Thomas v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
December 27, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-70006
_______________
SHANNON CHARLES THOMAS,
Petitioner-Appellant,
VERSUS
DOUGLAS 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-03-CV-988
_________________________
Before SMITH, DEMOSS, and
STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Shannon Thomas seeks a certificate of ap-
pealability (“COA”) from the denial of his
petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Because Thomas cannot
make a substantial showing of the denial of a
federal constitutional right, we deny a COA.
I.
On Christmas Eve 1993, Thomas and his
friend Keith Clay entered the home of Roberto
Rios, a marihuana dealer. Thomas and Clay
* 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termined that this opinion should not be published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-
cumstances set forth in 5TH CIR. R. 47.5.4.

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robbed Rios, then murdered him by shooting
him three times and stabbing him in the neck
with a pair of scissors. Thomas then went
upstairs and executed Rios’s two children, ten
year-old Maria and eleven year-old Victor, by
shooting each in the head through a pillow as
they lay side-by-side on the floor.
The murders remained unsolved for over a
year, until the police received information from
Joseph “Boo” Jones, a friend of Clay and
Thomas. After his arrest, Thomas gave the
police two written statements. In the first, he
acknowledged purchasing narcotics from Rios
that day but denied any knowledge of the
killings. In his second statement, Thomas
asserted that Clay had acted alone in killing the
Rios family after Thomas had left the resi-
dence.
Thomas was indicted for the capital murder
of Victor Rios. At trial, no physical evidence
was presented to link him to the murders. He
was inculpated, however, by an abundance of
circumstantial evidence, including information
that he possessed a gun similar to the murder
weapon. In addition, the state presented
testimony linking him to the robbery and
murders. Three witnesses testified that Thom-
as had asked them to participate in robbing
Rios; two of them stated that Thomas had
admitted the murders to them. One of the
witnesses, Jones, agreed to tape record a
conversation with Thomas at the request of the
police, in which Thomas made incriminating
statements about the murders.
Additionally, evidence put Thomas at the
scene of the crime, including the statement of
a postal worker, Earl Guidry, who saw two
men leaving the Rios home near the time of the
killings. Guidry tentatively identified Thomas
after undergoing hypnosis and participating in
several photograph identification arrays and
one live line-up. Another witness testified that
he saw a car resembling Clay’s near the Rios
residence shortly before the murders.
Thomas was convicted, and the jury an-
swered the special issues in a manner requiring
the imposition of a death sentence. The Texas
Court of Criminal Appeals affirmed the con-
viction and sentence on direct appeal. Thomas
v. State, No. 72,701 (Tex Crim. App. Mar. 31,
1999). Thomas did not seek a writ of certio-
rari.
While his direct appeal was pending, Thom-
as sought state habeas relief, which was denied
by the Court of Criminal Appeals. Ex Parte
Thomas, No. 51,306-01 (Tex. Crim. App.
Mar. 20, 2002). Thomas then filed for a
federal writ of habeas corpus under § 2254,
raising six claims of error. The district court
dismissed the claims on summary judgment
and refused to grant a COA. Thomas v. Dret-
ke, No. H-03-CV-988 (S.D. Tex. Dec. 10,
2003). Thomas now seeks a COA on two of
his claims.
II.
Our review on a request for a COA is high-
ly circumscribed by statute. Pursuant to the
Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), to be entitled to re-
lief a petitioner must show that the state court
resolution of his case was either “contrary to,
or involved an unreasonable application of,
clearly established federal law, as det ermined
by the Supreme Court of the United States” or
“resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d).1 This high
level of deference to state court proceedings
“embodies the principles of federalism, comity,
and finality of judgments . . . .” Evans v.
Cockrell, 285 F.3d 370, 374 (5th Cir. 2002).
To grant a COA, however, we need not de-
cide the ultimate merits of the underlying habe-
as petition; we ask only whether the petitioner
has made “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. 2253-
(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could
disagree with the district court’s resolution of
his constitutional claim or that jurists could
conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). That is, our duty is to determine not
whether Thomas 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 federal
law) is one about which jurists of reason could
disagree. Furthermore, other doctrines bridle
habeas relief, including the harmless error
doctrine. See Brecht v. Abrahamson, 507
U.S. 619, 637 (1993).
III.
Thomas petitions for a COA based on an
argument that his constitutional rights were
violated by the admission of Guidry’s in-court
identification; he asserts that it was
impermissibly tainted by suggestive pre-trial
identification procedures under Simmons v.
United States, 390 U.S. 377 (1968). Although
he expends much breath in analyzing the two-
prong test established under Simmons v. Unit-
ed States and its progeny, we focus on the
analysis performed by the Court of Criminal
Appeals and the district court. Both courts -
concluded that even assuming arguendo that
the admission of the testimony was unconsti-
tutional, the error was harmless in light of the
overwhelming evidence corroborating the
content of the witnesses’ testimony.
A habeas petitioner has the burden of
demonstrating “actual prejudice” from the
alleged constitutional error. Brecht, 507 U.S.
at 637. Under Brecht, the appropriate harm-
less error st andard on collateral review is the
test established by Kotteakos v. United States,
328 U.S. 750 (1946), under which there has to
be more than a reasonable possibility that it
contributed to the verdict; the error must have
had a “substantial effect or influence in deter-
mining the verdict.” Woods v. Johnson, 75
F.3d 1017, 1026 (5th Cir. 1996) (emphasis
added). The district court meticulously laid
out how the other evidence presented by the
state corroborated and was cumulative of both
of the elements that Guidry’s in-court identifi-
cation and testimony supported: (1) that
Thomas was at or near the Rios residence at
the established time of the murders; and (2) the
impeachment of Thomas’s statement that
claimed that he left the residence by himself
before Clay did, implying that Clay acted alone
in murdering the family.
First, although Guidry’s identification
placed Thomas at the crime scene, it was far
from the only evidence that did so. Beyond
other circumstantial corroborating evidence,
this element of the state’s case was most
plainly demonstrated by Thomas’s own admis-
sionSSin his voluntary statement to the po-
1 See also Yarborough v. Gentry, 540 U.S. 1, 5
(2003) (“Where, as here, the state court’s appli-
cation of governing federal law is challenged, it
must be shown to be not only erroneous, but ob-
jectively unreasonable.”).

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liceSSthat he was present. Given the great
mass of particularly credible evidence sup-
porting this fact, we cannot conclude that
reasonable jurists could disagree as to the dis-
trict court’s finding that admitting the testi-
mony was harmless for establishing this ele-
ment.
Further, Guidry’s testimony, claiming that
he observed Clay and Thomas leaving the Rios
residence together, refuted Thomas’s claim
that he “left home alone and waited in the car
after he bought some marijuana . . . [until]
Clay came out of the home fifteen minutes
later wit h blood on his pants.” Thomas v.
State, No. 72,701, at 9 (Tex. Crim. App. Mar.
31, 1999). As the district court articulated,
the testimony of numerous witnesses also
undercut Thomas’s statement to the police and
his claim that Clay acted alone in killing the
family while Thomas waited in the vehicle. No
less than three of Thomas’s own friends com-
petently testified that Thomas had confessed
the killings to them.
Thomas attempts to meet his burden of es-
tablishing that admitting the testimony sub-
jected him to actual prejudice, because all that
remained was unreliable “biased” testimony,
because it came from witnesses paid to testify
by the police or subject to cooperation deals to
obtain assistance in their own cases. This
argument is unavailing; the bias of the remain-
ing witnesses was appropriately the subject of
cross-examination and is customary grist for
the jury mill. We deny a COA regarding the
admission of Guidry’s identification testimony,
because given the extensive mass of evidence
that was present, reasonable jurists could not
disagree as to the district court’s sound finding
that the Court of Criminal Appeals was rea-
sonable in its conclusion that it was harmless
under Brecht.2
IV.
Thomas applies for a COA on the issue of
whether the state court violated his right to
due process under the Fourteenth Amendment
by failing to instruct the jury that, if given a life
sentence, he would be eligible for parole in
forty years. At trial, the court forbade any
reference to the potential for parole eligibility
that is available for prisoners serving life
sentences for capital murder in Texas. Alth-
ough Texas subsequently has allowed for jury
instructions regarding parole eligibility in
capital murder cases,3 this was not the case at
the time of Thomas’s trial. The jury was
forced to consider the issue of his future dan-
gerousness without hearing testimony or ar-
gument regarding the possibility of his release
on parole if given a life sentence.
Thomas contends it was error to keep the
2 There has been some doubt expressed with
respect to whether the Brecht standard is still via-
ble after the enactment of AEDPA. See Tucker v.
Johnson, 247 F.3d 617, 629 n.16 (5th Cir. 2001)
(citing Anderson v. Cowan, 227 F.3d 893, 898 n. 3
(7th Cir. 2000)). The parties have not briefed this
issue, and we have employed the Brecht analysis in
cases decided pursuant to AEDPA. See, e.g.,
Corwin v. Johnson, 150 F.3d 467, 476-77 (5th
Cir. 1998). We need not decide this question,
because jurists of reason could not disagree with
the district court’s resolution of the claim under the
Brecht standard, which we and others have recog-
nized would be a more generous standard for
defendants than what would be applicable if it is in
fact superseded by AEDPA. See Tucker, 247 F.3d
at 629 n. 16; see also Anderson, 277 F.3d at 898-
99 n.3.
3 See TEX. CODE CRIM PROC. art. 37,071,
§ 2(e)(2)(B).

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information about his parole eligibility from
the jury based on Simmons v. South Carolina,
512 U.S. 154, 169 (1994), where the Court
concluded that the possibility of a life sentence
without possibility of parole is relevant to a
jury’s determination of whether the defendant
poses future harm to society. To support his
position, Thomas points to language in
Simmons v. South Carolina saying that “[i]n
assessing future dangerousness, the actual
duration of the defendant’s prison sentence is
indisputably relevant.” Id. at 163.
The Court, however, also specifically de-
lineated that the holding was inapplicable in
circumstances in states where parole was
available for capital offenses, as is the case in
Texas.4 The Court confirmed the limited
nature of the Simmons v. South Carolina
holding in Ramdass v. Angelone, 530 U.S.
156, 168 (2000), stating that “Simmons applies
only to instances where, as a legal matter,
there is no possibility of parole if the jury
decides the appropriate sentence is life in
prison.” Moreover, as the district court ob-
served, we have repeatedly rejected similar
claims seeking to extend Simmons v. South
Carolina to the Texas capital sentencing
procedure.5
Because there is no well-settled federal law
supporting Thomas’s position, AEDPA pre-
cludes federal courts from granting relief,
because it cannot be said that the state court’s
application of federal law was objectively
unreasonable. Because binding precedent
forecloses relief on this claim, jurists of reason
could not disagree with the district court’s
decision to dismiss this claim, and therefore
the request for a COA is DENIED.6
4 Simmons v. South Carolina, 512 U.S. at 168
(“In a State in which parole is available, how the
jury’s knowledge of parole availability will affect
the decision whether or not to impose the death
penalty is speculative, and we shall not lightly sec-
ond-guess a decision whether or not to inform a
jury of information regarding parole.”) (citing Cal-
ifornia v. Ramos, 463 U.S. 992, 1013-14 (1983)).
The Simmons v. South Carolina Court, id. at 168
n.8, explicitly acknowledged that its holding did not
apply to Texas, because Texas does not offer a
life-without-parole sentencing alternative.
5 See, e.g., Woods v. Cockrell, 307 F.3d 353,
360-62 (5th Cir. 2002); Johnson v. Cockrell, 306
F.3d 249, 256-57 (5th Cir. 2002); Collier v. Cock-
rell, 300 F.3d 577, 583-84 (5th Cir. 2000).
6 Even if we were to agree that the Simmons v.
South Carolina line of cases lends support to
Thomas’s claims, relief would be barred by the
non-retroactivity principle of Teague v. Lane, 489
U.S. 288 (1989), which prevents a federal court
from creating new constitutional rules of criminal
procedure on habeas review. See Wheat v. John-
son, 238 F.3d 357, 361 (5th Cir. 2001). We have
repeatedly held that an extension of the scope of
Simmons in the way requested by Thomas would
constitute a “new” rule under Teague. See id.; see
also Tigner v. Cockrell, 264 F.3d 521, 525 (5th
Cir. 2001).

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