IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70035

JOHN DAVID BATTAGLIA

Petitioner - Appellant

v.

WILLIAM STEPHENS, 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. 3:09-CV-1904

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

John Battaglia was sentenced to death by a Texas jury and seeks 

habeas relief. He requests a Certificate of Appealability (COA) to appeal the 

district court’s denial of his claim that state trial counsel ineffectively failed

to question jurors about their openness to considering mental health 

evidence. He also asks for leave to develop potential new ineffective 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2015

Lyle W. Cayce

Clerk

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assistance of counsel claims that would have been procedurally defaulted 

prior to Trevino v. Thaler.1 We DENY Mr. Battaglia’s requests.

I.

The facts were ably explained by the magistrate judge and adopted by 

the district court.2 We repeat them only as necessary. Mr. Battaglia was 

sentenced to death for killing his two young daughters. There was evidence at 

trial that he suffered from severe bipolar disorder. His conviction and death 

sentence were affirmed on direct appeal.3 In state post-conviction 

proceedings, Mr. Battaglia argued that trial “counsel made no or only 

minimal attempts to determine the venire members’ attitudes regarding 

whether mental illness played any role as a mitigating factor.” The initial 

state habeas court found that this claim was drawn entirely from the 

appellate record and thus procedurally barred by Texas law because it should 

have been raised on direct appeal.4 It also denied the claim in the alternative 

on the merits.5 The Court of Criminal Appeals (CCA) adopted the Texas 

district court’s opinion.6

Mr. Battaglia then filed for habeas relief in federal court. He again 

argued trial counsel were ineffective because they “failed to adequately 

question the venire about their views on mental illness as mitigation.” The 

magistrate judge recommended rejecting the claim on the merits, reasoning 

that because the state court found the questions would have been improper 

 

1 133 S.Ct. 1911 (2013).

2 Battaglia v. Stephens, 3:09-CV-1904-B, 2013 WL 5570216, at *9-10 (N.D. Tex. Oct. 

9, 2013).

3 Battaglia v. State, AP-74,348, 2005 WL 1208949 (Tex. Crim. App. May 18, 2005) 

(unpublished).

4 Ex Parte Battaglia, No. W01-52159-H(A), at 13-14 (Crim. Dist. Ct. No. One, Dallas 

Cty. Tx. Aug. 6, 2008), available at W.R. 494.

5 Id. at 26-31, 37-38.

6 Ex Parte Battaglia, WR-71,939-01, 2009 WL 3042925, at *1 (Tex. Crim. App. Sept. 

23, 2009) (unpublished).

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under state law, counsel could not have been ineffective in failing to ask 

them.7 The district court adopted this recommendation, denied the habeas 

petition, and denied a COA.8

II.

To obtain leave to appeal the district court’s denial of his habeas 

petition, Mr. Battaglia “need only demonstrate ‘a substantial showing of the 

denial of a constitutional right.’”9 To do so, he “must sho[w] that reasonable 

jurists could debate whether . . . the petition should have been resolved in a 

different manner or that the issues presented were adequate to deserve 

encouragement to proceed further.”10 “The issue is ‘the debatability of the 

underlying constitutional claim, not the resolution of the debate.’”11 Though 

this standard is forgiving, it must be viewed in conjunction with the 

restrictions of the Antiterrorism and Effective Death Penalty Act (AEDPA) 

and the standards governing the underlying constitutional question.12

Mr. Battaglia’s constitutional claim is that trial counsel were 

ineffective because they failed to adequately question potential jurors about 

their openness to evidence of bipolar disorder during voir dire. To prove an 

ineffective assistance of counsel (IAC) claim, Mr. Battaglia must show “(1) 

that counsel’s performance was deficient; and (2) that such deficient 

performance prejudiced the defense.”13 Under AEDPA, when state courts 

deny a habeas claim on the merits, federal courts may not grant relief unless 

the state court decision:

 

7 Battaglia, 2013 WL 5570216, at *24-25.

8 Id. at *5-6, 9.

9 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (quoting 28 U.S.C. § 2253(c)(2)). 10 Id. at 336 (internal quotation marks omitted) (quoting Slack v. McDaniel, 529 U.S. 

473, 484 (2000)).

11 Beatty v. Stephens, 759 F.3d 455, 461 (5th Cir. 2014) (quoting Miller-El, 537 U.S. 

at 342).

12 Id. at 462-63.

13 Id. at 462 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

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(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding.14

Since Mr. Battaglia has not challenged the state court’s fact findings, the 

relevant question before the district court was “whether the state court’s 

application of the Strickland standard was unreasonable.”15 The district 

court determined that it was not.

We now ask whether reasonable jurists could debate the district court’s 

determination that habeas relief was not warranted. Combining the 

Strickland, AEDPA, and COA standards, Mr. Battaglia is entitled to a COA if

reasonable jurists could debate whether the state habeas court’s finding that 

there was no Strickland violation was contrary to, or an unreasonable 

application of, clear Supreme Court law.

III.

a. Procedural Bar

The CCA rejected Mr. Battaglia’s claim that “counsel made no or only 

minimal attempts to determine the venire members’ attitudes regarding 

whether mental illness played any role as a mitigating factor” on both 

procedural and merits grounds. “A state court’s invocation of a procedural 

rule to deny a prisoner’s claims precludes federal review of the claims if, 

among other requisites . . . the rule is firmly established and consistently 

followed.”16 Review of Mr. Battaglia’s claim is not barred because Texas

courts have not consistently applied the rule that matters based entirely on 

 

14 28 U.S.C. § 2254(d).

15 Beatty, 759 F.3d at 463 (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).

16 Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).

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the appellate record should be raised on direct appeal.17 The Supreme Court 

has extensively discussed the ways in which “Texas courts in effect have 

directed defendants to raise claims of ineffective assistance of trial counsel on 

collateral, rather than on direct, review.”18 The state has not challenged the 

district court’s finding of inconsistency, instead arguing that Mr. Battaglia 

has not made a substantial showing of the denial of a constitutional right.

b. Debatability of Mr. Battaglia’s Constitutional Claim

The CCA found that Mr. Battaglia had failed to show his counsel’s 

performance was “deficient or prejudicial.”19 The court’s reasoning focused on 

the performance prong and proceeded along two lines. First, it found that 

counsel did question potential jurors about how they would view testimony 

by mental health professionals and whether they could consider mental 

health evidence with regard to mitigation.20 Second, it found that Battaglia 

was arguing that counsel should have “fleshed out whether specific jurors 

personally viewed mental illness as a mitigating factor,” which would have 

constituted “improper commitment questions.”21 The district court denied the 

habeas petition based on the CCA’s second line of reasoning, finding counsel 

could not have been ineffective for failing to ask questions that were 

 

17 See McCarthy v. Thaler, No. 3:07-CV-1631-O, 2011 WL 1754199, at *3 (N.D. Tex., 

May 9, 2011) (stating that “a state procedural default for failure to raise an ineffective 

assistance of trial counsel claim in the direct appeal does not appear to have been regularly 

followed in the Texas courts,” and citing CCA statements that the general rule is that 

ineffective assistance claims should be raised on habeas); Parr v. Thaler, 481 F. App’x 872, 

874-75 (5th Cir. 2012) (noting unchallenged finding that “a state court determination that

an ineffective assistance of counsel claim is waived if not raised on direct appeal is neither 

firmly established nor regularly followed in Texas”).

18 Trevino, 133 S.Ct. at 1918-20. 19 Battaglia, No. W01-52159-H(A), at 37-38. Adopted by CCA in Battaglia, 2009 WL 

3042925, at *1. 20 Battaglia, No. W01-52159-H(A), at 26-30.

21 Id. at 31.

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improper under Texas law.22

In this application for COA, Mr. Battaglia emphasizes that his claim is 

only that jurors were not asked whether they would be open to considering

evidence of bipolar disorder at the mitigation phase. He does not argue trial 

counsel should have asked how jurors would weigh his mental illness. At 

least some of his arguments to the state habeas court are consistent with this 

version of his claim. Nevertheless, even setting aside, arguendo, the Texas 

improper commitment question rule, we find that reasonable jurists could not 

debate the district court’s denial of Mr. Battaglia’s petition.

Mr. Battaglia’s IAC claim is not debatable because state trial counsel 

did ask jurors about their openness to evidence of mental illness, and Mr. 

Battaglia has identified no Supreme Court law suggesting that the manner in 

which they did so fell outside the range of reasonable representation. First, 

trial counsel stated in affidavits that they drew information from juror

responses to questionnaire items assessing their feelings about mental health 

professionals, and about testimony by such professionals in a capital murder 

trial. These responses “indicated to [counsel] how open each juror might be to 

considering evidence of mental illness at punishment.”

Additionally, for each of the twelve jurors eventually selected, counsel 

either asked whether the juror would be open to considering evidence of 

mental illness with regard to mitigation, or counsel explained that the jury 

could consider such evidence with regard to mitigation. Counsel took pains to 

explain that even if the evidence was not enough to show that Mr. Battaglia 

was “insane” for guilt-phase purposes, it could still be relevant to mitigation.

All jurors responded affirmatively to the question or explanation by defense 

counsel, indicating that they were open to such evidence or understood that 

 

22 Battaglia, 2013 WL 5570216, at *24-25; (magistrate judge’s recommendation); id.

at *5-6 (district court adopting magistrate’s reasoning and denying petition).

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they could consider it. Additionally, counsel attempted without success to get 

a definition of “mitigation” from the trial court in order to be better able to 

question jurors during voir dire.

Counsel had information from all jurors about how they would view 

evidence from mental health professionals, and ascertained that all jurors 

understood they were allowed to consider evidence of mental illness with 

regard to mitigation. Mr. Battaglia has not cited any Supreme Court law 

even suggesting that counsel were constitutionally ineffective for failing to do 

more. He highlights cases establishing the importance of voir dire,23 the right 

of capital defendants to question jurors on their beliefs about the death 

penalty,24 and the fact that sentencers may not “refuse to consider, as a 

matter of law, any relevant mitigating evidence.”25

None of these cases can bear Mr. Battaglia’s burden of showing that 

reasonable jurists could debate whether the Texas courts unreasonably 

applied clearly established Supreme Court law. Mr. Battaglia was permitted 

to question jurors about whether they could consider mental health evidence 

with regard to mitigation, so cases establishing the right to do so are 

inapposite. Moreover, none of the cases cited establish that counsel must ask 

such questions at all,26 let alone that counsel must ask them at a particular 

level of specificity or minuteness.

To the extent Mr. Battaglia now argues counsel should have gone 

further and asked whether jurors could consider evidence of bipolar disorder

 

23 Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). 24 Morgan v. Illinois, 504 U.S. 719, 730-36 (1992).

25 Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (emphasis original); see also Boyde 

v. California, 494 U.S. 370, 377-78 (1990) (“The Eight Amendment requires that the jury be 

able to consider and give effect to all relevant mitigating evidence offered by petitioner.”); 

Penry v. Lynaugh, 492 U.S. 302, 318-20 (1989).

26 See Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (“Moreover, Garza cites 

no authority, and we have found none, that would require a defense attorney to ask specific 

questions at voir dire.”).

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specifically, as opposed to asking about mental health evidence generally, 

this argument was not made before the state courts or the federal district 

court, and has even less purchase in the law. Mr. Battaglia has not pointed to 

any cases establishing that this greater level of specificity in voir dire 

questioning is required in order for counsel not to be constitutionally 

deficient.

Because, in light of the AEDPA and Strickland standards, reasonable 

jurists could not debate whether Mr. Battaglia’s IAC claim deserves

encouragement to proceed further, the application for a COA is denied.

IV.

Alongside his request for a COA, Mr. Battaglia attempts to raise new 

trial IAC claims that his state habeas counsel may have ineffectively failed to 

pursue. Mr. Battaglia suggests that (a) state trial counsel were ineffective 

because they failed to pursue a not guilty by reason of insanity verdict; and 

(b) state habeas counsel ineffectively failed to investigate and make this 

claim. He asks for a “stay and abeyance” of these proceedings and 

appointment of counsel so that this claim can be developed. He also suggests 

there may be other trial IAC claims that could be developed if the court 

stayed and abated the case.

The trial IAC claims Mr. Battaglia seeks to develop were procedurally 

barred prior to Trevino v. Thaler27 because they were not brought during 

state post-conviction proceedings. In Trevino, the Supreme Court held that

ineffective assistance of counsel during Texas habeas proceedings can provide 

an excuse in federal court for the failure to exhaust substantial trial IAC 

claims.28 Mr. Battaglia’s reasoning is that although counsel in federal district 

 

27 133 S.Ct. 1911 (2013).

28 Id. at 1921.

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court did not raise Trevino claims,29 we should consider granting a stay and 

abeyance now because Trevino issued only a few months before the district 

court ruled, giving counsel below inadequate opportunity to respond.

We do not address Mr. Battaglia’s procedurally improper request. 

Generally, “issues that are not covered by a COA are not properly before this 

court and thus cannot be considered on appeal.”30 Mr. Battaglia neither has 

nor asks for a COA on this issue—nor could he since his request was never 

made below. Rather, Mr. Battaglia seeks broad leave to develop potential 

Trevino IAC claims for the first time in this proceeding.

In capital habeas, as in other contexts, we generally do not address 

matters which were not presented to the district court.31 Mr. Battaglia does 

not show that exceptional circumstances warrant a departure from this 

rule.32 His only argument is that his counsel had no time to react to Trevino

in the district court—but even assuming we found that circumstance 

 

29 Mr. Battaglia did raise Trevino claims in supplemental pro se pleadings in the 

district court, but his current counsel does not seek to renew those claims, which were 

denied on multiple grounds, instead seeking to develop new ones.

30 Kohler v. Cain, 214 F.3d 1350, 2000 WL 634646, at *2 (5th Cir. 2000)

(unpublished) (citing Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997)).

31 See, e.g., Carter v. Johnson, 131 F.3d 452, 464-65 (5th Cir. 1997) (issues not raised 

before district court in capital § 2254 proceeding waived); Johnson v. Puckett, 176 F.3d 809, 

814 (5th Cir. 1999) (same—new contention “cannot be considered”); Davis v. Thaler, 511 F. 

App’x 327, 331 n.1 (5th Cir. 2013). 32 See Tifford v. Wainwright, 592 F.2d 233, 234 (5th Cir. 1979) (per curiam) (in 

habeas setting, rejecting exception where “the issue tendered is technical, not substantial” 

and the issues were “not based on any new developments in the law or on any newly 

unearthed facts”); Carter, 131 F.3d at 465 n.20 (in habeas setting, rejecting argument that a 

“miscarriage of justice will result from our refusal to address his argument” in the “absence 

of any colorable reason to question his factual guilt”); see also, more generally, Gen. 

Universal Sys., Inc. v. Lee, 379 F.3d 131, 159 & n.87 (5th Cir. 2004) (per curiam) (citing 

Matter of Novack, 639 F.2d 1274, 1276-77 (5th Cir. Unit B Mar. 1981)); Honeycutt v. Long, 

861 F.2d 1346, 1352 (5th Cir. 1988) (listing situations where appeals court will hear issues 

raised for first time on appeal); City of Waco, Tex. v. Bridges, 710 F.2d 220, 228 (5th Cir. 

1983) (same).

“The burden of establishing exceptional circumstances rests on the party asserting 

the new issue.” Newman v. Strachan Shipping Co. of Texas, 117 F.3d 1417, 1997 WL 

336181, at *1 (5th Cir. 1997) (unpublished).

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relevant, his assertion is inaccurate. Trevino issued months before the 

magistrate judge’s recommendation below, and was explicitly discussed by 

the magistrate months before the district court’s final ruling. Counsel below 

simply failed to pursue the matter. We further note that this is not a case 

where counsel was put in the position of arguing that she herself was 

ineffective.33 Counsel in the district court and on this appeal were federally 

appointed and had no involvement in the state proceedings. We deny Mr. 

Battaglia’s request made without a COA and never presented to the district 

court.

_____________

Mr. Battaglia’s application for COA and request for a stay and 

abeyance are DENIED.

 

33 Cf. Speer v. Stephens, 2015 WL 1449798, at *1-2 (5th Cir. Mar. 30, 2015) 

(appointing supplemental counsel under 18 U.S.C. § 3599 where federal habeas counsel 

“also represented the petitioner during state habeas proceedings”).

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