IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70014

JOSEPH ANDREW PRYSTASH, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Two decades after being sentenced to death for being the middleman in 

a murder-for-hire, Joseph Andrew Prystash seeks a certificate of appealability 

to appeal the district court’s denial of his petition for a writ of habeas corpus. 

He asks us to certify the following questions: (1) whether there was cause for 

the procedural default of his Batson claim; (2) whether the State’s withholding 

of evidence about the involuntariness of a codefendant’s confession established 

a Brady violation; (3) whether the trial court violated his right to present 

mitigation evidence at sentencing when it limited expert testimony; (4) 

whether the introduction of evidence of unadjudicated offenses at sentencing

United States Court of Appeals

Fifth Circuit

FILED

April 26, 2017

Lyle W. Cayce

Clerk

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violated the Eighth Amendment; and (5) whether the state court’s application 

of the invited error doctrine was not an adequate procedural bar against his 

claim that he was unconstitutionally sentenced to death without an antiparties jury instruction.

I.

 A. 

In November 1994, Farah Fratta was shot and killed exiting a vehicle in 

her garage. Suspicion immediately focused on her husband, Robert Fratta, 

who was a local police officer. The Frattas had been involved in a contentious 

divorce, with a child custody hearing set for the end of that month. The night 

of the murder, Robert Fratta was at church with his children. Phone records 

and witness testimony showed that, while at church that evening, he made 

several calls to a mobile phone number belonging to Mary Gipp. Gipp was the 

girlfriend of petitioner Joseph Prystash.

Detective George Roberts later interviewed Gipp. She recounted 

Prystash saying he had been hired by Robert to kill Farah and that he had 

then made a deal with Howard Guidry to shoot Farah. By this time, Guidry 

was in jail on another charge. Roberts and another detective, Jim Hoffman, 

then questioned Guidry about the murder. See Guidry v. Dretke, 429 F.3d 154, 

155 (5th Cir. 2005). When Guidry requested an attorney, they ceased 

questioning him, but later returned and lied to him. They said that his 

attorney had given permission for him to speak with them. Id. In response to 

this falsehood, Guidry confessed to shooting Farah and described how he had 

been hired by Robert, through Prystash, to commit the crime. Id. In Guidry’s 

federal habeas case, we held that the police obtained his confession unlawfully

and vacated his conviction. Id. at 157.

Using a warrant acquired with an affidavit by Sergeant Danny 

Billingsley describing Gipp’s statements and Guidry’s confession, the police 

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arrested Prystash. They then questioned him about the killing. After Prystash 

disclaimed all knowledge and responsibility, the officers released him from 

custody.

Billingsley drove Prystash back to his car. On the way, Prystash 

confessed that he had received a gun and instructions from Robert, solicited 

Guidry to shoot Farah, and drove Guidry to and from Farah’s home. 

Billingsley told Prystash to come to the police station the next day so he could 

give a formal statement, and when he did not appear, the police arrested him 

again. While in custody, he signed a written statement admitting to 

participating in Farah’s murder.

B.

Prystash’s trial began in the summer of 1996. During voir dire, the State

used its peremptory strikes to remove all five of the black venire members who 

were questioned. Prystash’s counsel objected that “every black panelist was 

struck” from the venire. Counsel said, “especially we are calling to the Court’s 

attention of the strike of juror Ms. Merchant . . . .” That resulted in a Batson 

inquiry for the Merchant strike during which the court asked the prosecutor to 

provide a race neutral justification for that strike. The court credited the 

prosecutor’s explanation. Defense counsel did not ask for that process for the 

other four struck black jurors. When the court asked defense counsel if there 

was anything else that needed to be done for the record, the answer was, “I 

don’t think so.”

During the trial, the prosecution introduced Prystash’s written 

confession. In addition, Billingsley testified to the incriminating statements 

made by Prystash while he was driving him home.

Gipp also testified. She described discussions about killing Farah 

between Prystash and Robert Fratta in the months leading up to the murder. 

She also stated that Robert gave Prystash a gun. Gipp explained that Prystash 

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had told her about how the killing would take place, about hiring Guidry, and 

what rewards he and Guidry would receive. Gipp further incriminated 

Prystash by testifying that he and Guidry left home on the night of the killing 

dressed in black. She said that Prystash returned a few hours later and 

emptied the cartridges from a gun, telling her that Farah had been killed and 

describing how the men had carried out the shooting. According to Gipp, 

Prystash then left home again to meet Fratta.

In addition to Prystash’s statements and Gipp’s testimony, the jury also 

heard Guidry’s confession. While cross-examining Detective Roberts about 

Prystash’s arrest, Prystash’s trial counsel introduced the warrant for his arrest 

into evidence in order to show that the detective had not complied with its 

order to bring him before the issuing judge but instead had held and questioned 

him irregularly1 before releasing him with Billingsley. Later, while 

questioning Billingsley about the circumstances of the arrest, the State asked 

him to read from the affidavit supporting the warrant, which recounted at 

length Guidry’s confession implicating Prystash.

The jury convicted Prystash of capital murder. During the sentencing

phase that followed, the State introduced evidence of Prystash’s extensive 

criminal record, including an arrest for attempted murder. It also offered 

evidence of his bad character. Two of his ex-wives testified that he was 

remorseless, selfish, angry, manipulative, and lacked compunctions of 

conscience. In response, the defense offered the testimony of family members 

who described Prystash’s harsh upbringing, including his mother’s alcoholism. 

The defense also called two volunteer religious leaders who worked with 

 

1 Trial counsel at one point insinuated that the officers never read Prystash his 

Miranda rights.

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Prystash while he was in Harris County jail. They agreed that Prystash was 

not a danger to others and spoke of his honesty and piety.

Lastly, the defense called psychologist Walter Quijano. Quijano testified 

that Prystash would not be a continuing threat to guards or inmates if sent to 

prison. The defense wanted Quijano to testify about how Prystash would be 

classified and grouped with other inmates while incarcerated, but the trial 

court prohibited the defense from eliciting that testimony before the jury

because it found it was speculative.

The jury sentenced Prystash to death.

C.

Prystash appealed to the Texas Court of Criminal Appeals. Among other 

things, he argued that the trial court had erred by not submitting to the jury a 

statutory special issue at sentencing on the responsibility of one found guilty 

of capital murder as a party to the crime rather than as the shooter. See 

Prystash v. State, 3 S.W.3d 522, 530–32 (Tex. Crim. App. 1999). At trial 

Prystash had asked that the instruction not be given, but the Court of Criminal 

Appeals had previously held that the doctrine of invited error, which generally 

holds that a party cannot complain of trial errors it induced, could not excuse 

omission of a similar special issue instruction. Id. at 529–32 (discussing Powell 

v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994)). In Prystash’s case, the court 

overruled itself, rejecting the challenge to the omission using the invited error 

doctrine. Id. at 532.

After losing his direct appeal, Prystash sought postconviction relief in 

the Texas courts. After that proved unsuccessful, he filed his federal petition. 

The district court recognized that some of his claims had not been raised in 

state court. It thus stayed the federal proceedings so that Prystash could 

remedy this problem with a new state habeas petition. Because this was a 

successive petition, the Court of Criminal Appeals only allowed one of 

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Prystash’s claims, corresponding to his present Brady claim, to proceed. Ex 

parte Prystash, 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008). That 

claim, which alleged that the State suppressed evidence about the 

unlawfulness of Guidry’s confession, was rejected on the merits as discussed 

further below.

Prystash then returned to federal court, where he unsuccessfully 

prosecuted his amended petition. The district court analyzed each of 

Prystash’s twelve claims in detail. It refused to grant a certificate of 

appealability on any issues. Prystash now asks us to grant one, but has 

narrowed that request to the five questions listed at the outset.

II.

Under the Antiterrorism and Effective Death Penalty Act, a certificate 

of appealability (COA) must issue before a habeas petitioner can appeal the 

district court’s refusal to grant the writ. 28 U.S.C. § 2253(c)(1)(A). We will 

issue a COA upon a “substantial showing of the denial of a constitutional 

right.” Id. § 2253(c)(2). Prystash will meet this standard if he shows that 

“reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 

338 (2003) (internal quotations and citation omitted); see also Buck v. Davis,

137 S. Ct. 759, 773 (2017). If the district court found that there was a 

procedural obstacle to habeas relief, we will likewise grant a COA if “jurists of 

reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling.” 

Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel, 

529 U.S. 473, 484 (2000)) (internal quotations omitted). “Where the petitioner 

faces the death penalty, ‘any doubts as to whether a COA should issue must be 

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resolved’ in the petitioner’s favor.” Allen v. Stephens, 805 F.3d 617, 625 (5th 

Cir. 2015) (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)).

In assessing whether the district court’s rejection of Prystash’s claims is 

debatable, we consider them under the deference AEDPA mandates federal 

courts show their state peers. A federal court should not grant habeas relief 

unless the petitioner has exhausted the remedies available in state court for 

reviewing the claim. 28 U.S.C. § 2254(b). When the state court has considered 

and rejected the merits of the claim, a federal court can only grant relief when 

the state judgment “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 “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). A federal court 

must assume the state court’s determination of the facts is correct unless the 

petitioner “rebut[s] the presumption of correctness by clear and convincing 

evidence.” 28 U.S.C. § 2254(e)(1).

A.

Prystash argued to the district court that his conviction should be 

vacated because the prosecution discriminated against black prospective 

jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). Although Prystash is not 

black, he may challenge the exclusion of these jurors. Powers v. Ohio, 499 U.S. 

400, 406–11 (1991). The district court held that this claim was procedurally 

barred because Prystash had not raised it in state court until his successive

state petition, at which time the Texas Court of Criminal Appeals rejected it 

for not being raised earlier. See Maples v. Thomas, 565 U.S. 266, 280 (2012). 

Prystash acknowledges that in order to obtain relief on this ground he must 

show cause to excuse the procedural default in state court. See Coleman v. 

Thompson, 501 U.S. 722, 750 (1991).

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In the district court, Prystash tried using Martinez v. Ryan, 566 U.S. 1

(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), to excuse the default. In 

Martinez, the petitioner’s claim of ineffective assistance of counsel at trial was 

procedurally barred based on the rejection of that claim in his second state 

habeas petition for having failed to raise the claim in his first state habeas 

petition. 566 U.S. at 7–8. The Supreme Court held that Martinez could excuse 

this default by showing that his initial state habeas counsel had been 

ineffective, because Arizona law does not allow a claim of ineffective assistance 

of counsel to be brought until the postconviction stage (given the need for 

factual development not often available on direct appeal). 566 U.S. at 17. In 

Trevino, the Supreme Court extended Martinez to habeas petitioners in Texas 

where the law does not bar bringing ineffective assistance claims on direct 

appeal, but in practice, meaningful review of such claims is confined to 

collateral review. Trevino, 133 S. Ct. at 1921.

Martinez thus created an exception to the general rule, which provides

that the ineffectiveness of a petitioner’s habeas attorney is not cause to excuse 

a procedural default because there is no constitutional right to representation 

at that stage. Coleman, 501 U.S. at 752–53. As the district court here noted, 

however, the Supreme Court insisted this was a “‘narrow exception’ that 

applies only with respect to ‘cause for a prisoner’s procedural default of a claim 

of ineffective assistance at trial.’”2 Prystash v. Stephens, 2016 WL 1069680, at 

 

2 We note that the Supreme Court is currently considering whether Martinez/Trevino

applies to a petitioner citing ineffective assistance of habeas counsel as cause for default of a 

claim of ineffective assistance of counsel on direct appeal (as opposed to the trial-based claim 

at issue in Martinez and Trevino). See Davila v. Davis, 137 S. Ct. 810 (2017). But even if the 

Supreme Court reverses our ruling in Davila, that would not help Prystash with his COA 

application. Although Prystash did include ineffective assistance of both trial and appellate 

counsel among the dozen claims raised in the district court (the court rejected them as both 

without merit and procedurally defaulted), he does not seek a COA related to any

freestanding claim of ineffective assistance of counsel. 

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*24 (S.D. Tex. Mar. 17, 2016) (quoting Martinez, 132 S. Ct. at 1315). 

Martinez/Trevino is so limited because of the nature of ineffective assistance

claims, which some states bar from being asserted on direct appeal and other 

states are reluctant to allow on direct appeal. In contrast, most other claims 

of trial error (certainly Batson violations among them) can be asserted on direct 

appeal,3 and it has long been the case that when such claims are procedurally 

defaulted because not asserted on direct appeal, the ineffectiveness of 

appellate counsel may excuse that default. See, e.g., United States v. Guerra,

94 F.3d 989, 993–94 (5th Cir. 1996); United States v. Price, 959 F.2d 1297, 1301 

(5th Cir. 1992). There is no need for Martinez/Trevino to come into play for 

such claims that can be brought on direct appeal. Because the reasoning 

underlying Martinez/Trevino does not extend to claims that can generally be 

brought on direct appeal and Prystash cites no caselaw at any level adopting 

such an extension, the district court’s rejection of Martinez/Trevino as cause 

for the defaulted Batson claim is not debatable.4 Cf. Hunton v. Sinclair, 732 

F.3d 1124, 1127 (9th Cir. 2013), cert. denied, 134 S. Ct. 1771 (2014) (refusing 

to apply Martinez and allow ineffective assistance of state habeas counsel to 

excuse default of a Brady claim).5 

 

3 See, e.g., Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013); Degar v. State, 

482 S.W.3d 588 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). 4 The district court also concluded that even if Martinez/Trevino did apply, Prystash 

did not make sufficient allegations to show that habeas counsel was ineffective in failing to 

raise Batson. Prystash now argues that his initial state habeas counsel was ineffective for 

failing to obtain jury questionnaires. But this claim of ineffectiveness was not presented to 

the district court.

5 There is a dissent in Hunton, which might show that its holding regarding Brady is 

debatable. See 732 F.3d at 1127 (Fletcher, J., dissenting). But because Brady claims by their 

nature typically apply only when evidence is obtained after trial, they are more commonly 

first raised on collateral attack, given the need for factfinding, than are Batson claims. It is 

also noteworthy that in the four years since the Hunton dissent, we are aware of no cases 

extending Martinez/Trevino to cases in which the underlying claim is not one based on 

Strickland v. Washington, 466 U.S. 668 (1984) (addressing right to effective assistance of 

counsel). 

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For the first time in his COA application, Prystash argues that his 

Batson claim should be excused because he could not have obtained the juror 

questionnaires that were necessary to prove up his claim during either his 

direct appeal or state habeas (he ultimately obtained them after asking the 

federal district court to order their disclosure). But he did not identify this 

potential ground for cause in the district court. In deciding whether to issue a 

COA, we are limited to considering only the debatability of the district court’s 

reasoning and the issues on which the petitioner sought the COA below. 

Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007). And this argument 

speculating about what was possible in state court is one in which the 

factfinding function of the district court would have been particularly helpful. 

How are we to determine at this stage that a request for the records at trial, 

on direct appeal, or during state postconviction proceedings would have been 

futile? All we know is that when Prystash requested a court order from the 

federal habeas court, the state court produced the documents that remained

(the jury questionnaires; jury cards containing information about the racial 

makeup of the venire had been destroyed). Due again to the absence of a record 

that could have been developed if this issue had been raised in district court, 

we do not know when the jury cards were destroyed and hence whether 

Prystash could have obtained them at the time of his direct appeal or initial 

state habeas petition. 

The grounds Prystash cites for cause were either (1) not raised in the 

district court or (2) seek an extension of Martinez/Trevino beyond the realm of 

ineffective assistance claims for which there is no supporting authority. We 

will not issue a COA to review the procedural default ruling.

B.

Prystash argues that he was denied due process by the State’s failure to 

disclose that Guidry’s confession, which Billingsley recounted to the jury, was 

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involuntary. See Brady v. Maryland, 373 U.S. 83 (1963). To succeed on a 

Brady claim, one must show that the prosecution suppressed evidence, that 

was favorable to the defense, material to either guilt or punishment, and was 

not discoverable using due diligence. Graves v. Cockrell, 351 F.3d 143, 153–54 

(5th Cir. 2003). 

This was the one claim that the Texas Court of Criminal Appeals allowed 

to proceed in Prystash’s second attempt at obtaining habeas relief in state 

court. But it later adopted the finding of the Texas district court that the 

information about Guidry’s confession was not material due to other 

overwhelming evidence of his guilt. The district court gave deference to the 

Texas court’s application of governing federal law in this respect. See Dickson 

v. Quarterman, 462 F.3d 470, 477–78 (5th Cir. 2006) (court conducting AEDPA 

review decides whether state court’s materiality finding was unreasonable 

application of federal law).

In his request for a COA, Prystash contends that the district court 

applied the wrong standard of materiality to his Brady claim. He asserts that

the court incorrectly required that he show it is “more likely than not” that the 

result of the proceeding would have been different, rather than just a 

reasonable likelihood that the new evidence could have affected the judgment 

of the jury. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016); see also Kyles v. 

Whitley, 514 U.S. 419, 434 (1995). He is correct that “reasonable probability,”

not “more likely than not,” is the burden a defendant raising a Brady claim 

must meet. Kyles, 514 U.S. at 434.

But the district court did not apply the higher burden. The relevant 

section of its opinion reads as follows:

The state court’s findings emphasized that information about Guidry’s 

confession would not have made any difference in Prystash’s trial. 

Under Brady, “[e]vidence is material ‘if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the 

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proceeding would have been different.” Graves v. Dretke, 442 F.3d 334, 

339 (5th Cir. 2006) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). 

“[T]he materiality test is not a test of the sufficiency of the evidence. . . . 

Rather, a Brady violation is established by showing ‘that the favorable 

evidence could reasonably be taken to put the whole case in such a 

different light as to undermine confidence in the verdict.’” Graves, 442 

F.3d at 340 (quoting Kyles, 514 U.S. at 435); see also United States v. 

Bagley, 473 U.S. 667, 682 (1985); Duncan v. Cain, 278 F.3d 537, 539–40 

(5th Cir. 2002).

Prystash, 2016 WL 1069680, at *17. The paragraph shows that the district 

court did not hold Prystash to a higher standard, but instead assessed the state 

court’s rejection of his Brady claim under the correct “reasonable probability”

standard.6

In doing so, the district court relied on overwhelming evidence of 

Prystash’s guilt apart from Guidry’s confession. Most damning was Prystash’s 

confession. Also powerful was the detailed testimony of his girlfriend, Gipp, 

relaying statements Prystash made and actions he took connecting him to the 

murder. Prystash’s words, either in the form of his confession or what he told 

Gipp, did not factor into the analysis when we found the Brady violations were

material in Guidry’s case. The jury that convicted Guidry did not hear 

 

6 Prystash also seems to argue that there is a difference between showing (1) a 

reasonable probability that the outcome would have been different, and (2) a “reasonable 

likelihood” that that the new evidence “could have ‘affected the judgment of the jury.’” 

Wearry, 136 S. Ct. at 1006 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). Wearry

invoked only the latter standard. But Kyles uses both formulations, employing the 

“undermining confidence in the verdict” language to flesh out what it means to show by a 

“reasonable probability that the outcome would have been different.” 514 U.S. at 422, 433 

n.7, 434–35. And we have long used both formulations interchangeably. E.g., Banks v. 

Thaler, 583 F.3d 295, 310–11 (5th Cir. 2009). To the extent Prystash argues that Wearry

established a new, more lenient standard for Brady defendants, we see no support for that

proposition. Wearry was a summary reversal by the Supreme Court decided without oral 

argument. 136 S. Ct. at 1008 (Alito, J., dissenting). That procedural posture is not one in 

which we would expect the Supreme Court to change the standard for an important issue like 

Brady materiality. And Prystash points us to no case reading Wearry as changing the 

standard. In any event, if the standards are indeed different as Prystash suggests, the 

district court’s substantive ruling is not debatable considering just the “could have affected 

the jury” standard he urges. 

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Prystash’s confession to law enforcement, and his words that Gipp recounted 

were inadmissible hearsay as to Guidry (they are not hearsay as to Prystash 

because they are statements by the party opponent). See Guidry v. Dretke, 397 

F.3d 306, 329–30 (5th Cir. 2005). Given the inculpatory force of this evidence 

against Prystash, it is not surprising that at his trial the Guidry confession 

was only briefly mentioned and not later emphasized by prosecutors. The 

district court’s deference to the state court’s conclusion—that disclosure of the 

unlawful means by which Guidry’s confession was obtained does not 

undermine confidence in the verdict—is not debatable.

Also relying on the State’s failure to disclose evidence about the Guidry 

confession, Prystash argues that his due process rights were violated because 

the testimony about that confession was false. See Giglio v. United States, 405 

U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959). This testimony 

occurred when Billingsley testified that Guidry’s confession was voluntary, 

when in reality it was unconstitutionally obtained due to officer deception. As 

with the traditional Brady claim, the district court deferred to the state court’s

determination that the testimony concerning Guidry’s confession was “sparse” 

and that the confession itself was cumulative of the extensive incriminating 

statements Prystash made both to law enforcement and his girlfriend. In light 

of that substantial amount of independent incriminating evidence and the 

deference owed to the state court, jurists of reason would not disagree with the 

district court’s conclusion. 

Perhaps recognizing that the heart of the case against him was his 

confession and Gipp’s testimony, Prystash changes the focus of his Brady 

argument in his COA application. In addition to the arguments he made in 

state court and federal district court that the unlawfulness of the Guidry 

confession was exculpatory under Brady and rendered testimony false under 

Napue and Giglio, he now contends that the improper police conduct could have 

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been used to impeach the value of his own confession. See Giglio, 405 U.S. at 

153–54 (discussing impeachment value of evidence not turned over to the 

defense). He made only passing references to this in his district court briefing 

so the court did not address it. But even if Prystash did sufficiently raise this

variation of his Brady claim in the district court and exhaust it in state court, 

the impeachment value of Guidry’s wrongful confession was not substantial for

Prystash’s confession. The officers who took Prystash’s written confession

(Detectives Davis and Valerio) were not involved in obtaining Guidry’s 

confession. The officer who received Prystash’s oral confession (Billingsley) 

was not the one who lied to Guidry. And again, Gipp heavily corroborated 

Prystash’s confession, and officer misconduct would not impeach her 

testimony. 

Prystash has not met the COA standard for any of his claims relating to 

the failure to disclose the circumstances surrounding Guidry’s confession. 

C.

Prystash next asserts that he was denied his right to present all 

mitigating evidence bearing on his character and personal history when the 

State refused to allow Quijano to testify about how Prystash would likely be 

classified and segregated from other inmates in the Texas prison system. See 

Barefoot v. Estelle, 463 U.S. 880 (1983); Eddings v. Oklahoma, 455 U.S. 104 

(1982). Prystash, however, overstates the force of these cases. They “did not 

federalize the law of evidence.” Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir. 

1983). In this case, the trial court excluded Quijano’s testimony on this point

because it ruled it was speculative. See Watts v. Quarterman, 244 F. App’x 

572, 576 (5th Cir. 2007) (per curiam). The evidentiary rulings of a state court 

will only be overridden when there is error “so extreme that it constituted 

denial of fundamental fairness.” Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir. 

1983) (quoting Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985)). The 

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district court found that Prystash had not made this showing, and he does not 

argue to the contrary to this court, instead focusing his arguments on the 

allegation that the State has been allowed to introduce similar evidence in 

other capital cases and emphasizing a capital defendant’s right to present 

mitigating evidence without acknowledging the limitations on that right that 

honor state rules of evidence. Jurists of reason would not disagree that the 

district court decided this issue correctly.

D.

Prystash also maintains that it was error for the trial court to allow the 

prosecution to introduce evidence of past unadjudicated offenses, such as his 

previous arrest for attempted murder, when the jury was deciding whether he 

should be sentenced to death. He argues that doing so violates the Eighth 

Amendment because it “introduces unreliability into death penalty sentencing, 

permits undue prejudice, and lowers procedural safeguards for defendants.” 

This claim is nonetheless foreclosed by our precedent, so reasonable jurists 

could not disagree that the district court correctly decided it against Prystash. 

See Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998); Harris v. Johnson, 81 

F.3d 535, 541 (5th Cir. 1996).

E.

The final issue on which Prystash seeks a COA relates to the fact that 

he did not pull the trigger in Farah’s murder. When a defendant is sentenced 

to death, the punishment must have been “tailored to his personal 

responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801 (1982). 

In order to guard against the possibility that a defendant would receive the 

death sentence on the basis of the culpability of his accomplices, Texas adopted 

its anti-parties instruction to be used during sentencing. See TEX. CODE CRIM.

PROC. art. 37.071, § 2(b) (“[T]he court shall submit the following issues to the 

jury . . . in cases in which the jury charge at the guilt or innocence stage 

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permitted the jury to find the defendant guilty as a party[:] whether the 

defendant actually caused the death of the deceased or did not actually cause 

the death of the deceased but intended to kill the deceased or another or 

anticipated that a human life would be taken.”). Texas convicted Prystash of 

capital murder as a party—someone who “acting with intent to promote or 

assist the commission of the offense . . . solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the offense.” TEX. PENAL CODE

§ 7.02(a)(2). When a defendant is convicted of capital murder as a party during 

the guilt/innocence phase of his trial, the purpose of an anti-parties instruction 

is to limit the jury’s attention during the sentence phase to the personal 

responsibility and moral guilt of the defendant.

At trial, Prystash successfully asked that the court not include the antiparties instruction, asserting that it was unconstitutional. Prystash v. State, 

3 S.W.3d 522, 529–30 (Tex. Crim. App. 1999). On direct appeal, Prystash 

reversed course and claimed that not giving the anti-parties instruction was 

error. Id. at 530. The Court of Criminal Appeals held that Prystash had 

invited the error and denied relief. Id. at 532. The district court found that 

this ruling was a state procedural bar to federal habeas relief.

Prystash now argues that the invited error doctrine cannot procedurally 

bar his habeas petition because it was not firmly established that the doctrine 

applied to the special issue at the time of his appeal. See Ford v. Georgia, 498 

U.S. 411, 423–24 (1991) (rule of state procedure that disposes of a 

constitutional claim must be firmly established and regularly followed). He 

points out that the Court of Criminal Appeals overruled its prior decision in 

Powell, which had held that a defendant could appeal an erroneous special 

instruction even when he had requested it at his capital trial. See Prystash, 3 

S.W.3d at 530–32.

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But regardless whether the district court’s application of a procedural 

bar is debatable, the district court also found that the special issue claim fails 

on the merits. It relied on our prior decisions to the effect that more general

special issues, necessary conclusions of the jury at the guilt–innocence phase, 

and arguments by the parties allow the jury to consider the fact that a 

defendant was not the triggerman. See, e.g., Nichols v. Scott, 69 F.3d 1255, 

1267–68 (5th Cir. 1995).

In his application for a COA, Prystash does not list the district court’s 

merits ruling as one of the issues he seeks to appeal. See 28 U.S.C. § 2253(c)(3) 

(“The certificate of appealability . . . shall indicate which specific issue or issues 

satisfy the [required] showing . . . .”). Nor does his briefing address the merits 

though his counsel discussed that at argument. This failure to adequately 

challenge one of the grounds the district court relied on in rejecting this claim 

renders the request for a COA on the procedural question moot. See Blue v. 

Thaler, 665 F.3d 647, 662 (5th Cir. 2011); Phelps v. Alameda, 366 F.3d 722, 

730 (9th Cir. 2004); Kaminski v. United States, 339 F.3d 84, 85 n.1 (2d Cir. 

2003). Were we to grant the COA and review the district court’s finding on the 

state procedural bar, we would be issuing an advisory opinion as the lack of a 

COA challenging the district court’s merits ruling would render us powerless 

to grant Prystash relief.7 

 

7 Circuit law, in any event, supports the district court’s merits ruling. “[T]he law of 

this circuit [is] that a jury need only be provided one fair vehicle for considering mitigating 

evidence.” Harris v. Collins, 990 F.2d 185, 189 (5th Cir. 1993). In Prystash’s case, the jury 

was instructed with Texas’s special issue on future dangerousness. See Nichols, 69 F.3d at 

1267 (finding that Texas’s special issue on future dangerousness allowed jury to give a 

mitigating effect to the petitioner’s nontriggerman status). At oral argument, counsel for 

Prystash asserted that the instructions given in Nichols were different than those at 

Prystash’s trial. This is true; there were special issues included at Nichols’s trial that were 

absent at Prystash’s, but the issue concerning future dangerousness that the Nichols court 

called adequate was present in both. Cf. id. at 1261 n.6.

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* * *

The application for a certificate of appealability is DENIED.

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