Revised August 24, 2001
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-10784
THOMAS JOE MILLER-EL,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas
August 7, 2001 Before JONES, DeMOSS and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Thomas Joe Miller-El (“Miller-El”), who was
convicted of capital murder in Texas state court and who was
sentenced to death therefor, and whose petition for habeas corpus
relief and request for a Certificate of Appealability (“COA”)
therefrom were both denied by the federal district court below, now
seeks from this Court a COA pursuant to 28 U.S.C. § 2253(c)(2). For all of the reasons set forth below, we DENY the request for a
COA.
I. BACKGROUND
In 1985, Miller-El’s wife, Dorothy Miller-El, was employed as
a night maid for the lobby area of the Holiday Inn South. She
arranged for a religious convention for the Moorish Science
Temple’s Feast on November 8-10, 1985. Her husband was among the
attendees. After the convention, Dorothy did not return to work.
Shortly before midnight on November 15, 1985, Dorothy returned to
the Holiday Inn claiming that she was there to pick up her
paycheck. She was given access to the office area near the vault.
During this time period, four hotel employees were working,
Doug Walker, Donald Hall, Anthony Motari, and Mohamed Ali
Karimijoji. Hall, the chief auditor, was training Mohamed
regarding the hotel’s daily closing procedures. Hall instructed
Mohamed to close out the cash registers, a process which would take
one-half hour. Mohamed encountered a woman who claimed that she
needed accompanying while she waited for her ride. Mohamed sent
her to the front desk area without leaving the locked area he was
in.
At the front desk, a man later identified as Miller-El
appeared and requested a room from Hall. Witnesses identified
Miller-El from having seen him at the Moorish Feast convention the
previous week. A younger man, later identified as Kenneth Flowers
2 and dressed in army fatigues and a headset, peered around the
corner as Hall was giving Miller-El his room key, and once spotted
by Hall, he also approached the counter. Miller-El told Hall that
he would be needing two beds. Seconds later, Miller-El and Flowers
pulled out weapons. Miller-El brandished a semi-automatic “tech”
nine millimeter machine gun, with a flash suppressor for night use.
Flowers had a .45 caliber hand gun.
Hall complied with Miller-El’s instructions to empty the cash
drawer and place the money on the counter. Miller-El then ordered
Hall to bring any other people in the back out front. Hall
instructed Walker to come out. Flowers jumped over the counter and
the two men instructed Hall and Walker to lay on the floor. The
two men led Hall and Walker to the bellman’s closet which they
ordered opened. Once the two men removed all of the valuables from
the closet and took Walker’s and Hall’s wallets, Miller-El tied
Walker’s hands behind his back, tied his legs together, and gagged
him with strips of fabric. Flowers did the same to Hall. Walker
was laid on his face and Hall was laid on his side.
Miler-El asked Flowers if he was going to “do it” and Flowers
responded that he couldn’t. Flowers then left. Miller-El stood at
Walker’s feet, removed his glasses and then shot Walker in the back
two times. Hall closed his eyes after the first shot. He heard
two more shots and realized that he had also been wounded. Hall
tried to talk to Walker but only heard him choking. When he heard
familiar voices outside, Hall screamed for help.
3 Several days after the robbery-murder, Officer Cagle was on
surveillance of an apartment complex believed to be Dorothy Miller-
El’s. He spotted Dorothy and Flowers. With the assistance of
back-up units, he stopped their vehicle and arrested them both.
Search warrants were executed for the residence, and “walkie-
talkie” headsets were found. When Miller-El was later arrested,
found in his possession was an arsenal of weapons including the
“tech” nine millimeter murder weapon.
II. PROCEDURAL HISTORY
Miller-El pleaded not guilty to and in March 1986 was tried
before a jury on the charge of capital murder during the course of
committing a robbery. On March 24, 1986, the jury returned with a
guilty verdict and at the conclusion of the sentencing phase, the
same jury answered in the affirmative to the special issues set
forth in the Texas Code. Accordingly, the trial court imposed upon
Miller-El the sentence of death.
Miller-El's conviction and sentence were automatically
appealed to the Texas Court of Criminal Appeals. On December 14,
1992, that court affirmed Miller-El's conviction and sentence in an
unpublished opinion. See Miller-El v. State, No. 69,677 (Tex.
Crim. App. 1992)(en banc)(unpublished). And on October 4, 1993,
the Supreme Court denied Miller-El's petition for writ of
certiorari. See Miller-El v. Texas, 114 S. Ct. 100 (1993).
Miller-El then filed an application for state habeas relief.
4 The state trial court judge entered findings of fact and
conclusions of law recommending denial of Miller-El’s state habeas
petition. On June 17, 1996, the Texas Court of Criminal Appeals
adopted the trial judge's findings of fact and conclusions of law
and denied Miller-El's application for state habeas corpus relief.
See Ex parte Miller-El, No. 31,001-01 (Tex. Crim. App. 1996)
(unpublished).
On June 17, 1997, Miller-El filed his petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254 in federal district
court. On August 12, 1997, Miller-El filed an amended petition for
habeas corpus. Miller-El’s petition was referred to a magistrate
judge who, on January 31, 2000, issued findings and conclusions,
recommending a denial of relief. On June 5, 2000, after receiving
objections and conducting a hearing on the magistrate judge’s
report and recommendation, the district court adopted the
magistrate’s findings and conclusions and denied Miller-El’s
petition for a writ of habeas corpus. The district court
subsequently denied Miller-El’s motion to alter or amend the final
judgment denying relief on June 21, 2000. Miller-El then filed a
notice of appeal in this Court and a motion for a COA in the
district court. On August 14, 2000, the district court denied
Miller-El's request for a COA on each of the issues raised herein.
It is Miller-el’s renewed request for a COA that is presently
before us.
5 III. DISCUSSION
Miller-El seeks from this Court a COA on each of the following
issues: (1) whether the district court erred in overruling his
challenges of improper peremptory juror strikes; (2) whether the
state court erred in failing to conduct a sua sponte evidentiary
hearing regarding his competency to stand trial and in finding that
he was competent to stand trial in 1986; (3) whether the district
court likewise erred in failing to conduct a hearing regarding his
competency; and (4) whether the district court erred finding that
his First and Fourteenth Amendment rights were not violated by
admission of evidence, during the punishment phase of his trial,
relating to his affiliation with the Moorish Science Temple..
Miller-El's petition for writ of habeas corpus was filed on
June 17, 1997, and is thus governed by the provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh
v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter,
117 F.3d 262 (5th Cir. 1997). Under AEDPA, before an appeal from
the dismissal or denial of a § 2254 habeas petition can proceed,
the petitioner must first obtain a COA, which will issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The same standards
that governed issuance of the pre-AEDPA version of the COA, the
certificate of probable cause (“CPC”), apply to requests for a COA.
See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000). A petitioner
6 makes a “substantial showing” when he demonstrates that his
petition involves issues which are debatable among jurists of
reason, that another court could resolve the issues differently, or
that the issues are adequate to deserve encouragement to proceed
further. See id. at 1603-04.
Additionally, pursuant to § 2254(e)(1), a state court's
determination of a factual issue must be presumed correct, and the
habeas petitioner bears the burden of rebutting the presumption by
clear and convincing evidence. The presumption of correctness is
especially strong, where, as here, the trial court and the state
habeas court are one and the same. See Clark v. Johnson, 202 F.3d
760, 764 (5th Cir.), cert. denied, 121 S. Ct. 84 (2000).
And while the nature of the penalty in a capital case is an
appropriate consideration for determining whether to issue a COA,
the severity of the penalty at issue does not, in and of itself,
require the issuance of a COA. See Clark, 202 F.3d at 764 (citing
Lamb, 179 F.3d at 356). However, in capital cases, doubts as to
whether a COA should issue must be resolved in favor of the
petitioner. See Lamb, 179 F.3d at 356. Cognizant of the foregoing
principles, we turn now to consider those issues raised by Miller-
El in his request for a COA.
A.
Miller-El first contends that he is entitled to a COA
regarding his challenge to the prosecution’s alleged improper use
7 of peremptory strikes to exclude African-Americans from his jury.
Miller-El argues that the Supreme Court’s decision in Swain v.
Alabama, 85 S. Ct. 824 (1965), is still the applicable law
regarding challenges to improper peremptory strikes when evidenced
by data indicating historic, systematic discrimination against
African-Americans. However, during the pendency of Miller-El’s
direct appeal, the Supreme Court decided Batson v. Kentucky, 106
S. Ct. 1712 (1986), in which it stated that “[t]o the extent that
anything in Swain v. Alabama is contrary to the principles we
articulate today, that decision is overruled.” Batson, 106 S. Ct.
at 1725. Yet Miller-El contends that Batson only overruled one
part of Swain. According to Miller-El, while under Batson, a
defendant is no longer required to establish a prima facie case of
racial discrimination based upon proof of historical, consistent,
and systematic exclusion of African-Americans from juries, if
racial discrimination is proffered, nevertheless, under Swain, then
either the Swain or Batson evidentiary formulations apply. Miller-
El argues that the evidentiary formulation of Swain is, thus,
applicable to his claim of systematic exclusion. The government
contends that the Batson evidentiary formulation overruled the
Swain formulation on which Miller-El relies.
Under Swain, a defendant was required to show the prosecutor’s
“systematic use of peremptory challenges against Negroes over a
8 period of time” as a predicate. See Swain, 85 S. Ct. at 839.
Assuming that a defendant would be able to demonstrate a historical
pattern of discrimination continuing unabated to the defendant’s
trial, the burden would then shift to the prosecutor to rebut the
defendant’s allegations. See Alexander v. Louisiana, 92 S. Ct.
1221, 1226 (1972). To satisfy his burden, the prosecutor could do
one of two things. First, the prosecutor could show that the
systematic disparity resulted from racially-neutral selection
procedures. Second, the prosecutor could “show neutral reasons for
the striking of all the blacks in petitioner’s trial itself.”
Willis v. Zant, 720 F.2d 1212, 1220-21 (11th Cir. 1983). However,
in any case under Swain, we have held that it is not sufficient to
prove a Swain violation based solely on statistical evidence from
prior trials without some concomitant showing that the intentional
and systematic discrimination continued “unabated” through to the
petitioner’s trial. See Evans v. Cabana, 821 F.2d 1065, 1068 (5th
Cir. 1987). Additionally, the prosecutor could rebut the
petitioner’s showing with a showing of neutral reasons. Miller-El
argues that his showing under Swain requires only a showing of
historical and systematic discrimination in order to establish a
prima facie case.
In Batson, the Supreme Court, recognizing the “crippling
burden of proof” which Swain created, replaced the Swain
evidentiary formulation with the new Batson standard. That new
9 standard involves the following three steps:
First: A defendant can establish his prima facie case of purposeful discriminatory petit jury selection solely upon evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Alternatively, the defendant can make a prima facie case by proving historic, systematic discrimination;
Second: If a defendant makes a prima facie showing, the burden then shifts to the government to provide a race- neutral explanation for challenging the excluded jurors;
Third: The trial court must then determine if the defendant has established purposeful discrimination, and the trial court’s determination is a finding fact entitled to the applicable level of deference on appellate review.
See Batson, 106 S. Ct. at 1723-24.
Despite Miller-El’s contention that the Swain evidentiary
framework was untouched by Batson, the Supreme Court has itself
explicitly stated “we reject [Swain’s] evidentiary formulation as
inconsistent with standards that have been developed since Swain
for assessing a prima facie case under the Equal Protection
Clause.” Id. at 1721; see also Georgia v. McCullum, 112 S. Ct.
2348 (1992) (stating that “[i]n Batson v. Kentucky, [] the Court
discarded Swain’s evidentiary formulation”).
With respect to the second step in the Batson analysis, the
Court stated specifically:
10 Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s [race-neutral] explanation need not rise to the level justifying exercise of a challenge for cause.
Batson, 106 S. Ct. at 1723. Miller-El suggests that contrary to
the above language in step two of the Batson evidentiary framework,
the level of explanation required to rebut the prima facie case is
governed by the rebuttal stage of the evidentiary formulation of
Swain and is a “heavy burden.” However, as we have noted, the
Supreme Court has explicitly overruled the evidentiary formulation
of Swain to the extent that it would contradict any principle,
evidentiary or otherwise, announced in Batson. See id. at 1725.
Thus, to the extent that the two burdens of rebuttal in Swain and
Batson are inconsistent, the Supreme Court has mandated that the
standard in Batson be applied. Here, Batson was decided during the
pendency of Miller-El’s direct appeal, and it is, thus, the
applicable standard for analyzing his challenge to the use of
peremptory juror strikes. See Griffith v. Kentucky, 107 S. Ct. 708
(1987) (holding that Batson governs claims by defendants whose
appeals were pending and non-final at the time Batson was decided).
Miller-El contends that the state court’s adjudication was an
unreasonable application of Batson and that the court’s findings
were also unreasonable in light of his prima facie showing. His
11 primary challenge is to the district court’s alleged failure to
give proper weight and credit to the evidence which he presented
regarding the historical data evidencing exclusion of African-
American jurors.
The state court findings in this case on the issue of
discriminatory intent, despite Miller-El’s protestations to the
contrary, are entitled to great deference. See Hernandez v. New
York, 111 S. Ct. 1859, 1868 (1991). As an appellate court
reviewing a federal habeas petition, we are required by
§ 2254(d)(2) to presume the state court findings correct unless we
determine that the findings result in a decision which is
unreasonable in light of the evidence presented. And the
unreasonableness, if any, must be established by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1).
The detailed factual findings made by the state trial court
establish that each of the challenged African-American jurors was
stricken on race-neutral grounds. Miller-El has addressed the
peremptory challenge of six of the ten Batson jurors in his request
for a COA. We have now conducted an independent review of the
findings of the state court and of the evidence presented by
Miller-El in his application. Suffice it to say, and without
commenting on each of the challenged jurors and the reasons
proffered for their being excluded, we find that the state court’s
findings are not unreasonable and that Miller-El has failed to
12 present clear and convincing evidence to the contrary. The
findings of the state court that there was no disparate questioning
of the Batson jurors and that the prosecution’s reasons for
striking the jurors was due to their reluctance to assess and/or
their reservations concerning the death penalty are fully supported
by the record.
Having determined that the state court’s adjudication neither
resulted in a decision that was unreasonable in light of the
evidence presented nor resulted in a decision contrary to clearly
established federal law as determined by the Supreme Court, we
conclude that this issue would not be debatable among jurists of
reason, that courts could not resolve the issues in a different
manner, and that the issue does not deserve encouragement to
proceed further. Miller-El has thus failed to make a substantial
showing of the denial of a constitutional right. Accordingly, we
deny Miller-El’s request for a COA on this issue.
B.
Miller-El’s second issue consists of two parts that revolve
around his claim that he was incompetent to stand trial. He first
claims that the state trial court erred in failing to provide him
with a sua sponte evidentiary hearing pursuant to Pate v. Robinson,
86 S. Ct. 836 (1966). Second, he challenges his conviction as
infirm under Dusky v. United States, 80 S. Ct. 788 (1960), on the
basis that he was incompetent, in fact, at the time of his trial.
13 Before analyzing these claims, a brief review of some additional
facts is necessary.
Miller-El was tried some eight weeks following his arrest.
Incident to his arrest, Miller-El was wounded by a gunshot. During
the months following his arrest, Miller-El underwent surgical
treatment for his injuries, and he experienced complications such
as weight loss. On three separate occasions during his trial,
Miller-El was evaluated by a doctor at the direction of the trial
court. First, during jury selection, he experienced chest pains,
chills, and a fever. He was diagnosed with pneumonia and was
treated and discharged the same day. Nine days later, still during
jury selection, Miller-El complained of delays in receiving
medication. The trial court ordered a second evaluation to
determine if Miller-El needed more medication. The doctor
determined that he did not. Two days before jury selection
concluded, Miller-El was taken to the hospital for treatment of a
chest abscess. During his trial, Miller-El complained of pain in
his ribs and asked to see a doctor. And finally, on the evening of
the day he was found guilty, the trial judge ordered a medical
evaluation to determine if Miller-El would be able to sit through
court after complaining of nausea and colostomy bag complications.
He was kept overnight in the hospital and was released the next day
when the punishment phase of his trial began.
Miller-El complains that he was denied a competency hearing at
trial and that his due process rights were denied because whenever
14 evidence raises a sufficient doubt about the mental capacity of the
accused to stand trial, a hearing is required. See Drope v.
Missouri, 95 S. Ct. 896, 908 (1975); Pate, 86 S. Ct. 836. Miller-
El contends that the evidence raised a sufficient doubt as to his
competency.
In Carter v. Johnson, 110 F.3d 1098 (5th Cir. 1997), we
explained the procedural inquiries and burdens required for the two
competency claims Miller-El asserts. Specifically, we summarized
as follows:
The issue of competency may arise in two distinct contexts. See United States v. Williams, 819 F.2d 605, 607-09 (5th Cir. 1987); Lokos v. Capps, 625 F.2d 1258, 1261-62 (5th Cir. 1980). We must distinguish between them for purposes of the present case.
First, a habeas petitioner may allege that state procedures were inadequate to ensure that he was competent to stand trial. A trial court must conduct an inquiry into the defendant's mental capacity sua sponte if the evidence raises a bona fide doubt as to competency. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966). If the trial court receives evidence, viewed objectively, that should raise a reasonable doubt as to competency, yet fails to make further inquiry, this constitutes a denial of a fair trial. SeLks 65F2 a 16.I aPt voain i etbihd te fdrl hba cut ms e oo, 2 .d t 21 f ae ilto s salse, h eea aes or ut consider whether a meaningful hearing can be held nunc pro tunc to determine retrospectively the petitioner's competency as of the time of trial. Id. at 1262. If so, the petitioner bears the burden of proving his incompetence by a preponderance of the evidence; if not, the habeas writ must issue, subject to retrial at the state's discretion. Id. This Pate procedural guarantee is not before us, having been expressly abandoned by Carter on appeal.
Second, a habeas petitioner may collaterally attack his state conviction by directly alleging incompetence at the time of trial, thereby claiming
15 a violation of the substantive right not to be tried and convicted while incompetent, rather than of the procedural guarantee of a competency hearing in the event that a bona fide doubt arises at trial as to competency:
It is always open for the defendant to later assert his actual incompetence at trial in a subsequent collateral proceeding, but the substantive claim should not be confused with a defendant's procedural rights under Pate to a hearing whenever a bona fide doubt as to competence surfaces at trial.
Carter v. Johnson, 131 F.3d 452, 458 n.10 (5th Cir. 1997).
First, with respect to whether Miller-El was entitled to a
hearing, the relevant inquiry is whether the district court
received information “which, if objectively considered, should
reasonably have raised a doubt about the defendant’s competency and
alerted [it] to the possibility that the defendant could neither
understand the proceedings or appreciate their significance, nor
rationally aid his attorney in his defense.” Lokos, 625 F.2d at
1261. In this case, the trial court specifically found that
Miller-El was competent to stand trial, both at the trial and again
on state habeas review. Specifically the court found:
(1) petitioner was legally competent both on and off his pain medication; (2) he had the capacity to understand the nature and object of the proceedings against him, consult with his attorneys, and assist in the preparation of his defense; and (3) a competency hearing was not required because “there was no ‘bona fide doubt’ as to [petitioner’s] competence to stand trial.
Our independent review of the record evidence convinces us
that the district court’s finding that Miller-El was not entitled
16 to a hearing is not unreasonable, and Miller-El has failed to
present clear and convincing evidence to the contrary.
With respect to whether Miller-El was, in fact, incompetent,
we find that the district court’s conclusion that he was not, is
reasonable, and likewise, we find that the state court’s decision
does not represent an unreasonable application of federal law.
Thus, we conclude that Miller-El has failed to make a substantial
showing of the denial of a constitutional right, and we deny
Miller-El’s request for a COA on this issue.
C.
In his third issue, Miller-El claims that he is entitled to a
COA because the federal district court erred in refusing to conduct
an evidentiary hearing nunc pro tunc to determine whether he was
competent to stand trial in 1986. Having concluded above that
Miller-El has failed to establish a bona fide doubt as to his
competency at trial under Pate and that the state court’s
determination of competence was reasonable, we need not readdress
this issue.
A state court’s competency determination is a finding of fact
entitled to a presumption of correctness under § 2254(d)(2). And
we have stated that “[b]efore the federal district court has a duty
to investigate a habeas petitioner’s claim of incompetency, the
petitioner must show that there are sufficient facts to
‘positively, unequivocally and clearly generate a real, substantial
17 and legitimate doubt as to the mental capacity of the petitioner to
meaningfully participate and cooperate with counsel during trial.’”
Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (quoting
Washington v. Johnson, 90 F.3d 945, 950 (5th Cir. 1996)). Under
Section 2254(e)(1), a habeas petitioner is entitled to a nunc pro
tunc evidentiary hearing for the purpose of proving that he was
incompetent at the time he stood trial only when he “makes a
showing by clear and convincing evidence to raise a threshold doubt
about his competency.” Lokos, 625 F.2d at 1261. This threshold
burden is “extremely heavy,” Johnson v. Estelle, 704 F.2d 232, 238
(5th Cir. 1983), and requires that a petitioner present facts
sufficient to “positively, unequivocally, and clearly generate a
real, substantial and legitimate doubt” concerning his mental
competence, id. at 238. See also Jackson v. Anderson, 112 F.3d 823
(5th Cir. 1997) (noting that § 2254(e)(1) places a heavier burden
on petitioners seeking to rebut state court fact findings).
Miller-El suggests that he was entitled to an evidentiary
hearing in the federal district court because he was not given a
live hearing in the state court. The state habeas court instead
based its decisions upon the parties’ supplemental briefing and
expert affidavits, i.e, Miller-El received only a paper hearing.
We find Miller-El’s suggestion untenable, especially where, as
here, the trial judge and the state habeas judge were the same.
See Clark v. Johnson, 202 F.3d at 766 (“we have repeatedly found
18 that a paper hearing is sufficient to afford a petitioner a full
and fair hearing on the factual issues underlying the petitioner’s
claims, especially where . . . the trial court and the state habeas
court were one in the same.”).
We conclude that Miller-El has failed to make a substantial
showing of the denial of a constitutional right on this issue in
that he has failed to rebut the presumptive correctness of the
state habeas and district court findings that he was competent to
stand trial in 1986 and that he was not entitled to a nunc pro tunc
hearing to determine competency. Accordingly, we deny Miller-El’s
request for a COA on this issue.
D.
In his fourth and final issue, Miller-El argues that he is
entitled to a COA on his claim that his First and Fourteenth
Amendment rights were violated by the admission of evidence, during
the punishment phase of his trial, relating to his affiliation with
the Moorish Science Temple faith in violation of Dawson v.
Delaware, 112 S. Ct. 1093 (1992). In Dawson, while the Supreme
Court held that where religious affiliation unrelated to any issue
in the case may be impermissible, there is no “per se” barrier to
the admission of evidence which concerns a defendant’s beliefs and
associations at sentencing. Dawson, 112 S. Ct. at 1097. The Court
noted that “[i]n many cases . . . associational evidence might
serve a legitimate purpose in showing that a defendant represents
19 a future danger to society.” Id. at 166. We have, likewise, held
that if the evidence regarding a defendant’s affiliations or
personal beliefs is sufficiently related to the issues involved,
there is no constitutional violation. See Boyle v. Johnson, 93
F.3d 180, 183-84 (5th Cir. 1996).
Here the state habeas court concluded that Miller-El’s
association with the Moorish Science Temple was inextricably
intertwined with his conviction and sentence. Evidence was entered
in the guilt phase regarding his membership as part of testimony
regarding witnesses’ ability to identify him through his
participation in the Moorish Temple Feast at the murder scene the
week before the robbery-murder. Thus, introduction of this
evidence during the guilt phase was relevant to other matters.
The additional references to his membership during the
punishment phase of his trial, as the state court found, were
appropriate as they related to his involvement with other group
members who were heavily armed and who assisted in the commission
of Miller-El’s offense of conviction. The government’s
characterization of Miller-El as belonging to a heavily armed
paramilitary group was supported by the evidence and was probative
as an indicator of future dangerousness.
Having conducted an independent review, we conclude simply
that the state court’s determination that Miller-El’s due process
rights were not violated by the prosecution’s reference to his
20 membership in the Moorish Science Temple faith was consistent with
and was not contrary to the Supreme Court’s applicable holding in
Dawson. Furthermore, we conclude that the state court’s
adjudication of this claim was reasonable, and therefore, we deny
IV. CONCLUSION
Having carefully reviewed the record, we conclude that Miller-
El has failed to make a substantial showing of the denial of a
constitutional right with respect to any of the issues raised in
his request for COA, and accordingly, we DENY his request for COA
on all issues raised therein.