United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit March 26, 2007
Charles R. Fulbruge III Clerk No. 06-70015
DALE DEVON SCHEANETTE
Petitioner - Appellant
VERSUS
NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Respondent - Appellee
Appeal from the United States District Court for the Northern District of Texas, Fort Worth Division
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Convicted of capital murder and sentenced to death, Dale Devon
Scheanette (“Scheanette”) petitions for a Certificate of
Appealability (“COA”) from the district court’s denial of federal
habeas corpus relief. Because we find that reasonable jurists
could not debate the propriety of the district court’s decisions
regarding Scheanette’s multiple alleged constitutional errors, we
deny Scheanette’s application for a COA. I. FACTS AND PROCEEDINGS
The district court summarized the facts in its opinion denying
Scheanette’s habeas corpus petition as follows:
On Christmas Eve of 1996, Norman and Brenda Norwood became worried about their twenty-year old niece, Wendie Prescott, when she failed to show-up for a planned shopping trip with her sister. Around 11:00 p.m., Norman went to Prescott’s apartment, only to discover her naked body lying face down in a partially filled bathtub. Her neck, hands and feet were tied in duct tape, which trailed from her neck down behind her back to her hands and feet. The medical examiner believed that she had been bound in this fashion prior to death. The autopsy revealed that Prescott had been manually strangled, with the possibility that her immersion in the tub also played a role in her death. A sexual assault examination was conducted and sperm samples collected and preserved for DNA testing.
Though investigators found a high-quality dust print at Prescott’s apartment, initial comparisons yielded no matches. In the summer of 2000, however, the print was resubmitted to the FBI computer system, which, through the use of new technology, was able to narrow the list of possible matches. One of the matches scored over 2500 points, almost a 1000 points more than the next highest score. A FBI analyst concluded the print found in Prescott’s apartment matched the known print of Scheanette. This conclusion was later confirmed by two Arlington investigators. After obtaining a search warrant, officers obtained saliva samples from Scheanette. DNA testing matched the DNA extracted from these samples to the DNA extracted from Prescott’s corpse with a statistical certainty of one in 763 million.
At the punishment phase, the State connected Scheanette to yet another capital murder, that of twenty-six year old Christine Vu. . . . .
[The State also tied Scheanette to five brutal sexual assaults.] . . . .
The State also introduced evidence that, while
2 incarcerated awaiting trial, jail guards found concealed in Scheanette’s cell a contraband triangular piece of plexiglass that could have been used as a weapon. Finally, the State introduced evidence of a burglary conviction from 1999.
During the punishment phase, various family members and a chaplain testified on Scheanette’s behalf. A retired employee of the Texas Department of Criminal Justice, S.O. Woods, also testified concerning the security measures taken in prison for handling violent inmates. Finally, Dr. Gilda Kessner testified concerning Scheanette’s future dangerousness.1
In January 2003, a Texas jury convicted Scheanette of capital
murder and sentenced him to death for the murder of Wendi Prescott
while in the course of committing or attempting to commit sexual
assault on her. The Texas Court of Criminal Appeals (the “TCCA”)
affirmed Scheanette’s conviction and sentence.2 The Supreme Court
denied Scheanette’s pro se petition for writ of certiorari in
January 2005.3
Scheanette subsequently initiated state habeas proceedings.
The trial court entered findings of fact and conclusions of law
recommending the denial of state habeas relief. However, on April
13, 2005, the TCCA remanded Scheanette’s case to the trial court
for the development of additional facts pertaining to his
1 Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D. Tex. Apr. 10, 2006). 2 Scheanette v. State, 144 S.W.3d 503 (Tex. Crim. App. 2004). 3 Scheanette v. Texas, 543 U.S. 1059 (2005).
3 ineffective assistance of counsel claims.4
While his state application was pending before the TCCA,
Scheanette filed a pro se federal habeas petition in the Eastern
District of Texas. The case was transferred to the Northern
District of Texas. The district court granted Director Dretke’s
motion to dismiss without prejudice so that Scheanette could
exhaust all available state court remedies.5
After the TCCA denied all habeas relief,6 Scheanette filed a
federal habeas petition in the district court. The district court
denied relief.7 Scheanette filed a notice of appeal, which the
district court construed as a request for certificate of
appealability (“COA”), which was denied.8 Scheanette now petitions
this court directly for a COA.
II. STANDARD OF REVIEW
Scheanette filed his federal habeas petition after the
effective date of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Accordingly, the petition is subject to the
4 Ex parte Scheanette, No. WR-59466-01, 2005 WL 913120 (Tex. Crim. App. Apr. 13, 2005). 5 Scheanette v. Dretke, No. 4:05-CV-489-A (N.D. Tex. Aug. 25, 2005). 6 Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304 (Tex. Crim. App. Dec. 14, 2005). 7 Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D. Tex. Apr. 10, 2006). 8 Scheanette v. Dretke, No. 4:05-CV-718-A, Order (N.D. Tex. Apr. 11, 2006).
4 requirements imposed by AEDPA.9 Under AEDPA, Scheanette must
obtain a COA before an appeal can be taken to this court.10 In
determining whether a COA should issue, we limit our examination to
a “threshold inquiry into the underlying merit of [the
petitioner’s] claims.”11 “This threshold inquiry does not require
full consideration of the factual or legal basis adduced in support
of the claims. In fact, the statute forbids it.”12
A COA will be granted if the petitioner makes “a substantial
showing of the denial of a constitutional right.”13 Meeting this
standard requires a petitioner to demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.”14 At issue is the debatability of the underlying
constitutional claim, but not the resolution of that debate.15
Where the district court dismisses the application based on
9 See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 10 See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
11 Miller-El, 537 U.S. at 327. 12 Id. at 337. 13 28 U.S.C. § 2253(c)(2); e.g., Miller-El, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000). 14 Miller-El, 537 U.S. at 336 (internal citation and quotations omitted); Moreno v. Dretke, 450 F.3d 158, 163 (5th Cir. 2006).
15 Miller-El, 537 U.S. at 342.
5 procedural grounds without reaching the prisoner’s underlying
constitutional claim(s), a COA should issue if the petitioner
demonstrates both that reasonable jurists would find it debatable
whether the district court was correct in its procedural ruling and
that reasonable jurists would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right.16 “Because the present case involved the death penalty, any
doubts as to whether a COA should issue must be resolved in
[petitioner’s] favor.”17
Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas
corpus relief with respect to any claim that was adjudicated on the
merits in state court proceedings unless the adjudication of that
claim either (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.18 “[A] determination of
a factual issue made by a State court shall be presumed to be
correct,”19 and a federal habeas petitioner “has the burden of
16 Slack, 529 U.S. at 478. 17 Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
18 28 U.S.C. § 2254(d). 19 28 U.S.C. § 2254(e)(1).
6 rebutting this presumption with clear and convincing evidence.”20
III. DISCUSSION
Scheanette requests a COA on seven separate claims. We review
the claims in turn.
A. Claims One and Two
Scheanette argues that his defense counsel were
constitutionally ineffective because they called two punishment
phase witnesses, Dr. Gilda Kessner (“Dr. Kessner”) and S.O. Woods
(“Woods”), whose testimony provided little or no benefit to the
petitioner, but rather helped the State establish his future
dangerousness.
To establish ineffective assistance of counsel, Scheanette
must satisfy the two-prong test set forth in Strickland v.
Washington.21 First, Scheanette must show that his counsel’s
performance was deficient.22 We determine whether counsel’s
performance was deficient “by examining whether the challenged
representation fell below an objective standard of
reasonableness.”23 “Strickland does not allow second guessing of
trial strategy and must be applied with keen awareness that this is
20 Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) (citing 28 U.S.C. § 2254(e)(1)).
21 466 U.S. 668, 687 (1984). 22 Id. 23 Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (citing Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999)).
7 an after-the-fact inquiry.”24 Therefore, Scheanette must overcome
a strong presumption that his counsel’s conduct falls within the
wide range of reasonable professional assistance.25
To prevail, Scheanette must also show that his counsel’s
deficient performance was prejudicial, i.e., that the errors were
so serious as to “deprive [him] of a fair trial, a trial whose
result is reliable.”26 But because, as will be discussed
immediately below, no reasonable jurist could debate the district
court’s conclusion that Scheanette’s counsel rendered adequate
performance, we will not consider whether the alleged errors
Scheanette relies on could have prejudiced his defense.
In light of the horrendous evidence the state produced against
Scheanette, defense counsel sought to offer mitigating evidence to
support an argument that Scheanette would not pose a future danger
if given a life sentence. Counsel presented testimony from
Scheanette’s sister, Scheanette’s mother, and a chaplain concerning
positive evidence of Scheanette’s background and character.
Defense counsel also presented the testimony of Dr. Kessner
regarding risk assessment evidence, which focused on the
statistically low probability of prison violence. In defense
counsel’s “strategic view, evidence, such as risk assessment, that
24 Granados v. Quarterman, 455 F.3d 529, 534 (5th Cir. 2006).
25 Strickland, 466 U.S. at 689. 26 Id. at 687.
8 focused on statistically low prison violence, would enhance [the]
theme that the jury would not have to kill” Scheanette.27 On direct
examination, Dr. Kessner testified that there was an 18.8% chance
that Scheanette would commit acts of violence in prison, which was
just over the standard base rate of 16.4% for all individuals
serving life sentences for murder. Dr. Kessner also testified
concerning Scheanette’s decreased risk factors, such as his age,
and remarked on Scheanette’s good family support network, average
intelligence, and vocational ability. Dr. Kessner noted that
Scheanette was among other inmates when he was in county jail, and
he did not exhibit assaultive behavior. In its closing arguments,
the State argued that the 18.8% figure provided by Dr. Kessner is
a “probability that the defendant would commit criminal acts of
violence,” as required by Tex. Code Crim. Proc. Ann. art. 37.071,
§ 2(b); and therefore, the jurors “know what the answer to the
[future dangerousness] question is.”
As additional mitigation evidence, defense counsel presented
the testimony of Woods regarding institutional evidence, which
emphasized the heightened security provided for prisoners such as
Scheanette. Defense counsel “concurred with the leading capital
litigators that Woods would appeal well to a practical juror who
would be impressed with the professional expertise of the
27 Affidavit of defense counsel, David A. Pearson.
9 Institutional Division at controlling life sentenced offenders.”28
On direct examination, Woods generally testified about how inmates
are classified at the Texas Department of Criminal Justice
(“TDCJ”). He also testified that, if sentenced to life in prison,
Scheanette would likely be assigned to a high-risk “level-five”
security institution. The State then used cross-examination to
establish that a wide range of weapons are available to the inmates
in the penitentiary system, and the penitentiary does not guarantee
a violence-free environment. The prosecutor also elicited
testimony that a shank found in Scheanette’s cell at the Dallas
County jail is a stabbing/puncture instrument.29 On re-direct,
Woods testified that the shank led to a disciplinary infraction
which must be reported under state law when Scheanette is
transferred such that the classification committee would take it
into consideration.
The TCCA reviewed these claims on direct appeal and found the
28 Affidavit of defense counsel, David A. Pearson. 29 Scheanette also complains of the following testimony elicited on cross-examination:
Q. [The Prosecutor]: From your review of the reports, did it appear to you that Dale Scheanette had exercised a level of planning in each of these cases?
A. [Woods]: Very much so.
Q. [The Prosecutor]: Just like the Texas Seven?
A. [Woods]: Very similar.
10 record insufficient to support a claim of ineffective assistance of
counsel.30 In reaching its conclusion, the TCCA presumed that
defense counsel acted pursuant to a reasonable trial strategy. On
state habeas review, the convicting court made findings of fact and
conclusions of law concerning Scheanette’s allegations of
ineffective assistance of counsel and found that defense counsel
had “sound and strategic tactical reasons for introducing” the
expert testimony of Woods and Dr. Kessner. The TCCA adopted all of
the trial judge’s findings and conclusions.31
After considering Scheanette’s arguments, the federal district
court also denied relief, concluding that Scheanette failed to
meet either Strickland prong. Regarding deficient performance, the
court concluded that trial counsel objectively employed a
reasonable strategy and it was “at a loss as to what other types of
evidence . . . counsel could have introduced on his behalf to rebut
the existing evidence as to his future dangerousness,” given the
State’s evidence establishing Scheanette as a brutal murderer and
serial rapist.
The state court reasonably concluded that Scheanette’s defense
counsel did not render ineffective assistance by offering the
punishment phase testimony of Woods and Dr. Kessner. “[S]trategic
choices made after thorough investigation of law and facts relevant
30 Scheanette v. State, 144 S.W.3d at 510. 31 Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304.
11 to plausible options are virtually unchallengeable.”32 In light of
the thorough investigation conducted by Scheanette’s trial
counsel,33 we conclude that these carefully considered tactical
decisions introduced at the punishment phase were objectively
reasonable. Scheanette has not demonstrated that the state court’s
decision is contrary to, or an unreasonable application of, clearly
established federal law. Accordingly, the district court’s
assessment was not debatable.
B. Claim Three
For the first time, Scheanette argues that his defense counsel
were ineffective for failing to object to an instruction limiting
the statutory effect of the mitigation special issue.34
We need not consider whether jurists of reason would find the
32 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citation and quotations omitted). 33 For example, defense counsel employed a mitigation specialist, and obtained mental health and juvenile records in an attempt to uncover potential mitigation evidence. Defense counsel Pearson attended a seminar focused on presenting risk assessment evidence and personally observed the use of such risk assessment evidence in capital cases. In addition, a featured speaker at the seminar recommended that litigators present the institutional evidence offered by Woods and Pearson knew that two defense attorneys had been successful in obtaining a life sentence in a death penalty case using similar evidence. In preparation for Woods’s testimony, Pearson read a transcript of Woods’s testimony in another capital case and also personally observed Woods’s testimony in a capital case. 34 Specifically, the jury was instructed that:
In deliberating on Special Issue No. 1 and Special Issue No. 2, the Jury shall consider all of the evidence admitted at the guilt or innocence phase and the punishment phase, including evidence of the defendant’s background or character or circumstances of the offense that militates for or mitigates against imposition of the death penalty.
12 district court’s resolution of this issue debatable because
Scheanette did not first raise this claim in the district court.35
We have stated that “[a] district court must deny the COA before a
petitioner can request one from this court.”36 Thus, prior to
appellate review, the district court must “deny COA as to each
issue presented by the applicant.”37 Because Scheanette failed to
seek a COA from the district court on this issue, we will not
consider the issue.38
C. Claim Four
In his fourth claim, Scheanette argues that the trial court
violated his Eighth and Fourteenth Amendment rights when its
instruction went beyond the language of the mitigation special
issue (Special Issue No. 2). Specifically, the jury was instructed
that:
In deliberating on Special Issue No. 139 and Special Issue No. 2, the Jury shall consider all of the evidence admitted at the guilt or innocence phase and the punishment phase, including evidence of the defendant’s
35 See Brewer v. Quarterman, 466 F.3d 344, 346 (5th Cir. 2006). 36 Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (internal citation and quotations omitted). 37 Id. 38 Scheanette’s claim also fails on the merits because the two-prong Strickland test is not satisfied. Assuming that prong one of Strickland is satisfied by trial counsel’s failure to object to the instruction, Scheanette was not prejudiced because the instruction gave adequate guidance to the jury to consider both aggravating and mitigating evidence when determining its response to the special issues. 39 Special Issue No. 1 is the future dangerousness special issue.
13 background or character or circumstances of the offense that militates for or mitigates against imposition of the death penalty.
Scheanette argues that, contrary to the instruction, the statute
requiring the jury to consider the special mitigation issue
prohibits the jury - in its consideration of this issue - from
considering evidence that militates for the death penalty.
Tex. Code Crim. Proc. art. 37.071, § 2(e)(1) requires Texas
juries in capital cases to answer the following question on
mitigation:
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 sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.40
On direct appeal, Scheanette argued, as he does now, that the
charge in question violated his Eighth and Fourteenth Amendment
rights.41 However, before the district court, Scheanette argued
violations of the Sixth and Fourteenth Amendments. Because
Scheanette did not first request a COA from the district court on
Eighth Amendment grounds, we will not consider his claim in that
regard.42
Scheanette’s Fourteenth Amendment claim is procedurally
40 Tex. Code Crim. Proc. art. 37.071, § 2(e)(1) (emphasis added). 41 See Scheanette v. State, 144 S.W.2d at 507. 42 See Whitehead, 157 F.3d at 388.
14 barred. A federal habeas court “will not consider a claim that the
last state court rejected on the basis of an adequate and
independent state procedural ground.”43 Scheanette failed to object
to the jury charge at the time of trial. We have recognized a
federal petitioner’s failure to comply with the Texas
contemporaneous objection rule as an adequate and independent state
procedural bar to federal habeas review.44
On direct appeal, the TCCA specifically stated that because
Scheanette failed to object to the jury instruction, he would have
to show egregious harm from any error in the instruction in order
to obtain relief.45 The TCCA found no harm from the instruction
because the jury was entitled under the law to consider all of the
evidence in determining its answer to the mitigation issue. For
this reason, the TCCA denied Scheanette’s claim. On state habeas
review, the TCCA adopted the trial court’s conclusion that
Scheanette’s claim was “not cognizable because the issue[] had
already been raised and rejected on direct appeal.”46 After
recognizing that Scheanette failed to object to the jury charge in
43 Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004)(citing Coleman v. Thompson, 501 U.S. 722, 729-32 (1991)). 44 See Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir. 2005); Graves v. Cockrell, 351 F.3d 143, 152 (5th Cir. 2003). 45 Scheanette v. State, 144 S.W.3d at 507. 46 See Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304. This issue was designated as points of error twenty-one and twenty-two in Scheanette’s state habeas application.
15 the trial court, the district court agreed with the TCCA that any
improper language in the jury instruction did not harm Scheanette,
and thus, concluded that Scheanette failed to show that the TCCA’s
decision was contrary to, or involved an unreasonable application
of, clearly established federal law.
As a result, Scheanette’s Fourteenth Amendment challenge to
the jury instruction is procedurally barred unless Scheanette can
show cause and actual prejudice for the default or that failure to
address the merits of the procedurally defaulted claim will work a
fundamental miscarriage of justice.47 Scheanette has failed to show
cause for his counsel’s failure to object.48 In addition, even
assuming Scheanette could show cause for his default, he is unable
to show any resultant prejudice because, as stated by the TCCA on
direct appeal:
Article 37.071, § 2(e)(1) directs the court to instruct the jury to “tak[e] into consideration all of the evidence” when determining whether there are sufficient mitigating circumstance[s] to warrant the imposition of a sentence of life imprisonment. By its plain language, the statute requires the jury to look at all of the evidence and not just evidence a juror might consider to be mitigating.49
47 Coleman v. Thompson, 501 U.S. at 750. 48 Scheanette now raises a Strickland claim regarding this issue. However, he does not allege his counsel’s ineffectiveness as cause to excuse the procedural default. Regardless, a constitutional claim alleged as cause for a procedural default must itself be exhausted; and, as previously discussed, Scheanette’s ineffective assistance of counsel claim in this regard is unexhausted. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). 49 Scheanette v. State, 144 S.W.3d at 507-508 (emphasis in original).
16 Scheanette has offered no contrary clearly established federal law
to dispute this finding. Furthermore, Scheanette presents no
evidence indicating that our dismissal of this claim for procedural
default would work a “fundamental miscarriage of justice.” As a
result, reasonable jurists could not debate whether the district
court was correct in its ruling of procedural default.50
D. Claim Five
Scheanette argues that the mitigation instruction was not
effective in telling the jury how to consider the mitigating
evidence because it sent “mixed signals” in violation of the Eighth
Amendment as interpreted in Penry v. Johnson51 (“Penry II”). More
specifically, Scheanette argues that the amended jury instruction
prevented the jury from considering and giving effect to any
mitigating evidence when answering the mitigation special issue,
and that any mitigating evidence could not be given effect in the
future dangerousness special issue.
On direct appeal, the TCCA noted that it had “previously
addressed and rejected this claim,” and denied Scheanette relief.52
50 Even if Scheanette’s claim was not procedurally barred, the state court’s resolution of the issue raised by Scheanette did not involve an unreasonable application of federal law. No clearly established federal law supports Scheanette’s argument that the jury is precluded from considering all of the evidence when determining its answer to the mitigation special issue, and we have never adopted such a rule. At most, the judge’s amendment to the mitigation instruction amounts to a violation of the Texas statute, and not a constitutional violation. 51 532 U.S. 782 (2001). 52 Scheanette v. State, 114 S.W.3d at 506.
17 On state habeas review, the TCCA adopted the trial court’s
conclusion that this claim was not cognizable because the issue was
already raised and rejected on direct appeal.53 The federal
district court concluded that Scheanette “failed to show that the
complained-of instructions were contrary to, or involved an
unreasonable application of, clearly established federal law.”54
Specifically, Scheanette failed to persuade the court that the jury
was not able to consider and give effect to his mitigating
evidence, as required by Penry II.55 Reasonable jurists could not
debate the district court’s decision.
In Penry II the Supreme Court reiterated its previous holding
in Penry v. Lynaugh56 (“Penry I”) that the key is “that the jury be
able to ‘consider and give effect to [a defendant’s mitigating]
evidence in imposing sentence.’”57 In order to grant relief on a
Penry I claim, this court must determine: “(1) whether the
mitigation evidence has met the low threshold for relevance, and,
if so, (2) that the evidence was beyond the effective scope of the
53 Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304 (Tex. Crim. App. Dec. 14, 2005). 54 Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D. Tex. Apr. 10, 2006). 55 Id. 56 492 U.S. 302 (1989). 57 Penry II, 532 U.S. at 797 (citing Penry I, 492 U.S. at 319) (emphasis in original).
18 jury.”58
The Supreme Court defined relevant mitigating evidence as
“evidence which tends logically to prove or disprove some fact or
circumstance which a fact-finder could reasonably deem to have
mitigating value.”59 Scheanette presented testimony from Dr.
Kessner and from Woods, both concerning Scheanette’s future
dangerousness; and testimony from Scheanette’s sister, a chaplain,
and Scheanette’s mother to provide positive evidence of
Scheanette’s background and character. “Relevant mitigating
evidence does not have to be linked to his conduct, but only show
that it could lead a jury to find that a sentence other than death
is warranted.”60 Applying the low threshold articulated by the
Supreme Court in Tennard v. Dretke,61 it is clear that the evidence
submitted by Scheanette constitutes relevant mitigating evidence.
Thus, Scheanette must have been - and was - allowed to present this
evidence to the jury.
We now turn to Scheanette’s contention concerning the
constitutionality of the jury instruction given by the trial judge
during the sentencing phase. A mere possibility that the jury was
58 Bigby v. Dretke, 402 F.3d 551, 564-65 (5th Cir. 2005) (internal citation and quotations omitted). 59 Tennard v. Dretke, 542 U.S. 274, 284 (2004) (internal citation and quotation omitted). 60 Coble v. Dretke, 444 F.3d 345, 360 (5th Cir. 2006). 61 542 U.S. 274.
19 precluded from considering mitigating evidence does not establish
Penry I error.62 “[T]he proper inquiry . . . is whether there is
a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence.”63
We conclude that the jury was able to consider and give effect
to Scheanette’s relevant mitigating evidence. In Scheanette’s
case, the jury was required to answer the following special issues:
Special Issue No. 1
Do you find the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
Special Issue No. 2
Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character or background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?
Unlike Penry II, the trial judge’s instruction in this case
did not suggest to the jury that it should provide false answers to
either of these special issues. Scheanette’s claim that the
instruction in effect “nullified” the mitigation special issue is
unsupported. As discussed above, in determining its answer to the
62 See Boyde v. California, 494 U.S. 370, 380 (1990). 63 Id.; see Saffle v. Parks, 494 U.S. 484, 490-92 (1990).
20 mitigation issue, the jury was entitled to consider all of the
evidence. In addition, we have no reason to believe that the jury
was confused or misled in answering the mitigation special issue.
Moreover, even assuming that Scheanette is correct that the
instruction “nullified” the mitigation special issue, Scheanette’s
mitigating evidence could be considered and given effect under the
future dangerousness special issue.64 Specifically, the testimony
of Woods addressing the rigorous security measures at TDCJ and Dr.
Kessner regarding Scheanette’s relative likelihood of committing a
serious violent act in prison over the course of a capital life
term could be fully considered within the future dangerousness
special issue. In addition, Scheanette’s familial and chaplain
mitigation testimony is good character evidence, recognized as
falling within the future dangerousness special issue.
In sum, the state court’s decision was neither contrary to,
64 See Johnson v. Texas, 509 U.S. 350, 368 (1993) (“We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.”); Graham v. Collins, 506 U.S. 461, 475-76 (1993) (holding that Texas special issues permitted jurors to consider mitigating evidence of youth, family background and positive character under future dangerousness issue); Franklin v. Lynaugh, 487 U.S. 164, 178 (1988) (plurality opinion) (finding that petitioner’s evidence of a good disciplinary record during his period of incarceration was “fully considered by the jury when it was asked to answer the [future dangerousness] [i]ssue”); see, e.g., Newton v. Dretke, 371 F.3d 250, 256-257 (5th Cir. 2004) (youth, good character, church attendance, cooperation with police, unfaithful/drug dealing spouse, and impoverished background); Beazley v. Johnson, 242 F.3d 248, (5th Cir. 2001) (good character); Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999) (positive character traits); James v. Collins, 987 F.2d 1116, 1121-22 (5th Cir. 1993) (cooperation with police, remorse, impoverished and abusive family history, positive familial ties despite troubled upbringing); Barnard v. Collins, 958 F.2d 634, 640-41 (5th Cir. 1992) (good character, including evidence of carpentry skills, work history, and familial responsibility and support).
21 nor an unreasonable application of, federal law. As a result,
reasonable jurists would not debate the district court’s resolution
of this issue.
E. Claim Six
In claim six, Scheanette argues that his death sentence
offends due process of law because the future dangerousness issue
dilutes the State’s burden of proof and fails to define
“probability.” The future dangerousness issue instructed the jury
to answer the following question:
Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?65
On state habeas review, the TCCA adopted the findings of the
state trial court that this claim is procedurally defaulted because
Scheanette failed to raise the claim on direct appeal.66 Procedural
default aside, the state trial court further found that state law
precedent precluded relief.
The district court agreed with the TCCA that this claim was
procedurally defaulted because Scheanette did not raise the claim
on direct appeal and Scheanette failed to show cause and prejudice
for his default or that failure to consider this claim would result
in a fundamental miscarriage of justice. The district court also
65 Tex. Code Crim. Proc. art. 37.071, § 2(b)(1) (emphasis added). 66 Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304.
22 addressed the merits of Scheanette’s claim, concluding that the
state court’s substantive resolution of the issue did not involve
an unreasonable application of federal law because submission of
the future dangerousness issue to a jury in a capital case had been
specifically held constitutional by the Supreme Court, and thus,
acceptance of Scheanette’s argument was barred by Teague v. Lane.67
Moreover, the court noted that this court has “repeatedly rejected
attacks on a court’s failure to define ‘probability’ in this
context on the ground that such term is not constitutionally
vague.”
Reasonable jurists could not debate the district court’s
dismissal of Scheanette’s claim on grounds of procedural default.
Texas law requires that a petitioner must raise a claim on direct
appeal before it can be raised on state habeas,68 and this rule is
an “adequate state ground capable of barring federal habeas
review.”69 In addition, the Texas court’s alternative resolution
of this claim was neither contrary to, nor an unreasonable
application of, federal law. The future dangerousness issue has
been held constitutional by the Supreme Court70 and we have
67 489 U.S. 288 (1989). 68 See Ex parte Townsend, 137 S.W.3d 79, 81-82 (Tex. Crim. App. 2004); Ex parte Nelson, 137 S.W.3d 666, 668 (Tex. Crim. App. 2004). 69 See Busby v. Dretke, 359 F.3d at 719. 70 Jurek v. Texas, 428 U.S. 262 (1976); see Rowell v. Dretke, 398 F.3d at 379.
23 repeatedly held that the term “probability” as used in the Texas
special issue is not so vague as to require additional instructions
(such as definition by the court).71 As a result, reasonable
jurists could also not debate the district court’s dismissal of
Scheanette’s claim on substantive grounds.
F. Claim Seven
Lastly, Scheanette relies on Apprendi v. New Jersey72 and Ring
v. Arizona73 to argue that the Texas mitigation special issue is
unconstitutional because it does not require the prosecution to
prove the nonexistence of mitigating factors beyond a reasonable
doubt.74
On direct appeal, the TCCA denied relief on this claim,
finding that it had “previously addressed and rejected this
argument.”75 On state habeas review, the TCCA adopted the state
trial court’s conclusions that this claim be denied because it had
71 See, e.g., Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996); James v. Collins, 987 F.2d at 1120 & n.5. 72 530 U.S. 466 (2000). 73 536 U.S. 584 (2002). 74 In particular, Scheanette asserts violations of the Sixth, Eighth, and Fourteenth Amendments. Scheanette refers to a Fifth Amendment violation in the title of this claim, but refers to violations of the Sixth, Eighth, and Fourteenth Amendments in his closing remarks. If Scheanette is now arguing a Fifth Amendment violation, Scheanette’s Fifth Amendment claim is waived because he did not seek a COA from the district court on this basis. See Brewer v. Quarterman, 466 F.3d at 346. 75 Scheanette v. State, 144 S.W.3d at 505 (citing Hankins v. State, 132 S.W.3d 380, 386 (Tex. Crim. App. 2004)).
24 already been raised and rejected on direct appeal; and because the
TCCA had already ruled on and rejected this claim. The district
court also denied relief on this claim, concluding that because
neither Apprendi nor Ring require a mitigating factor to be
established beyond a reasonable doubt, Scheanette failed to
identify any erroneous or unreasonable application of clearly
established federal law.
Reasonable jurists would not debate the district court’s
dismissal of this claim because it has been previously rejected in
both state76 and federal court, and is not supported by Supreme
Court authority.
We have specifically held that the Texas death penalty scheme
did not violate either Apprendi or Ring by failing to require the
state to prove beyond a reasonable doubt the absence of mitigating
circumstances.77 In Granados v. Quarterman, we stated that “the
state was required to prove beyond a reasonable doubt every finding
prerequisite to exposing [the defendant] to the maximum penalty of
76 The TCCA has previously remarked that “the burden is implicitly placed upon the [defendant] to produce and persuade the jury that circumstances exist which mitigate against the imposition of death . . .;” and the court is “unaware of any constitutional requirement that the burden of proof regarding mitigating evidence be placed on either party, and to the extent that the burden is on [the defendant], we note that it is not unconstitutional to so place the burden.” Lawton v. Texas, 913 S.W.2d 542, 557 (Tex. Crim. App. 1995) (en banc); see Hankins, 132 S.W.3d at 386. 77 Granados, 455 F.3d at 536; see Rowell, 398 F.3d at 379 (“No Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of proof.”).
25 death,”78 and we concluded that “a finding of mitigating
circumstances reduces a sentence from death, rather than increasing
it to death.”79
In sum, the Texas court’s denial of relief was neither
contrary to, nor an unreasonable application of, federal law. As
a result, reasonable jurists would not debate the district court’s
dismissal of Scheanette’s claim.
IV.
For the foregoing reasons, we DENY the motion for a
Certificate of Appealability.
MOTION DENIED.
78 Granados, 455 F.3d at 536. 79 Id. at 537.