United States Court of Appeals

for the Fifth Circuit ____________

No. 22-70005

____________

Matthew Johnson, 

Petitioner—Appellant, 

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Respondent—Appellee. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:19-CV-2310 

______________________________

Before Elrod, Oldham, and Wilson, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge: 

Appellant Matthew Johnson files an application for a certificate of appealability and appeals the district court’s denial of his motion to recuse. We 

DENY the application for a certificate of appealability and AFFIRM the 

district court’s denial of the motion to recuse.

I 

The facts underlying Johnson’s conviction are not in dispute. They 

were recorded on a store surveillance camera and played for the jury at 

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2023

Lyle W. Cayce

Clerk

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Johnson’s capital murder trial. In May 2012, Johnson entered a convenience 

store and poured a bottle of lighter fluid over the head of Nancy Harris, a 76-

year-old store clerk. He then demanded money from Harris. As Harris attempted to open the cash register, Johnson stole two cigarette lighters, two 

packages of cigarettes, and a ring from Harris’s finger. 

Once Harris opened the cash register, Johnson took the money and 

then set Harris on fire. As Harris frantically attempted to extinguish herself, 

video recordings showed that Johnson “calmly” walked out of the store. Ex 

parte Johnson, WR-87,574-01, 2019 WL 4317046, at *1 (Tex. Crim. App. 

Sept. 11, 2019). Police officers arrived at the convenience store soon after 

and extinguished the flame. Aided by descriptions given by Harris and neighborhood residents, the police quickly apprehended Johnson. Because of the 

incident, Harris suffered second-to-fourth degree burns over 40% of her 

body. She died five days later.

Johnson was indicted for intentionally causing the death of Harris by 

setting her on fire during a robbery. The jury found him guilty of capital murder as alleged in the indictment. At the punishment stage of his trial, the jury 

unanimously determined that: (1) Johnson presented future danger to society; and (2) there were insufficient mitigating circumstances to warrant a life 

imprisonment rather than a death sentence. Accordingly, Johnson was sentenced to death. Tex. Code Crim. Pro. art. 37.071. The Texas Court of Criminal Appeals affirmed his conviction and sentence, Johnson v. State, No. AP77,030, 2015 WL 7354609, at *1 (Tex. Crim. App. Nov. 18, 2015), and the 

United States Supreme Court denied his petition for certiorari, Johnson v. 

Texas, 579 U.S. 931 (2016). Johnson challenged the validity of his conviction 

and sentence in a state habeas proceeding, and the Texas Court of Criminal 

Appeals denied relief. Ex parte Johnson, 2019 WL 4317046, at *3.

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Johnson then petitioned for habeas relief in federal district court. During the pendency of his federal habeas petition, Johnson filed a motion to 

recuse Judge Ada Brown, alleging that the decisions she made would cause a 

reasonable person to “harbor doubts about [her] impartiality.” Trevino v. 

Johnson, 168 F.3d 173, 178 (5th Cir. 1999)(citation and quotation marks omitted). The district court denied habeas relief, the motion to recuse, and the 

application for a certificate of appealability.

II

Before this court, Johnson files an application for a certificate of appealability and appeals the district court denial of his motion to recuse.

A

Under the Antiterrorism and Effective Death Penalty Act, a state 

court prisoner must obtain a certificate of appealability before appealing a 

federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). To 

obtain a certificate of appealability, the petitioner must demonstrate 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) (citation and quotation marks omitted). The determination “requires 

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

their merits” but not “full consideration of the factual or legal bases adduced 

in support of the claims.” Id. at 336; see also Buck v. Davis, 580 U.S. 100, 115

(2017).

As background, to render a death sentence under Texas law, the State

has the burden to prove beyond a reasonable doubt that “there is a probability 

that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. art. 

37.071(2)(b)(1); Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011). If the 

jury finds future dangerousness, it must then consider whether there are sufCase: 22-70005 Document: 00516825142 Page: 3 Date Filed: 07/18/2023
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ficient mitigating circumstances to warrant a sentence of life imprisonment 

rather than a death sentence. Tex. Code Crim. Proc. art. 37.071(2)(e)(1). 

At the sentencing stage of Johnson’s trial, several witnesses testified 

regarding Johnson’s criminal history. A police officer and Johnson’s ex-girlfriend testified about an incident in which Johnson attempted to break into 

an apartment where his girlfriend and her children were living. When he 

failed to break in, he set the back porch of the apartment on fire. Another 

woman testified about a separate incident where Johnson forced her out from 

her pickup truck, threw her to the ground, and drove off. And several police 

officers testified that Johnson has a history of aggravated assault, theft, and 

evading arrests. After deliberation, the jury answered “yes” to the future 

dangerousness question and “no” to the mitigation question. Thus, it sentenced Johnson to death.

In his habeas petition before the district court, Johnson challenged the 

constitutionality of Texas’s future dangerousness and mitigation special issues. The district court rejected Johnson’s constitutional challenges. Here,

Johnson contends he is entitled to a certificate of appealability because reasonable jurists would debate the district court’s determination that Texas’s 

future dangerousness and mitigation issues are constitutional. We address 

each issue in turn.

1

As to future dangerousness, Johnson contends that he is entitled to 

habeas relief because: the Texas capital sentencing statute’s future dangerousness provision is unconstitutionally vague; jury predictions of future dangerousness are inherently unreliable; and his jury was wrong when it predicted he would be violent in the future.

First, Johnson contends that Texas’s capital sentencing statute is unconstitutionally vague because it fails to define “probability” and “criminal 

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acts of violence.” Tex. Code Crim. Proc. art. 37.071(2)(b)(1). No reasonable 

jurist would debate the correctness of the district court’s determination on 

this issue. Buck, 580 U.S. at 115–16. The Supreme Court has held that 

Texas’s capital punishment scheme that asks “‘whether there is a probability 

that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’ is not unconstitutionally vague.” Tuilaepa 

v. California, 512 U.S. 967, 974 (1994) (quoting Jurek v. Texas, 428 U.S. 262, 

274–76 (1976)). Likewise, in Woods v. Johnson, this court applied the Supreme Court’s holding in Jurek that “reject[ed] the contention that the [future dangerousness] issue is impermissibly vague.” 75 F.3d 1017, 1034 (5th 

Cir. 1996). Since then, we have repeatedly re-affirmed the same holding. See, 

e.g., Sprouse v. Stephens, 748 F.3d 609, 622 (5th Cir. 2014) (“Texas does not 

run afoul of [Supreme Court precedent] by not expressly defining these 

terms.”) (citation omitted); Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005) 

(listing numerous Fifth Circuit opinions rejecting similar arguments).

Next, Johnson argues that jury prediction of future dangerousness is 

inherently unreliable, and so capital-punishment schemes that rely on such 

predictions are arbitrary and thus unconstitutional. Johnson contends that 

even though the Supreme Court explicitly upheld Texas’s future dangerousness question in Jurek and Barefoot, the reasoning of those decisions “[has] 

been entirely eroded” in light of new social science research showing the inaccuracy of jury predictions. Jurek, 428 U.S. 262; Barefoot v. Estelle, 463 U.S. 

880 (1983), superseded by statute on other grounds, 28 U.S.C. § 2253(c).

In Jurek, the Supreme Court observed that although determining future dangerousness is “difficult,” it “does not mean that it cannot be 

[done].” Jurek, 428 U.S. at 274–75. Highlighting the prevalence of similar 

determinations, the Court noted that jury prediction of future dangerousness 

is “no different from the task performed countless times each day throughout 

the American system of criminal justice.” Id. at 276. For example, the Court 

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observed that similar predictions are made when government officials decide 

whether to admit a defendant to bail or whether a prisoner should be released 

on parole. Id. at 275. Consequently, the Court rejected the petitioner’s argument and held that “Texas’ capital-sentencing procedures . . . do not violate the Eighth and Fourteenth Amendments.” Id. at 276. As Johnson himself conceded, seven years later, the Supreme Court reaffirmed its holding in 

Jurek that Texas’s future dangerousness issue does not violate the Eighth 

Amendment. See Barefoot, 463 U.S. at 899. Johnson contends, however, that 

the “factual and theoretical foundations” of Jurek and Barefoot “have been 

entirely eroded” by subsequent social science research, which demonstrated 

that jury predictions of future dangerousness are entirely unreliable.

But this argument is plainly foreclosed by our decision in Buntion v. 

Lumpkin, 982 F.3d 945 (5th Cir. 2020). In Buntion, we considered the same 

arguments on this issue that were made by the same lawyers. We addressed 

the argument that the Texas Code is “unconstitutional because several studies indicate that juries’ dangerousness predictions usually prove untrue,”

and concluded that the argument was “substantively meritless” because

“the Supreme Court has twice upheld the exact same provision.” Id. at 948–

50. Faced with unfavorable Supreme Court cases, Buntion (like Johnson)

argued that new social science studies “entirely undermine[d] the factual 

predicate” underlying those cases, and so he invited the court to “ignore” 

those precedents. Id. at 950. The Buntion panel correctly refused to do so, 

noting that only the Supreme Court alone can overrule one of its precedents. 

Id. (citing State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)). Given our holding in 

Buntion controls this issue, no “reasonable jurists would find the district 

court’s assessment” on this issue “debatable or wrong.” Miller-El, 537 U.S. 

at 338; Buck, 580 U.S. at 115–16.

Finally, Johnson argues that his sentence should be vacated because 

the jury was wrong when it predicted that he would be violent in the future. 

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He noted that he “has committed no violent acts while incarcerated,” and 

“[h]is impeccable disciplinary record demonstrates that he poses no threat 

to guards or fellow inmates.” As legal authority, he cites the Supreme Court 

case in Johnson v. Mississippi for the proposition that a death sentence should 

be vacated when it was “predicated, in part, on a . . . judgment that is not 

valid now, and was not valid when it was entered.” 486 U.S. 578, 585 n.6 

(1988). Because his sentence was predicated on the future dangerousness 

assessment, which he says has been proven wrong by his peaceful behavior in 

prison, he contends that his sentence should be vacated in accordance with 

Johnson v. Mississippi.

This argument is likewise not debatable for the same reasons seen in 

Buntion. See Buck, 580 U.S. at 115–16. Like Johnson, Buntion argued that his 

sentence should be vacated because Johnson v. Mississippi “stands for the 

proposition that any sentence based on a factual inaccuracy must be vacated” 

and his peaceful behavior in prison evinced that factual inaccuracy. Buntion, 

982 F.3d at 950–51. We rejected that argument in Buntion for two independent reasons. First, we observed that the petitioner misinterpreted Johnson v. 

Mississippi because “‘[t]he Supreme Court has never intimated that the factual correctness of the jury’s prediction on the issue of future dangerousness 

. . . bears upon the constitutionality’ of a death sentence.” Id. (alterations in 

original) (quoting Lincecum v. Collins, 958 F.2d 1271, 1281 (5th Cir. 1992)). 

Second, we noted that the sentence imposed was not based on factual inaccuracy because the jury was not asked to determine whether Buntion “would 

in fact engage in future violence.” Id. at 951. Rather, the jury was asked 

whether “there is a probability” that he would commit criminal acts of violence. Id. (quoting Tex. Code Crim. Proc. art. 37.0711 § 3(b)(2)). Consequently, “the fact that Buntion [] behaved peacefully while in prison did not 

disprove the jury’s probability calculation.” Id.

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Even assuming arguendothat reasonable jurists could debate the merit 

of Johnson’s argument, it is not debatable that the argument is barred by

Teague’s non-retroactivity doctrine. Teague v. Lane, 489 U.S. 288 (1989). 

Under Teague, “a new rule of law [should] not be applied on collateral review 

to cases that became final prior to the announcement of the new rule.” Burdine v. Johnson, 262 F.3d 336, 342 (5th Cir. 2001) (en banc) (citing Teague, 

489 U.S. at 310). Here, Johnson is advocating for a new extension of Johnson 

v. Mississippi. As the district court observed, Johnson did not identify any 

courts that have adopted his broad reading of that case. To the contrary, 

controlling caselaw from the Fifth Circuit and the Supreme Court has rejected his argument and upheld the constitutionality of the Texas Code’s future dangerousness provision.

Thus, given the multiple on-point precedents and Teague’s non-retroactivity bar, no reasonable jurists could debate the correctness of the district 

court’s determination on this issue. See Sprouse, 748 F.3d at 609; Buntion, 

982 F.3d 945; Buck, 580 U.S. at 115–16.

2

In addition to challenging the future dangerousness issue, Johnson 

also challenges the constitutionality of Texas’s mitigation issue. Before imposing a death sentence, the Texas Code requires the jury to determine 

whether there were sufficient mitigating circumstances to warrant lowering 

the punishment to a life sentence. Johnson contends that Texas’s failure to 

impose the burden of proof on the State to show that there were insufficient 

mitigating circumstances beyond a reasonable doubt violates the Supreme 

Court’s holding in Apprendi and Ring. The Supreme Court in Apprendi held 

that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and 

proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 

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476 (2000) (citation and quotation marks omitted); see also Ring v. Arizona, 

536 U.S. 584, 602 (2002) (“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter 

how the State labels it—must be found by a jury beyond a reasonable 

doubt.”). Johnson argues that because the insufficient-mitigating-circumstances finding is necessary for the death sentence, the prosecution should 

be required to prove that finding beyond reasonable doubt.

A “general assessment” of this argument, however, indicates that it

is foreclosed by several circuit precedents. Miller-El, 537 U.S. at 336. In Rowell v. Dretke, for example, we noted the “important distinction between ‘facts 

in aggravation of punishment and facts in mitigation.’” 398 F.3d 370, 378

(5th Cir. 2005) (quoting Apprendi, 530 U.S. at 490 n.16). The State needs to 

prove facts in aggravation beyond reasonable doubt. As to facts in mitigation, 

however, “no Supreme Court or Fifth Circuit authority requires the State to 

prove the absence of mitigating circumstances beyond a reasonable doubt.” 

Id. at 378. In addition, “[n]o Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of 

proof.” Id.; see also Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 

2007) (“We have specifically held that the Texas death penalty scheme did 

not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances.”); 

Sprouse, 748 F.3d at 623 (quoting Scheanette v. Quarterman and affirming the 

same holding).

Each of Johnson’s arguments for the issuance of a certificate of appealability is foreclosed by on-point binding precedent that “fits like a 

glove.” Fowler v. United States, 563 U.S. 668, 672 (2011). Accordingly, no 

“reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338; Buck, 580 

U.S. at 115–16.

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B

Next, we address the district court’s denial of Johnson’s motion to 

recuse. A district judge’s refusal to recuse is reviewed for abuse of discretion. 

Trevino, 168 F.3d at 178. “Any . . . judge . . . shall disqualify [her]self in any 

proceeding in which [her] impartiality might reasonably be questioned.” 28 

U.S.C. § 455(a). The relevant inquiry is whether a “reasonable man, were 

he to know all the circumstances, would harbor doubts about the judge’s impartiality.” Trevino, 168 F.3d at 178 (quoting Health Servs. Acquisition Corp. 

v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986)) (internal quotation marks 

omitted). A “reasonable person standard in the recusal context contemplates a ‘well-informed, thoughtful and objective observer, rather than the 

hypersensitive, cynical, and suspicious person.’” Id. at 179 (quoting United 

States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995)) (internal quotation marks 

omitted).

Here, Johnson alleges that Judge Ada Brown’s decisions “would 

cause a reasonable person, knowing all the circumstances, to harbor doubts 

about the district court’s impartiality.” To support his allegation, Johnson 

points to two specific examples of her bias based upon her legal rulings. 

First, Johnson contends that Judge Brown impermissibly “truncate[d]” the time his counsel had to investigate and prepare legal arguments. 

Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply to 

an application for a writ of habeas corpus by a person in custody pursuant to 

the judgment of a State court.” Because Johnson’s state habeas petition was 

denied on September 11, 2019, his 1-year period of limitation ended on September 11, 2020.

Shortly after the denial of his state habeas petition, Johnson’s state 

habeas counsel filed a motion to the federal district court, requesting federal 

habeas counsel. On October 23, 2019, the court issued an order appointing 

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the present counsel to represent Johnson. In that same order, the court instructed Johnson to file his habeas petition by May 1, 2020. That deadline, 

Johnson alleges, contradicts 28 U.S.C. § 2244(d) because it was “four-anda-half months earlier than the applicable deadline,” and “[t]he language of 

the federal statute does not permit a federal court to shorten” that deadline. 

Based on Judge Brown’s reluctance to extend his filing deadline to September 11, 2020 (i.e., the full period allowed by the statute), Johnson contends

that Judge Brown is biased.

But Johnson cited no governing legal authority recognizing the right 

to delay his briefing until the final day of AEDPA’s one-year statute of limitations. To the contrary, it is firmly established that a district court has “the 

inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.” Dietz v. Bouldin, 579 

U.S. 40, 47 (2016). In addition, the Supreme Court has held that “judicial 

rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Accordingly, we 

hold that “a reasonable person” who knows “all the circumstances” would 

not “harbor doubts about the district court’s impartiality” on this basis. Trevino, 168 F.3d at 178; Buck, 580 U.S. at 115–16.

Johnson also arguesthat the district court showed bias when it ordered 

his attorneys to explain why they should not be sanctioned for making arguments that have been “consistently rejected by the Fifth Circuit for decades.” In response to that order, Johnson asserted that his attorneys “have 

a duty to raise all meritorious claims in [his] federal habeas petition even if 

the Supreme Court or [the Fifth Circuit] has yet to articulate a legal basis for 

those claims.” (citing United States v. Garza-De La Cruz, 16 F.4th 1213, 1215 

(5th Cir. 2021) (“But preserving one’s rights just in case is not just reasonable. Failure to do so risks forfeiting the right altogether.”)). Because Johnson 

believes that the court’s order was unwarranted, he asserts that Judge 

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Brown’s “threatening to sanction [his] attorneys for raising a meritorious 

claim suggest the district court harbored animus toward Johnson” and “intended to pressure Counsel to withdraw the second claim in Johnson’s Petition.”

In its order, the district court explained that even though it is generally 

acceptable for counsel to preserve claims, they nonetheless should 

acknowledge adverse on-point circuit precedent. In failing to do so, the district court noted that Johnson’s counsel might be acting contrary to Rule 

11(b)(2) of the Federal Rules of Civil Procedure, which requires counsel to 

certify that “the claims, defenses, and other legal contentions are warranted 

by existing law or by a nonfrivolous argument for extending, modifying, or 

reversing existing law or for establishing new law.” Given the district court’s 

explanation, we hold that the district court did not abuse its discretion in 

denying Johnson’s motion to recuse. These do not debatably give rise to a 

claim for relief. Buck, 580 U.S. at 115–16.

* * *

Because an “overview of the claims in the habeas petition and a general assessment of their merits” indicates that no “reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or 

wrong,” we DENY Johnson’s application for a certificate of appealability. 

Miller-El, 537 U.S. at 336, 338; Buck, 580 U.S. at 115–16.

As to the motion for recusal, no reasonable person who knows “all the 

circumstances” would “harbor doubts about [the district court’s] impartiality.” Trevino, 168 F.3d at 178. Thus, we hold that the district court did not 

abuse its discretion in denying Johnson’s motion to recuse. AFFIRMED.

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