. Though this requirement imposes a

limitation in some cases on the full peremptory character of the

historic challenge, we emphasize that the prosecutor’s explanation

need not rise to the level justifying exercise of a challenge for cause.

. . . The prosecutor therefore must articulate a neutral explanation

related to the particular case to be tried. The trial court then will

have the duty to determine if the defendant has established

purposeful discrimination.

Id. at 96-98 (internal citations and quotation marks omitted). The Court has

refined this process in subsequent cases. In Purkett v. Elem, the Court stated

that an implausible or unbelievable justification for the strike must be found to

be a pretext for purposeful discrimination. 514 U.S. 765, 768 (1995). The party

alleging purposeful discrimination ultimately bears the burden of persuasion.

United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998). 

Jasper raises a Batson challenge to the peremptory strike of venire

member Vernon Galloway. All members of the venire filled out a lengthy

questionnaire prior to individual voir dire. Unfortunately, the questionnaires

were not made part of the direct appellate record and have been lost for review.

The transcript of the voir dire examination of Mr. Galloway is the only way to

examine his answers to the questionnaire.

Galloway made numerous statements under questioning by the prosecutor. 

• He said that he believed the death penalty was appropriate in some cases

but that he could never return a verdict which assessed the death penalty.

In response to a question by the prosecution on that answer he responded

by saying, “Well, it’s just that I can’t play the role of God. I can’t send

nobody, you know, to death.” 

• In reference to the prosecutor saying that “you personally could not be

involved as one of the twelve jurors who would ever answer those

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questions in such a way as a man’s life would be taken,” Galloway

answered, “I don’t believe I can. But if I have to, I can make a decision.” 

• To follow up, the prosecutor asked: “If you were selected to sit as a juror

in this case, could you answer those three punishment questions in such

a way that you would know that the result of the way you answered those

question that a man would be sentenced to death?” Galloway replied,

“Yes.”

• It was revealed that he had answered “Yes” and “too often” in reference to

a question of whether the death penalty was ever misused. On follow up,

he indicated that he thought innocent men had been executed and their

innocence was not discovered until it was too late.

• According to the questionnaire, Galloway’s greatest fear was that he

would not have enough evidence to decide a case. Upon explanation by the

prosecution of the burden of proof required in the trial, Galloway indicated

that he would have to personally ask questions to eliminate reasonable

doubt in his mind if he felt there was not “enough evidence.” 

• Upon explanation by the prosecution that he would not be able to ask

questions, he explained that he would ask them to the other jurors. 

• He checked on his questionnaire that “capital [punishment] is absolutely

never justified.” On follow-up the prosecutor asked him “when it would not

be too harsh?”(emphasis added). He responded “When you don’t have

enough evidence.”

• He indicated on his questionnaire that he thought “capital punishment is

the most hideous practice of our time.”

• He stated that he strongly agreed that if someone is accused of capital

murder, he should “have to prove his innocence.” When the prosecutor

explained that the burden was on the prosecution to prove guilt, he

responded by saying, “I believe people have to prove it strongly.” He then

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went on to relate a story where an assaulter would have to prove, through

the help of his lawyers, that he had not committed the crime

• He responded on the questionnaire that his friends describe him as

“crazy.” In voir dire, he indicated that he meant that he “joke[d] a lot.”

• Finally, he indicated during voir dire that he could answer the three

sentencing questions in such a way that he would know he was sentencing

someone to death. 

During the defense portion of the voir dire, Galloway was again told the

appropriate burden of proof that applied to the case. He indicated that he could

impose the death penalty if he felt there was enough evidence. At that point,

defense counsel pointed out to Galloway that the defendant was black and that

Galloway was the only black member of the panel. He then started to ask him

if he would treat the defendant any differently. The prosecution objected and the

court sustained the objection. During defense voir dire Galloway indicated that:

• he could assess capital punishment if given enough evidence;

• sometimes the criminal deserves capital punishment;

• we must have capital punishment for some crimes;

• capital punishment is wrong but it is necessary in an imperfect

civilization;

• he had not understood the prosecution’s question about his questionnaire

answer agreeing with the statement “that capital punishment cannot be

regarded as a sane method for dealing with crime”;

• he had not understood the prosecution’s question about whether the death

penalty was never justified;

• he agreed with his questionnaire answer that “capital punishment may be

wrong but it is the best preventative to crime”;

After the prosecutor exercised his peremptory challenge and the judge had

dismissed Galloway, Jasper’s attorney belatedly raised a Batson challenge. The

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district court told him that he was supposed to make the challenge before the

venire member was dismissed, but nevertheless let him lodge his challenge.

After arguing with the trial judge that the prosecution had struck all the black

members of the venire, the defense lawyer was permitted to question the

prosecution’s decision to strike Galloway. The prosecutor cited a variety of raceneutral factors, including his: 

• belief that Galloway’s first impression of the death penalty was not

positive, stating, “I believe Mr. Galloway believes that the death penalty

is appropriate in some cases. [Although Galloway also stated,] ‘But I can

never return a verdict which addressed the death penalty.’”; 

• unease with Galloway’s answer that the defendant would have had to

have a prior run-in with the law before assessing the death penalty; 

• unease with Galloway’s answer that capital punishment is absolutely

never justified;

• unease with Galloway’s answer that capital punishment is the most

hideous practice of our time;

• uncertainty whether Galloway trusted the criminal justice system in

Bexar County, Texas; 

• concern about Galloway’s answer that his best friends describe him as

crazy. The prosecutor stated, “It was somewhat tempered by his

explanation, but it still left me feeling a little bit unsettled in terms of the

decorum I would want to have on a jury in this case;”

• opinion that Galloway’s gold-hoop earing was a little bit of “an outlier” for

a fifty-two year old man, and that he was not interested in having jurors

that are “outliers of the norm;”

• thought that Galloway might have been influenced by the inappropriate

insinuation by the defense;

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• dislike of Galloway’s demeanor when he was asked by defense counsel

about the death penalty being a sane method to deal with crime. The

prosecutor explained that “there was something at that moment in his

mannerisms that suggested to me that he still does not believe that it is

a sane method of dealing with crime.”

Upon questioning by the defense regarding Galloway’s assertion that he

was rushed in answering the questionnaire, the prosecutor responded that there

was no one rushing him and the fact Galloway felt rushed also entered into his

mind as a reason for striking him. After more discussion between the prosecutor

and defense counsel about the questionnaire and why the prosecutor had asked

Galloway about certain questions on the questionnaire and not others, the judge

ruled against the Batson challenge stating that he believed the prosecutor had

given racially-neutral reasons.

On direct appeal, the Court of Criminal Appeals rejected Jasper’s equal

protection claim and upheld his conviction and sentence. Jasper, 61 S.W.3d at

424. The court stated that “numerous written answers in the pre-voir dire

questionnaire indicating a bias against the imposition of the death penalty can

constitute a valid reason to exercise a peremptory challenge” and that “the

record support[ed] the prosecutor’s reasons for exercising a peremptory challenge

against the venireperson in question.” Id. at 422. When Jasper raised the equal

protection claim in state habeas proceedings, the convicting court held it would

not revisit the issue since it had been heard on appeal and thus could not form

the basis for state habeas relief. The Court of Criminal Appeals accepted the

convicting court’s findings and denied relief. Ex parte Jasper, 2008 Tex. Crim.

App. Unpub. LEXIS 536. 

The district court for the Western District of Texas reviewed the state

court’s analysis and denied relief but granted a COA on the Batson issue for

several reasons. Jasper, 765 F. Supp. 2d at 877. First, the state trial judge made

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no express factual finding regarding the credibility of the prosecution’s race

neutral reasons for striking Galloway. Id. Second, there were no copies of the

juror questionnaires available to the state appellate court or to the district court.

Id. Third, Galloway’s answers with regard to the death penalty differed so

widely between his written statements and his oral voir dire that the district

court felt this placed particular significance on the trial court’s “favorable

credibility determinations of the prosecution’s race-neutral explanations.” Id.

Fourth, the prosecution accepted another venire member who had expressed

reluctance about the death penalty. Id. Fifth, the district court wanted guidance

on how to handle the lack of venire members’ questionnaires and whether or not

failure to preserve those questionnaires effectively waives a Batson claim. Id.

DISCUSSION

A. BATSON VIOLATION

Jasper’s Batson claim is subject to review under the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). Under

AEDPA, a federal court may not grant habeas relief for a defendant convicted

of a state court judgment unless the constitutional adjudication by the state

court a) “was contrary to federal law then clearly established in the holdings of

[the Supreme Court];” b) “involved an unreasonable application of such law;” or

c) “was based on an unreasonable determination of the facts in light of the record

before the state court.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (internal

citations and quotation marks omitted). Under Williams v. Taylor, a “run-of-themill” state court decision applying the correct precedent to the facts of the case

is reviewed for an “unreasonable application.” 529 U.S. 362, 406-07 (2000).

Federal habeas relief is only warranted where the state-court decision is both

incorrect and objectively unreasonable, “whether or not [this Court] would reach

the same conclusion.” Woodford v.Visciotti, 537 U.S. 19, 27 (2002). 

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Even seemingly strong cases do not necessarily merit relief from the

reviewing court because the state court’s contrary conclusion may not have been

unreasonable. Richter, 131 S. Ct. at 786. The Fifth Circuit has previously held

that a federal court reviews only the state court’s ultimate decision—not every

link in the state court’s reasoning. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.

2002) (en banc); see also Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)

(“[W]e review only the state court’s decision, not its reasoning or written

opinion.”). Finally, lower courts are not permitted to establish a new principle

of constitutional law under AEDPA review. See Williams, 529 U.S. at 381. 

Appellant’s Arguments

Appellant’s arguments focus on the supposed disparate treatment of

Galloway compared to other, non-black jurors who gave similar answers on the

questionnaire. As Jasper points out, the constitution forbids striking even a

single prospective juror for a discriminatory purpose. Snyder v. Louisiana, 552

U.S. 472, 478 (2008); Reed v. Quarterman, 555 F.3d 364, 381 n.12 (5th Cir.

2009). Jasper argues that white jurors who gave similar answers on their 

questionnaires but changed those answers in oral voir dire were accepted by the

prosecution and that Galloway was not. 

As he did at the district court, Jasper suggests comparing the way other

jurors were treated to see if Galloway’s strike was racially motivated. See

Snyder, 552 U.S. at 483. Jasper argues that we should compare Galloway to two

different groups of people: the other black venire members, and to other, nonminority venire members.1

Analysis of Hagans’ answers compared with Galloway’s

Contrary to Jasper’s attorney’s contention during voir dire with Galloway, there was

1

in fact one other black venire member, Natasha Hagans. 

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On his first point of suggested comparison, Jasper’s argument is weak.

Jasper argues that Hagans was struck because she was black. Jasper’s briefing

on this point is exceedingly convoluted but he appears to make an illogical leap

that even though Hagans gave different answers between the questionnaire and

voir dire, striking her somehow shows racial bias in the dismissal of Galloway,

the other black member of the venire. He contends that the Prosecutor’s further

questioning of Galloway and Hagans regarding the different answers they gave

on their questionnaires compared to their voir dire answers, somehow shows

bias towards Galloway because of his race. He states “[b]ut when Mr. Galloway

testified opposite to his questionnaire, the prosecutor didn’t accept those [voir

dire] answers as valid.”

This muddled reasoning aside, any comparison to Hagans is especially

unpersuasive when reviewing some of the answers that Hagans gave during voir

dire. 

Ms. Hagans testified during her voir dire, in pertinent part: (1) she

had a number of teenage friends (four or five) who had been

murdered when she lived in Virginia and she felt the police in

Virginia had failed to properly investigate those crimes and bring

the perpetrators to justice, (2) in her experience, police officers were

intimidating, (3) she had a younger brother who was in jail for

violating parole and writing bad checks, (4) her daughter’s father

sold crack and marijuana while they were together and had served

time in jail for his drug dealing but resumed drug dealing once he

got out of jail, and (5) she believed a person who committed murder

should get life in prison. At that point, the prosecution exercised a

peremptory challenge and petitioner’s defense counsel raised a

Batson objection. 

Jasper, 765 F. Supp. 2d at 816. During the Batson challenge regarding Hagans,

the prosecutor cited her hostility toward police officers, who she described as

“intimidators”, her romantic relationship with a crack dealer, her belief that her

brother should receive a second chance despite his long criminal record, and her

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oral testimony that she believed convicted murderers should receive life in

prison. Id. at 817. The judge then overruled the Batson challenge and removed

her from the venire. 

The comparison between Galloway and Hagans is of little use. Hagans

gave multiple answers which could cause a prosecutor to hesitate to have her on

any jury, and her anti-death penalty answers were similar to Galloway’s thus

supporting the prosecution’s argument that Galloway was dismissed for raceneutral reasons. 

Analysis of prosecutor’s questioning of non-black members compared toGalloway

Jasper’s second point of comparison under the Snyder standard is a

comparison between Galloway and other, non-black, venire members. He cites

multiple instances in which non-black members of the venire gave similar

answers on the questionnaire or during oral testimony, including expressing

opposition to the death penalty. According to Jasper, these answers did not

disqualify them from serving, but did disqualify Galloway, demonstrating racial

motives behind the peremptory strike.

The district court analyzed the voir dire exchanges in detail and found

that, contrary to Jasper’s argument, none of the other potential jurors came close

to giving a pattern of answers similar to Galloway’s. See id. at 817; see also

Snyder, 552 U.S. at 483 (“[A] retrospective comparison of jurors based on a cold

appellate record may be very misleading when alleged similarities were not

raised at trial. In this situation, an appellate court must be mindful that an

exploration of the alleged similarities at the time of the trial might have shown

that jurors in question were not really comparable.”). It is not surprising that

some individual answers were similar or identical to Galloway’s because of the

length of the questionnaires and the number of questions involved. As the

district court explained:

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This Court’s independent review of the voir dire of all the venire

members reveals no instances in which Black venire members were

questioned in a manner dramatically different from the questioning

of venire members of other ethnic groups. Unlike the situation in

Miller-El, there does not appear to have been a blatant use of

graphic voir dire questions about the process of carrying out an

execution in Texas at the commencement of voir dire for Black

venire members. Nor did this Court identify anything else that was

different about the way the prosecution chose to conduct voir dire of

Black venire members, as opposed to non-Black venire members.

The state trial court could reasonably have concluded there was

nothing about the prosecution’s questioning of the jury venire as a

whole which supported a finding the strike of Mr. Galloway was

racially motivated.

Jasper, 765 F. Supp. 2d at 819. The district court went on to explain: “The

prosecution appeared to question every member of the jury venire who gave any

questionable answers on their juror questionnaires regarding their views on the

efficacy of the death penalty in a similar, open-ended manner.” Id. at 821. We

agree with the district court’s conclusions. Further, Jasper fails to demonstrate

that any other juror expressed as many reservations about the death penalty as

Galloway did on his questionnaire. 

Conclusions Regarding the Batson Challenge of Galloway

Jasper’s claim that Galloway was removed for racial reasons in violation

of the Fourteenth Amendment is unpersuasive. Although he established a prima

facie case, the failure to preserve the questionnaires in the record makes the

comparative analysis he seeks difficult to conduct. Jasper has the burden of

proving that the discrimination was purposeful. See Woodward v. Epps, 580 F.3d

318, 338 (5th Cir. 2009) (noting that petitioner must carry burden of proving

purposeful discrimination but declining to find waiver of comparative analysis).

The record does not indicate why the questionnaires were not included in the

trial court record, but that does not negate the fact that the burden is on the

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plaintiff to demonstrate that the prior findings were erroneous. There is nothing

which would indicate that Jasper has met this burden, especially in light of

AEDPA’s demanding standards. The trial court determined that there were nonracial reasons for the peremptory strike and Jasper did not satisfy his burden

of overturning this conclusion. There is no indication that the trial court’s

analysis was an unreasonable application of law. “[O]n appeal, a trial court’s

ruling on the issue of discriminatory intent must be sustained unless it is clearly

erroneous.” Snyder, 552 U.S. at 477. Galloway gave a variety of answers that

would trouble a prosecutor in a capital murder trial and potentially presented

himself with a demeanor that would make a prosecutor credibly question his

seriousness for the task. As such, we affirm the ruling below. 

B. COA ON OTHER POINTS OF ERROR

Jasper asks for a COA for numerous alleged errors, all of which were

previously denied by the district court, including: 1) ineffective assistance of

counsel for failure to raise his immaturity during sentencing; 2) ineffective

assistance of counsel for allowing him to testify without prior knowledge of his

testimony; 3) denial of due process by the trial court for failing to investigate a

supposed disagreement between Jasper and his attorneys; 4) insufficient

evidence was presented to demonstrate that Jasper would be a continuing threat

to society if given a life sentence; 5) whether trial counsel was ineffective for

failing to provide a vehicle for mitigating evidence; 6) violation of due process for

failing to conduct a proportionality review in a death penalty case; 7) that Texas’

Capital Sentencing statute is unconstitutional because it does not inform jurors

that a single juror can hold out; 8) that the Texas Capital Sentencing structure

is unconstitutional because it gives jurors “open-ended discretion;” 9) that, as

applied, the mitigating evidence special issue is unconstitutional, under

Apprendi, because the state does not have to prove it beyond a reasonable doubt. 

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Under AEDPA, before a petitioner may appeal the denial of a federal

habeas corpus claim, he must obtain a COA. “[U]ntil a COA has been issued

federal courts of appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing §

2253(c)(1)). To grant a COA, the court of appeals must be satisfied that the

petitioner has made a “substantial showing of the denial of a constitutional

right.” Id. A petitioner must “sho[w] 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 presented were adequate to deserve

encouragement to proceed further.” Id. (alteration in original) (internal

quotation marks omitted). “A prisoner seeking a COA must prove something

more than the absence of frivolity or the existence of mere ‘good faith’ on his or

her part.” Id. at 338 (internal quotation marks omitted). The question for the

court of appeals looking at a COA application is “the debatability of the

underlying constitutional claim, not the resolution of that debate.” Id. at 342.

Jasper has not made the necessary showing to merit a COA on any of the issues

he raises. 

Jasper’s age and immaturity

Jasper cites the recent Supreme Court decision in Roper v. Simmons which

prohibited the death penalty for minors. 543 U.S. 551 (2005). Jasper claims that

his attorney failed to argue his age and immaturity as mitigating factors. Even

though Jasper was over eighteen at the time of the murder, he cites to the

proposition in Roper that “[t]he qualities that distinguish juveniles from adults

do not disappear when an individual turns 18.” Id. at 574. Jasper fails to explain

his supposed immaturity and simply argues that he is more mature now than

he was at the time of the crime. Conclusory statements aside, Jasper presents

no evidence that was immature enough to fall within Roper’s dicta.

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The problem with this argument is three-fold. First, Jasper was over the

age of eighteen at the time he committed the murder so Roper is inapplicable on

its face. Second, Jasper is arguing that his counsel was ineffective for not

presenting evidence of his immaturity, but the record indicates that his lawyers

did in fact present such evidence, including testimony from his father about his

age and evidence from a psychiatrist that he was relatively immature. Third, a

Strickland ineffective assistance claim under AEDPA is an exceedingly high bar

because Jasper must show that his counsel was objectively unreasonable, that

the unreasonableness prejudiced him, and still pass AEDPA’s requirements. If

there is any reasonable argument that counsel satisfied Strickland’s deferential

standard, the claim must be dismissed. See Harrington, 131 S. Ct. at 788. Jasper

has not satisfied this standard.

Testifying at trial with inadequate preparation by attorney

He contends that his trial counsel’s failure to prepare him to testify is

evidence of ineffective assistance of counsel. Jasper testimony included denying

his part in the actual death of the victim and testifying about thoughts of pulling

the court bailiff’s gun while on the stand. The district court dealt with this issue

extensively. See Jasper, 765 F. Supp. 2d at 857-63, and there is no indication

that it reached the wrong conclusion. 

This argument is unavailing. The record indicates that his trial counsel

advised him of his right to testify and that there could be pitfalls in testifying.

Further,trial counsel stated that Jasper insisted on testifying despite his advice.

Counsel also had no knowledge that Jasper was going to testify as he did. See

United States v. Fields, 565 F.3d 290, 295 (5th Cir. 2009) (“Clairvoyance is not

a required attribute of effective representation.”). Jasper gives no reason to

believe that his representation was objectively unreasonable. As such, we deny

his application for a COA. 

Trial court’s failure to inquire about the conflict between Jasper and his lawyer

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He also alleges that the trial court violated his due process rights by

failing to inquire into an alleged conflict between him and his attorneys. He

failed to raise this point on direct appeal or during his state collateral attack and

therefore the claim is procedurally defaulted. Before seeking federal habeas

corpus relief, a state prisoner must exhaust available state remedies, thereby

giving the state the opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Under

AEDPA, federal courts, absent special circumstances, lack the power to grant

habeas relief on claims that have not been exhausted. See Kunkle v. Dretke, 352

F.3d 980, 988 (5th Cir. 2003); Orman v Cain, 228 F.3d 616, 619 (5th Cir. 2000).

Having failed to raise this point at the state level, Jasper’s claim must be

dismissed. 

Despite this fact, the district court sufficiently addressed this claim on the

merits:

[T]here is no merit to petitioner’s fourth claim. A criminal

defendant’s generalized statement of dissatisfaction with the

performance of his trial counsel does not, standing alone, necessitate

intervention by a trial court to inquire into the reasons for that

dissatisfaction. Moreover, under the facts of petitioner’s case, it was

evident to the state trial court why petitioner was expressing

impatience and even hostility toward his own trial counsel—said

trial counsel were attempting to help petitioner obtain a life

sentence despite petitioner’s refusal to accept any responsibility for

David Alejandro’s murder. 

Jasper, 765 F. Supp. 2d at 85 (citations omitted). We agree with the district

court’s conclusion that even if the claim had not been procedurally defaulted, it

would not warrant the issuance of a COA and deny his request for a COA on this

issue. 

Insufficient evidence of future dangerousness 

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Jasper seeks a COA on the claim that there was insufficient evidence of

future dangerousness presented to the jury. This claim was presented on direct

appeal and in state habeas proceedings, as well as in the district court. It is

wholly without merit. The conclusions of the Texas Court of Criminal Appeals

dispel this claim best:

The facts of this crime were brutal and demonstrated calculated

deliberation. Appellant planned well in advance the stabbing

murder of someone he would later describe as “one of the nicest

people [he] ever met in [his] life.” He allowed Alejandro to assist him

with recording for two hours, knowing he was about to kill him. As

Alejandro sat unaware at the soundboard mixing a track for

appellant, appellant pulled his head back and, taking a kitchen

knife from his jacket, slit his throat from ear to ear. When that

wound did not kill him, one of appellant’s accomplices joined the

attack until Alejandro was dead. Alejandro suffered twenty-five stab

wounds. Appellant quickly loaded equipment into the vans and

instructed one stunned accomplice to hurry up and help.

In addition to the facts of the crime itself, evidence adduced at trial

of prior criminal history and lack of remorse support the jury’s

finding. Appellant’s criminal history included incidents beginning

at the age of fifteen, when he stole a bicycle. He was expelled from

school for possession of marijuana and expelled from alternative

school. More recently, he attempted a residential burglary and

attacked the off-duty police officer who attempted to detain him and

also attempted to evade police at a traffic stop, leading them on a

high-speed chase. The evidence introduced by the State at trial

shows a pattern of escalating criminal activity and an increasing

proclivity to break laws posing threats to the safety of others.

Furthermore, the evidence showed a lack of remorse. Immediately

after killing Alejandro, appellant began loading the vans. At the

punishment phase of the trial, when asked if he had anything to say

to Alejandro’s family, appellant replied that he wanted the family

to know that he did not kill Alejandro because, according to the

autopsy, the only wound he claims to have been inflicted by his

hand (slicing the victim’s throat, as opposed to the twenty-five stab

wounds), was not enough to kill him. 

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Based on the facts of the offense and other evidence of escalating

criminal activity and lack of remorse, a rational jury could have

found beyond a reasonable doubt that appellant would continue to

be a threat to society. Accordingly, we hold the evidence legally

sufficient to support the jury's affirmative answer to the future

dangerousness special issue.

Jasper, 61 S.W.3d at 418. We deny him a COA on this issue. 

Ineffective assistance of counsel for failing to explain the mitigating evidence

He seeks a COA on the claim that his trial counsel should have objected

to the punishment phase jury charge or requested supplemental instructions

informing the jury that it could give mitigating effect to petitioner’s evidence. He

argues that counsel’s failure to do so amounted to ineffective assistance. There

is no indication that the jury instruction was defective, and Jasper does not even

attempt to explain what a proposed jury instruction would have included. Any

such objection at the trial level would have been deemed meritless. As such, the

failure of Jasper’s trial counsel to object does not meet the high threshold of

Strickland. See Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (failure

to raise a meritless objection does not satisfy the deficient performance prong of

Strickland). Therefore the state’s rejection of this claim during Jasper’s state

habeas corpus proceeding was neither contrary to existing law nor an

unreasonable application of that law, and does not rise to the level necessary for

the issuance of a COA. 

Structural problems with the Texas death penalty scheme

Finally, Jasper argues that there are numerous constitutional defects with

the Texas sentencing scheme, all of which have previously been rejected by the

Supreme Court or this court. Each one of these claims was extensively discussed

by the district court and dismissed. The district court’s summary of these

challenges (after comprehensive analysis of each point) states:

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Petitioner’s constitutional challenges to the Texas capital sentencing

scheme present claims this Court and the Fifth Circuit have

consistently rejected for more than half a decade. Petitioner made

no effort to distinguish the rulings by this Court or the many

opinions by the Fifth Circuit Court of Appeals rejecting those

constitutional complaints on the merits. . . .This Court has also

rejected those same claims as bases for a CoA. See, e.g., Bartee v.

Quarterman, 574 F. Supp. 2d at 712-14 (denying CoA on many of

the same claims asserted by petitioner in his eighth through

fourteenth claims herein); Moore v. Quarterman, 526 F. Supp. 2d at

740 (denying CoA on many of the same constitutional challenges to

the Texas capital sentencing scheme raised by petitioner herein).

Petitioner is not entitled to a CoA on any of his [Texas death penalty

scheme] claims.

Jasper, 765 F. Supp. 2d at 875. 

According to Jasper, the Texas scheme: a) fails due process because it does

not include a proportionality review (rejected in Martinez v. Johnson, 255 F.3d

229, 241 n.17 (2001)); b) fails to inform the jury that a holdout will lead to a life

sentence (rejected in Jones v. United States, 527 U.S. 373, 384 (1999)); c) gives

the jurors open ended discretion (rejected in Sonnier v. Quarterman, 476 F.3d

349, 367 (5th Cir. 2007)); and d) violates Apprendi and its progeny because it

2

places an unconstitutional burden on the defendant for mitigating evidence

(rejected in Ortiz v. Quarterman, 504 F.3d 492, 504-05 (2007)). Jasper gives no

new reasons to accept his claims on these grounds nor does he distinguish his

case from previously rejected challenges to the Texas death penalty scheme. As

such his request for a COA on these grounds is denied. 

Conclusion on denial of a COA

Jasper presents no arguments to refute the diligent and comprehensive

analysis by the district court on all these issues. The district court meticulously

analyzed each one of these claims and properly concluded that there was no

Apprendi v. New Jersey, 550 U.S. 466 (2000).

2

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reason to issue a COA on any of his claims alleging ineffective assistance of

counsel, due process violations, or the unconstitutionality of the Texas death

penalty scheme. We agree. 

CONCLUSION

We AFFIRM the ruling of the district court on the Batson violation claim,

and deny a COA on all other claims. 

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