Turner v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
March 12, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-70017
_______________
CARLTON AKEE TURNER,
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
m 3:04-CV-2232-D
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Carlton Turner applies for a certificate of
appealability (“COA”) from the denial of his
petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Because he cannot make a
substantial showing of the denial of a federal
constitutional right, we deny a COA.
I.
The evidence presented at trial established
that Turner shot and killed his parents in their
home and placed the bodies in the garage. He

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2
confessed, and his claim of self-defense contra-
dicted previous claims that he had nothing to
do with the murders. A jury found him guilty
of capital murder and sentenced him to death.
During voir dire, the prosecutor discussed
with prospective jurors the issue of parole eli-
gibility. During interviews with at least six
prospects, after stating that the court would
not allow the jury to consider parole eligibility
in deciding punishment, the prosecutor specu-
lated that parole consideration was barred be-
cause the legislature could change the parole
laws at any time, thereby making it inapplica-
ble to Turner. The prosecutor went on to at-
test that he had seen several parole law chang-
es during his tenure. Turner’s trial counsel did
not object.
In the sentencing phase, the court instruct-
ed the jury that Texas parole law required Tur-
ner to serve at least forty years before being
eligible for parole, but that the jury was not to
consider Turner’s parole eligibility in deter-
mining his sentence. The court did not specu-
late on whether the parole law might change.
Turner’s conviction was affirmed on direct
appeal. Turner v. State, 87 S.W.3d 111 (Tex.
Crim. App. 2002), cert. denied, 538 U.S. 965
(2003). Turner timely filed a state petition for
writ of habeas corpus. Deciding that a hearing
was unnecessary, the state habeas court en-
tered findings of fact and conclusions of law
recommending that all relief be denied. The
Texas Court of Criminal Appeals denied relief
in an unpublished order based on those find-
ings and conclusions and its own review of the
record. Ex parte Turner, No. 59,908-01 (Tex.
Crim. App. 2004). Turner filed a federal habe-
as petition based on seven grounds, including
that the prosecutor’s comments violated his
rights under the Sixth, Eighth, and Fourteenth
Amendments. The district court rejected Tur-
ner’s constitutional claims and declined to
grant a COA.
On appeal, Turner raises all seven issues
asserted in the district court, seeking a COA.1
First, he claims he was denied his right to a fair
and impartial trial by the prosecutor’s state-
ments. Second, he claims that he was denied
his right to effective assistance of counsel
when his lawyer failed to object to the
prosecutor’s statements during voir dire.
Third, he claims that the court’s instructions to
the jury that it was not to consider parole
eligibility deprived him of his right to a fair
trial. Fourth, he asserts that the court’s in-
structions at sentencing contained vague and
undefined terms that violated his right to a fair
trial. Fifth, he claims that the Texas death
penalty statute violates his right to a fair trial
by not informing jurors that failure to reach a
unanimous verdict on any issue will lead to life
imprisonment. Sixth, he claims that the Dallas
1 Throughout his briefing, Turner asserts that he
“incorporates by reference the arguments previ-
ously made relevant to his claim in his brief in sup-
port of his original federal suit.” We do not con-
sider issues that are not adequately briefed. See,
e.g., Summers v. Dretke, 431 F.3d 861, 870 (5th
Cir. 2005) (“Summers directs this court to the
briefing before the district court for support of his
request for a COA as to these claims. We decline
this request. By failing to adequately brief these
issues, Summers has waived them.”), cert. denied,
127 S. Ct. 353 (2006); Hughes v. Dretke, 412 F.3d
582, 597 (5th Cir. 2005) (“Federal Rule of Appel-
late Procedure 28(a)(4) requires that the appel-
lant’s argument contain the reasons he deserves the
requested relief with citation to the authorities,
statutes and parts of the record relied on.”) (in-
ternal citations omitted), cert. denied, 126 S. Ct.
1347 (2006). Turner waives the arguments he has
not briefed.

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3
County venire selection process violates his
right to an impartial jury containing a
representative cross-section ofthe community.
Seventh, he asserts that the cumulative effect
of these violations denied him due process.
II.
In ruling on a request for a COA, we are
constrained by statute. Absent a COA, we
have no jurisdiction to entertain the merits of
Turner’s claims on appeal. Miller-El v. Cock-
rell, 537 U.S. 322, 336 (2003). Under the An-
ti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a petitioner must show
that the state court’s resolution of his case was
either “contrary to, or involved an unreason-
able application of, clearly established Federal
law, as determined by the Supreme Court of
the United States,” or “resulted in a decision
that was based on an unreasonable determina-
tion of the facts in light of the evidence pre-
sented in the State court proceeding.” 28
U.S.C. § 2254(d).2 To grant a COA, we need
not decide the ultimate merits of the underly-
ing issue in the petitioner’s favor, but rather
we ask only whether he has made “a substan-
tial showing of the denial of a constitutional
right.” Id. § 2253(c)(2).
“A petitioner satisfies this standard by dem-
onstrating that jurists of reason could disagree
with the district court’s resolution of his
constitutional claim or that jurists could con-
clude the issues presented are adequate to de-
serve encouragement to proceed further.”
Miller-El, 537 U.S. at 327. Our role is to de-
termine not whether Turner is entitled to relief,
but whether the district court’s conclusion that
the state court adjudication was not contrary
to or an unreasonable application of clearly
established federal law is one about which
jurists of reason could disagree or as to which
jurists could conclude that the issues presented
are adequate to deserve encouragement to
proceed further.
III.
A.
Turner argues that the prosecutor’s state-
ments to jurors during voir direSSwhich sug-
gested that Turner might not serve forty years
before becoming eligible for paroleSSwere a
violation of his rights under the due process
clause of the Fifth Amendment. He relies on
Simmons v. South Carolina, 512 U.S. 154
(1994), in which the Court ruled that due pro-
cess affords a criminal defendant the right to
answer future dangerousness allegations by
asserting that he will not be eligible for parole.
Turner asserts that Simmons recognizes a due
process right to provide the jury with accurate
information regarding parole eligibility, which
cannot be undermined by inaccurate informa-
tion from the state.
The district court rejected Turner’s claim,
noting that the state habeas court had found
that the factual basis for the claim was incor-
rect. The state habeas court found that the
prosecution’s statements actually reinforced
the instruction that Turner would serve at least
forty years, and that the prosecutor confirmed
to the jurors that the minimum period applied.
State Hab. Find. Nos. 9, 22-23. On habeas re-
view, federal courts must presume that the
state court’s factual findings are correct, and
Turner has not attempted to present clear and
convincing evidence that the findings were er-
2 See also Yarborough v. Gentry, 540 U.S. 1, 5
(2003) (“Where, as here, the state court’s applica-
tion of governing federal law is challenged, it must
be shown to be not only erroneous, but objectively
unreasonable.”).

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4
roneous.3 Alternatively, the district court not-
ed that the state habeas court had concluded
that Simmons applies only in situations in
which a defendant is statutorily ineligible for
parole, and the district court found that this
conclusion was not an unreasonable applica-
tion of clearly established federal law as deter-
mined by the Supreme Court.
In Simmons, a majority, in two separate
plurality opinions, held that a defendant must
be allowed to rebut a state’s showing of future
dangerousness with accurate information re-
garding his ineligibility for parole, at least
where the only alternative sentence is life with-
out parole. See Simmons, 512 U.S. at 171; id.
at 178 (O’Connor, J., concurring in the
judgment). Three of the seven Justices who
concurred in the judgment noted, however,
that “the State may also (though it need not)
inform the jury of any truthful information
regarding the availability of commutation,
pardon, and the like.” See id. at 177 (O’Con-
nor, J., concurring in the judgment).
Several years later the Court revisited the
issue in the context of a defendant who was
eligible for parole at the time of sentencing. In
Ramdass v. Angelone, 530 U.S. 156 (2000), a
majority, in two plurality opinions, concurred
in the judgment that Simmons applies only
where there is no possibility of parole if the
jury decides the appropriate sentence is life in
prison. Id. at 169; id. at 181 (O’Connor, J.,
concurring in the judgment). Thus, the current
state of federal law as elaborated by the
Supreme Court is that due process requires a
jury to be able to consider a defendant’s parole
eligibility only where the alternative pun-
ishment is life without parole.
The state court found that Turner’s argu-
ment was not factually correct and that the
prosecutor’s statement that the law might
change merely confirmed the trial court’s in-
struction that Turner would not be released for
forty years. Because Turner has not demon-
strated that this factual finding is clearly er-
roneous, we deny a COA.
Alternatively, even if Turner could show
that the state court’s finding was erroneous, he
would need to demonstrate that the state court
unreasonably applied clearly established fed-
eral law as determined by the Supreme Court.
As discussed above, under the Supreme
Court’s precedents, a defendant has a due pro-
cess right to present parole eligibility to the
jury only where he is not eligible for parole at
the time of sentencing. The Court intended to
limit Simmons’s application to states that allow
sentences of life without parole. See Green v.
Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998).
Because Turner is eligible for parole, jurists of
reason would have to agree that it is not a
violation of clearly established federal law for
the state court to find that the protections of
Simmons are not applicable. We decline to
issue a COA on this issue.
B.
Turner protests his attorney’s failure to ob-
ject to the prosecutor’s statements. He rea-
sons that under Texas law, see, e.g., Valencia
v. State, 946 S.W.2d 81 (Tex. Crim. App.
1997), a prosecutor cannot argue contrary to
the law contained in the jury instructions and
may not invite jurors to disregard the law.
Turner suggests that his counsel’s failure to
object to the statements amounted to ineffec-
3 See Summers, 431 F.3d at 868 (“A state
court’s factual findings are presumed to be correct.
Before a federal court, a petitioner has the burden
of rebutting this presumption with clear and con-
vincing evidence.”) (internal citations omitted).

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5
tive assistance of counsel under the Sixth
Amendment.
The state habeas court found that Turner
was unable to demonstrate ineffective assis-
tance, because he was unable to show that his
counsel’s objection would have been improp-
erly overruled or that the prosecutor’s state-
ment was an inappropriate explanation of the
parole law instruction. State Hab. Find. No.
11. The court concluded that Turner’s
counsel was not deficient for failing to proffer
meritless objections to the statements.
To succeed on a claim of ineffective assis-
tance, a defendant must make two showings:
First, the defendant must show that coun-
sel’s performance was deficient. This re-
quires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defen-
dant must show that the deficient perfor-
mance prejudiced the defense. This re-
quires showing that counsel’s errors were
so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687
(1984). “If a state court has already rejected
an inefficient-assistance claim” and “the state
court’s application of governing federal law is
challenged, it must be shown to be not only er-
roneous, but objectively unreasonable.” Yar-
borough, 540 U.S. at 5.
To satisfy the first step of Washington, Tur-
ner must demonstrate that his counsel’s per-
formance was deficient; he is unable to make
that showing. For Turner’s counsel to be de-
ficient in failing to object, the objection must
have merit under Texas law. On direct appeal,
the Texas Court of Criminal Appeals conclud-
ed, after reviewing several of the prosecutor’s
comments, that Turner had quoted them “out
of context” and that “we cannot say that coun-
sel was ineffective for failing to object to the
prosecutor’s voir dire comments since, viewed
in the context of the entire voir dire, they were
not objectionable.” Turner v. State, 87
S.W.3d 111, 115-16 (Tex. Crim. App. 2002)
(emphasis added).
This is an authoritative statement from the
state’s highest criminal court that Turner’s
proposed objection would have been meritless.
Turner’s counsel cannot have rendered
ineffective assistance of counsel by failing to
make an objection that would have been mer-
itless.4 Turner cannot make a substantial
showing under Washington, so a COA on this
issue is denied.
C.
Turner avers that the state trial court vio-
lated Simmons and his right to due process by
informing jurors that they were not to consider
the possibility of parole. Turner acknowledges
that in Ramdass the Court held that defendants
who are eligible for parole have no due
process right to a Simmons instruction inform-
ing the jury about the defendant’s ineligibility
for parole. Nonetheless, Turner argues that in
this case, where the state court did inform the
jury that Turner would not be eligible for par-
ole for forty years, it was a violation of due
process and Simmons for the court then to in-
form the jury not to consider parole eligibility.
The state habeas court rejected this claim,
4 See Green, 160 F.3d at 1037 (“[F]ailure to
make a frivolous objection does not cause cou-
nsel’s performance to fall below an objective level
of reasonableness.”).

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6
finding that the protections of Simmons do not
apply where a defendant is parole eligible and
that Texas courts have long held that parole
eligibility is not a matter for capital jury con-
sideration. State Hab. Find. Nos. 75-76. The
court also concluded that Turner could not
show harm, because in deciding future danger-
ousness in Texas the jury is allowed to con-
sider dangerousness to the prison population
and thus parole eligibility is irrelevant. State
Hab. Find. No. 82.
It is undisputed that the due process right
to inform the jury about parole ineligibility rec-
ognized in Simmons does not apply where a
defendant is eligible for parole.5 Simmons
does not establish a right to inform the jury ac-
curately about a defendant’s expected parole
eligibility, but rather a right to inform that he
is ineligible for parole. Turner is unable to
make a substantial showing that the state ha-
beas court’s conclusion was contrary to or an
unreasonable application of clearly established
federal law as determined by the Supreme
Court, and a COA is denied.
D.
Turner urges that the jury instructions were
unconstitutionally vague, depriving him of a
fair trial, because they failed to define “proba-
bility,” “criminal acts of violence,” and “con-
tinuing threat to society.” The state habeas
court rejected this challenge, noting that these
terms apply not to the aggravating factors that
determine death eligibility, but rather to the
special punishment issues that determine
whether the death penalty is appropriate.
State Hab. Find. Nos. 91-92. The court cited
several state cases that demonstrate that a re-
fusal to define these terms poses no constitu-
tional problems.6
In Tuilaepa v. California, 512 U.S. 967
(1994), the Court distinguished two determi-
nations made by capital juries: eligibility for
the death penalty and selection of the death
penalty. Id. at 971. The Court noted that at
the eligibility step, the jury must find at least
one “aggravating circumstance (or its equiva-
lent)” and that this circumstance must not be
“unconstitutionally vague.” Id. at 972. By
comparison, at the selection step, the jury must
be allowed to make “an individualized deter-
mination” and to consider “relevant mitigating
evidence of the character and record of the de-
fendant and the circumstances of the crime.”
Id. In this second step, the jury may even be
given “unbridled discretion in determining
whether the death penalty may be imposed.”
Id. at 979-80 (citations omitted).7 As the
district court recognized, this court has re-
jected claims alleging the vagueness of these
very terms when applied to selection deci-
sions.8
5 See Ramdass, 530 U.S. at 169; id. at 181
(O’Connor, J., concurring in the judgment); Woods
v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002).
6 State Hab. Find. No. 93 (citing Cantu v. State,
842 S.W.2d 667, 691 (Tex. Crim. App. 1992);
Caldwell v. State, 818 S.W.2d 790, 798 (Tex.
Crim. App. 1991)).
7 See also Buchanan v. Angelone, 522 U.S.
269, 276 (1998) (“[O]ur decisions suggest that
complete jury discretion is constitutionally per-
missible.”)
8 See, e.g., Hughes v. Johnson, 191 F.3d 607,
615 (5th Cir. 1999) (“We similarly have rejected
contentions that ‘probability’ and other terms in-
cluded in the statutory special issues are unconsti-
tutionally vague.”) (citations omitted); James v.
Collins, 987 F.2d 1116, 1120 (5th Cir. 1993)
(holding that terms used in special issues, including
(continued...)

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7
Turner claims that Ring v. Arizona, 536
U.S. 584 (2002), which he cites for the propo-
sition that any fact that must be proved to ren-
der a defendant eligible for the death penalty
must be proved beyond a reasonable doubt,
compels a different result. This argument mis-
construes the Texas capital penalty frame-
work.
Texas capital juries make the eligibility de-
cision at the guilt-innocence phase. See, e.g.,
Johnson v. Texas, 509 U.S. 350, 362 (1993).
The terms about which Turner complains are
not invoked until after the defendant has been
judged death-eligible and the jury is being in-
structed how to decide whether selection of
the death penalty is appropriate. Ring is inap-
posite to any discussion of the constitutional
requirements of the selection phase. Because
Turner is unable to point to any clearly estab-
lished federal law under which the terms of the
Texas sentencing instructions could be un-
constitutionally vague, he is unable to make a
substantial showing of the denial of a federal
constitutional right, and we deny a COA.
E.
In this court, Turner has not briefed his
claim that his Eighth Amendment and due pro-
cess rights are violated by the Texas death
penalty statute’s failure to inform jurors that
the effect of a failure to reach a unanimous
verdict is to impose life imprisonment. In-
stead, he concedes that this argument is
squarely foreclosed by circuit precedent; he
maintains it only to preserve the error for fur-
ther review.9 We deny a COA.
F.
Turner argues that the Dallas venire selec-
tion process disproportionately represented
(1) Hispanics, (2) persons between the ages of
18 and 34, and (3) persons from households
with incomes under $35,000.10 Turner claims
that he was prejudiced by the under-represen-
tation of these groups, which deprived him of
a jury venire composed of a fair cross-section
of the community.
The state habeas court found that Turner
had failed to raise his venire objection at trial
and therefore had waived the error for collat-
eral review. State Hab. Find. Nos. 109-10
(citing Ex Parte Dietzman, 851 S.W.2d 304,
305-06 (Tex. Crim. App. 1993)). Alternative-
ly, the court found that Turner’s claims are
meritless.
With regard to the latter two categories, the
court found that Turner had failed to demon-
strate that they constitute distinctive groups in
the community. State Hab. Find. Nos. 120-25.
With regard to Hispanics, the court found that
Turner had failed to demonstrate that there
was a disparity between the percentage of His-
panics in the jury pool and the percentage of
Hispanics who were eligible for jury service.
State Hab. Find. No. 129. The court also
found that Turner had failed to demonstrate
that members of any of these groups were sys-
tematically excluded from jury service. State
8(...continued)
‘probability,’ ‘criminal acts of violence,’ and ‘con-
tinuing threat to society,’ “are not so vague as to
require clarifying instructions.”).
9 See Alexander v. Johnson, 211 F.3d 895, 897
n.5 (5th Cir. 2000) (per curiam) (rejecting identical
Eighth and Fourteenth Amendment arguments).
10 In support of this proposition, Turner cites a
series of newspaper articles in the Dallas Morning
News by Mark Curriden.

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8
Hab. Find. Nos. 132-39.
The federal district court noted that the
state court had determined that Turner’s claim
was procedurally defaulted under Texas’s
“contemporaneous objection” rule. The feder-
al court found that the state habeas court had
clearly and expressly declined to review Tur-
ner’s venire claim because of the procedural
bar; the court noted that the rule is well estab-
lished and applied evenhandedly by Texas
courts. Therefore, the rule is an independent
and adequate state ground for decision, pre-
cluding federal review. Because Turner failed
to allege cause and prejudice in federal court,
and there was no evidence suggesting that fail-
ure to consider the claims would result in a
fundamental miscarriage of justice, the court
found that Turner’s venire claim was proce-
durally defaulted.
“When the district court denies a habeas pe-
tition on procedural grounds without reaching
the prisoner’s underlying constitutional claim,
a COA should issue when the prisoner shows,
at least, that jurists of reason would find it de-
batable whether the petition states a valid
claim of the denial of a constitutional right and
that jurists of reason would find it debatable
whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Turner must make a
substantial showing that the district court’s
procedural ruling was incorrect before we can
consider the merits of his underlying venire
claim.
Where a prisoner procedurally defaults his
federal claim in the state habeas court, federal
habeas review is barred unless he can demon-
strate cause and prejudice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). “[T]he
Texas contemporaneous objection rule is
strictly or regularly applied evenhandedly to
the vast majority of similar claims, and is
therefore an adequate procedural bar.” Dow-
thitt v. Johnson, 230 F.3d 733, 752 (5th Cir.
2000). In federal district court, Turner made
no attempt to show cause or prejudice in re-
gard to the procedural fault, nor did he allege
a fundamental miscarriage of justice. The dis-
trict court correctly ruled that his venire claim
is procedurally barred. Because jurists of rea-
son would have to agree with the district
court’s procedural reasoning, we cannot reach
the merits of Turner’s claim, and a COA is
denied.
G.
Turner argues that the cumulative effect of
the afore-mentioned constitutional violations
denied him due process of law. “[F]ederal ha-
beas corpus relief may only be granted for
cumulative errors in the conduct of a state trial
where (1) the individual errors involved mat-
ters of constitutional dimension rather than
mere violations of state law; (2) the errors
were not procedurally defaulted for habeas
purposes; and (3) the errors ‘so infected the
entire trialthat the resulting conviction violates
due process.’” Derden v. McNeel, 978 F.2d
1453, 1454 (5th Cir. 1992) (en banc) (quoting
Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
As is apparent from this standard, and as this
court has stated explicitly, where individual al-
legations of error are not of constitutional stat-
ure or are not errors, there is “nothing to
cumulate.”11
11 See Yohey v. Collins, 985 F.2d 222, 229 (5th
Cir. 1993); see also Miller v. Johnson, 200 F.3d
274, 286 n.6 (5th Cir. 2000) (“Miller has not dem-
onstrated error by trial counsel; thus, by definition,
Miller has not demonstrated that cumulative error
of counsel deprived him of a fair trial.”); United
(continued...)

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9
Turner has failed to make a substantial
showing of the denial of a federal constitution-
al right regarding his first four claims, and his
final two claims are procedurally defaulted.
Because he has pointed to no errors that in-
volve matters of constitutional dimension and
that are procedurally preserved for review, he
has presented nothing to cumulate. A COA is
denied.
In summary, Turner has not shown that any
of his claims is debatable among jurists of
reason, that a court could resolve them in a
different manner, or that the questions are
adequate to deserve encouragement to
proceed further. Because he has failed to make
a substantial showing of the denial of a con-
stitutional right, his request for a COA is
DENIED.
11(...continued)
States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006)
(“Our clear precedent indicates that ineffective as-
sistance of counsel cannot be created from the ac-
cumulation of acceptable decisions and actions.”),
petition for cert. filed (Nov. 30, 2006) (No. 06-
8178).

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