Pursuant to 5TH CIR. R. 47.5, the court has determined that this order should not be

*

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70049

LINDA ANITA CARTY,

Petitioner - Appellant,

v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal

Justice, Correctional Institutions Division, 

Respondent - Appellee.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

No. 06-614

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

A Texas jury convicted and sentenced to death petitioner–appellant Linda

Anita Carty for the intentional murder of Joana Rodriquez during the course of

a kidnaping of Rodriguez and her newborn son. State appellate courts affirmed

the conviction and sentence and denied post-conviction relief. Carty then

brought this federal habeas petition under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The district court denied

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2009

Charles R. Fulbruge III

Clerk
2

substantive relief, dismissed Carty’s case, and denied a certificate of

appealability (“COA”) for most of her claims. It granted a COA for two

substantive claims. Carty’s appeal of those two claims is now before us, as is

Carty’s request for an additional COA for many of the other claims she

unsuccessfully raised in the district court. We deny Carty’s request for an

additional COA, grant her request for oral argument regarding the two

substantive claims, and reserve opinion on those claims until after oral

argument.

I. FACTS AND PROCEDURE

The district court’s exhaustive opinion more than adequately documents

the factual background and procedural development of this case. See Carty v.

Quarterman (Carty Federal Habeas), No. 06-614, slip op. at 5–35 (S.D. Tex. Sept.

30, 2008). Here, we recite the facts and procedure in cursory form to provide a

framework for our denial of an additional COA.

Carty, a foreign national citizen of St. Kitts and thus the United Kingdom,

was indicted by a Texas grand jury for the kidnaping and intentional murder of

Rodriguez. Although Carty originally hired her own attorney, when her family

could not pay his fees, the Texas trial court appointed Jerry Guerinot and Wendy

Akins to represent her (collectively, “trial counsel”). Trial counsel hired

investigator John Castillo and psychologist Dr. Jerome Brown to aid Carty’s

defense. 

The trial proceeded in two phases: guilt/innocence and punishment.

During the guilt-innocence phase, the prosecution called, inter alia, Jose Corona,

with whom Carty had previously resided and who may have been Carty’s

common-law husband; Charlie Mathis, an agent of the Drug Enforcement

Agency and for whom Carty had previously worked as an informant; and Josie

Anderson, Marvin Caston, Chris Robinson, and Zebediah Combs, all of whom

had some role in the kidnaping, although the parties currently contest their

statuses as accomplices. The jury returned a verdict of guilty on the charge of
3

capital murder. During the subsequent punishment phase, Dr. Brown testified

on behalf of Carty, as did members of her family. The jury answered all three

of Texas’s “special issues” in favor of sentencing Carty to death.

The Texas Court of Criminal Appeals affirmed Carty’s conviction and

sentence. See Carty v. State, No. 74295, 2004 WL 3093229 (Tex. Crim. App. Apr.

07, 2004). Carty then applied for state post-conviction relief. Carty raised a few

of her presently asserted claims in her initial application for post-conviction

relief but most others in her Further Additional Response (her third amended

response to the government’s answer). The parties dispute whether they—along

with the state habeas court—agreed to permit Carty to raise new claims in that

response. The state habeas court reviewed the claims she raised in her initial

application and recommended that the Court of Criminal Appeals deny those

claims, see Ex Parte Carty, No. 877592-A, order (Tex. Dist. Ct. Dec. 2, 2004), a

recommendation that the Court of Criminal Appeals adopted, see Ex Parte Carty,

No. WR-61,055-01, slip op. 2 (Tex. Ct. Crim. App. Mar. 2, 2005). Neither court

addressed the claims she raised for the first time in her Additional Further

Response.

Having found no success in state court, Carty then filed an application in

federal district court for a writ of habeas corpus under § 2254. Carty presented

approximately twenty issues to the district court, which concluded that Carty

failed to raise a triable issue of her entitlement to relief, granted the state’s

motion for summary judgment, and dismissed the case. See Carty Federal

Habeas, No. 06-614, slip op. at 142. Carty then moved for a COA. The district

court granted Carty a COA on whether she failed to exhaust the claims that she

raised for the first time in her Further Additional Response and on whether trial

counsel rendered ineffective assistance by failing to notify Corona of his spousal

privilege and by failing to produce more mitigation evidence during the

punishment phase of trial. It denied a COA for all other claims. See Carty v.

Quarterman (Carty COA), No. 06-614, slip op. at 2–3 (S.D. Tex. Dec. 16, 2008).
4

Carty now appeals the claims for which the district court granted her a COA and

moves us to grant a COA on her additional claims. At this time, we rule only on

her motion for an additional COA and deny it.

II. STANDARDS OF REVIEW

Carty’s motion is governed by AEDPA. Under AEDPA, a state habeas

petitioner may appeal a district court’s dismissal of his petition only if the

district court or the court of appeals first issues a COA. 28 U.S.C.

§ 2253(c)(1)(B); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (describing a

COA as a “jurisdictional prerequisite” without which “federal courts of appeals

lack jurisdiction to rule on the merits of appeals from habeas petitioners”). In

determining whether to grant a petitioner’s request for a COA, we limit our

“examination to a threshold inquiry into the underlying merit of [the

petitioner’s] claims.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529

U.S. 473, 481 (2000)). “This threshold inquiry does not require full consideration

of the factual or legal bases adduced in support of the claims. In fact, the statute

forbids it.” Id. at 336.

We will grant a request for a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Typically, where the district court denies a habeas petition at least

in part on procedural grounds without reaching the applicant’s underlying

constitutional claim, or by reaching the underlying constitutional claim by

denying it in the alternative, “a COA should issue when the [applicant] shows,

at least, that 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.” Slack, 529 U.S. at 484. In this case, the district court concluded that

the claims that Carty raised for the first time in her Further Additional

Response were not exhausted in state court, a procedural ruling precluding relief

on those claims; however, it granted a COA for that ruling. See Carty COA, No.
 Carty also seeks a COA for the district court’s holding that the procedural default 1

that resulted from her failure to exhaust was not subject to certain exceptions. Our

disposition on Carty’s appeal of the merits of the exhaustion issue will necessarily resolve the

correctness of the district court’s underlying procedural default holding. We consider as a

separate matter whether to grant Carty’s request for a COA on the applicability of exceptions

to procedural default. 

Where a district court held that a different procedural bar applied to prevent 2

consideration of the merits of one of Carty’s claims, we apply the appropriate standard to both

the procedural and substantive holdings. See Slack, 529 U.S. at 484.

5

06-614, slip op. at 2 (“[G]iven the complexity of the record and the intricacies of

Texas habeas law, the [district court] finds that the exhaustion issue ‘deserves

encouragement to proceed further.’ The [district court], therefore, will grant a

COA on the question of whether [Carty] sufficiently exhausted state court

remedies.”). Thus, in order to grant a COA for one of Carty’s additional 1

substantive claims, we must conclude only that Carty has demonstrated the

threshold showing for that substantive claim. See Miller-El, 537 U.S. at 327. 2

“Although the issuance of a COA ‘must not be pro forma or a matter of course,’

the petitioner satisfies the burden under § 2253(c) by ‘demonstrat[ing] that

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

claims debatable or wrong.’” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005)

(alteration in original) (quoting Miller-El, 537 U.S. at 337–38). “[A] claim can

be debatable even though every jurist of reason might agree, after the COA has

been granted and the case has received full consideration, that petitioner will

not prevail.” Miller-El, 537 U.S. at 338. “[A]ny doubt as to whether a COA

should issue in a death-penalty case must be resolved in favor of the petitioner.”

Pippin, 434 F.3d at 787.

In determining whether the district court’s denial of Carty’s petition for

a COA on her additional claims was debatable, we must keep in mind the

deferential standard of review that AEDPA requires a district court to apply to

the state courts’ rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005)
Carty presented the majority of these claims in her Further Additional Response, so 3

there were no state court holdings to which the district court could apply the AEDPAmandated standard of deference. See § 2254(d); Pippin, 434 F.3d at 787. We will note the few

claims for which the state court provided a holding.

6

(“With respect to the review of factual findings, AEDPA significantly restricts

the scope of federal habeas review.”). Under AEDPA,

a federal court is not to grant a writ of habeas corpus “with respect

to any claim that was adjudicated on the merits in State court

proceedings” unless it determines that the state court’s adjudication

“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.”

Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)). Moreover, “‘a

determination of a factual issue made by a State court shall be presumed to be

correct’ unless the petitioner rebuts the presumption ‘by clear and convincing

evidence.’” Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). “This presumption of

correctness attaches not only to explicit findings of fact, but also to

‘unarticulated findings which are necessary to the state court’s conclusions of

mixed law and fact.’” Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th

Cir. 2003)).

III. DISCUSSION

Carty requests a COA for numerous substantive claims and for her claim

that exceptions to procedural default apply to the claims she raised for the first

time in her Further Additional Response.

A. Substantive claims

Carty raises six types of substantive challenges to her conviction or

sentence.3

1. Ineffective assistance of counsel

Carty contends that her trial counsel’s assistance was ineffective. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the
 “It bears repeating that,” where the state habeas court had the opportunity to rule on

4

the petitioner’s ineffective assistance of counsel claim, “the test for federal habeas purposes

is not whether [the petitioner] made [the required] showing.” Schaetzle v. Cockrell, 343 F.3d

440, 444 (5th Cir. 2003). “Instead, the test is whether the state court’s decision—that [the

petitioner] did not make the Strickland-showing—was contrary to, or an unreasonable

application of, the standards, provided by the clearly established federal law (Strickland), for

succeeding on [the petitioner’s] IAC claim.” Id.

7

trial cannot be relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). Under the Strickland standard, the Sixth

Amendment right to effective assistance of counsel “is denied when a defense

attorney’s performance falls below an objective standard of reasonableness and

thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

“Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at

700. “The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms,” by reference to “all the

circumstances.” Id. at 688. “Judicial scrutiny of counsel’s performance must be

highly deferential” and must avoid second-guessing. Id. at 689. Prejudice

requires a “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceedings would have been different.” Id. at 694. In light 4

of these standards, we now consider Carty’s claims of ineffective assistance of

counsel. 

First, Carty alleges that trial counsel rendered ineffective assistance

through deficient pre-trial preparation by (1) failing to interview Mathis; (2)

failing to conduct inquiries of Carty’s family and her life in St. Kitts; and (3)

failing to interview and prepare to cross-examine state witnesses. Carty has

failed to identify any testimony or information that trial counsel should have

elicited from Mathis that would have been admissible, relevant, and noncumulative. See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (“A

defendant who alleges a failure to investigate on the part of his counsel must

allege with specificity what the investigation would have revealed and how it
 The district court granted a COA on whether trial counsel should have conducted 5

more searching inquiries of Carty’s family and of her life in St. Kitts to uncover mitigation

evidence for use in the punishment phase of trial.

8

would have altered the outcome of the trial.”). She has similarly failed to show

that testimony about her character from her family and distant acquaintances

in St. Kitts was admissible and would have altered the guilt/innocence phase of

trial. Carty has additionally failed to show that Robinson and Combs, who were 5

also charged with crimes, would have agreed to be interviewed by trial counsel

or that they had any knowledge that was not otherwise disclosed to the jury

during trial. Thus, the district court’s holding—that trial counsel’s performance

did not fall below an objective standard of reasonableness—is not debatable by

jurists of reason.

Second, Carty claims that trial counsel provided ineffective assistance by

failing to call Dr. Brown to testify during the guilt/innocence phase and by

failing to prepare him for cross-examination during the punishment phase.

Carty has failed to show that Dr. Brown could have testified to his proffered

opinions—that Carty’s psychological profile did not fit the crime, that bandage

scissors could not cut human flesh, and that Carty could not have passed the

baby off as her own—during the guilt/innocence phase. Dr. Brown’s opinion

about Carty’s psychological profile was not helpful to the jury because the jury

was ultimately charged with deciding whether Carty kidnaped and killed

Rodriguez with the requisite intent. Dr. Brown’s analysis of her psychological

profile based on later observations in a controlled setting would not have been

helpful to the jury in determining whether she committed these crimes and, in

any case, that Carty’s later psychological profile suggested that she would not

have committed these crimes pales in comparison to the substantial evidence

that she did so. The only case relied upon by Carty permits testimony regarding

the defendant’s psychological profile in the punishment phase, not the

guilt/innocense phase. See Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim.
9

App. 1998). Next, Dr. Brown’s opinion that bandage scissors could not cut

human flesh was not relevant to the prosecution’s use of that evidence—to

provide evidence of Carty’s willingness to do anything to kidnap the baby—and

was not necessary because trial counsel presented that argument to the jury,

which did not need expert testimony to reach that conclusion. Finally, that

Carty could not have passed the baby off as her own due to its ethnicity is not

relevant to whether she wanted to do so, ignores Corona’s ethnicity, and ignores

Carty’s statements that Rodriguez was pregnant with Corona’s child. Regarding

cross-examination, an issue that Carty raised in state habeas court, she has

failed to rebut the fact that Dr. Brown was familiar with her case,

characteristics, and crimes, even if he did not know her theory of the case, and

has failed to show any prejudice arising from the alleged deficient preparation.

Carty has failed to rebut with clear and convincing evidence the state habeas

court’s finding that the prosecutor properly questioned Dr. Brown about

hypothetical characteristics and has failed to show that the state habeas court

unreasonably applied federal law to conclude that trial counsel was not

ineffective during Dr. Brown’s cross-examination. Overall, the district court’s

holding—that trial counsel’s performance did not fall below an objective

standard of reasonableness and did not prejudice the defense—is not debatable

by jurists of reason.

Third, Carty contends that trial counsel rendered ineffective assistance by

failing to present additional evidence that would have rebutted the special issue

of future dangerousness. Carty’s cursory argument on this issue fails to address

any of the district court’s comprehensive discussion of trial counsel’s tactics in

countering future dangerousness. Cf. Williams v. Cain, 125 F.3d 269, 278–79

(5th Cir. 1997) (holding that the trial attorney’s tactic of not presenting certain

evidence was not prejudicial to the defendant because it avoided harmful crossexamination). The district court’s thorough holding—that trial counsel’s
10

performance did not fall below an objective standard of reasonableness—is not

debatable by jurists of reason.

Fourth, Carty asserts that trial counsel rendered ineffective assistance by

failing to contradict the prosecution’s evidence of the cause of Rodriquez’s death,

particularly as it relates to Carty’s intent. The state habeas court denied Carty

relief on this claim because, inter alia, trial counsel pursued a reasonable tactic

of attacking the prosecution’s expert and elicited beneficial testimony during

cross-examination. The federal district court held that the state habeas court

did not unreasonably apply federal law in denying Carty’s claim. Carty now

contends that had trial counsel pursued a different tactic, her defense would

have been stronger. This argument is insufficient to show that reasonable

jurists could debate the district court’s conclusion. See Schaetzle, 343 F.3d at

444. 

Carty maintains that trial counsel provided ineffective assistance by

permitting the dismissal of over 80% of potential jurors, by inappropriately

questioning potential jurors, and by failing to object to prosecutor and court

statements during jury voir dire. Carty fails to show that the exclusion of

potential jurors, trial counsel’s statements, or trial counsel’s decisions not to

object gave rise to constitutional violations. See, e.g., Penry v. Johnson, 532 U.S.

782, 801–02 (2001) (“The comments of the court and counsel during voir dire

were surely a distant and convoluted memory by the time the jurors began their

deliberations on [the defendant’s] sentence.”); Zafiro v. United States, 506 U.S.

534, 540–41 (1993) (“[E]ven if there were some risk of prejudice, here it is of the

type that can be cured with proper instructions, and ‘juries are presumed to

follow their instructions.’”); Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.

1998) (“Because failure to make a frivolous objection does not cause counsel’s

performance to fall below an objective level of reasonableness, [the defendant]

has not established deficient performance.”). Thus, the district court’s
11

holding—that trial counsel’s performance did not fall below an objective

standard of reasonableness—is not debatable by jurists of reason.

Sixth, Carty claims, as she did in state habeas court, that trial counsel

rendered ineffective assistance by failing to advise her of her rights under the

Vienna Convention on Consular Relations (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77,

596 U.N.T.S. 261. The district court held that whether Carty has an

individually enforceable right under the VCCR is not clearly established for

purposes of AEDPA; that Carty did not claim prejudice distinct from her

unsuccessful claim of cumulative prejudice resulting from ineffective assistance

of counsel; and that, in any case, Carty was not prejudiced because even when

state officials notified her of VCCR-based rights, she failed to assert her foreign

nationality. Carty is a citizen of St. Kitts and the United Kingdom. As such,

Article 36 of the VCCR obligated the United States to notify the consular officers

of St. Kitts and the United Kingdom of Carty’s detention if she requested that

they do so and also to inform her without delay of her notification rights. See

Sanchez-Llamas v. Oregon, 548 U.S. 331, 338–39 (2006). While the United

States has undertaken that treaty obligation, the Supreme Court has not

answered whether the VCCR creates rights enforceable by individuals. See, e.g.,

Medellín v. Texas, --- U.S. ----, 128 S. Ct. 1346, 1357 n.4 (2008). Filling that void,

we have previously held that “‘Article 36 of the Vienna Convention does not

create an individually enforceable right.’” See, e.g., Leal Garcia v. Quarterman,

--- F.3d ----, 2009 WL 1800141, at *2 n.19 (5th Cir. 2009) (quoting Medellín v.

Dretke, 371 F.3d 270, 280 (5th Cir. 2004)). Carty nonetheless recites that

“numerous other courts have held the opposite, that the Vienna Convention does

create an individually enforceable right,” see id. (citing, e.g., Osagiede v. United

States, 543 F.3d 399, 409–10 (7th Cir. 2008), thus evidencing debate among

jurists of reason. While there may be a vibrant debate in the courts of appeals

about whether the VCCR conveys an individual right, that split does not mean

that the state court judgment was “contrary to, or involved an unreasonable
 This conclusion is without prejudice to Carty’s claim that trial counsel’s alleged 6

inadequate development of mitigation evidence constituted prejudicial deficient performance,

an issue for which the district court granted a COA and that remains before us on appeal. To

the extent Carty’s VCCR claim is relevant to the development of facts supporting mitigation,

we reserve judgment for our consideration of her pending appeal.

12

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” See § 2254(d)(1) (emphasis added). There can be no

debate among jurists of reason that the purported individual right is not at this

time clearly established by Supreme Court precedent. Yet, Carty continues to

assert her VCCR claim by reference to various forms of purported ineffective

assistance rendered by trial counsel, such as trial counsel’s failure to make

inquiries about her life on St. Kitts. Even assuming without deciding that trial

counsel erred by failing to advise Carty of the availability of consular assistance,

which may have resulted in such an inquiry, we conclude she has failed show

that jurists of reason could debate that she has suffered any actionable prejudice

resulting from trial counsel’s deficient representation. This is particularly true 6

where she failed to assert her status as a foreign national after state officials

notified her that foreign nationals would be permitted to contact their consuls

under the VCCR. The district court’s holding that the state habeas court’s ruling

was not contrary to clearly established federal law and the district court’s

conclusion that trial counsel’s performance did not prejudice the defense are not

debatable by jurists of reason.

Seventh, Carty asserts, as she did in state habeas court, that trial counsel

should have objected when the prosecutor mentioned numerous baby items

during his opening statement, items that the trial court later excluded from

evidence, and also asserts that trial counsel should have sought instructions on

and objected to evidence and argument relating to Anderson’s, Caston’s, and

Combs’s statuses as accomplice witnesses. The baby items were not excluded at

trial until after opening arguments, and numerous other baby items were

admissible evidence; thus, trial counsel did not act unreasonably, and the
13

purported error was only cumulative of existing evidence. In addition, because

questions existed as to the alleged accomplices’ statuses and the issue was thus

submitted to the jury with proper instructions, trial counsel was not deficient in

handling the accomplice witnesses. See Blake v. State, 971 S.W.2d 451, 455 (Tex.

Crim. App. 1998) (“If the evidence is conflicting, it is proper to leave the question

of whether an inculpatory witness is an accomplice witness as a matter of fact

to the jury under instructions defining the term accomplice.”). Thus, the district

court’s holding—that trial counsel’s performance did not fall below an objective

standard of reasonableness—is not debatable by jurists of reason, especially

when viewed through AEDPA’s multiple prisms.

Eighth, Carty argues that trial counsel should have resigned due to

excessive workload and due to Carty’s uncooperative interaction with trial

counsel. The district court held that Carty has failed to raise an issue of

constitutional magnitude, and that holding is not debatable by jurists of reason.

Carty’s ninth and final ineffective assistance of counsel claim is that the

cumulative errors of trial counsel deprived her of a fair trial. Carty preserved

this claim in state habeas court. Most of the alleged errors that Carty recites did

not constitute deficient performance and thus could not be the basis of a claim

of cumulative prejudice. See Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.

2000). Moreover, without prejudice to the merits of Carty’s pending appeal, the

ostensible errors that did occur did not “‘so infect[] the entire trial that the

resulting conviction violates due process.’” Derden v. McNeel, 978 F.2d 1453,

1454 (5th Cir. 1992) (en banc). Thus, jurists of reason could not debate the

district court’s holding denying Carty relief based on ineffective assistance due

to the alleged cumulative errors of trial counsel.

Overall, we deny a COA for Carty’s ineffective assistance of counsel claims.

2. Violation of VCCR-derived rights

Carty argues that the state erred by failing to inform her of her rights

under the VCCR. As noted above, we have previously held that “‘Article 36 of
14

the Vienna Convention does not create an individually enforceable right.’” See

Leal Garcia, 2009 WL 1800141, at *2 n.19 (quoting Medellín, 371 F.3d at 280).

Thus, as Carty at this time lacks an individual right, she has failed to show that

jurists of reason could debate the validity of her claim. See, e.g., Cardenas v.

Dretke, 405 F.3d 244, 253 (5th Cir. 2005) (“[The petitioner’s] claim fails because

this court has determined in the past that the Vienna Convention does not

confer individually enforceable rights.”). In any case, even presuming a debate

about whether the VCCR gives rise to an individually enforceable right, see Leal

Garcia, 2009 WL 1800141, at *2 n.19, we do not find that the merits of Carty’s

claim could be debated by jurists of reason because the state habeas court found

that, as a matter of fact, Carty was twice notified of the availability of VCCRderived rights, and she denied that she was a foreign national on both occasions.

Carty has not rebutted that conclusion with clear and convincing evidence.

Because Carty has failed to show that jurists of reason would find it debatable

whether her petition states a valid claim of the denial of a constitutional right

based on the United States’s obligations under the VCCR, we deny a COA. 

3. Trial court errors

Carty asserts three errors by the trial court. Carty first argues that,

during jury voir dire, the trial court improperly instructed the jury regarding

capital murder by omitting reference to specific intent. See TEX. PENAL CODE

§ 19.03(a). Assuming that instruction was incorrect, “the question is . . . whether

the ailing instruction by itself so infected the entire trial that the resulting

conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).

In this case the ailing instruction did not infect the ensuing trial. The trial court

properly instructed the jury regarding the requirement of intent immediately

before submitting the case to the jury, the court also instructed the jury to

resolve any doubt in favor of Carty when deciding between felony-murder and

capital murder, and the parties argued at length about whether the prosecution

had proven intent. See Penry, 532 U.S. at 801–02; Zafiro, 506 U.S. at 540.
15

Jurists of reason could not debate that Carty has failed to show a due process

violation.

Carty next argues that the trial court erroneously instructed the jury

about criminal acts of violence, again during jury voir dire. See TEX. CODE CRIM.

PROC. ANN. art. 37.071 § 2(b)(1). Carty has failed to show that the trial court’s

instruction was contrary to state law (even without reference to the oft-stated

principle that state-law errors typically do not give rise to a right to relief in

federal habeas proceedings) and has not shown that the purported error made

the fundamental fairness of trial debatable. See Little v. Johnson, 162 F.3d 855,

862 (5th Cir. 1998) (holding that state law violations must play “a crucial,

critical, and highly significant role in the trial” to warrant habeas relief). Jurists

of reason could not debate that Carty has failed to show a due process violation.

Carty finally argues that Texas law unconstitutionally permits the jury to

answer “no” to the special mitigation question without concluding beyond a

reasonable doubt that the state had shown that the facts do not warrant

otherwise. Carty exhausted this claim in state court, and it is foreclosed by our

precedent. See Ortiz v. Quarterman, 504 F.3d 492, 504–505 (5th Cir. 2007) (“The

Texas death penalty scheme does not violate [Supreme Court precedent] by

failing to require the State to prove beyond a reasonable doubt the absence of

mitigating circumstances.” (citing Scheanette v. Quarterman, 482 F.3d 815,

828–29 (5th Cir. 2007)). Again, jurists of reason could not debate that Carty has

failed to show a due process violation.

Because Carty has failed to show that jurists of reason would find it

debatable whether her petition states a valid claim of court error resulting in a

constitutionally deficient trial, we deny a COA. 

4. Insufficient evidence of intent to kill

Carty argues, as she did to the state habeas court, that the evidence

proving her intent to kill was legally insufficient. Texas law premises a murder

conviction on whether the actor “intentionally or knowingly causes the death of
16

an individual.” TEX. PENAL CODE § 19.02(a)(1); see Moreno v. Dretke, 450 F.3d

158, 172 (5th Cir. 2006). Carty contends her statements—for example, that she

wanted to cut the baby from Rodriguez’s body—were insufficient to show

intentional conduct because the baby was already born at the time of Rodriguez’s

murder, the scissors Carty intended to use were not capable of the abhorrent

task, and she accomplished Rodriguez’s murder by the alternative method of

suffocation. Carty’s statements did nothing more than evidence her willingness

and desire to kill Rodriguez to accomplish the kidnaping of Rodriguez’s baby,

and the state offered sufficient evidence that, when viewed in the light most

favorable to the it, see Jackson v. Virginia, 443 U.S. 307 (1979), proved that, as

the state habeas found, “placing a person face down in the trunk, taping that

person’s hands, feet, and mouth, and then placing a plastic bag over that

person’s head . . . show[s] an intent to kill or cause serious bodily injury.” Carty

has failed to show that jurists of reason could debate whether the state habeas

court reasonably applied federal law; we deny a COA. 

5. Prosecutorial misconduct

Carty asserts two claims of prosecutorial misconduct. “Prosecutorial

misconduct is not a ground for relief unless it casts serious doubt upon the

correctness of the jury’s verdict.” Styron v. Johnson, 262 F.3d 438, 449 (5th Cir.

2001). Carty first asseverates that the prosecutor should have notified Corona

of his right not to testify against Carty because she was his common-law wife.

Carty has failed to show prosecutorial misconduct in putting Corona on the

stand to testify. See Benitez v. State, 5 S.W.3d 915, 918–19 (Tex. App.—Amarillo

1999, pet. refused) (“[C]alling the spouse is not ipso facto error. [T]he State has

no duty to prove that she testified voluntarily.”). Nor has Carty shown the

marital privilege is a constitutionally derived rule. See Port v. Heard, 764 F.2d

423, 430 (5th Cir. 1985) (“[T]he marital privilege has never been placed on a

constitutional footing.”). While it is debatable in fact whether Corona was
 Article 38.14 provides: “A conviction cannot be had upon the testimony of an 7

accomplice unless corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely shows the commission

of the offense.”

17

Carty’s common-law husband, reasonable jurists could not debate the absences

of a constitutional violation by the prosecutors in putting Corona on the stand.

Carty next maintains that the prosecutors incorrectly argued that

Anderson, Caston, and Combs were not accomplices because they were not

present during the kidnaping and murder. See Singletary v. State, 509 S.W.2d

572, 575 (Tex. Crim. App. 1974). She also argues that the prosecutors misstated

the law by asserting that corroboration required only evidence that the crime

occurred. See TEX. CODE CRIM. PROC. ANN. art. 38.14. For alleged misconduct 7

based on the prosecutor’s argument to the jury, an applicant is entitled to relief

where “the prosecutors’ comments ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’” Darden v. Wainwright,

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). The district court held that Carty did not object to the prosecutor’s

comments at trial, subjecting these errors to procedural default under Texas’s

contemporary objection rule. See, e.g., Barrientes v. Johnson, 221 F.3d 741, 779

(5th Cir. 2000). Carty has offered no challenge to that conclusion, and it is not

debatable by jurists of reason. The district court alternatively held that the

instruction by the trial court provided the jury with adequate guidance to

overcome any misstatement by the prosecutor and that any misstatement did

not cast serious doubt upon the jury’s verdict. See, e.g., Ward v. Whitley, 21 F.3d

1355, 1366 (5th Cir. 1994) (“The arguments of counsel perforce do not have the

same force as an instruction from the court.”). Jurists of reason could not debate

that no due process violation resulted from these purported errors.

Because Carty has failed to show that jurists of reason would find it

debatable whether her petition states a valid claim of prosecutorial misconduct

that casts doubt upon the correctness of the jury’s verdict, we deny a COA. 
18

6. Cumulative error

Carty alleges cumulative error by the trial court, prosecutor, and trial

counsel. “The cumulative error doctrine provides relief only when the

constitutional errors committed in the state trial court so ‘fatally infected the

trial’ that they violated the trial’s ‘fundamental fairness.’” Spence v. Johnson,

80 F.3d 989, 1000 (5th Cir. 1996) (citing Derden, 978 F.2d at 1457). To provide

relief, cumulative errors must have “more likely than not caused a suspect

verdict.” Id. at 1001 (quotation marks omitted). In this case, without prejudice

to the merits of Carty’s pending appeal, and jurists of reason could not debate

that the summation of otherwise non-prejudicial errors did not cause a suspect

verdict or effect the fundamental fairness of the result. We deny a COA.

B. Procedural Default

Carty also seeks a COA on the district court’s procedural default holdings.

The district court concluded that Carty failed to exhaust numerous claims by

improperly raising them in her Additional Further Response; that Texas courts

would consider her unexhausted claims an abuse of writ if she filed them now,

resulting in procedural default barring federal habeas review; and that

exceptions to procedural default did not apply. See Carty, No. 06-614, slip op. at

53–55 (citing Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (“A procedural

default also occurs when a prisoner fails to exhaust available state remedies and

the court to which the petitioner would be required to present his claims in order

to meet the exhaustion requirement would now find the claims procedurally

barred.” (quotation marks and citation omitted))). The district court granted “a

COA on the question of whether [Carty] sufficiently exhausted state court

remedies,” but it did not specifically mention its corresponding procedural

default rulings. 

We initially note that the district court’s underlying procedural default

ruling was entirely dependent on its failure-to-exhaust ruling; thus, Carty’s

success on her appeal of the exhaustion issue would by definition remove the
Ex parte Hood and its progeny considered the atypically complex development of 8

Supreme Court precedent in Smith v. Texas, 550 U.S. 297 (2007); Brewer v. Quarterman, 550

U.S. 286 (2007); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007); Penry v. Johnson, 532 U.S.

782 (2001); and Penry v. Lynaugh, 492 U.S. 302 (1989).

19

procedural default bar to federal review. Both parties addressed that issue in

their main briefs, and we do not rule on it here. Presently, Carty asks us to

grant a COA on the additional, alternative basis that jurists of reason could

debate the district court’s conclusion that exceptions to procedural default did

not apply. Although the interplay of these various procedural rulings and

exceptions raises some interesting legal questions, see O’Sullivan v. Boerckel,

526 U.S. 838, 851–857 (1999) (Stevens, J., dissenting), we need not here delve

into those nuances, as a COA is not warranted in any case.

Carty initially claims that it is debatable whether Texas state courts

would apply an equitable exception to procedural default. See Ex parte Hood,

Nos. WR-41, 168-10, AP-75,370, 2008 WL 4151666, at *2 (Tex. Crim. App. Sept.

9, 2008). In Ex parte Hood, the Court of Criminal Appeals opted to reconsider

a prior dismissal of a subsequent application for a writ of habeas corpus based

on “developments in the law regarding nullification instructions.” Id.; see also 8

Ex Parte Hathorn,--- S.W.3d ----, 2009 WL 929095 (Tex. Crim. App. 2009) (same);

Ex parte Briseno, No. AP-76132, 2009 WL 949075 (Tex. Crim. App. Apr. 8, 2009)

(ordering briefing on same). In this case, Carty alleges neither legal nor factual

post-application developments similar to those that existed in Ex parte Hood and

its progeny; thus, she has failed to show that the district court’s procedural

default ruling is debatable by jurists of reason based on these cases.

Carty next argues that the government waived the issue of procedural

default. See Fisher v. Texas, 169 F.3d 295, 301 (5th Cir. 1999) (“A state waives

a procedural bar defense by failing to raise the defense in the district court.”).

While exhaustion and procedural default are two distinct concepts, in cases

where procedural default is based on the failure to exhaust, waiver of exhaustion

waives both. See Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999) (“[T]he
 As such, we need not address Carty’s argument that the state can waive a procedural 9

default that is exclusively dependent on the exhaustion requirement by a means other than

counsel’s express statement. Cf. Jackson v. Johnson, 194 F.3d 641, 652 & n.35 (5th Cir. 1999)

(“Although a ‘State shall not be deemed to have waived the exhaustion requirement . . . unless

the State, through counsel, expressly waives the requirement,’ 28 U.S.C. § 2254(b)(3), the

exhaustion requirement is related but distinct from that of procedural default.”). 

20

state has waived any independent exhaustion argument, as well as the

exhaustion argument included within the doctrine of procedural default.”). To

the extent that the government’s waiver of procedural default is dependent on

its purported waiver of exhaustion, both parties have briefed that issue in their

main briefs, and we will consider the issue in our review of Carty’s appeal.

Otherwise, it is undisputed that, after prompting by the district court, the

government asserted procedural default and Carty received notice and had an

opportunity to respond. See Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir.

1998). Thus, jurists of reason could not debate that the state did not waive its 9

procedural default defense.

Carty additionally claims that she had shown cause and actual prejudice

to excuse her procedural default because the state habeas court and state habeas

counsel agreed to an extended period for filing her claims, a period that the state

habeas court then did not honor. See generally Coleman v. Thompson, 501 U.S.

722, 750 (1991) (recognizing the cause and actual prejudice exception). The

district court held that this claim, at its base, was one for ineffective assistance

of habeas counsel. Because Carty showed no reason why appointed counsel did

not file the claims in her initial application for post-conviction relief, the court

concluded that cause did not apply. See Ries v. Quarterman, 522 F.3d 517, 526

n.5 (5th Cir. 2008) (“[I]neffective assistance of state habeas counsel cannot

provide cause to excuse a procedural default.”). Carty has provided no basis on

which a jurist of reason could debate the district court’s conclusion. 

Carty finally claims that a fundamental miscarriage of justice will result

if her claims are procedurally defaulted because of her “actual innocence of the
21

death penalty.” Carty asserts that a fundamental miscarriage of justice occurred

in the punishment phase of trial, but only in sufficient depth regarding trial

counsel’s assistance in presenting mitigating evidence. See Lookingbill v.

Cockrell, 293 F.3d 256, 263 (5th Cir. 2002) (“Where a habeas petitioner fails to

brief an argument adequately, we consider it waived.”). Mitigation evidence

cannot be the basis of a claim of a fundamental miscarriage of justice. See

Sawyer v. Whitley, 505 U.S. 333, 347 (1992) (“[T]he ‘actual innocence’

requirement must focus on those elements that render a defendant eligible for

the death penalty, and not on additional mitigating evidence that was prevented

from being introduced as a result of a claimed constitutional error.”). Carty has

again provided no basis on which a jurist of reason could debate the district

court’s conclusion. 

Because jurists of reason could not debate the district court’s procedural

rulings, we deny Carty’s request for a COA on the applicability of exceptions to

procedural default.

IV. CONCLUSION

For the above-described reasons, Carty’s motion for an additional COA is

DENIED. Her request for oral argument on the claims for which the district

court issued a COA is GRANTED, and we reserve opinion on those claims until

after oral argument.