IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 98-41474 _____________________
EARL CARL HEISELBETZ, JR,
Petitioner-Appellant,
v.
GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas (98-CV-37) _________________________________________________________________
July 26, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
KING, Chief Judge:*
Petitioner-appellant Earl Carl Heiselbetz, Jr., a Texas
death row inmate, requests a certificate of appealability in
order to appeal the district court’s grant of summary judgment on
his application for a writ of habeas corpus in favor of
respondent-appellee Gary Johnson, Director of the Texas
Department of Criminal Justice, Institutional Division. We
decline to issue a certificate of appealability.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. FACTUAL AND PROCEDURAL HISTORY
In November 1991, petitioner Earl Carl Heiselbetz, Jr. was
convicted of the capital offense of committing two murders in the
same criminal transaction1 and sentenced to death in the district
court of Sabine County, Texas. On June 28, 1995, the Texas Court
of Criminal Appeals, the state’s highest criminal court, affirmed
Heiselbetz’s conviction and sentence. See Heiselbetz v. State,
906 S.W.2d 500, 513 (Tex. Crim. App. 1995) (en banc). Heiselbetz
did not file a petition for writ of certiorari to the United
States Supreme Court. On April 24, 1997, however, he filed an
application for state habeas corpus relief. The state habeas
trial court entered findings of fact and conclusions of law,
which the Texas Court of Criminal Appeals adopted, denying
Heiselbetz’s habeas application. On February 5, 1998, Heiselbetz
filed a federal habeas application in the United States District
Court for the Eastern District of Texas. The district court
referred all dispositive motions filed in the case to a
magistrate judge, who recommended that the district court deny
relief. Both parties filed objections, but the district court
ultimately adopted the magistrate judge’s report and
recommendations and denied habeas relief. The district court
also denied Heiselbetz’s request for a certificate of
1 The prosecution’s theory of the case was that on May 30, 1991, in Sabine County, Texas, Heiselbetz murdered both Rena Rogers, his neighbor, and her two-year-old daughter, Jacy Rogers. See Heiselbetz v. State, 906 S.W.2d 500, 504-06 (Tex. Crim. App. 1995) (en banc).
2 appealability (COA). Heiselbetz now requests a COA from this
court.
II. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Heiselbetz must obtain a COA in order to appeal the
denial of his habeas petition.2 A COA may be issued only if the
prisoner has made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A ‘substantial
showing’ requires the applicant to ‘demonstrate that the issues
are debatable among jurists of reason; that a court could resolve
the issues (in a different manner); or that the questions are
adequate to deserve encouragement to proceed further.’” Drinkard
v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
Moreover, where a state court has adjudicated the habeas
applicant’s claim on the merits, we cannot grant a COA unless the
applicant makes a substantial showing that the state court
decision is not entitled to deference under 28 U.S.C. § 2254(d).
See Corwin v. Johnson, 150 F.3d 467, 476 (5th Cir.), cert.
2 Heiselbetz does not appear to contest that the AEDPA applies to his federal habeas application. In both the district court and our court, he filed requests for certificates of appealability, the AEDPA’s term for a certificate of probable cause. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997) (citing 28 U.S.C. § 2253(c)(2)). Moreover, we note, he filed his habeas application on February 5, 1998, well after the April 24, 1997 deadline for prisoners whose convictions became final before AEDPA’s effective date. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998).
3 denied, 119 S. Ct. 613 (1998). As amended by the AEDPA, this
section provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(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.
Our case law has fleshed out these statutory standards. We have
explained, for example, that “a reasonable, good faith
application of Supreme Court precedent will immunize the state
court conviction from federal habeas reversal, even if federal
courts later reject that view of the applicable precedent.” Mata
v. Johnson, 99 F.3d 1261, 1268 (5th Cir. 1996), vacated in part
on other grounds on reh’g, 105 F.3d 209 (5th Cir. 1997).
Similarly, we have held that “[a]n application of federal law is
unreasonable only ‘when it can be said that reasonable jurists
considering the question would be of one view that the state
court ruling was incorrect.’” Trevino v. Johnson, 168 F.3d 173,
181 (5th Cir. 1999) (quoting Drinkard, 97 F.3d at 769), petition
for cert. filed, --- U.S.L.W. --- (U.S. June 17, 1999) (No. 98-
9936).
Finally, where the district court denied relief because the
applicant’s claim was procedurally barred, see Coleman v.
4 Thompson, 501 U.S. 722, 729 (1991),3 we employ a two-step COA
process. See Robison v. Johnson, 151 F.3d 256, 262 (5th Cir.
1998), cert. denied, 119 S. Ct. 1578 (1999). We first ask whether
the applicant has made a credible showing that his claim is not
so barred. See id. If the applicant meets that requirement, we
then determine if he “has made a substantial showing of the
denial of a constitutional right” with respect to the underlying
claim. Id. (internal quotation marks omitted).
With these principles in mind, we proceed to consider the
issues on which Heiselbetz requests a COA.
B. Heiselbetz’s Claims
1. State Habeas Court’s Refusal to Hold an Evidentiary Hearing
First, Heiselbetz argues that the state habeas court’s
failure to hold an evidentiary hearing on his claims denied him
his Fourteenth Amendment right to due process of law and his
Sixth Amendment right to the assistance of counsel. In addition,
he contends that, in the absence of an evidentiary hearing, the
state court adjudication is not entitled to deference under
3 It is well settled that federal review of a claim is procedurally barred if the last state court to consider the claim expressly and unambiguously based its denial of relief on a state procedural default. See Coleman, 501 U.S. at 729; Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). A state court may expressly and unambiguously base its denial of relief on a state procedural default even if it alternatively reaches the merits of a habeas petitioner’s claim. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir. 1989). Federal review is not foreclosed, however, unless the state courts’ procedural bar is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988).
5 § 2254(d). We conclude that Heiselbetz has failed to make a
substantial showing of the denial of a constitutional right.
It is well-established law in this circuit that “errors in a
state habeas proceeding cannot serve as a basis for setting aside
a valid original conviction. An attack on a state habeas
proceeding does not entitle the petitioner to habeas relief in
respect to his conviction, as it ‘is an attack on a proceeding
collateral to the detention and not the detention itself.’”
Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (quoting
Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987)); see
Trevino, 168 F.3d at 180 (holding that infirmities in state
habeas proceedings do not constitute grounds for relief in
federal court); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th
Cir. 1992) (same); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir.
1984) (same). Other circuits similarly have decided that habeas
corpus relief is not available to correct alleged errors in state
habeas proceedings. See, e.g., Jolly v. Gammon, 28 F.3d 51, 54
(8th Cir. 1994); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.
1989); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988);
Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987); Kirby
v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986). But see Dickerson
v. Walsh, 750 F.2d 150, 153 (1st Cir. 1984) (allowing a federal
habeas claim arising out of alleged errors in a state court
habeas proceeding). Under the law of this circuit, Heiselbetz
has failed to make a substantial showing of a denial of a
6 constitutional right. We therefore decline to issue a COA on
this issue.
We also reject Heiselbetz’s contention that the lack of a
hearing renders the state court habeas proceeding insufficient
for deference purposes under § 2254(d). Under the post-AEDPA
habeas regime, we must defer to a state court adjudication “on
the merits,” as opposed to one decided on procedural grounds, of
a habeas petitioner’s claim, unless two statutory exceptions
apply. 28 U.S.C. § 2254(d). Resolution on the merits is “a term
of art in the habeas context that refers not to the quality of a
court’s review of claims, but rather to the court’s disposition
of the case--whether substantive or procedural.” Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Indeed, the Green
court explicitly rejected the argument of the habeas applicant in
that case that the AEDPA’s adjudication on the merits
prerequisite is a proxy for the quality of the legal process of
resolving a dispute and that, to be entitled to deference under
§ 2254(d), the court’s treatment of the application must evince
careful consideration and a thorough and meaningful substantive
evaluation of the claims. See id. at 1120-21. In short, whether
an adjudication is “on the merits” does not depend on whether the
state habeas court held a hearing. Therefore, the absence of a
hearing, by itself, does not excuse us from the deference
§ 2254(d) requires that we afford to state court habeas
adjudications.
7 2. State Trial Court’s Refusal to Grant a Continuance
Second, Heiselbetz contends that the state trial court’s
refusal to grant a continuance violated his Sixth Amendment
rights to the effective assistance of counsel and compulsory
process and his Fourteenth Amendment right to due process of law.
Although Heiselbetz’s trial was set for late October 1991, his
attorney, John Walker, was not appointed to represent him until
July 29, 1991. The court did not appoint an investigator to
assist Walker until September 9, 1991. On September 20, 1991,
the prosecutor presented Walker with a list of over seventy-five
potential witnesses, and several weeks later, on October 14,
1991, Walker filed a motion for a continuance seeking additional
time to prepare for trial. The trial court denied the motion.
Heiselbetz claims that the denial of a continuance prevented
Walker from adequately investigating the effect of Heiselbetz’s
1975 head injury on his criminal conduct. He also argues that
“there were additional problems stemming from the denial of a
continuance, including an inability to deal with a hostile
opinion climate, an inability to develop evidence of childhood
abuse, and a temporary problem with counsel’s illness.” The
district court below found that Heiselbetz’s continuance-related
claims were procedurally barred.
As we explained above, when the district court denies a
habeas application on procedural, nonconstitutional grounds, we
employ a two-step COA process, first looking to whether the
applicant has made a credible showing that his claim is not
8 procedurally barred. See Robison, 151 F.3d at 262. In his brief
to this court, Heiselbetz makes no mention of the district
court’s conclusion that his claims stemming from the denial of a
continuance are procedurally barred. He has therefore failed to
make a credible showing that the claims are not procedurally
barred, and we will not grant a COA on these issues.
3. State Trial Court’s Failure to Instruct the Jury on Minimum Period of Incarceration for a Capital Defendant Sentenced to Life Imprisonment
We now turn to Heiselbetz’s next set of claims. Heiselbetz
contends that the state trial court’s failure to instruct the
jury that, at the time, a defendant convicted of a capital crime
and sentenced to life imprisonment was required to serve fifteen
years before becoming eligible for parole violated the Eighth and
Fourteenth Amendments. Citing Smith v. State, 898 S.W.2d 838,
847-53 (Tex. Crim. App. 1995), and Shannon v. State, 942 S.W.2d
591, 594 (Tex. Crim. App. 1996), the state habeas trial court
rejected Heiselbetz’s claims as “contrary to the law” and noted
that “[a]pplicant has not provided the court any reason why Smith
and the other cases following it should be reconsidered.” The
Texas Court of Criminal Appeals later adopted the trial court’s
findings of fact and conclusions of law in denying habeas relief.
This disposition is clearly “on the merits” within the meaning of
§ 2254(d). See Trevino, 168 F.3d at 181 (finding that an
explicit denial of relief by the Texas Court of Criminal Appeals
accompanied by findings of fact and conclusions of law qualified
as an “adjudication on the merits”); Davis v. Johnson, 158 F.3d
9 806, 812 (5th Cir. 1998) (“We have previously found that an
explicit denial of relief on the merits by the Texas Court of
Criminal Appeals is an ‘adjudication on the merits’ entitled to
deference under AEDPA.”), cert. denied, 119 S. Ct. 1474 (1999);
Drinkard, 97 F.3d at 768 (finding “no question” that a claim was
adjudicated on the merits in state court proceedings where the
state trial court entered explicit findings later adopted by the
Texas Court of Criminal Appeals). Because Heiselbetz’s claims
are, as he concedes, “purely matters of law,” we may not grant
relief unless 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.” 28 U.S.C. § 2254(d)(1).
Supreme Court precedent does not clearly establish that
either the Eighth or Fourteenth Amendment requires a trial court
to inform a jury that a capital defendant sentenced to life
imprisonment must serve fifteen years before becoming eligible
for parole. Simmons v. South Carolina, 512 U.S. 154, 171 (1994)
(plurality opinion), Heiselbetz’s primary authority, holds that
where future dangerousness is an issue in a capital sentencing
determination, the defendant has a Fourteenth Amendment due
process right to have his sentencing jury informed that he will
never be eligible for parole if sentenced to life imprisonment.
On its face, Simmons applies only when a state, unlike Texas,
provides for a life-without-parole sentencing alternative to
10 capital punishment.4 The Simmons Court expressly declined to
reach the question of whether this result was also compelled by
the Eighth Amendment. See id. at 162 n.4. Heiselbetz does not
cite, and we have not found, any other Supreme Court authority
establishing that, under the Eighth or Fourteenth Amendments, a
capital sentencing jury must be informed that a defendant
sentenced to life imprisonment will not be eligible for parole
for fifteen years.
Indeed, this court recently denied a CPC to appeal the
denial of a due process claim identical to Heiselbetz’s. The
applicant in Boyd v. Johnson, 167 F.3d 907 (5th Cir. 1999),
petition for cert. filed, --- U.S.L.W. --- (U.S. June 11, 1999)
(No. 98-9745), sought a CPC to appeal the district court’s denial
of his § 2254 habeas application. See id. at 908. He claimed,
among other things, that the state trial court’s failure to
instruct the jury on the parole implications of a life sentence
in a capital case rendered the Texas sentencing scheme
unconstitutional under Simmons. See id. We declined to grant a
CPC:
[I]n Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994), we interpreted Simmons to mean that “due process requires the state to inform a sentencing jury about a defendant’s parole ineligibility when, and only when, (1) the state argues that
4 Indeed, the Simmons plurality explicitly countered the dissent’s argument that even among those states that permit the sentencing jury to choose only between “life” (unspecified) and “death,” South Carolina was not alone in keeping parole information from the jury, id. at 179 & n.1 (Scalia, J., dissenting), by pointing out that two of these states, Texas and North Carolina, did not have a life-without-parole sentencing option. See id. at 168 n.8.
11 a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole.” Although the State argued that Boyd would represent a danger in the future, Boyd would have been eligible for release on parole had he received a life sentence. See Tex. Code Crim. Proc. Ann. § 42.18(8)(b)(2). Boyd’s eligibility for parole renders Simmons inapplicable to his case. See Allridge, 41 F.3d at 222 (concluding Simmons unavailing in similar case). Hence, Boyd has not shown that the trial court violated his constitutional rights by failing to instruct the jury concerning his parole ineligibility.
Id. at 912-13; see Green v. Johnson, 160 F.3d 1029, 1045 (5th
Cir. 1998) (“[T]he Fifth Circuit has repeatedly refused to extend
the rule in Simmons beyond those situations in which a capital
murder defendant is statutorily ineligible for parole.”), cert.
denied, 119 S. Ct. 1107 (1999); Muniz v. Johnson, 132 F.3d 214,
224 (5th Cir.) (same), cert. denied, 118 S. Ct. 1793 (1998);
Woods v. Johnson, 75 F.3d 1017, 1036-37 (5th Cir. 1996) (same);
Johnson v. Scott, 68 F.3d 106, 111 (5th Cir. 1995) (same);
Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995) (same);
Allridge v. Scott, 41 F.3d 213, 221-22 (5th Cir. 1994) (same).
We also have rejected claims that the denial of parole
information violates the Eighth Amendment. In Green, for
example, we refused to grant a CPC to pursue a claim that the
trial court’s refusal to inform the jury that the habeas
applicant would not be eligible for parole for twenty years if
sentenced to life imprisonment violated the Eighth Amendment.
See 160 F.3d at 1044-45. Similarly, in Johnson, we rejected such
a claim outright, noting that
Justice Blackmun’s plurality opinion in Simmons declined to express an opinion as to whether the decision was compelled by the Eighth Amendment; therefore, Simmons does not rest on Eighth Amendment grounds as Johnson argues. We have
12 consistently held, however, that neither the due process clause nor the Eighth Amendment compels instructions on parole in Texas.
68 F.3d at 112 (citations omitted).
Therefore, we conclude that the adjudication of the Texas
Court of Criminal Appeals on this issue was neither contrary to,
nor involved an unreasonable application of, Supreme Court
precedent. Heiselbetz is not entitled to a COA on the claims
stemming from the trial court’s failure to inform the jury of his
parole eligibility.
4. State Trial Court’s Failure to Instruct the Jury on Meaning of “Same Criminal Transaction”
Heiselbetz also contends that the state trial court’s
failure to instruct the jury as to the meaning of “same criminal
transaction” violated the Eighth Amendment. Heiselbetz’s
indictment charged him with capital murder under Texas Penal Code
§ 19.03(a)(6) in that he committed the murders of Rena Rogers and
Jacy Rogers “during the same criminal transaction.” Prior to
trial, Heiselbetz moved to quash the indictment on the ground
that “[t]he statute under which the indictment is brought,
namely, 19.03(6)(A) [sic] is unconstitutional because the statute
does not define ‘same criminal transaction’ and as such is
overbroad and does not confine the jury to an identifiable act,
motive or circumstance.” The trial court rejected his contention
and, moreover, failed to offer any definition in the guilt-phase
jury instructions. On direct appeal, Heiselbetz again raised
this issue, but the Texas Court of Criminal Appeals concluded
that it was inadequately briefed and denied relief. In his state
13 habeas application, Heiselbetz once more asserted the claim, only
to have the court rule that “[c]laims raised on direct appeal
cannot be relitigated in habeas corpus proceedings.” The Texas
Court of Criminal Appeals later adopted the state habeas trial
court’s findings of fact and conclusions of law in denying relief
on this issue. The federal district court below held that the
claim was procedurally barred.
We turn first to whether Heiselbetz has made a credible
showing that his claim is not procedurally barred. See Robison,
151 F.3d at 262-63. Heiselbetz’s brief addresses this issue in a
single sentence: “The federal district court also found a
procedural default, but that is a mixed question of fact and law,
and Petitioner claims the district court was incorrect.” He
makes no argument that, for example, the state courts do not
“strictly or regularly” enforce the procedural bar in question,
Johnson v. Mississippi, 486 U.S. 578, 587 (1988), or that he can
show cause or prejudice for the procedural default, see Robison,
151 F.3d at 262. Instead, Heiselbetz offers only a bald
assertion that his claim is not procedurally barred. He thus
fails to make a credible showing that the district court erred in
so finding. We decline to grant a COA on this issue.
5. Admission of Heiselbetz’s Ex-Wife’s Testimony
Next, Heiselbetz argues that the admission of the testimony
of his wife at the time of the offense, Rebecca Heiselbetz,
violated the Fourteenth Amendment right to family privacy
recognized in Roe v. Wade, 410 U.S. 113 (1973). Although
14 Heiselbetz raised this claim in his state habeas application, the
state habeas trial court, whose findings of fact and conclusions
of law later were adopted by the Texas Court of Criminal Appeals,
did not directly address his constitutional argument. Rather, it
concluded that in Heiselbetz’s case, the spousal privilege
recognized under the Texas Rules of Evidence did not apply
because Heiselbetz had been charged with a crime against a minor
child. Because the Texas court adjudicated Heiselbetz’s
Fourteenth Amendment family privacy claim on the merits, we may
not grant relief unless the state adjudication resulted in a
application of, clearly established federal law as determined by
the Supreme Court. See 28 U.S.C. § 2254(d)(1). Heiselbetz has
cited, and we have found, no Supreme Court precedent clearly
establishing that a wife’s testimony against her husband violates
the Fourteenth Amendment. Heiselbetz is not entitled to a COA on
6. Nullification Instruction
Heiselbetz’s next set of claims stems from the state trial
court’s failure to submit to the jury a discrete special issue on
mitigating circumstances. During the sentencing phase,
Heiselbetz asked that the court give a third special issue, in
addition to the two required under Texas law, which would address
mitigating evidence directly. The court denied this request,
submitting instead the following instruction:
You are therefore instructed that your answers to the special issues, which determine the punishment to be
15 assessed the defendant by the Court, should be reflective of your finding as to the personal culpability of the defendant, EARL CARL HEISELBETZ, JR., in this case. You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the Defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and thereafter, give effect and consideration to them in assessing the defendant’s personal responsibility at the time you answer the Special Issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, rather than a death sentence, is an appropriate response to the personal responsibility of the defendant, you are instructed to answer the special issue under consideration “no.”
In his state habeas application, Heiselbetz argued that the trial
court’s actions violated the Eighth and Fourteenth Amendments.
With respect to the former, he contended that the court’s refusal
to give a separate special issue on mitigation violates the
requirement of Penry v. Lynaugh, 492 U.S. 302 (1989), that the
jury have an opportunity to give effect to mitigating factors.
The trial court’s actions also contravened the Fourteenth
Amendment’s guarantee of equal protection, Heiselbetz claimed,
because capital defendants who committed offenses on or after
September 1, 1991 are entitled to such a special issue under
Texas law. The Texas Court of Criminal Appeals rejected these
arguments, concluding that (1) it had approved the instruction
given, and Heiselbetz had given no reason why its ruling should
be questioned or revisited, and (2) Heiselbetz’s jury was
instructed to consider mitigating evidence and, even if they had
16 not received such an instruction, his claim “cannot form the
basis for an equal protection challenge.” Heiselbetz renews his
Eighth and Fourteenth Amendment arguments before us. Because the
Texas Court of Criminal Appeals has adjudicated these claims on
the merits, however, we may grant a COA only under the limited
circumstances set out in 28 U.S.C. § 2254(d).
We consider Heiselbetz’s Eighth Amendment claim first. In
Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997), cert. denied, 119
S. Ct. 418 (1998), we recently declined to grant habeas relief
where the applicant had received an instruction almost identical
to Heiselbetz’s. There, the jury was instructed:
[Y]our answers to the Special Issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal moral culpability of the defendant in this case. When you deliberate about the questions posed in the Special Issues, you are to consider any mitigating circumstances supported by the evidence presented in both phases of the trial. A mitigating circumstance may be any aspect of the defendant’s background, character, and record, or circumstances of the crime, which you believe makes a sentence of death inappropriate in this case. If you find that there are any mitigating circumstances, you must decide how much weight they deserve and give them effect when you answer the special issues. If you determine, in consideration of this evidence, that a life sentence, rather than a death sentence, is an appropriate response to the personal moral culpability of the defendant, you are instructed to answer the Special Issue under consideration “No.”
Id. at 200. The Emery court held that this instruction allowed
the jury to consider any appropriate mitigating circumstance and
required it not to sentence the defendant to death if a life
sentence was appropriate in light of his moral culpability.
Therefore, “[t]he instruction adequately addressed the [Penry]
17 Court’s concerns about Texas’s death penalty scheme by giving the
jury the ability to consider any appropriate mitigating
circumstance.” Id. As we noted above, this instruction differs
from Heiselbetz’s only in a few minor details, and although the
lower court cited Emery in denying relief, Heiselbetz does not
attempt to distinguish it. Emery indicates that the state
court’s disposition of this issue is not contrary to Supreme
Court precedent. Therefore, we cannot grant a COA on this issue.
We now turn to Heiselbetz’s Fourteenth Amendment equal
protection claim. Heiselbetz asserts that Texas defendants
convicted of a capital offense committed before September 1, 1991
are a quasi-suspect class. Therefore, he reasons, Texas Code of
Criminal Procedure article 37.071, which requires trial courts to
submit a mitigation instruction only in the trials of capital
defendants who committed crimes on or after September 1, 1991,
must be subjected to strict scrutiny. Article 37.071 provides
that during the sentencing procedure in a capital case for an
offense that was committed on or after September 1, 1991, the
trial court must instruct the jury that if it returns an
affirmative finding to the special issues, it must answer the
following: “Whether, taking into consideration all of the
evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal moral
culpability of the defendant, there is a significant mitigating
circumstance or circumstances to warrant that a sentence of life
imprisonment rather than a death sentence be imposed.” TEX. CODE.
18 CRIM. PROC. art. 37.071, § 2(e), (i). The trial court is not
required to give such an instruction when the capital offense for
which the defendant is to be sentenced was committed prior to
September 1, 1991. Heiselbetz contends that this distinction
violates the Fourteenth Amendment.
Heiselbetz has failed, however, to make a substantial
showing that the Texas Court of Criminal Appeals’ rejection of
his equal protection argument was contrary to Supreme Court
precedent or unreasonable. We have held repeatedly that capital
defendants in general are not a suspect class. See Woods, 75
F.3d at 1036; Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.
1987). Although Heiselbetz urges us to accord special class
status to a subset of this larger group--that is, Texas capital
defendants who committed offenses prior to September 1, 1991--we
can find no Supreme Court precedent requiring such a conclusion.
Nor have we been able to locate any Supreme Court case law
establishing that, if capital defendants who committed crimes
before September 1, 1991 are not a suspect class, the equal
protection clause prevents a state from prospectively modifying
its capital sentencing procedure as Texas did. We therefore
cannot say that the state court’s determination was contrary to
clearly established federal law as determined by the Supreme
Court or an unreasonable application of precedent in that
“reasonable jurists considering the question would be of one view
that the state court ruling was incorrect.” Trevino, 168 F.3d at
19 181 (quoting Drinkard, 97 F.3d at 769). Accordingly, we decline
to issue a COA on this issue.
7. Factual Sufficiency of the Evidence
Next, Heiselbetz claims that the evidence adduced at trial
was “factually insufficient” to support his capital murder
conviction rather than convictions for the murder of Jacy Rogers
and the voluntary manslaughter of Rena Rogers. When Heiselbetz
raised the same argument in his state habeas application, the
Texas Court of Criminal Appeals ruled against him: Citing Ex
parte Williams, 703 S.W.2d 674, 677 (Tex. Crim. App. 1986), it
held that claims of factual insufficiency of the evidence cannot
be raised in a collateral attack on a conviction. On reviewing
the magistrate judge’s report and recommendation, the district
court noted that Heiselbetz’s sufficiency of the evidence claim
was procedurally barred.
First, we must determine if the applicant has made a
credible showing that his claim is not procedurally barred. See
Robison, 151 F.3d at 262. Heiselbetz asserts that no procedural
default should be found because the case on which he bases his
claim, Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (en
banc), was decided after his conviction became final. Although
the Texas Court of Criminal Appeals held for the first time in
Clewis that Texas courts of appeals may review a conviction for
factual sufficiency and set out the standard of such review, it
also pointed out that it had “recently acknowledged in Bigby v.
State, 892 S.W.2d 864, 874 (Tex. Crim. App. 1994), the
20 ‘considerable jurisprudence by this Court and our predecessors
with criminal jurisdiction which had continually recognized the
authority, though infrequently exercised, of the State’s highest
criminal court to review a case upon the facts as well as the
law.’” Id. at 130 (quoting Bigby, 892 S.W.2d at 874) (footnote
omitted). Moreover, as the Clewis court noted, Bigby observed
that the Legislature has consistently recognized the power of
criminal appellate courts to review a case for factual
sufficiency. See id. at 130-31 (citing Bigby, 892 S.W.2d at 874-
75 n.5). Even assuming that factual sufficiency review by the
Texas Court of Criminal Appeals became available for the first
time in Bigby, that case was decided on November 2, 1994, nearly
eight months before the same court rejected Heiselbetz’s direct
appeal. Heiselbetz therefore cannot show cause for failing to
raise the factual sufficiency issue on direct appeal, as
Williams, 703 S.W.2d at 677, requires. Because he has not made a
credible showing that his claim is not procedurally barred, we
decline to grant a COA on this issue.
8. Admission of Heiselbetz’s Statement
Finally, Heiselbetz claims that the admission into evidence
of his July 1, 1991 statement violated his Fifth Amendment
privilege against self-incrimination and Sixth Amendment right to
the assistance of counsel. Specifically, he argues that the
warnings he received prior to giving the statement were
insufficient to apprise him of his Fifth and Sixth Amendment
rights and that, therefore, his waiver of those rights was not
21 knowing and voluntary. The Texas Court of Criminal Appeals
adjudicated these claims and found (1) that Heiselbetz had been
fully warned in accordance with Miranda v. Arizona, 384 U.S. 436
(1966), and (2) that the standard Miranda warnings are adequate
to inform a suspect of both his Fifth and Sixth Amendment rights.
Therefore, under the AEDPA, we may grant relief only if this
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
or “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” id.
§ 2254(d)(2).
After reviewing the record and the applicable law, we
conclude that Heiselbetz is not entitled to a COA on these
issues. We note first that neither party contests that, as the
state habeas trial court findings adopted by the Texas Court of
Criminal Appeals indicate, Heiselbetz was warned in accordance
with Miranda before he gave his July 1, 1991 statement. Citing
Edwards v. Arizona, 451 U.S. 477, 487 (1981), however, Heiselbetz
argues that the Fifth Amendment requires law enforcement officers
also to warn a suspect that they may not re-initiate questioning
after the suspect has invoked his right to consult counsel before
further interrogation. But while Edwards did state that “an
accused . . . , having expressed his desire to deal with the
police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
22 available to him, unless the accused himself re-initiates further
communication, exchanges, or conversations with the police,” id.
at 484-85, it did not require that law enforcement officers
recite its holding to suspects under interrogation. Heiselbetz
has not cited, nor have we found, any Supreme Court case that
establishes such a rule. We therefore conclude that the state
court adjudication as to Heiselbetz’s Fifth Amendment claim was
not contrary to Supreme Court precedent or unreasonable.
The Supreme Court has held explicitly that the Miranda
warnings are sufficient to inform an accused of his Sixth
Amendment right to counsel. See Patterson v. Illinois, 487 U.S.
285, 292-93 (1988). Heiselbetz responds that Patterson was
wrongly decided. Nevertheless, its existence demonstrates beyond
dispute that the state court decision on Heiselbetz’s Sixth
Amendment claim was neither contrary to clearly established
Federal law as determined by the Supreme Court nor an
unreasonable application thereof. We decline to grant a COA on
Heiselbetz’s claims stemming from the admission of his July 1,
1991 statement.
IV. CONCLUSION
For the foregoing reasons, we DENY Heiselbetz’s request for
a COA.