IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 02-10133 _____________________
CAMERON TODD WILLINGHAM,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee. _________________________________________________________________ ____________________________________
Appeal from the United States District Court for the Northern District of Texas USDC No.: 3:98-CV-409-L _________________________________________________________________ February 17, 2003
Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, CIRCUIT JUDGE:1
Cameron Todd Willingham was convicted of capital murder and
sentenced to death. He seeks a Certificate of Appealability
(“COA”) to appeal the district court’s denial of federal habeas
relief. For the reasons that follow, we DENY a COA.
I
On December 23, 1991, Willingham’s one-year-old twin daughters
and his two-year-old daughter died of smoke inhalation when the
family’s residence burned. Willingham, who escaped the burning
residence, was charged with capital murder of the children. The
1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. State presented evidence, including Willingham’s confession to an
inmate, that Willingham poured an accelerant on the floor of the
twins’ bedroom, the floor of the hallway outside their bedroom, and
around the front door and lit three separate fires. There was also
evidence that, before setting the fires, he burned his two-year-old
daughter’s arm and forehead so as to make it appear that the fire
was caused by the child playing with fire.
The jury found Willingham guilty of capital murder. He was
sentenced to death based on the jury’s affirmative answer to the
special punishment issue on future dangerousness and its negative
answer to the special punishment issue on mitigating circumstances.
The Texas Court of Criminal Appeals affirmed his conviction and
sentence on direct appeal, and the Supreme Court denied certiorari.
Willingham v. State, 897 S.W.2d 351 (Tex. Crim. App.), cert.
denied, 516 U.S. 946 (1995).
In December 1996, Willingham filed an application for state
habeas relief. The Texas Court of Criminal Appeals adopted the
trial court’s recommendation that relief be denied, and the Supreme
Court denied certiorari. Ex parte Cameron Todd Willingham, No.
35,162 (Tex. Crim. App. Oct. 1, 1997), cert. denied, 524 U.S. 917
(1998).
Willingham filed a petition for federal habeas relief in April
1998. The magistrate judge recommended that relief be denied. The
district court overruled Willingham’s objections to the magistrate
2 judge’s report and recommendation and denied relief. Willingham v.
Johnson, 2001 WL 1677023 (N.D. Tex. Dec. 31, 2001). The district
also denied Willingham’s request for a COA.
II
He has now filed in this court his “Application for
Certificate of Appealability,” in which he lists eight issues: (1)
whether his right to due process was violated when he was denied
the right to represent himself on appeal; (2) whether he received
ineffective assistance of counsel on direct appeal as a result of
his counsel’s failure to raise issues regarding the erroneous
exclusion of several jurors for cause, the improper introduction of
hearsay testimony, and the improper questioning of at least two
witnesses for the State; (3) whether the district court erred by
holding that there was no error in the exclusion of two jurors
based on their beliefs about the death penalty; (4) whether the
district court erred by holding that there was no error in the
trial court’s restriction of Willingham’s questioning of a
prospective juror; (5) whether the district court erred by holding
that hearsay statements made by Willingham’s wife were properly
admissible as impeachment evidence; (6) whether the district court
erred by holding that the opinion testimony of the State’s expert
witness was admissible; (7) whether the Texas death penalty scheme
is unconstitutional because it fails to provide for meaningful
appellate review; and (8) whether Willingham’s rights to due
3 process and equal protection were violated because the jury was not
instructed on the effect that Texas parole law would have on his
sentence. He did not, however, brief issues (3), (4), (5), and (6)
in his brief in support of his COA application (although the
subject matter of these issues is addressed in relation to his
ineffective assistance of counsel claim). Accordingly, we address
only the four COA requests that Willingham briefed. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999) (issues not raised in
brief in support of COA application are waived), cert. denied, 528
U.S. 1145 (2000)
A
Standard of Review
To obtain a COA, Willingham must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, he must 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For those claims on which the district court has denied relief on
the merits, Willingham “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id.
4 “[T]he determination of whether a COA should issue must be
made by viewing [Willingham]’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 121
S.Ct. 902 (2001). When a claim has been adjudicated on the merits
in state court, a federal habeas court must defer to the state
court’s decision unless it “[is] contrary to, or involve[s] an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or ... [is]
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(1) and (2). A decision is “contrary to ... clearly
established Federal law, as determined by the Supreme Court of the
United States” “if the state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court]
has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A decision “involve[s] an
unreasonable application of[] clearly established Federal law, as
determined by the Supreme Court of the United States” “if the state
court identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. The state
court’s factual findings are accorded a presumption of correctness
5 that Willingham may rebut only by “clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
B
Denial of the Right to Self-Representation
We address first Willingham’s request for a COA for his claim
that his right to due process was violated when he was denied the
right to represent himself on appeal. Willingham’s appointed
counsel filed his brief on direct appeal on January 11, 1993. Five
months later, prior to the filing of the State’s brief, Willingham
filed a motion to strike his appointed counsel’s brief and to
proceed pro se on appeal. In that motion, he asserted that the
brief filed by his appellate counsel did not reflect the true
merits of his case. He did not, however, specify the issues he
wanted to raise. In support of his motion, Willingham submitted an
affidavit in which he indicated his belief that he was able to
prepare a brief and waived his right to the assistance of counsel.
The Court of Criminal Appeals denied Willingham’s motion.
Willingham argues that this violated his constitutional right to
represent himself on appeal.
The state habeas trial court denied relief for this claim on
the ground that Willingham was attempting to use his right of self-
representation to obstruct the orderly procedure in the courts and
the fair administration of justice. See Webb v. State, 533 S.W.2d
780, 784 (Tex. Crim. App. 1976) (holding that a criminal defendant
6 has the right to represent himself on appeal, but that the “right
of self-representation is not a license to capriciously upset the
appellate timetable or to thwart the orderly and fair
administration of justice”; and declining to rule on appellant’s
pro se motions that were filed long after his appointed counsel had
filed an appellate brief).
The district court denied this claim on the merits, in the
light of Martinez v. Court of Appeal, Fourth Appellate District,
528 U.S. 152 (2000), which was handed down subsequent to the state
habeas court’s ruling. In Martinez, the Supreme Court held that
there is no federal constitutional right to self-representation on
direct appeal from a criminal conviction. Id. at 163.2
Willingham argues that Martinez does not foreclose his claim,
because Martinez is based on the assumption that states will
consider pro se arguments, in addition to those raised by counsel.
See Martinez, 528 U.S. at 164 (observing that “the rules governing
appeals in California, and presumably those in other States as
well, seem to protect the ability of indigent litigants to make pro
2 In Faretta v. California, 422 U.S. 806, 807 (1975), the Supreme Court held that a criminal defendant has a Sixth Amendment right to represent himself at trial. Based on Faretta, our court held in 1993 (seven years prior to Martinez), that a state criminal defendant has a constitutional right to present pro se briefs and motions on appeal. See Myers v. Collins, 8 F.3d 249, 252 (5th Cir. 1993). In the light of Martinez, which held that the Sixth Amendment does not apply to appellate proceedings, and which cited Myers as one of the cases expressing conflicting views on the issue, this aspect of Myers is no longer valid and is thus inapplicable to our resolution of Willingham’s COA request.
7 se filings”). He maintains that, because Texas refuses to consider
pro se arguments in addition to those raised by counsel, he can
still establish a due process violation, notwithstanding Martinez.
The State argues that this claim is foreclosed by Martinez.
It contends further that this claim is barred by the non-
retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989). See
Vega v. Johnson, 149 F.3d 354, 361-62 (5th Cir. 1998) (holding that
Myers created a new rule of constitutional law that was not
applicable on collateral review, and that a rule establishing the
extent and requirements of the right of self-representation on
appeal would be a new rule barred by Teague). Finally, the State
argues that this claim is procedurally barred because the state
habeas court found that Willingham waived his right to self-
representation when he accepted the assistance of counsel, allowed
counsel to file an appellate brief, and then waited at least five
months to assert his wish to proceed pro se.
In the light of Martinez, Willingham cannot demonstrate that
reasonable jurists would find the district court’s assessment of
this claim “debatable or wrong.” See Slack, 120 S.Ct. at 1604.
Notwithstanding its observations about the ability of indigent
litigants to make pro se filings under state appellate rules, the
Supreme Court’s refusal to recognize a due process right to self-
representation on appeal is not conditioned on the appellant’s
ability to make such filings. The imposition of such a condition
8 on collateral review is not permitted under Teague. Accordingly,
Willingham’s request for a COA for this claim is denied.
C
Ineffective Assistance of Counsel on Direct Appeal
Next, we consider Willingham’s request for a COA for his claim
that he received ineffective assistance of counsel on direct
appeal. Willingham’s appointed counsel argued on direct appeal
that: the evidence was insufficient to support the jury’s answers
to the special issues at the punishment phase; the trial court
erred by denying the defense motion to change venue; the trial
court erred in refusing to admit impeachment testimony; and the
trial court erred by refusing to instruct the jury on parole law.
Willingham argues that his appellate counsel rendered ineffective
assistance by failing to argue, in addition, that: (1) the trial
court erred by granting the State’s challenges for cause of
prospective jurors Allen and Ovalle; (2) the trial court erred by
limiting voir dire examination of prospective juror Ovalle; (3) the
trial court erred by admitting hearsay testimony; and (4) the trial
court erred by admitting improper expert testimony.
Willingham’s ineffective assistance claim is governed by the
standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). To obtain a COA for this claim, Willingham must make a
substantial showing that his appellate counsel performed
deficiently and that the deficient performance prejudiced his
9 defense. Prejudice is demonstrated if “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Accordingly, to establish
prejudice, Willingham must show a reasonable probability that he
would have prevailed on his appeal had counsel raised the omitted
claims. Smith v. Robbins, 528 U.S. 259, 285-87 (2000). The
Constitution does not require an appellate attorney to advance
every conceivable argument, regardless of merit. Evitts v. Lucey,
469 U.S. 387, 394 (1985). Instead, counsel is required to raise
and brief only those issues which are believed by counsel, in the
exercise of professional judgment, to have the best chance of
success. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983).
We now turn to examine each of the issues that Willingham
contends his counsel should have raised on direct appeal.
Exclusion of Jurors for Cause
Willingham seeks a COA for his claim that his appellate
counsel rendered ineffective assistance by failing to argue on
appeal that the trial court erred by granting two of the State’s
challenges for cause during voir dire.
When questioned by the prosecutor, prospective juror Ovalle
testified that she could not vote for the imposition of the death
10 penalty and that this was a firm belief that she had held for a
long time. She stated that, because of her belief, she could not
vote in favor of the death penalty, regardless of what the evidence
might be, and that she would automatically vote against the death
penalty. She testified further that her feelings against the death
penalty were so strong that they would interfere with her ability
to vote to convict someone of capital murder, knowing that she
would later face the decision regarding the death penalty.
Finally, she testified that her views on capital punishment would
substantially impair her duties as a juror and might keep her from
following the court’s instructions. When questioned by defense
counsel, Ovalle stated that she would consider her oath as a juror
to be binding and that, if she took an oath to follow the law, she
would do so. She testified further that she thought she could
answer the special issues based on the evidence, despite her views
about the death penalty. When questioned again by the State,
however, Ovalle reiterated that she could not vote to impose the
death penalty.
Prospective juror Allen also did not believe in capital
punishment. She testified that her belief was based on moral and
religious reasons, that she had strong feelings about the subject,
and that she had never felt differently. She testified that,
because of her beliefs, she would answer the special punishment
issues in such a manner that the death penalty could not be
11 imposed, regardless of the evidence. She agreed that it would be
impossible for her to swear that she would render a verdict solely
on the law and evidence in a case where the death penalty was
involved. She also indicated that her views about the death
penalty would interfere with her ability to render a fair verdict
at the guilt-innocence phase, knowing that she would face the
decision of the death penalty if the defendant were convicted.
When questioned by defense counsel, Allen stated that she thought
she could answer the special punishment issues based on the
evidence, and that she would not intentionally disregard her oath
because of her opposition to the death penalty. When questioned
again by the State, however, Allen stated that she could not base
her verdict on the evidence if it involved the death penalty.
The Supreme Court has held that a prospective juror may be
excused for cause in a capital case when the juror’s views on the
death penalty are such that they “would prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,
424 (1985) (internal quotation marks and citation omitted). It is
improper, however, to excuse a juror for cause when the juror would
approach a death penalty case with greater care or caution or where
the decision would involve him emotionally. Adams v. Texas, 448
U.S. 38, 49-50 (1980). Because the trial judge has the opportunity
to see and hear the prospective jurors, we give deference to the
12 trial judge’s credibility determinations. Wainwright, 469 U.S. at
425-26.
The state habeas trial court denied relief on Willingham’s
claim that the trial court erred by granting the State’s challenges
for cause, observing that the prospective jurors’ responses to
questioning showed that their views on the death penalty would
substantially impair the performance of their duties in accordance
with the court’s instructions and the jurors’ oath. It denied
Willingham’s claim that he received ineffective assistance of
appellate counsel for the same reason.
In assessing the ineffective counsel claim, the district court
held that Willingham was not prejudiced, because there was not a
reasonable probability that the outcome of the appeal would have
been different if his appellate counsel had raised the issue. The
district court’s assessment of this claim is neither debatable nor
wrong, because the state court’s decision is not contrary to
federal law and is not based on an unreasonable application of the
law or an unreasonable determination of the facts. Essentially,
any such claim would have been meritless as an appellate issue.
Both of the prospective jurors stated more than once that, because
of their opposition to the death penalty, they could not render a
verdict based solely on the evidence at trial. Although, when
questioned by defense counsel, both of them said that they thought
they could follow their oaths and answer the punishment issues
13 based on the evidence, they both reiterated, in response to further
questioning by the prosecutor, that they could not vote in such a
way as to impose the death penalty. Because both of the
prospective jurors held views about the death penalty that would
have substantially impaired them in fulfilling their duties as
jurors, the trial court was well within his discretion in granting
the State’s challenges for cause. Accordingly, Willingham cannot
show that he was prejudiced by counsel’s alleged failing: There is
not a reasonable probability that Willingham would have prevailed
on appeal had the issue been raised.
Limitation of Voir Dire
Willingham also seeks a COA for his claim that his appellate
counsel rendered ineffective assistance by failing to argue on
appeal that the trial court erred by refusing to allow counsel to
ask prospective juror Ovalle whether, irrespective of her personal
beliefs, she could follow the law and decide the punishment issues
based upon the evidence. He contends that, had counsel been
allowed to ask this question, he could have shown that Ovalle could
answer the questions truthfully based on the evidence and thus
defeat a challenge for cause.
The state habeas trial court rejected this claim on the ground
that Willingham was not prejudiced, because a similar question had
already been asked, answered, and considered by the court. The
14 district court held that, in the light of the fact that defense
counsel had asked Ovalle essentially the same question earlier and
the fact that many of Ovalle’s previous answers to questions
indicated that she could not render a verdict based on the law and
the evidence, the trial court did not abuse its discretion by
refusing to permit Willingham’s counsel to ask the question.
Willingham is not entitled to a COA for this claim because the
district court’s assessment of this claim is neither debatable nor
wrong. Consequently, Willingham has not made a substantial showing
that he was prejudiced by his counsel’s failure to raise this issue
on appeal; there simply is not a reasonable probability that the
outcome of the appeal would have been different had the issue been
raised. As the state habeas court and the district court observed,
the question that defense counsel wanted to ask is duplicative of
similar questions that had already been asked by defense counsel.
Hearsay Testimony
Next, Willingham seeks a COA based on the failure of appellate
counsel to argue that the trial court erred by admitting hearsay
evidence at the punishment phase of his trial. The testimony at
issue was introduced to impeach the testimony of Willingham’s wife,
who was called by the State as a hostile witness during the
punishment phase. Willingham’s wife testified that Willingham had
never hurt her or her children, and that her children were not
15 afraid of him. She also denied that she had ever told Karen or Kim
King that Willingham had beaten or kicked her while she was
pregnant in an attempt to cause a miscarriage. She further denied
that Willingham had ever made the statement, after they had
separated, that it would be a good trade if she took their daughter
and he took the videocassette recorder (“VCR”).
Karen King was called by the State to impeach Willingham’s
wife. She testified that she had seen Willingham’s wife with a
“busted” lip, two black eyes, bruised legs, and a red spot on her
stomach. She also testified that Willingham’s wife told her that
Willingham had beaten her and kicked her in the stomach while she
was pregnant because, she believed, he wanted to cause a
miscarriage.
The State also called Kim King as a witness. She testified
that Willingham’s wife had spoken to her about Willingham beating
her while she was pregnant. She testified further that
Willingham’s wife told her that Willingham had stated that he
wanted the VCR and that it would be a fair trade for their oldest
daughter.
The trial court overruled defense counsel’s hearsay objections
to Karen and Kim King’s testimony. The state habeas trial court
held that Willingham failed to present a ground for relief that was
cognizable on habeas review. Furthermore, it held that any error
in admitting the testimony was harmless, because it was more
16 probable than not that the result would have been the same if the
challenged testimony had been excluded. It denied Willingham’s
claim that he received ineffective assistance of appellate counsel
for the same reason. The Texas Court of Criminal Appeals denied
relief, but declined to adopt the trial court’s findings of fact
relating to this claim.
On federal habeas, the magistrate judge stated that Karen
King’s testimony regarding Willingham’s wife’s statement about the
reason she thought Willingham had beaten her while she was pregnant
was hearsay, but that the testimony was admissible to impeach
Willingham’s wife’s testimony that she never made such a statement
to either of the Kings. The magistrate judge noted that
Willingham’s counsel did not request a limiting instruction.
The magistrate judge stated that Karen King’s testimony
regarding Willingham’s statement to his wife about trading the VCR
for his daughter was inadmissible hearsay, because Willingham’s
wife did not deny that she had made such a statement to King.
Instead, she denied that Willingham had ever made the statement to
her. The magistrate judge concluded, however, that, as far as his
ineffective counsel claim was concerned, Willingham was not
prejudiced by counsel’s failure to raise the issue on appeal,
because there was not a reasonable probability that the appellate
court would have found reversible error. Instead, the magistrate
judge concluded that the appellate court would have found the error
17 harmless, because the jury would not have reached a different
decision on punishment had the testimony been excluded. The
magistrate judge reached this conclusion because of the horrific
nature of the crime and the other evidence at the punishment phase
-- including Willingham’s extensive criminal background, his
bragging about killing a dog, the other testimony given by the
Kings regarding Willingham’s wife’s appearance after being beaten
by Willingham, and testimony of a neighbor who witnessed Willingham
slap his wife and who once helped Willingham’s wife call the police
about Willingham’s violence.
The district court held that, even if the State knew before it
called her as a witness, that it would impeach Willingham’s wife’s
denial that she had been abused by Willingham, the State also
elicited testimony from her that did not relate to the abuse.
Accordingly, the district court concluded that the State did not
improperly call Willingham’s wife solely to impeach her. The
district court therefore concluded that the trial court did not err
when it admitted the hearsay statements for impeachment purposes,
and that, as the matter related to his ineffective counsel claim,
there was not a reasonable probability that the outcome of
Willingham’s appeal would have been different if his counsel had
raised the issue. The district court noted that Willingham did not
object to the magistrate judge’s conclusion that he was not
prejudiced by appellate counsel’s failure to appeal the admission
18 of testimony regarding Willingham’s statement that he would trade
his daughter for a VCR. The district court concluded that
Willingham was not prejudiced by the testimony, even if it were
hearsay, because the testimony was insignificant in the light of
other testimony regarding the nature of Willingham’s relationship
with his wife and children.
Willingham is not entitled to a COA for this issue, because
the district court’s assessment of this claim is neither debatable
nor wrong. Willingham has not made a substantial showing that he
was prejudiced by counsel’s failure to raise this issue on direct
appeal.
Expert Testimony
The last basis for Willingham’s ineffective assistance of
appellate counsel claim involves counsel’s failure to appeal the
admission of opinion testimony from the State’s arson investigator,
Vasquez. During the guilt phase of trial, Vasquez, a deputy state
fire marshal and arson investigator, was called by the State as an
expert witness. Vasquez testified that, based on the burn patterns
and pour patterns and the stains on the concrete front porch, the
fire was set intentionally with the use of an accelerant. He
testified that he did not believe Willingham’s two-year-old
daughter could have started the fire, because the accelerant liquid
was deliberately poured throughout the hallway and the bedroom, and
19 because the fire was started in three different places. He
testified that Willingham had told him that his daughter had
awakened him while he was sleeping, the bedroom was full of smoke,
he kicked open the door with his bare foot, and he ran down the
hallway and out the door. Vasquez testified that, in his opinion,
Willingham’s story was not true, because Willingham could not have
exited the house after it was on fire and smoke had reached his
bedroom without sustaining injury to his feet or substantial smoke
inhalation damage. Finally, Vasquez testified that it was his
opinion that Willingham started the fire.
Willingham argues that Vasquez’s opinion that Willingham’s
story was “pure fabrication” was improper expert testimony
regarding the ultimate issue in the case. He also argues that
Vasquez was improperly permitted to testify that Willingham
intentionally set the fire.
The state habeas trial court held that any error in admitting
Vasquez’s opinion testimony was harmless. It denied Willingham’s
claim that he received ineffective assistance of appellate counsel
for the same reason. The Texas Court of Criminal Appeals denied
relief, but did not adopt the trial court’s findings of fact
The magistrate judge concluded that Vasquez’s testimony that
the fire was intentionally set using an accelerant was proper
expert testimony because that opinion was based on his specialized
20 knowledge about fires and their causes. The magistrate judge also
concluded that Vasquez’s testimony that Willingham fabricated the
story about escaping the fire through the hallway was admissible
opinion testimony. Although it embraced an ultimate issue, it was
not testimony regarding the veracity of a witness, because
Willingham did not testify at trial. Instead, Vasquez testified
that he did not believe Willingham’s story because, based upon his
specialized knowledge, he did not believe that Willingham could
have escaped the burning house without inhaling smoke and
sustaining injuries to his bare feet. Although the magistrate
judge concluded that Vasquez’s opinion testimony regarding
Willingham’s guilt was admitted erroneously with respect to the
ineffective counsel claim, he concluded that the Texas Court of
Criminal Appeals would have found the error to be harmless had the
issue been raised on appeal, considering the substantial
circumstantial evidence of Willingham’s guilt. That evidence
included uncontroverted expert testimony from two fire experts that
an accelerant was used to start the fire intentionally. In
addition, there was testimony that Willingham refused to try to
rescue his children from the fire; that he exhibited a lack of
concern or grief in the hospital after the fire; that he did not
sustain any substantial injuries; that he displayed a carefree
attitude the day after the fire; that he told arson investigators
on the day of the children’s funeral that they might find something
21 on the floor of the twins’ bedroom because he had poured cologne
there prior to the fire; that on the day of the children’s funeral
he sought help from the arson investigators to find his dartboard
in the ruins of his house; and that a container containing traces
of kerosene was found on the porch and a similar petroleum
distillate was found on the wood threshold of the front door.
Moreover, there was testimony that, while in jail awaiting trial,
Willingham confessed to an inmate that he started the fire in order
to hide evidence of recent child abuse. Finally, in addition to
the one inadmissible opinion given by Vasquez, he also gave
admissible opinion testimony that a child could not have set the
fire and that Willingham’s story did not match the physical
evidence and was contradicted by his lack of injuries. The
magistrate judge concluded that because the opinion testimony was
either admissible or harmless, Willingham could not establish any
prejudice as the result of his appellate counsel’s failure to raise
the issue. The district court agreed with the magistrate judge
that Willingham was not prejudiced by his appellate counsel’s
failure to raise the issue on appeal, because any error would have
been harmless in the light of the substantial evidence of
Willingham’s guilt.
Willingham is not entitled to a COA for this issue because the
district court’s assessment of this claim is neither debatable nor
wrong. Even assuming that some of Vasquez’s testimony was admitted
22 erroneously, he cannot establish the second prong of his
ineffective counsel claim: There is not a reasonable probability
that the Texas Court of Criminal Appeals would have found the error
to be prejudicial to the outcome of the case had the issue been
raised on direct appeal.
Summary
In sum, Willingham is not entitled to a COA for his claim that
his appellate counsel rendered ineffective assistance. Willingham
has not made a substantial showing that there is a reasonable
probability that counsel’s failure to raise the issues on direct
appeal would have affected the outcome of his appeal.
D
Constitutionality of Texas Death Penalty Statute
Willingham also seeks a COA for his claim that the Texas death
penalty scheme is unconstitutional because the Texas Court of
Criminal Appeals will not review the sufficiency of the evidence
supporting the jury’s answer to the special punishment issue on
mitigating evidence. Willingham argues that this results in the
jury being given unlimited discretion in choosing whether to assess
the death penalty, in violation of the Eighth and Fourteenth
Amendments. Willingham does not deny that this claim is foreclosed
by our precedent, but states that he is raising it to preserve the
opportunity to present the issue to the Supreme Court. See Woods
23 v. Cockrell, 307 F.3d 353, 358-60 (5th Cir. 2002); Moore v.
Johnson, 225 F.3d 495, 505 (5th Cir. 2000), cert. denied, 532 U.S.
949 (2001).
E
Jury Instruction on Parole
Finally, Willingham requests a COA for his claim that his
constitutional rights were violated by the trial court’s refusal to
instruct the jury that he would be ineligible for parole for
thirty-five years if sentenced to life imprisonment. As Willingham
acknowledges, he is not entitled to a COA for this claim because it
is foreclosed by Fifth Circuit precedent. See Miller v. Johnson,
200 F.3d 274, 290 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
He raises the issue in order to preserve the opportunity to present
it to the Supreme Court.
III
For the foregoing reasons, Willingham’s application for a COA
is
D E N I E D.