Roach v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
February 26, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-70051
_______________
TONY ROACH,
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 2:02-CV-0042
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Tony Roach was convicted of capital mur-
der and sentenced to death. The district court
denied habeas corpus relief and declined to is-
sue a certificate of appealability (“COA”).
Roach petitions this court for a COA on ten
* 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termined that this opinion should not be published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 cir-
(continued...)
*(...continued)
cumstances set forth in 5TH CIR. R. 47.5.4.

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issues. We deny a COA.
I.
In June 1998 firefighters found the body of
Ronnie “Kitten” Hewitt inside her burning
apartment in Amarillo, Texas. Though the fire
burned her body, it was determined that she
died from asphyxiation from being choked by
a belt found tightened around her neck; she
likely had been sexually assaulted; and some-
one set fire to her house using aerosol hair
spray.
Later that month, police officers in Oklaho-
ma questioned Roach about an unrelated
crime, and during the questioning Roach con-
fessed to killing a woman named Kitten in Am-
arillo. He signed a written confession in which
he stated that he entered Hewitt’s apartment
through a window, confronted her, and choked
her with his arm and then with a belt until she
died. Then, he raped her vaginally and anally
and took money, a knife, a beer, and some
rings. Finally, he described using hair spray to
set the apartment on fire.
A knife identified as Hewitt’s and two of
her rings were retrieved from pawn shops in
Amarillo and in Guymon, Oklahoma, along
with pawn slips signed by Roach. Semen was
present in vaginal and anal swabs. Roach was
excluded as the contributor of the vaginal
swab, but the DNA profile of the contributor
of the semen found in the anal swab matched
his DNA in ten different areas; such a profile
would occur in only one in six billion Cauca-
sians, Blacks, or Hispanics.
A jury convicted Roach of capital murder,
and he was sentenced to death. The Texas
Court of Criminal Appeals affirmed. In re-
sponse to a state application for writ of habeas
corpus, a state trial court entered findings of
fact and conclusions of law, recommending
denial of relief; the Court of Criminal Appeals
denied relief based on the trial court’s findings
and its own review.
II.
Roach’s application for COA was filed pur-
suant to 28 U.S.C. § 2253 (1996), which
“permits the issuance of a COA only where a
petitioner has made a substantial showing of
the denial of a constitutional right.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). For
that requisite showing, a petitioner must show
that “reasonable jurists could debate whether
(or, for that matter, agree that) the petition
should have been resolved in a different man-
ner or that the issues presented were ‘adequate
to deserve encouragement to proceed fur-
ther.’” Id. (quoting Slack v. McDaniel, 529
U.S. 473, 483 (2000)). We conduct only a
threshold inquiry into the merits of Roach’s
claims, not a full consideration of the factual
and legal basis of those claims. Id. Because
Roach was sentenced to death, “any doubts as
to whether a COA should issue must be re-
solved in [his] favor.” Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir. 2000).
The federal district court is required to de-
fer to the state court’s adjudication of ques-
tions of law and mixed questions of law and
fact unless the 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.”
28 U.S.C. § 2254(d)(1). A decision is con-
trary to clearly established Federal law “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] Court has on a set of
materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000).

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Also, the district court must defer to the
state court’s factual findings unless they “re-
sulted in a decision that was based on an un-
reasonable determination of the facts in light of
the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d)(2). In the dis-
trict 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 by
clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
Roach requests a COA on ten issues. We
address each in turn.
A.
Roach contends that his execution would
constitute punishment on the basis of the na-
ture of the offense alone with no consideration
of his character, in violation of Woodson v.
North Carolina, 428 U.S. 280, 304 (1976). In
Woodson the Court struck down a statute that
mandated an automatic death sentence for
those convicted of first-degree murder, be-
cause the statute failed to require a consider-
ation of the defendant’s character and record
and the circumstances of the offense. Id. at
303-04.
The district court noted that Texas’s death
penalty laws differ from those in Woodson.
The jury was required to consider all the evi-
dence presented at Roach’s trial, including the
evidence on the issues Woodson mentions
SSthe circumstances of the offense and the de-
fendant’s background and character. More-
over, the jury was required to consider the
probability Roach would commit future acts of
violence.
No reasonable jurists could debate the dis-
trict court’s conclusion that the jurors in
Roach’s case considered the evidence required
by Woodson. Texas does not have an auto-
matic sentencing provision like the provision in
Woodson, and jurors were required to consider
the evidence Woodson requires.
B.
Roach posits that his execution under Tex-
as’s capital clemency procedures would violate
his Eighth and Fourteenth Amendment rights.
The procedure is deficient, he asserts, because
the Texas Governor and Board of Pardons and
Paroles seriously consider only actual inno-
cence for commutation of a death sentence.
Roach argues, citing Ohio Adult Parole Au-
thority v. Woodard, 523 U.S. 272 (1998), that
the Supreme Court has held that minimal due
process safeguards apply to clemency proceed-
ings. Woodard suggests, he points out, that
judicialintervention might be “warranted in the
face of a scheme whereby a state official
flipped a coin to determine whether to grant
clemency, or in a case where the State arbi-
trarily denied a prisoner any access to its clem-
ency process.” Id. at 289 (O’Connor, J.,
concurring).
Texas’s clemency procedure is defective,
Roach contends, because only actual inno-
cence is seriously considered, so inmates do
not have meaningful clemency review. Texas
has granted clemency only based on judicial
expediency and never based on an inmate’s
request.
The district court deferred to the state
court’s conclusion that Texas’s clemency pro-
cedures do not violate the Eighth or Four-
teenth Amendments, holding that Roach mere-
ly pointed out aspects of the clemency process
with which he disagreedSShe did not provide
evidence that he would be denied access to the

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process or evidence that the decision will be
made arbitrarily. Futher, the district court
pointed out, we have held that Texas’s clem-
ency procedures do not violate due process.1
The Texas clemency procedures, the Faulder
court concluded, do not resemble flipping a
coin. Id. at 344.
Given Woodard’s description of the char-
acteristics of the sort of arbitrary clemency
procedure that would require judicial interven-
tion, and in light of Faulder, no reasonable jur-
ist could debate whether the district court
erred in deferring to the state court.
C.
Roach urges that Texas’s clemency process
violates the International Covenant on Civil
and Political Rights (“ICCPR”), which the
United States ratified in 1992. He contends
that Texas lacks a meaningful clemency pro-
cess as required by the sixth article of the
ICCPR. Also, he suggests execution without
a meaningful clemency process violates cus-
tomary international law.
The district court found that when the Sen-
ate ratified the ICCPR, it stated that articles
one through twenty-seven were not self-exe-
cuting, so Congress must incorporate those
provisions into domestic law to make the cov-
enant effective. Because Congress has not
done so, the ICCPR is not binding law, and
Roach’s appeal to its provisions fails.
Along with the First and Sixth Circuits, we
have previously concluded that ICCPR was
not U.S. law because it is not self-executing
and because and Congress has not incorporat-
ed it into domestic law. Beazley v. Johnson,
242 F.3d 248, 267 (5th Cir. 2001).2 Reason-
able jurists could not debate the district court’s
conclusion that Roach has failed to establish
that Texas’s clemency process violates the
ICCPR.
Because we have already established that
reasonable jurists would not find Texas’s clem-
ency review defective, Roach’s claim that
execution without meaningful clemency/com-
mutation review violates customary interna-
tional law also fails for this same reason.
D.
Roach also argues that Texas’s unstruc-
tured sentencing scheme is unconstitutional
because it does not permit meaningful appel-
late review. Roach claims he has a right for
appellate review of the legal and factual suffi-
ciency of the jury’s findings relating to Texas’s
mitigation special issue.
In response, the district court deferred to
the state habeas court’s determination that the
Eight and Fourteenth Amendments do not re-
quire an appellate court to reweigh punishment
evidence. Reasonable jurists could not debate
this conclusion. As the district court pointed
out, the Supreme Court has not stated that re-
view of mitigation evidence is constitutionally
required. In contrast, the Court has stated that
juries may evaluate mitigation evidence3 and
1 Faulder v. Tex. Bd. of Pardons & Paroles,
178 F.3d 343, 344-45 (5th Cir. 1999) (stating that
due process challenges to Texas’s procedure were
“meritless”).
2 See also Buell v. Mitchell, 274 F.3d 337, 371-
72 (6th Cir. 2001); Igartua de la Rosa v. United
States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (per curi-
am).
3 Tuilaepa v. California, 512 U.S. 967, 974
(1994) (“[T]he States may adopt capital sentencing
(continued...)

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that appellate review of the proportionality of
a death sentence is not required where a stat-
ute properlychannels a sentencer’s discretion.4
Moreover, we have rejected challenges to Tex-
as’s appellate review of the special mitigation
issue, holding it does not violate the Fourth or
Eight Amendments5 and that it does not vio-
late due process.6 In light of these precedents,
no reasonable jurist could debate the district
court’s decision.
E.
Roach avers that Texas’s special issue re-
lating to the future dangerousness of the de-
fendant is unconstitutional because it requires
only proof of a probability of future danger-
ousness and not proof beyond a reasonable
doubt of future dangerousness, puts the bur-
den of proof on the defendant, chilled Roach’s
ability to present relevant mitigating evidence,
and insufficiently guides the jury in making its
determination. First, contrary to Roach’s con-
tention, Texas’s special issue does require
proof beyond a reasonable doubt.7 Roach’s
argument confuses proving the elements of an
offense beyond a reasonable doubt, which is
required by In re Winship, 397 U.S. 358
(1970), with the contents of the elements
themselves. Because Texas’s issue regarding
future dangerousness must be proven beyond
a reasonable doubt, reasonable jurists could
not debate the district court’s opinion.
We have already held that the burden of
proof is not shifted to the defendant in Texas’s
special issue, see Hughes v. Johnson, 191 F.3d
607, 625-26 (5th Cir. 1999), so reasonable jur-
ists would not debate Roach’s objection on
this ground. Similarly, we have held that a de-
fendant’s argument that Texas’s special issue
chilled the defendant’s ability to present rel-
evant mitigating evidence is meritless. See
Woods v. Johnson, 75 F.3d 1017, 1033 (5th
Cir. 1996). Finally, the district court recited
the long line of our cases holding that the
terms included in the punishment special issue
are constitutionally sufficient.8 None of
Roach’s objections to Texas’s special issue
would cause reasonable jurists to debate the
district court’s decision.
F.
Roach asserts that Texas law violates the
Eighth and Fourteenth Amendments because it
prevents jurors from knowing that Roach
would be sentenced to life if even one juror
causes a deadlocked jury. The district court
3(...continued)
processes that rely upon the jury, in its sound dis-
cretion, to exercise wide discretion.”); Penry v.
Lynaugh, 492 U.S. 302, 326-27 (1989) (stating
“there is no constitutional infirmity in a procedure
that allows a jury to recommend mercy based on
the mitigation evidence introduced by a defen-
dant”).
4 McCleskey v. Kemp, 481 U.S. 279, 306-07
(1987); Pulley v. Harris, 465 U.S. 37, 50-51
(1984).
5 Hughes v. Johnson, 191 F.3d 607, 621-23
(5th Cir. 1999).
6 Woods v. Cockrell, 307 F.3d 353, 359-60 (5th
Cir. 2002); Moore v. Johnson, 225 F.3d 495, 505-
06 (5th Cir. 2002).
7 TEX. CODE CRIM. PROC. art 37.071§(c) (“The
state must prove each issue submitted under Sub-
section (b) of this article beyond a reasonable
doubt . . . .”).
8 See, e.g., id. at 1033-34 (listing cases holding
that the terms in Texas’s special issue do not need
to be defined by jury instructions).

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pointed out that we have previously rejected
this argument as meritless. See Alexander v.
Johnson, 211 F.3d 895, 897, n.5 (5th Cir.
2000). In Alexander we explained as follows:
In addition to be being barred by Teague,
Alexander’s substantive argument is merit-
less. The Supreme Court recently rejected
the theory that a district court’s failure to
instruct the jury as to the consequences of
deadlock gives rise to an Eighth Amend-
ment violation. See Jones v. United States,
527 U.S. 373 (1999). Furthermore, the
Fifth Circuit has expressly rejected the con-
tention that Texas’s 10-12 Rule prevents
jurors from considering mitigating circum-
stances. See Jacobs v. Scott, 31 F.3d 1319,
1328-29 (5th Cir.1994).
Id. at 897 n.5. Because we have previously
rejected Roach’s contention, no reasonable
jurist could debate the district court’s conclu-
sion.
G.
Roach claims that his right to have a jury
consider all evidence relevant to mitigation of
the death sentence was violated because the
definition of mitigating circumstances limited
the jury’s consideration to evidence that might
reduce Roach’s culpability of the crime, ex-
cluding the potential for rehabilitation. The
district court, citing to the trial transcript, not-
ed that jurors were instructed to consider all
evidence submitted to them in both phases of
the trial and were told to consider mitigating
evidence “to be evidence that a juror might re-
gard as reducing the defendant’s moral blame-
worthiness.”
This definition encompasses “‘virtually any
mitigating evidence.’” Beazley v. Johnson,
242 F.3d 248, 260 (5th Cir. 2001) (quoting
Graham v. Collins, 506 U.S. 461, 476
(1993)). This jury instruction “does not
unconstitutionally ‘preclude[ ] [the jury] from
considering, as a mitigating factor, any aspect
of a defendant’s character or record and any of
the circumstances of the offense that the de-
fendant proffers as a basis for a sentence less
than death’” Id. (quoting Lockett v. Ohio, 438
U.S. 586, 604 (1978)). Roach’s potential for
rehabilitation falls within the evidence this jury
instruction permits the jury to consider based
on our caselaw; no reasonable jurists could de-
bate the district court’s decision to rely on this
precedent.
H.
Roach alleges that Texas’s capital murder
and death penalty statutes violate the Estab-
lishment Clause of the First Amendment be-
cause the statutes did not have a secular pur-
pose, and the preeminent purpose of the stat-
utes is religious. As evidence, he points to the
primary sponsor’s purely religious arguments
in favor of the bill and the inability of the spon-
sors to articulate a reasonable secular purpose.
The district court, however, noted that the
primary sponsor of the bill asserted religious
arguments only in response to an opponent’s
religious arguments about the bill. The district
court further noted that Roach presented evi-
dence about the purpose of the bill only from
the closing arguments for the bill. These few
arguments, the district court reasoned, do not
demonstrate the actual purpose of the bill.
No reasonable jurist could debate the con-
clusion that Roach has failed to show that
Texas’s death penalty statutes violate the First
Amendment. Roach presents only evidence
from a small part of the legislative process, and
the evidence merely demonstrates the sponsor
used a religious argument to refute an oppo-

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nent’s religious argument, not to state the pur-
pose of the statute. Moreover, as Roach’s
brief highlights, the primary sponsor invited
prosecutors to testify about the effect of the
death penaltyon deterrence and incapacitation.
That testimony stated secular purposes for the
death penalty.
“While the Court is normally deferential to
a State’s articulation of a secular purpose, it is
required that the statement of such purpose be
sincere and not a sham.” Edwards v. Aguil-
lard, 482 U.S. 578, 586-87 (1987). Here,
where secular reasons for the statute were pro-
vided and no evidence demonstrates a religious
purpose, no reasonable jurists could debate the
district court’s conclusion that Texas’s death
penalty statutes do not offend the First
Amendment.
I.
Roach claims he was unconstitutionally de-
prived of his right to testify in mitigation of his
punishment. He informed his attorney he
wanted to testify, Roach alleges, but his attor-
ney told him he would not be called to testify.
The district court rejected this claim for
two reasons. First, the state habeas court de-
termined that Roach did not ever express a de-
sire to testify and that his attorney informed
him of his right to testify. Without evidence
contradicting these fact findings, the district
court deferred to the state court’s finding.
The state court had Roach’s affidavit, assert-
ing he informed his attorney of his desire to
testify, as well as his attorney’s affidavit, stat-
ing she informed him of his right to testify and
that he never told her he wanted to do so.
From this evidence, the state court made its
factual finding.
Second, the district court reasoned that
Roach has not demonstrated that his attorney’s
failure to allow him to testify constituted inef-
fective assistance of counsel, because Roach
failed to prove he was prejudiced as required
by Strickland v. Washington, 466 U.S. 668
(1984). We have previously held that a defen-
dant failed to meet Washington’s prejudice
standard, despite the fact his attorney prevent-
ed him from testifying against his wishes, be-
cause there was no reasonable probability that
the defendant would not have received the
death penalty if he had testified. See United
States v. Mullins, 315 F.3d 449, 456 (5th Cir.
2001). Because of the defendant’s extensive
criminal history and drug use, about which the
government could cross-examine him, there
was no reasonable probability that the jury
would believe the defendant’s testimony in-
stead of the arresting officers’. Id. Here, the
district court reasoned, that there was no rea-
sonable probability that Roach’s testimony
would alter the outcome because of Roach’s
criminal history, which included a prior murder
and the brutal nature of this crime.
No reasonable jurists could debate that the
district court erred in deferring to the state ha-
beas court’s findingSSRoach presented no evi-
dence that the state court’s determination was
unreasonable. Also, even if the district court
accepted Roach’s account, no reasonable jurist
could debate the conclusion that Roach’s tes-
timony would have altered the outcome, given
our analogous reasoning in Mullins and
Roach’s criminal history and particular crime
in this case.
J.
Roach argues that because of a conflict of
interest, he received ineffective assistance of
counsel, violating his Sixth and Fourteenth
Amendment rights. He states that his attorney
accepted employment with the prosecutor’s

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office that was prosecuting Roach while she
was still representing Roach on direct appeal.
Roach’s attorney accepted employment
with the prosecutor’s office beginning Janu-
ary 1, 2000, but she filed a brief on Roach’s
behalf on February 2, 2000. In an affidavit to
the state habeas court, she explained that she
completed Roach’s brief before going to work
at the prosecutor’s office but merely filed the
brief after starting work there.9 The affidavit
also explained that the lawyer did not perform
any work in the prosecutor’s office related to
Roach and did not communicate any confiden-
tial material to the prosecutor’s office. An-
other attorney began representing Roach and
filed a supplemental brief on his behalf with the
Court of Criminal Appeals in May 2000, rais-
ing three additional points of error.
The district court found that the state habe-
as court’s conclusionsSSthat no actual conflict
of interest existed10 and that Roach did not
prove he suffered harmSSnot to be an unrea-
sonable application of federal law. We do not
address whether an actual conflict existed, be-
cause reasonable jurists could not debate the
conclusion that Roach failed to prove harm.11
Roach fails to point to any adverse effects
of the alleged conflict, such as points of error
that should have been argued or additional ar-
guments that were omitted from the points of
error raised. He contends his attorney devoted
less time to his brief than she could otherwise
have devoted, but he fails to suggest any harm
from this lack of time. We require a petitioner
to show “some plausible defense strategy or
tactic might have been pursued but was not,
because of the conflict of interest.”12 Without
any showing of harm, reasonable jurists could
not debate the district court’s conclusion that
Roach has failed to establish this ineffective
assistance of counsel claim.
The request for COA is DENIED.
9 The certificate of service on the brief states the
brief was completed December 31, 1999.
10 Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)
requires proof of an actual conflict of interest, not
merely a potential conflict.
11 Cases in which “it is alleged that the attor-
ney’s representation was affected by his own self-
interest are evaluated under the more relaxed
Strickland [v. Washington] standard,” not the
Cuyler standard that the district court applied here.
Moreland v. Scott, 175 F.3d 347, 349 (5th Cir.
1999) (citing Strickland v. Washington, 466 U.S.
(continued...)
11(...continued)
668, 694 (1984), and Beets v. Scott, 65 F.3d 1258,
1271-72 (5th Cir.1995) (en banc)). Though the
district court analyzed the harm of Roach’s at-
torney’s conflict under Cuyler’s requirement that
the conflict adversely affected his lawyer’s perfor-
mance, Washington’s requirement that the conflict
prejudiced Roach’s defense is more onerous than
Cuyler’s requirement. Because Roach failed under
Cuyler’s standard, he also fails under Washing-
ton’s more exacting standard. Thus, though the
district court erred in applying Cuyler instead of
Washington, Roach’s argument is unavailing.
12 Hernandez v. Johnson, 108 F.3d 554, 560
(5th Cir. 1997) (quoting Perillo v. Johnson, 79
F.3d 441, 449 (5th Cir.1996)).

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