Jackson v. Dretke

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-70014
______________
DONELL O’KEITH JACKSON,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-02-CV-2601
_________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Donell Jackson requests a certificate of ap-
pealability (“COA”) from the denial of his
claim for federal habeas corpus relief under 28
U.S.C. § 2254. We deny a COA as to all but
two of Jackson’s claims on which a COA is
required, because jurists of reason would not
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited
(continued...)
*(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 11, 2006
Charles R. Fulbruge III
Clerk

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2
find the rejection of them debatable. As for
the claim on which we grant a COA, and the
claim for which no COA is required, we affirm
on the merits.
I.
Jackson was charged with killing his victim
for remuneration. The victim had previously
testified before a grand jury in its investigation
of Jackson’s friend, David Smith. Smith in-
dicated in a taped statement that he did not
know Jackson was going to shoot the victim.
When the police played Smith’s statement for
Jackson during interrogation, Jackson alleg-
edly replied that Smith had paid him to commit
the murder. Jackson then made a taped con-
fession. To shift the blame, Jackson at trial
claimed the police had told him to say that
Smith had paid him.
Jackson was convicted by a jury of capital
murder. At sentencing, the state introduced
evidence of prior offenses, and Jackson pre-
sented evidence of a favorable home life and a
learning disability. The jury sentenced him to
death, finding that he posed a threat of future
dangerousness and that the mitigating evidence
was inadequate to warrant a life sentence.
The Texas Court of Criminal Appeals af-
firmed the conviction and sentence on direct
appeal. Jackson filed a concurrent petition for
writ of habeas corpus in the trial court, which
entered findings of fact and conclusions of law
that were adopted by the Court of Criminal
Appeals in an order denying habeas relief.
Jackson filed a federal habeas petition under
§ 2254, alleging twenty-two points of error.
The district court granted summary judgment
denying Jackson’s claims, and denied sua
sponte a COA as to each claim. Jackson filed
a notice of appeal and request for a COA.
II.
This case is governed by the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), which requires, as a jurisdictional
prerequisite to appeal, that Jackson obtain a
COA. Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). A COA will issue if Jackson
makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253-
(c)(2). The prevailing standard requires Jack-
son to demonstrate that “reasonable jurists
could debate whether (or, for that matter,
agree that) the petition should have been re-
solved [by the district court] in a different
manner or that the issues presented were ‘ade-
quate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
Although the COA determination requires
a threshold inquiry into the merits of a peti-
tioner’s claim, it does not involve a full can-
vassing of the factual or legal bases for relief.
See Miller-El, 537 U.S. at 336-37. We do not
inquire whether Jackson will succeed on ap-
peal, or even whether any reasonable jurist
would ultimately grant Jackson’s petition.
Rather, we ask only whether the federal dis-
trict court’s resolution of Jackson’s claims is
debatable among jurists of reason.1
When assessing whether jurists of reason
could debate the denial of Jackson’s habeas
petition, we are mindful of the deferential stan-
dard of review the district court must apply
under AEDPA. See Miniel v. Cockrell,
1 Miller-El, 537 U.S. at 338 (stating that “a
claim can be debatable even though every jurist of
reason might agree, after the COA has been grant-
ed and the case has received full consideration, that
petitioner will not prevail”).

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3
339 F.3d 331, 336 (5th Cir. 2003). The dis-
trict court must defer to the state court’s ad-
judication of a defendant’s claims on the merits
unless the state court’s decision was “contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States, or
. . .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)(1), (2).
A state court’s decision is “contrary to”
clearly established federal law if it reaches a
result in direct conflict with Supreme Court
precedent, either by drawing a contrary legal
conclusion or basing a contrary judgment on
materially indistinguishable facts. Miniel,
339 F.3d at 337 (citing Williams v. Taylor,
529 U.S. 362, 405 (2000)). A state court’s
decision is based on an “unreasonable applica-
tion” of clearly established federal law if it is
“objectively unreasonable.” Id. Therefore, it
is not enough for the reviewing court to be-
lieve that the state court applied Supreme
Court precedent incorrectly;2 rather, the appli-
cation must be outside the range of reasonable
judgment permitted by the particular rule.3
It is the ultimate legal conclusion reached
by the state court, not every step of its reason-
ing process, that should be tested for unrea-
sonableness. See Santellan v. Cockrell, 271
F.3d 190, 193 (5th Cir. 2001). Finally,
AEDPA presumes that the state court’s factual
findings are correct; the defendant has the bur-
den of proving otherwise by “clear and con-
vincing evidence.” 28 U.S.C. § 2254(e)(1).
III.
Jackson makes eight separate arguments for
a COA. We deal with each of these in turn.
A.
Jackson argues that his confession was in-
voluntary and the product of police miscon-
duct. Specifically, he maintains that, to shift
blame to Smith, police told him to say that he
received money for the victim’s murder; Jack-
son alleges that discrepancies between the de-
tails of his confession and statements made by
Smith compel the conclusion that police co-
erced a confession.
The Fifth Amendment provides that no
person “shall be compelled in any criminal case
to be a witness against himself.” U.S. CONST.
amend. V. “[A] confession, in order to be
admissible, must be free and voluntary: that is,
must not be extracted by any sort of threats or
violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion
of any improper influence.” Bram v. United
States, 168 U.S. 532, 542-43 (1897) (quoting
3 RUSSELL ON CRIMES 478 (6th ed.)).
As the district court noted, the admissibility
of Jackson’s confession might be in doubt if
the facts he alleges were true. The jury, how-
ever, considered the evidence presented by
Jackson and the police at trial, and found that
no promises were made to Jackson in
exchange for his confession. This credibility
determination is squarely within the province
2 Woodford v. Visciotti, 537 U.S. 19, 24-25
(2002).
3 Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (explaining that “the range of reasonable
judgment can depend in part on the nature of the
relevant rule . . . . The more general the rule, the
more leeway courts have in reaching outcomes in
case by case determinations.”).

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4
of the jury,4 and AEDPA tells us to presume
that this finding is correct unless rebutted by
“clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). Because Jackson did not pres-
ent any new evidence in his habeas petition
that would satisfy this rigorous standard,
reasonable jurists could not disagree with the
denial of a COA on this issue.
B.
Jackson contends that the alleged discrep-
ancies between his confession and Smith’s
statements prove that the confession is false,
so there was no evidence to establish that
Jackson killed the victim for remuneration.
Hence, Jackson maintains that he is actually
innocent of capital murder.
A claim of actual innocence based on newly
discovered evidence is not cognizable for
purposes of federal habeas corpus absent an
independent constitutional violation. Herrera
v. Collins, 954 F.2d 1029, 1034 (5th Cir.
1992), aff’d, 506 U.S. 390 (1993). This rule
recognizes that the purpose of federal habeas
corpus is “to ensure that individuals are not
imprisoned in violation of the Constitu-
tionSSnot to correct errors of fact.” Herrera,
506 U.S. at 399. A petitioner may prove actu-
alinnocence to overcome a procedural default,
allowing a federal habeas court to reach the
merits of an otherwise barred constitutional
claim. Schlup v. Delo, 513 U.S. 298, 316
(1995).
Jackson does not allege actual innocence
to remove a procedural bar to a separate con-
stitutional claim. Rather, he submits evidence,
consisting of testimonial discrepancies and
expert opinion that he may suffer from a learn-
ing disability and other psychological prob-
lems, to diminish the probative value of his
confession. He seeks only to remove the
evidentiary basis of the jury’s conclusion that
he committed capital murder; i.e., murder-for-
hire. Because this is a free-standing actual in-
nocence claim, no reasonable jurist could dis-
agree that Jackson failed to make “a substan-
tial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Therefore, a
COA for this claim is denied.
C.
1.
Jackson urges that the state exercised its
peremptory challenges in a racially discrimina-
tory manner, in violation of his Fourteenth
Amendment rights under Batson v. Kentucky,
476 U.S. 79 (1986). The Batson Court held
that a defendant must first make a prima facie
showing that the prosecutor is exercising his
strikes based on the prospective juror’s race.
See id. at 96-97.
“Once the defendant makes a prima facie
showing, the burden shifts to the State to
come forward with a neutral explanation for
challenging [minority] jurors.” Id. at 97. If
the state is unable to offer a race-neutral ex-
planation, the defendant’s sentence should be
reversed. See id. at 100. If the state advances
putatively neutral reasons, the defendant bears
the ultimate burden of proving that those rea-
sons are pretextual. See id. at 94 n.18.
In Miller-El, the Court reversed this court’s
denial of a COA on a Batson claim, finding
that it was debatable among jurists of reason
whether Miller-El would succeed in his federal
habeas case. Miller-El, 537 U.S. at 348. The
Court noted that deference to the state court is
often appropriate for Batson claims, because
whether the defendant has carried his burden 4 See United States v. Cathey, 259 F.3d 365,
368 (5th Cir. 2001).

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5
of proof will often turn on the credibility of the
prosecutor exercising the strikes, and “a re-
viewing court, which analyzes only the tran-
scripts from voir dire, is not as well positioned
as the trial court is to make credibility determi-
nations.” Id. at 339. Such deference, how-
ever, does not mean that a COA shall never
issue; rather, “[a] federal court can disagree
with a state court’s credibility determination
and, when guided by AEDPA, conclude the
decision was unreasonable or that the factual
premise was incorrect by clear and convincing
evidence.” Id. at 340.
Miller-El, therefore, did not alter the stan-
dards for evaluating requests for a COA under
AEDPA, nor did it articulate a new test for
reviewing Batson claims; rather, it spoke only
to “the type and quantum of record evidence”
needed to establish eligibility for a COA. Mur-
phy v. Dretke, 416 F.3d 427, 439 (5th Cir.
2005) (describing Miller-El v. Dretke, 125 S.
Ct. 2317 (2005) (“Miller-El II”)), cert. de-
nied, 126 S. Ct. 1028 (2006).
In Miller-El, the Court found a number of
circumstances in the record that supported the
Batson claim. To succeed on a Batson claim,
however, a petitioner need not submit each
type of evidence addressed by Miller-El. A pe-
titioner is also not limited to the types of evi-
dence considered by the Court in Miller-El.
There, the Court found the following factual
circumstances persuasive in determining that a
COA should issue:
(1) the State used 10 of its 14 peremptory
strikes against African-Americans, and only
one ultimately served on the jury;
(2) the trial court conducted a Batson
hearing two years after voir dire, so the
court had no occasion to judge the prosecu-
tor’s credibility;
(3) the race-neutral reasons provided for
striking certain black jurors applied equally
well to white jurors who went unchal-
lenged;
(4) the State used disparate questioning for
white and black jurors, prefacing its ques-
tions to more than half the prospective
black jurors with an explicit description of
Texas’s execution procedures (compared to
6% of whites), and informed 94% of whites
of the statutory minimum sentence (com-
pared to 12.5% of blacks);
(5) the State requested a jury shuffle when
a predominant number of African-Ameri-
cans sat at the front of the panel; and
(6) evidence suggested that, historically, a
culture of bias against African-American
jurors suffused the District Attorney’s of-
fice, including the formal training of assis-
tant district attorneys on how to exclude
minorities from juries.
Miller-El, 537 U.S. at 342-47.
To support his Batson claim, Jackson pre-
sents two types of evidence that are similar to
the first and third circumstances examined in
Miller-El. First, he points out that 5 of the 11
(or 45%) of the peremptory strikes were
against black venire members.5 Second, he
5 Although statistical evidence alone may raise
some debate as to whether the prosecution acted
with a race-based reason for striking prospective
jurors, Miller-El, 537 U.S. at 342, Jackson fails to
present this court with sufficient statistical infor-
mation to make that determination. He contends
(continued...)

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6
asserts that some of the race-neutral reasons
provided for striking certain black venire mem-
bers applied equally to white venire members
who went unchallenged and were selected for
the jury. He also contends that the prosecu-
tor’s reasons for striking the five black venire
members were pretextual because the prof-
fered reasons did not accurately reflect the voir
dire testimony of the members.
The Court in Miller-El stated that, when
the prosecution’s reasons for striking black
jurors could apply equally well to white jurors
who were ultimately empaneled, “the applica-
tion of these rationales to the venire might
have been selective and based on racial consid-
erations.” Id. at 343. In particular, the Court
noted that similarly-situated white and black
potential jurors expressed ambivalence about
the death penalty. Id.
A COA determination under § 2253(c) re-
quires “an overview of claims in the habeas
petition and a general assessment of the mer-
its.” Miller-El, 537 U.S. at 336. This thresh-
old inquiry, however, “does not require full
consideration of the factual or legal bases ad-
duced in support of a claim.” Id..
After our threshold inquiry into the merits
of Jackson’s claim, we conclude that reason-
able jurists could debate whether the state’s
use of peremptory strikes against black venire
members was race-based and thus in violation
of Batson. We therefore grant a COA on this
claim. After reviewing the briefs and record in
full, however, we deny Jackson’s claim for
habeas relief, finding the state habeas court’s
determinations to be consistent with federal
law as established by the Supreme Court.
2.
Jackson objects to the strikes of five black
jurorsSSMaria Brooks, Lee Davis, Myrtle Gib-
son, Ingrid Poindexter, and Laverne Reid. We
consider each of these briefly in turn.
a.
The state indicated it struck Brooks be-
cause she stated she would have difficulty de-
ciding that the state had proved future danger-
ousness;6 she expressed opposition to the
death penalty; she said her religion taught her
not to sit in judgment of another person.
Though Jackson cites Terry Arnold as an ex-
ample of a white juror who was empaneled de-
spite expressing similar reservations about
sitting in judgment of another,7 Arnold’s res
5(...continued)
that 5 of the 11 peremptory strikes were used
against black members of the venire, but without
other information concerning the composition of
the jury pool this statistic has little meaning.
6 When asked about predicting Jackson’s future
dangerousness, Brooks stated, “I can’t predict the
future for anything. We just don’t know the
future.” When pressed further by the state, she re-
sponded that “no one can see into the future of an
individual.”
7 Arnold’s questionnaire stated, “I do not par-
ticularly care to stand in judgment of someone else,
but if necessary, will do so.” The following ex-
change occurred between the Court and Arnold on
this subject:
Q. Do you have any convictions that would
prevent you from being able to stand in judg-
ment?
A. Not from a religious standpoint or anything.
It’s just a personal feeling I have as an
individual.
(continued...)

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7
ervations in this respect were less serious than
were Brooks’s. Arnold also did not express
hesitancy about being able to find future dan-
gerousness.
b.
The state’s reason for striking Davis was
his apparent opposition to the death penalty
and his indication that he would hold the pro-
secution to an elevated standard in capital cas-
es.8 Jackson does not compare Davis to an
empaneled white juror, but rather argues that
Davis’s answers suggest he would be able to
apply the correct burden of proof fairly in a
capital case. Even though Davis softened his
statement that he would require proof of guilt
to a certainty, the state was entitled to con-
clude that he might require it to prove guilt by
an elevated standard even if that burden were
something less than metaphysical certainty.
c.
The state claims it struck Gibson because
she stated she believed that black people were
treated unfairly by the criminal justice system,
because she thought she might know the de-
fendant personally, and because she was un-
sure about her feelings on the death penalty.
7(...continued)
Q. Well, and it doesn’t have a religious basis .
. . . I need for you to have looked inside
yourself, whether it’s a religious basis or just
personal convictions. Do you feel like you
would be able to make the decision in a case if
you were in that position?
A. I can make a decision, yes, I could.
8 During voir dire the state asked Davis how he
felt about the possibility of serving on a jury in a
case involving the death penalty. He replied, “I
would have to really believe that a hundred percent,
have no doubt that the actual crime was committed
by a person for me to . . . render a decision of . . .
death in a situation like this. I’d have to be a
hundred percent convinced.” Later the state again
asked Davis about the burden of proof he would
require the state to carry in a death penalty case:
Q. Do you feel like if the State didn’t prove
[the offense] to you a hundred percent or be-
yond all doubt, that you could find the defen-
dant guilty if you didn’t know a hundred per-
cent?
A. I’d have to be convincedSSI’d have to be
more convinced that the person did commit this.
I have to be convinced enough to the point
where I don’t feel like there is a possibility that
the State could have been mistaken or maybe
(continued...)
8(...continued)
there is a possibility that someone else could
have done it orSS
Q. Is that beyond, I mean, in your mind, any
doubt?
A. What’s reasonable? What’s reasonable to
me?
Q. Right. And I guess that’s what the ques-
tionSSI mean, what’s reasonable to you seems
to be a hundred percent.
A. Okay. It maySSmaybeSSmaybe a hundred
percent is being a little critical, but I have to
beSSthe balanceSSI have to be convinced in the
balance and maybeSSmaybe a hundred
percentSSI don’t know if you actually mean to
give you a percentage, you know, I don’t know
if that’s fair or not. But I have to be thoroughly
convinced enough, and that’s notSSmaybe
saying a hundred percent is not the right way
for me to say that, but I have to beSSthe
balance, I have to be more convinced that they
did it than not and I can’t really give a
percentage on that.

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8
Besides challenging these contentions on the
merits, Jackson argues that Gibson’s comment
about the unfair treatment of black people is
substantially similar to white empaneled juror
Kevin Chapman’s comment that the justice
system treats marihuana users unfairly.9
d.
As for Poindexter, the state points to strong
language10 in her questionnaire opposing the
death penalty and stating that life imprison-
ment is a worse punishment than death. Jack-
son again points to Chapman, who initially
stated he would hold the state to a higher bur-
den of proof in capital cases but later clarified
that he understood that the applicable burden
of proof was beyond a reasonable doubt in all
cases.11
e.
Reid’s testimony suggested that she
thought that to prove future dangerousness,
the state would have to demonstrate that the
defendant would commit murder in the fu-
ture.12 She also expressed confusion over the
special issues. Jackson argues that Reid equiv-
ocated in her testimony, that the state rushed
Reid through her voir dire, and that empaneled
juror Brian Summers indicated similar confu-
sion on the special issues.13
9 We disagree with Jackson’s contention that
Chapman’s statement that marihuana users are
treated unfairly in the criminal justice system is
equivalent. Therefore, the fact that Chapman ulti-
mately served on the jury despite making such a
statement lends no support to Jackson’s Batson
claim. As stated by the federal habeas court,
“[t]here is no evidence that the prosecution would
not have struck a white juror expressing the same
sentiment” as Gibson, and “the selection of Chap-
man and rejection of Gibson as jurors does not
demonstrate any racially motivated action by the
State.”
10 In her questionnaire, Poindexter stated that
she did not believe in the death penalty and thought
it is “the most hideous practice of our time.” She
also stated that “[w]e can’t call ourselves civilized
as long as we have capital punishment.” These
statements alone are justification for the state to
want Poindexter excused from the jury, even
though she later said she would have no problem
imposing the death penalty in certain cases.
11 The state pressed Chapman on raising the
(continued...)
11(...continued)
burden of proof: “SoSSand you can correct if I’m
wrongSSin a capital case you would want to raise
the burden of proof, raise the threshold of what a
reasonable doubt is?” Chapman responded, “I said
something similar to that, but that’s not what I was
saying. I can’t remember exactly my words. I
opened up before I said that, it’s a reasonable
doubt no matter what kind of case you’re doing.”
We agree with the district court that Chapman
made it plain that he did not intend to say that he
would hold the state to a higher burden of proof.
12 When asked whether she thought it was pos-
sible to predict whether someone will be dangerous
in the future, Reid stated, “No, I don’t think that’s
predictable.” She also said that “the State could
prove it if that person actually did commitSSdid do
it, did repeat it. But if the person didn’t repeat it,
then I don’t see how the State could prove it.”
13 After being asked a lengthy question by the
state concerning Special Issue No. 2, Summers
asked, “Do ISScould you take some of the words
out in that and condense it?” Jackson contends that
this statement indicates Summers’s confusion with
Issue No. 2. But, after the state condensed its
question and asked, “Do you think that the system
that Texas has in place right now is an appropriate
way, in your own mind, to determine who should
get the death penalty and who should get life in
prison?”, Summers responded, “Yes, I do.”
(continued...)

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9
Jackson also contends that the prosecutor’s
reason for striking Reid based on the fact that
she did not know that murder-for-hire was a
capital offense, was similar to statements made
by empaneled juror Chapman. Given the
strong statements made by Reid concerning
her reluctance to find future dangerousness,
the state certainly had a valid race-neutral
reason to use a peremptory challenge for Reid.
3.
AEDPA requires that the trial court’s de-
cision be an “unreasonable application” of
clearly established federal law or based on an
“unreasonable determination” of the facts in
light of the trial record. 28 U.S.C. § 2254-
(d)(1), (2). Jackson does not present substan-
tial evidence of racial bias in jury selection be-
yond questionable distinctions in juror testi-
mony. The trial court’s decision to permit the
state to exercise its peremptory strikes as it did
falls well within the “the range of reasonable
judgment” afforded by AEDPA. See Yarbor-
ough, 541 U.S. at 664. Therefore, Jackson’s
request for habeas relief on this issue is denied.
D.
Jackson contends that the trial court should
have instructed the jury that any unadjudicated
extraneous offenses introduced during the
punishment phase needed to be proven beyond
a reasonable doubt. Jackson relies on Appren-
di v. New Jersey, 530 U.S. 466, 490 (2000),
which held that “[o]ther than the fact of prior
conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and
proved beyond a reasonable doubt,” and Ring
v. Arizona, 536 U.S. 548, 609 (2002), which
extended Apprendi to capital cases. Jackson’s
claim is barred by the non-retroactivity princi-
ples of Teague v. Lane, 489 U.S. 288 (1989),
and at any rate, the state court’s refusal to de-
ny a special instruction is not contrary to clear-
ly established federal law as articulated by the
Supreme Court. See 28 U.S.C. § 2254(d)(1).
Therefore, we deny his request for a COA on
that issue.
Under Teague, the relevant inquiry is
“whether a state court considering [the defen-
dant’s] claim at the time his conviction became
final would have felt compelled by existing
precedent to conclude that the rule [he] seeks
was required by the Constitution.” Goeke v.
Branch, 514 U.S. 115, 118 (1995) (internal
quotations omitted).14 Apprendi and Ring
create new rules of constitutional law that are
not retroactively applicable to cases under
federal habeas review.15 Therefore, the only
question left to answer is when Jackson’s
conviction became final.
“A state conviction and sentence become
final for purposes of retroactivity analysis
when the availability of direct appeal to the
state courts has been exhausted and the time
for filing a petition for a writ of certiorari has
elapsed or a timely filed petition has been
finally denied.” Caspari v. Bohlen, 510 U.S.
13(...continued)
Contrary to what Jackson contends, Summers’s
statement does not show confusion on Issue No. 2.
14 The Teague rule is subject to limited excep-
tions not applicable here. See Gilmore v. Taylor,
508 U.S. 333, 345 (1993).
15 See United States v. Brown, 305 F.3d 304,
310 (5th Cir. 2002) (“Apprendi creates a new rule
of criminal procedure which is not retroactively
applicable to initial petitions under § 2255.”);
Schriro v. Summerlin, 542 U.S. 348, 358 (2004)
(“Ring announced a new procedural rule that does
not apply retroactively to cases already final on
direct review.”).

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10
383, 390 (1994). Jackson’s motion for rehear-
ing was denied on June 9, 1999, so he had
ninety days from that date to file a certiorari
petition. See SUP. CT. R. 13. On Septem-
ber 7, 1999, therefore, Jackson’s conviction
became final, the year before Apprendi was
decided. Therefore, Teague bars Jackson’s
claim.16
We note that even if Teague did not apply
here, Apprendi and Ring would not provide
Jackson with a legal basis for a COA. Ring
states only that “[i]f a State makes an increase
in a defendant’s authorized punishment contin-
gent on the finding of a fact, that factSSno
matter how the State labels itSSmust be found
by a jury beyond a reasonable doubt.” Ring,
536 U.S. at 602 (emphasis added).
The onlyfact capable of elevating Jackson’s
charge to capital murder was proof of remu-
neration.17 The state introduced evidence of
unadjudicated offenses only to prove future
dangerousness in the sentencing phase, where
the jury must exercise its discretion to decide
whether to impose a death sentence or life im-
prisonment without parole.18
Therefore, Jackson invites us to answer the
unresolved question whether Ring and Ap-
prendi apply to any fact found by a jury that
bears on its ultimate decision to impose death,
or merely those facts that increase the autho-
rized punishment to death. Because the trial
court’s decision not to require such an instruc-
tion is not contrary to clearly established Su-
preme Court precedent, we would in any event
deny a COA.
E.
Similarly, Jackson asserts that the mere ad-
mission of evidence of unadjudicated, extrane-
ous offenses violates his rights under the
Eighth and Fourteenth Amendments and jus-
tifies a COA. Because Jackson cites no au-
thority specifically for this proposition, the ar-
gument is waived for inadequate briefing.19
Even if the argument were not waived,
Jackson would not be entitled to a COA. If he
cannot prove that a COA should issue as to
whether unadjudicated extraneous offenses
need to be proven beyond a reasonable doubt,
then a fortiori he cannot prove that a COA
should issue as to whether such offenses are
per se inadmissible. Because he does not point
to any Supreme Court precedent foreclosing
the trial court’s decision to permit evidence of
unadjudicated extraneous offenses, he cannot
make a substantial showing of a denial of a
16 Jackson appears to concede that Teague bars
his claim. His brief states that “[p]etitioner’s issue
rests not on Apprendi alone, but on Eighth and
Fourteenth Amendment protections which are not
barred by Teague.” Because Jackson nowhere de-
scribes what these protections might be, we assume
this issue presents only a claim under Apprendi and
Ring, which is procedurally barred.
17 See TEX. PENAL CODE § 19.03(a)(3) (“A per-
son commits [capital murder] if the person commits
murder as defined under [the relevant statute] and
. . . the person commits the murder for re-
muneration.”).
18 See TEX. CODE CRIM. PROC. art. 37.071
§ 2(b)(1).
19 See L & A Contracting Co. v. S. Concrete
Servs., 17 F.3d 106, 113 (5th Cir. 1994) (stating
that failure to cite authority constitutes waiver).

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11
constitutional right.20
F.
Jackson claims that he deserves a COA be-
cause the trial court refused, in violation of his
Eighth and Fourteenth Amendment rights, to
instruct the jury that failure to reach a verdict
on either of two special issues would automat-
ically result in a life sentence. The Texas Code
of Criminal Procedure provides that if the jury
is unable to answer a special issue unanimously
in the affirmative or negative, “the court shall
sentence the defendant to confinement in the
institutional division of the Texas Department
of Criminal Justice for life imprisonment with-
out parole.” TEX. CODE CRIM. PROC. art.
37.071 § 2(g). The Code also provides, how-
ever, that “[t]he court, the attorney represent-
ing the state, the defendant, or the defendant’s
counsel may not inform a juror or a prospec-
tive juror of the effect of a failure of a jury to
agree on [special] issues[.]” Id. at § 2(a).
Jackson maintains that this provision violates
the Eighth and Fourteenth Amendments by
failing to inform a capital sentencing jury of
relevant state sentencing law.
This claim is without merit. In Jones v.
United States, 527 U.S. 373, 381-82 (1999),
the Court held that the Eighth Amendment
does not require a court to instruct a capital
jury about the consequences of deadlock. The
Court noted that the Eighth Amendment re-
quires that a death sentence not be arbitrarily
imposed, id. at 381, but rejected the argument
that “a death sentence is arbitrary within the
meaning of the Eighth Amendment if the jury
is not given any bit of information that might
possibly influence an individual juror’s voting
behavior,” id. at 382. Because Jones con-
trols, reasonable jurists would not disagree
with the district court’s resolution of this issue.
We deny a COA on this question.
G.
Jackson alleges the trial court violated his
Eighth Amendment rights by failing to instruct
the jury that it could consider mitigating evi-
dence even if it did not relate to moral blame-
worthiness. Specifically, Jackson argued at
the punishment phase that the jury should
receive the following instruction:
The term“mitigating” evidence or “mitigat-
ing” factor as used herein means any type
of evidence relating to the defendant’s
background, character or the circumstances
of the crime that would militate in favor of
a life sentence rather than a death sentence.
Evidence may be mitigating even if it does
not relate in any way to the defendant’s
moral culpability or moral blameworthiness
for the capital murder listed in the indict-
ment.
Instead, the court gave the following in-
struction (in relevant part):
A mitigating circumstance may include, but
is not limited to, any aspect of the defen-
dant’s character, background, record,
emotionalinstability, intelligence or circum-
stance of the crime which you believe could
make a death sentence inappropriate in this
20 See Brown v. Dretke, 419 F.3d 365, 376 (5th
Cir. 2005) (denying a COA on this issue because
“there is no constitutional prohibition on the intro-
duction at a trial’s punishment phase of evidence
showing that the defendant has engaged in extrane-
ous, unadjudicated, criminal conduct”), cert. de-
nied, 126 S. Ct. 1434 (2006); see also Williams v.
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987)
(holding that “the admission of unadjudicated
offenses in the sentencing phase of a capital trial
does not violate the [E]ighth and [F]ourteenth
amendments”).

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12
case . . . . In answering Special Issue No.
2 you shall consider mitigating evidence to
be evidence that a juror might regard as
reducing the defendant’s moral blamewor-
thiness, including evidence of the defen-
dant’s background, character, record,
emotional instability, intelligence, or the
circumstance of the offense that mitigates
against the imposition of the death penalty.
Jackson apparently reasons that, by merely
including background, character, and circum-
stances of the offense as modifiers of the gen-
eral category of moral blameworthiness, in-
stead of expressing these criteria in the con-
junctive, the state unconstitutionally limited
the scope of the mitigating instruction for
Special Issue 2.
The Texas Code of Criminal Procedure
provides that the court shall instruct the jury
(should the jury make certain preliminary find-
ings) that it shall consider “all of the evidence,
including the circumstances of the offense, the
defendant’s character and background, and the
personal moral culpability of the defendant,” in
determining whether a defendant should re-
ceive life without parole instead of death.
TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1).
Later, however, the Code defines “mitigating
evidence” for purposes of this section as
“evidence that a juror might regard as reducing
the defendant’s moral blameworthiness.” Id.
§ 2(f)(4).
Relevant mitigating evidence must be with-
in the “effective reach” of the jury during pun-
ishment. Johnson v. Texas, 509 U.S. 350, 368
(1993) (internal quotation omitted). “[I]n a
capital case, the sentencer must . . . be able to
consider and give effect to [mitigating] evi-
dence in imposing [a] sentence, so that the
sentence imposed . . . reflects a reasoned mor-
al response to the defendant’s background,
character, and crime.” Penry v. Johnson, 532
U.S. 782, 788 (2001) (internal quotations
omitted). The sentencing instructions must
provide the jury with an adequate vehicle to
consider Jackson’s evidence and come to a
reasoned moral conclusion. See id. at 800.
The trial court’s determination that the in-
structions were constitutionally adequate is not
“contrary to” clearly established federal law as
articulated by the Supreme Court. In fact, in
Johnson the Court approved of a mitigating
instruction under the predecessor statute to the
current provisions of the Texas Code that was
less specific in its articulation of the relevant
mitigating factors:
In determining each of these [Special] Is-
sues, you may take into consideration all
the evidence submitted to you in the trial of
this case, whether aggravating or mitigating
in nature, that is, all the evidence in the first
part of the trial when you were called upon
to determine the guilt or innocence of the
Defendant and all the evidence, if any, in
the second part of the trial wherein you are
called upon to determine the answers to the
Special Issues.
Johnson, 509 U.S. at 355.
Neither was the instruction an “unreason-
able application” of clearly established federal
law. In Beazley v. Johnson, 242 F.3d 248,
260 (5th Cir. 2001), we held that the current
statute “does not unconstitutionally ‘pre-
clude[] [the jury] from considering, as a miti-
gating factor, any aspect of a defendant’s
character or record and any of the circum-
stances of the offense that the defendant prof-
fers as a basis for a sentence less than death’”
(citing Lockett v. Ohio, 438 U.S. 586, 604

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13
(1978)). We noted that the definition of
mitigating evidence in § 2(f)(4) does not put
any relevant evidence beyond the effective
reach of the jury, because “[v]irtually any
mitigating evidence is capable of being viewed
as having some bearing on the defendant’s
‘moral culpability’ apart from its relevance to
the particular concerns embodied in the Texas
special issues.” Id. (citing Graham v. Collins,
506 U.S. 461, 476 (1993)).
This circuit has declined to articulate a pre-
cise test for what qualifies as “objectively un-
reasonable” under AEDPA.21 Where, how-
ever, a state court reaches a conclusion consis-
tent with this circuit’s precedent, it presump-
tively falls within the broad discretion afforded
the state court under § 2254(d)(1), because we
presumably would consider our own case law
as within “the range of reasonable judgment”
afforded by Supreme Court decisions. See
Yarborough, 541 U.S. at 664.
Furthermore, the trial court could reason-
ably have concluded that the mitigating evi-
dence offered by JacksonSSthat he was loved
and admired by his family, assisted his grand-
mother, and provided help at his church and
Sunday schoolSSall sufficiently related to his
“moral blameworthiness” as to come within
the effective reach of the jury. Therefore, rea-
sonable jurists could not disagree with the dis-
trict court’s application of AEDPA’s deferen-
tial “unreasonable application” standard to
Jackson’s claim. We deny a COA on this
issue.
H.
Jackson avers that he is entitled to a COA
because the district court denied his motion for
appointment of an expert in false confessions
to support his claim that his confession was
coerced and therefore inadmissible. Where
expert services are “reasonably necessary” to
mount a defense in a post-conviction proceed-
ing, the district court may authorize the de-
fense attorneys to obtain such services and
shall pay the relevant expenses. 21 U.S.C. §
848(q)(9).22 Jackson argues that expert assis-
tance was reasonably necessary because the
circumstances surrounding the police inter-
views of Jackson and Smith raised a question
as to the existence of remuneration. Specifi-
cally, when the police first interviewed Smith,
he made no mention of paying Jackson for the
murder. Only after Jackson confessed were
police able to establish remuneration by further
questioning Smith.
The state responds by noting that ruling on
a motion to provide expert assistance is within
the discretion of the district court. Hill v.
Johnson, 210 F.3d 481, 487 (5th Cir. 2000).
Also, the state argues that any testimony ren-
dered by the expert would be procedurally
barred in a federal habeas proceeding because
it was never presented in state court. Finally,
because the jury’s credibility determination is
entitled to a presumption of correctness, Jack-
21 See Neal v. Puckett, 286 F.3d 230, 246 n.14
(2002) (en banc) (“To the extent that a nuanced,
contextual interpretation of ‘objectively unrea-
sonable’ emerges from [the] process [of applying
the standard in individual cases] over time, this
elaboration will be more useful and meaningful
than any definition we might choose to impose ab
initio.”).
22 An indigent defendant is entitled to the provi-
sion of all reasonably necessary services under,
inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B);
Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.
1997). Jackson does not claim indigence, but in
any event he would still need to demonstrate, under
this section, that provision of a confession expert is
“reasonably necessary.”

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14
son has not presented evidence to rebut that
presumption and make necessary the appoint-
ment of an expert.
A COA is not required to appeal the denial
of funds for expert assistance. Hill, 210 F.3d
at 487 n.3. Therefore, we may review the
claim on direct appeal for abuse of discretion.
Id. at 487. We will uphold a denial of funding
where the petitioner has “(a) failed to supple-
ment his funding request with a viable consti-
tutional claim that is not procedurally barred,
or (b) when the sought-after assistance would
only support a meritless claim, or (c) when the
sought after assistance would only supplement
prior evidence.” Smith v. Dretke, 422 F.3d
269, 288 (5th Cir. 2005) (internal citations
omitted).
The district court did not abuse its discre-
tion. At trial, Jackson testified that the police
told him to confess that Smith paid him for
murder in exchange for a lesser charge. The
defense also presented two expert witnesses
who testified that Jackson had a learning dis-
ability and was below average in intelligence,
and that Jackson was prone to self-deprecation
and other antisocial behaviors. Therefore, the
testimony of a false confession expert would
merely have supplemented other evidence al-
ready available to and considered by the jury.
See id. at 288-89 (finding no abuse where ex-
pert testimony would merely reinforce testi-
mony already given by defendant).
Even if we were inclined to agree as an ini-
tial matter that a false confession expert’s tes-
timonywas reasonablynecessaryfor Jackson’s
defense, the relevant statute vests discretion
squarely in the district court.23 Therefore, we
affirm the denial of Jackson’s motion for
expert assistance.
For the above reasons, Jackson’s request
for a COA is GRANTED in part and DENIED
in part. The judgment on the issue on which
we grant a COA, and on the claim for which
no COA is required, is AFFIRMED.
23 21 U.S.C. § 848(q)(9) (stating that “the court
(continued...)
23(...continued)
may authorize the defendant’s attorneys to obtain
such services on behalf of the defendant”) (em-
phasis added). See also Smith, 422 F.3d at 289
(noting that change in AEDPA from the mandatory
“shall” to discretionary “may” language in
§ 848(q)(9) “can only reasonably be construed as
changing a mandatory granting of funds to a dis-
cretionary granting of funds even if the reasonable
necessity language is complied with”).

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-15-
DENNIS, Circuit Judge,
concurring:
I respectfully concur in the
judgment only. I cannot
subscribe fully for several
reasons.
First, I respectfully
disagree with the majority’s
broad, not clearly or
i m m e d i a t e l y q u a l i f i e d ,
suggestions that AEDPA requires
that federal courts apply a
"deferential standard of
review," "defer to the state
court's adjudication of a
defendant's claims," and
presume that a state court's
conclusion "consistent with
t h i s c i r c u i t ' s
precedent...falls within the
broad discretion afforded the
state court under §
2254(d)(1)[.]" The statute
cited simply provides that
(d) An application for a
writ of habeas corpus on
behalf of a person in
custody pursuant to the
judgment of a State court
shall not be granted with
respect to any claim that
was adjudicated on the
merits in State court
proceedings unless the
adjudication of the
claim--(1) resulted in a
decision that was contrary
to, or involved an
unreasonable application
of, clearly established
Federal law, as determined
by the Supreme Court of the
United States[.]
The statute says nothing
about deference, a deferential
standard, circuit court
precedent, presumptions of
correctness, or broad
discretion. Although Justice
Stevens has spoken of AEDPA as
having "plainly sought to
ensure a level of 'deference to

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-16-
the determinations of state
courts,' provided those
determinations did not conflict
with federal law or apply
federal law in an unreasonable
way[,]," Williams v. Taylor,
529 US 362, 386 (2000)(Stevens,
J.), he makes clear that AEDPA
does not intend for us to
accord deference in the
ordinary and commonly
understood sense.
[I]t is significant that
the word “deference” does
not appear in the text of
the statute itself. Neither
the legislative history nor
the statutory text suggests
any difference in the
so-called “deference”
depending on which of the
two phrases is implicated.
Whatever “deference”
Congress had in mind with
respect to both phrases, it
surely is not a requirement
that federal courts
actually defer to a
state-court application of
the federal law that is, in
the independent judgment of
the federal court, in
error. As Judge Easterbrook
noted with respect to the
phrase “contrary to”:
“Section 2254(d) requires
us to give state courts'
opinions a respectful
reading, and to listen
carefully to their
conclusions, but when the
state court addresses a
legal question, it is the
law ‘as determined by the
Supreme Court of the United
States' that prevails."
Lindh, 96 F.3d, at 869.
Williams, 529 US at 386-7.
Justice Stevens further states
As Judge Easterbrook has
noted, the statute surely
does not require the kind
of “deference” appropriate
in other contexts: “It does
not tell us to ‘defer’ to
state decisions, as if the
Constitution means one
thing in Wisconsin and
another in Indiana. Nor
does it tell us to treat
state courts the way we
t r e a t f e d e r a l
administrative agencies.
Deference after the fashion
of Chevron U.S.A. Inc. v.
Natural Resources Defense
Council, Inc., 467 U.S.
837, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984), depends
on delegation. See Adams
Fruit Co. v. Barrett, 494

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-17-
U.S. 638, 110 S.Ct. 1384,
108 L.Ed.2d 585 (1990).
Congress did not delegate
either interpretive or
executive power to the
state courts. They exercise
powers under their domestic
law, constrained by the
Constitution of the United
States. ‘Deference’ to the
jurisdictions bound by
those constraints is not
sensible.” Lindh v. Murphy,
96 F.3d 856, 868 (C.A.7
1996) (en banc), rev'd on
other grounds, 521 U.S.
320, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997).
Id. at n.13.
Although these observations
appear in part II of Justice
Stevens' opinion in Williams v.
Taylor, which did not carry a
majority, Justice O'Connor, who
wrote part II for the majority,
and Chief Justice Rehnquist,
the only other Justice to write
separately, did not disagree
with Justice Stevens’ statement
that AEDPA "surely does not
require the kind of 'deference'
appropriate in other contexts"
)Lindh v. Murphy, 96 F.3d 856,
868 (7th Cir. 1996)); rather,
t h e y d i s p u t e h i s
interpretation of the phrase
“contrary to, or an
unreasonable application of.” I
believe that the majority's
treatment of deference in
connection with AEDPA, without
needed explanation and
qualification, is unnecessary
and tends to be misleading and
confusing.
Second, § 2254(e)(1) of AEDPA
provides:
In a proceeding instituted
by an application for a
writ of habeas corpus by a
person in custody pursuant
to the judgment of a State
court, a determination of a
factual issue made by a
State court shall be
presumed to be correct. The
applicant shall have the
burden of rebutting the
presumption of correctness

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-18-
by clear and convincing
evidence.
This provision has nothing to
do with fact-finding by the
jury at the guilt or penalty
phases of a capital murder
trial. This section relates
only to fact-finding by a state
court in a state habeas
proceeding. The applicant here
simply did not carry his
burden; he failed to present
any new evidence in his habeas
petition on this point. If he
had done so, I do not believe
that AEDPA authorizes the
federal courts to erect a
presumption against the
p e t i t i o n e r i n h a b e a s
proceedings based solely on the
jury verdict at trial. Rather,
this court would still be bound
to determine whether the state
court’s determination was
reasonable in light of all the
evidence presented at the state
court habeas proceeding. The
case the majority cites for the
proposition, United States v.
Cathey, 259 F.3d 365, 368 (5th
Cir. 2001), discusses the issue
in a case heard on direct
appeal and, I believe, is
inapposite here.
Third, the jury instruction
given by the Texas trial court
at the capital sentencing
proceeding required the jury to
consider essentially any factor
"that mitigates against the
imposition of the death
p e n a l t y . " U n d e r t h e
circumstances and in the
context of this case, the Texas
courts' denial of habeas relief

-- 18 of 19 --

-19-
because of the arguable lack of
complete perfection in this
instruction was not contrary to
or an unreasonable application
of federal law as clearly
established by the Supreme
Court's decisions. The
discussion of Johnson v. Texas,
509 U.S. 350,(1993), which
presented a different issue and
was decided with respect to a
superseded sentencing regime,
is unnecessary and may lead to
confusion.
For the reasons given, I
respectfully concur in the
judgment only.

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