Thacker v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-70026
_______________
CHARLES DANIEL THACKER,
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
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Charles Thacker seeks a certificate of ap-
pealability (“COA”) from the district court’s
denial of his petition for a writ of habeas cor-
pus pursuant to 28 U.S.C. § 2254. Because
Thacker cannot make a substantial showing of
the denial of a federal constitutional right, we
deny a COA.
I.
A state jury found Thacker guilty of capital
murder and further answered Texas’s special
issues in a manner that required imposition of
a death sentence. As summarized by the Texas

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2
Court of Criminal Appeals on direct review,
the facts are as follows:
On the evening of April 7, 1993, dur-
ing a telephone conversation with a friend,
Karen Crawford said that she was going to
go to the store for dog food. That same
evening, a resident of her apartment com-
plex informed the maintenance supervisor,
Arkan Hall, that Crawford’s keys were
hanging from her mailbox, which was lo-
cated in a common area near the apartment
offices. Hall went to Crawford’s apart-
ment, but she did not answer the door. He
then noticed her car, with her dog inside,
parked near the mail room. While checking
the area of the mail room and pool, Hall
found the women’s restroom locked. He
beat on the door, and a man’s voice an-
swered from the inside. The man became
quiet when Hall asked why he was using
the women’s restroom.
Hall attempted unsuccessfully to force
open the door of the restroom. He then tel-
ephoned the apartment manager, Emily
Vaughn. She and her husband Terrence
Cowie arrived at the scene, and the three
discussed what to do. Suddenly, the rest-
room door opened and [Thacker] emerged.
A fight ensued when Hall attempted to stop
him. Hall attempted to cut [Thacker] with
his pocket knife, but [Thacker] sprayed him
with mace and got away. [Thacker]
sprayed Cowie as well, and then pushed his
way through one of the two exit gates.
Hall and others nearby chased [Thacker]
down the block and tried to cut off his
escape.
In the meantime, Vaughn found Craw-
ford lying face down on the restroom floor.
She was unconscious. One shoe and one
leg of her jogging pants were pulled off; the
other pants leg was pulled down to her
ankle. Hall and another man administered
CPR. They detected a heart beat, but she
was not breathing. Some faint brain activ-
ity was detected when she arrived at the
hospital, but it ceased within twenty-four
hours.
Medical examiners concluded that
Crawford’s death was the result of strangu-
lation. Crawford’s neck was bruised on the
front and left side and her face and eyes ex-
hibited a condition known as pinpoint hem-
orrhaging. It was determined that a choke
hold or “hammerlock” was the probable
method of strangulation. No evidence of a
completed sexual assault was found.
In the early morning hours of April 8,
1993, a police canine unit found [Thacker]
hiding in a yard near Crawford’s apartment
complex. A truck containing papers bear-
ing [Thacker’s] name was found parked
outside the offices of Crawford’s apartment
complex. [Thacker] was identified by sev-
eral witnesses who saw him loitering about
the mail room just before the offense. He
was also identified by witnesses who saw
him running where Crawford was found. A
pubic hair matching a sample from Craw-
ford was found in [Thacker’s] underwear.
Thacker v. State, No. 71,891, at 2-3 (Sept. 18,
1996).
Thacker appealed, raising fifty-seven
points of erro r. His conviction was affirmed
on direct review, so he sought state collateral
review, raising eight points of error, but was
again denied relief. This denial was affirmed in
an unpublished opinion by the Court of Crimi-
nal Appeals. Ex parte Thacker, No. 74,034

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3
(Tex. Crim. App. Dec. 19, 2001) (unpub-
lished), cert. denied, 537 U.S. 829 (2002).
Thacker filed his initial federal habeas peti-
tion, which the district court dismissed, with-
out prejudice, to allow for complete state
court exhaustion of his claim under Ring v.
Arizona, 536 U.S. 584 (2002), which held that
juries must make determinations regarding
aggravating and mitigating factors. After his
second state habeas petition was dismissed, Ex
parte Thacker, No. 48,092-02 (Tex. Crim.
App. Dec. 10, 2003) (unpublished), Thacker
renewed his federal habeas petition, raising
nine grounds for relief. The district court
denied relief and denied a COA. Thacker v.
Dretke, No. H-04-CV-126 (S.D. Tex. May 27,
2004).
II.
Our review on a request for COA is highly
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 determined
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
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 Thacker 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.2
III.
In his COA application, Thacker raises sev-
en issues related to only two alleged errors:
that (1) the instruction given the jury on his
capital murder charge was a misstatement of
Texas law, or at the very least was substan-
tially confusing to the jury as to the sufficient
level of intent required to convict; and (2) the
trial court’s disallowance of any reference to
Thacker’s parole eligibility in the presence of
the jury was unconstitutional. Thacker argues
that the erroneous jury charge violated his due
process rights under the Fourteenth Amend-
ment and the Trial by Impartial Jury Clause of
the Sixth Amendment, and that he was de-
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.”).
2 As the district court correctly noted and we
will discuss further, infra, “Other doctrines, such
as the harmless-error doctrine and the non-retroac-
tivity principle, bridle federal habeas relief.”
Thacker, No. H-04-126, slip op. at 8.

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4
prived of his Sixth Amendment right to effec-
tive assistance of counsel. With respect to the
parole eligibility question, Thacker avers that
the purported error violates the Due Process
Clause of the Fourteenth Amendment, the
Cruel and Unusual Punishment Clause of the
Eighth Amendment, and the Compulsory Pro-
cess Clause of the Sixth Amendment.
A.
Texas law mandates that the court provide
the jury with a written charge that describes
the applicable law. See TEX. CODE CRIM.
PROC. ANN. art. 3614. This statute has been
interpreted as requiring “the judge to provide
the jury with both an abstract statement of the
law and an application of that abstract state-
ment to the evidence in the case.” Riley v.
State, 830 S.W.2d 584, 586-87 (Tex. Crim.
App. 1992). The court instructed the jury, in
the abstract portion, as follows:
A person commits the offense of murder if
he intentionally causes the death of an indi-
vidual or if he intends to cause serious bod-
ily injury and intentionally commits an act
clearly dangerous to human life that causes
the death of an individual.
A person commits capital murder if he in-
tentionally commits murder, as heretofore
defined, and the person intentionally com-
mits murder in the course of committing or
attempting to commit aggravated sexual as-
sault.
These instructions, when read in harmony,
attempt to explain the uncontroversial princi-
ple that, under Texas law, one may not be con-
victed of capital murder without a finding that
death was specifically intended. Murder, on
the other hand, can be committed without that
specific intent where an act obviously danger-
ous to human life causes death. Nevertheless,
Thacker contends that the phrase “murder, as
heretofore defined” confused the jury as to
whether a specific intent was required to find
him guilty of capital murder.3
Thacker’s concern is not unfounded. In the
midst of deliberations, the jury foreman sent a
note to the court, querying,
On page 3, t he charge says, “Now, if you
find . . . intentionally cause the death of
. . . .” Does that mean that the defendant
had to have the intent to cause her death to
be convicted of capital murder? Or as on
page 1, “. . . if he intends to cause serious
bodily injury and intentionally commits an
act clearly dangerous to human life . . .”
sufficient to convict the defendant of capital
murder in conjunction with the attempt to
commit aggravated sexual assault.
In response, the court directed the jury
“[p]lease refer to the charge and continue de-
liberating.” The jury continued deliberating
3 The question of intent was significant at
Thacker’s trial. On review of his state habeas pe-
tition, the Court of Criminal Appeals noted,
At trial the State acknowledged that the element
of intent was the weakest part of its case.
During a hearing outside the presence of the
jury, the prosecutor stated, “ . . . The State does
not have evidence on the issue of [Thacker’s]
intent to kill . . . .” Therefore, the prosecutor
offered evidence that a few weeks before [the
death of Crawford, Thacker] had committed
another sexual assault [which involved an at-
tempted choking].
Thacker, No. 74,034 at 2-3. The trial court admit-
ted this evidence as probative of motive and intent.
See id. at 3.

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5
for fifteen minutes before returning a guilty
verdict on the charge of capital murder.
On review of Thacker’s first petition for
state habeas relief, the Court of Criminal Ap-
peals held that the instructions did not contain
“any error at all,” Ex parte Thacker, No.
74,034, at 9; that any confusion was mitigated
by the correct statement of law in the applica-
tion paragraph of the charge;4 and that the
court’s note to the jury to refer back to the
charge therefore remedied any confusion.
B.
Thacker contends that the state court’s re-
jection of his claim of jury-instruction error
was violative of his federal constitutional
rights, to-wit, the Trial and Impartial Jury
clause of the Sixth Amendment and the Due
Process clause of the Fourteenth Amendment.
Due process requires that conviction for a
criminal offense must be supported by a find-
ing, beyond reasonable doubt, that all elements
of the crime are present. In re Winship, 397
U.S. 358, 364 (1970). Similarly, in a jury trial
the Sixth Amendment requires the same care.5
Consequently, if a jury instruction were to
permit conviction under circumstances that
lightened this heavy constitutional burden on
the prosecution, it is possible that, if the error
were sufficiently central to the entire trial,6 the
conviction would violate the Constitution.
The district court held that these claims are
procedurally foreclosed. We agree, and, be-
cause this conclusion is not one about which
reasonable jurists can differ, we decline to is-
sue a COA.
“Under the procedural default doctrine, a
federal court may not consider a state prison-
er’s federal habeas claim when the state based
its rejection of that claim on an adequate and
independent state ground. Martin v. Maxey,
98 F.3d 844, 846 (5th Cir. 1996).7 In no un-
certain terms, the Court of Criminal Appeals
rejected Thacker’s claim with respect to the
jury instruction because Thacker had “failed to
object to the jury charge definition of murder
and/or capital murder at trial [and t]hus, he has
failed to preserve this issue for consideration in
a post-conviction writ of habeas corpus.”
Thacker, No. 74,034, at 7.
In federal district court, Thacker contended
that the Court of Criminal Appeals’ alternative
holdingSSthat the jury instruction was not er-
ror even if not procedurally-barredSSdemon-
strates that the true basis of the rejection of his
4 Thacker concedes that there was no error in
the application paragraphs. Significantly, it is the
application paragraph that authorizes conviction
under Texas law; the abstract paragraph merely
state a theory of law. See McFarland v. State, 928
S.W.2d 482, 515 (Tex. Crim. App. 1996).
5 See United States v. Hebert 131 F.3d 514,
521-22 (5th Cir. 1997) (stating that the Sixth
Amendment requires that a jury find a defendant
guilty of all elements of a crime to convict).
6 Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(“The only question for us is whether the ailing in-
struction by itself so infected the entire trial that the
resulting conviction violates due process” (citation
omitted)).
7 This doctrine has an exception where the pe-
titioner can demonstrate the cause of his procedural
default and show actual prejudice as a result of the
alleged violation of federal law, or that failing to
consider his claim will yield a fundamental “mis-
carriage of justice.” Coleman v. Thompson, 501
U.S. 722, 750 (1991). Thacker makes no such
argument.

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6
claims was substantive, not procedural. The
district court properly rejected that argument.8
Further, Thacker completely ignores this hur-
dle in his brief in support of his application for
COA, so the issue is waived.9
C.
The procedural bar, however, does not end
our review of the complained-of instruction.
Thacker argues strenuously that the failure of
trial counsel to object to the charge, or to re-
quest an additional instruction after the jury’s
note was received, constituted ineffective as-
sistance of counsel, contrary to the dictates of
the Sixth Amendment. To review the inef-
fective assistance claim, we must analyze the
alleged error regarding the jury instruction.
Nevertheless, under the Supreme Court’s
Sixth Amendment jurisprudence,10 Thacker
must demonstrate not just that the alleged jury
instruction was in error, and not just that his
lawyer’s failure to object to it was in error, but
that such a failure was so serious as to “fall[]
below an objective standard of reasonableness
and thereby prejudice[] the defense.” Yarbor-
ough v. Gentry, 540 U.S. 1, 5 (2003).
Further, AEDPA, as discussed above, re-
quires that Thacker show that the state court
resolution of this Sixth Amendment claim was
“not only erroneous, but objectively unreason-
able.” Id. The district court held that the
Court of Criminal Appeals was objectively rea-
sonable in finding that Thacker’s trial attor-
ney’s conduct was not so egregious as to fall
below an objectively reasonable standard of
professional performance. Therefore, for us to
issue a COA on the issue of ineffective assis-
tance, we must find that jurists of reason could
disagree as to whether the district court erred
in reaching such a conclusion.
Thacker’s court-appointed appellate coun-
sel tries to surmount this obviously high hurdle
with admirable skill. In attempting to dem-
onstrate that the jury instructions were, at best,
confusing, and at worst, downright erroneous,
Thacker contends that the instructions violated
the Sixth and Fourteenth Amendments by
allowing the jury to convict on the charge of
capital murder without finding the requisite
element of specific intent. A cursory reading
of the abstract paragraphs, excerpted above,
might lend support to that claim. The refer-
ence in the second abstract paragraph to
“murder, as heretofore defined” could easily be
read, especially by lay jurors, as allowing for
conviction of capital murder without the
requisite specific intent. The jury communi-
cated its confusion via its note to the court.
Nevertheless, as Thacker concedes, it is a
“well established proposition that a single jury
instruction may not be judged in artificial iso-
lation, but must be viewed in the context of the
overall charge.” Cupp v. Naughten, 414 U.S.
141, 146-47 (1973). In that vein, the Court of
Criminal Appeals emphasized that the applica-
tion paragraphs (which Thacker concedes
were accurate) “explicitly stated, not once, not
twice, but three times that before the jury
could convict [Thacker] of capital murder, it
must find, beyond a reasonable doubt, that
[Thacker] ‘intentionally caused the death of
Karen Gail Crawford,’ ‘specifically intended to
8 See Thacker, No. H-04-126 at 12 (quoting
Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.
1998) (“[A]lternative rulings do not operate to vi-
tiate the validity of a procedural bar that consti-
tutes the primary holding.”)).
9 See, e.g., United States v. Thibodeaux, 211
F.3d 910, 912 (5th Cir. 2000).
10 See, e.g., Strickland v. Washington, 466 U.S.
668, 686 (1984).

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7
cause the death of said Karen Gail Crawford,’
and ‘intentionally cause[d] the death of Karen
Gail Crawford.’” Thacker, No. 74,034, at 10-
11.
Those three instances, coupled with the ab-
stract portion of the jury charge, which the
state court found to state the law correctly,
rendered a total of five times that the jury was
instructed that specific intent was required to
convict of capital murder. Additionally, in its
closing argument, even the prosecution specif-
ically reminded the jury that intent to kill was
required to convict on capital murder. Thack-
er, No. 74,034, at 4.
Even if we were convinced that the state
court’s conclusionSSthat the abstract portion
was without flawSSis incorrect, that is a far cry
from reaching the level of error needed to
warrant relief at this stage. The Court of
Criminal Appeals reasonably concluded that
the jury charge, taken as a whole, did not vio-
late Thacker’s constitutional rights. Though
this conclusion might be arguable, it certainly
does not qualify as such an unreasonable ap-
plication of settled Supreme Court precedent
as to warrant relief under AEDPA. See 28
U.S.C. § 2254(d). Given that the state court
was not unreasonable in finding the jury charge
sufficient, it would be logically impossible for
us to hold that Thacker’s trial counsel’s fail-
ures to object to the charge fell below an
objectively reasonable standard of professional
conduct.
In sum, although reasonable minds might
differ as to whether the jury charge was erro-
neous or confusing, reasonable jurists cannot
differ as to whether the Court of Criminal Ap-
peals conclusively adjudicated those claims in
such a manner as not to be an unreasonable
application of federal law. Under the strict
limitations of AEDPA, therefore, we cannot
issue Thacker a COA on his claim that the jury
instruction violated his constitutional rights.
IV.
A.
Thacker’s other claims relate to the lack of
discussion at trial of his potential eligibility for
parole if not sentenced to death. At trial, the
court forbade any reference to the potential for
parole eligibility that is possible for prisoners
serving life sentences for capital murder in
Texas.11 Although Texas subsequently has al-
lowed for jury instructions regarding parole
eligibility in capital murder cases,12 this was
not the case at the time of Thacker’s trial. In-
stead, the jury was forced to consider, at the
sentencing phase, the issue of Thacker’s future
dangerousness without hearing any testimony
or argument regarding the possibility or likeli-
hood of his release on parole if given a life
sentence.
Thacker contends that his inability to raise
this issue violates his constitutional rights
(1) to due process of law under the Fourteenth
Amendment; (2) to be free from cruel and un-
usual punishment as protected by the Eighth
Amendment; and (3) to exercise compulsory
process to present a complete defense by vir-
tue of the Sixth Amendment. On state habeas
review, Thacker’s claims regarding parole
11 Specifically, while Texas does not allow for
life imprisonment without the possibility of parole,
if spared the death penalty, Thacker would have
been ineligible for parole until he served thirty-five
years in prison.
12 See TEX. CODE CRIM PROC. art. 37.071,
§ 2(e)(2)(B).

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8
eligibility were summarily rejected.13
The district court rebuffed Thacker’s argu-
ment that this rejection was contrary to, or an
unreasonable application of, federal law. Re-
lying on our numerous precedents holding that
Texas does not violate due process or the pro-
hibition against cruel and unusual punishment
by not informing juries of parole eligibility, the
court found that Thacker had failed to dem-
onstrate that the state court’s rejection of
these arguments amounted to a violation of
federal law.
Alternatively, the district court ruled that
the non-retroactivity principle of Teague v.
Lane, 489 U.S. 288 (1989), would preclude
relief for Thacker even if his arguments re-
garding due process and the Eighth Amend-
ment were convincing. That is, were Thacker
to convince the court that settled Supreme
Court precedent yielded the Texas court’s re-
jection of these claims unreasonable, he is still
not entitled to relief on federal collateral re-
view under Teague.
With respect to Thacker’s novel assertion
that the Sixth Amendment requires that he be
allowed to present evidence on parole eligibil-
ity to the jury, the state court, as we have said,
summarily rejected that claim. The federal
district court held both that this was not con-
trary to federal law and that Teague would bar
relief under this theory. Thacker, No. H-04-
CV-126, at 42.
B.
In Simmons v. South Carolina, 512 U.S.
154, 169 (1994), 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. Indeed, such a sentencing scheme
“necessarily undercut[s] the state’s argument
regarding the threat the defendant poses to
society.” Id. Nevertheless, under regimes that
allow for parole eligibility, the decision wheth-
er to instruct the jury on t hat fact is reserved
to the states, and the Court “shall not lightly
second-guess” the decision. Id. at 168.
Since Simmons was decided, we have re-
peatedly held that neither the Due Process
clause nor the Eighth Amendment requires
Texas to allow presentation of parole eligibility
issues, because Texas does not offer, as an
alternative to capital punishment, life impris-
onment without possibility of parole.14 Unde-
terred by this ample caselaw to the contrary,
Thacker urges that Supreme Court precedent
subsequent to Simmons (and even Simmons it-
self) extends to invalidate the sort of state re-
gime employed in Texas.
In the noticeable absence of any settled fed-
eral law supporting Thacker’s notion, AEDPA
precludes the federal courts from granting ha-
beas relief. That is, it cannot be said that the
state court’s application of federal law was ob-
jectively unreasonable. The “threshold inquiry
[under AEDPA] does not require full con-
sideration of the factual or legal bases adduced
in support of the claims. In fact, the statute
forbids it.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). Instead, our task is only to
13 Ex parte Thacker, No. 661,866-A, at 16-17
(338th Dist. Ct., Harris County, Tex., July 11,
2000), aff’d, Thacker, No. 74,034, at 16 (sum-
marily rejecting parole eligibility claims).
14 See, e.g., Elizade v. Dretke, 362 F.3d 323,
332-33 (5th Cir.), cert. denied, 125 S. Ct. 293
(2004); Woods v. Cockrell, 307 F.3d 353, 360-62
(5th Cir. 2002); Johnson v. Cockrell, 306 F.3d
249, 256-57 (5th Cir. 2002).

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9
determine whether the district court’s dispo-
sition was “debatable among jurists of reason.”
Id. at 330.
Thus, settled precedent makes pellucid the
reasonableness of the state court’s rejection of
Thacker’s argument that Simmons and its pro-
geny require that he be able to raise parole
eligibility with the jury. The district court’s
denial of his claims, therefore, is not reason-
ably debatable and cannot justify the issuance
of a COA.15
C.
Thacker makes the creative claim that the
Sixth Amendment’s Compulsory Process
Clause guarantees him the right to present tes-
timony and argument relating to parole eligi-
bility. This argument rests principally on
United States v. Scheffer, 523 U.S. 303
(1998), in which the Court considered the
argument that the Sixth Amendment requires
courts to allow a defendant to present alleg-
edly exculpatory polygraph evidence. Reject-
ing that theory, the Court explained that “[a]
defendant’s right to present relevant evidence
is not unlimited, but is subject to reasonable
restrictions.” Id. at 308. The Court went on
to announce a framework for evaluating the
reasonableness of such restrictions. For ex-
clusionary evidentiary rules to pass constitu-
tional muster, they must not be “‘arbitrary’ or
‘disproportionate to the purposes they are de-
signed to serve.’” Id. (quoting Rock v. Arkan-
sas, 483 U.S. 44, 55 (1987)).
Thacker posits that prohibiting discussion
regarding parole eligibility unconstitutionally
burdened his right to present mitigating evi-
dence in that the restriction is disproportionate
to the purposes it is designed to serve. Be-
cause this is a novel approach, Thacker faces
the same non-retroactivity hurdle that he must
overcome with respect to his due process and
Eighth Amendment claims. As we have said,
Teague prevents federal courts from granting
habeas relief predicated on a “new” rule of
constitutional law.
Thacker attempts to get around this barrier
by arguing that if we conclude that the Sixth
Amendment was violated, it will merely be an
“unremarkable” application of Scheffer to new
facts. Thacker analogizes his Sixth Amend-
ment claim to the application of Strickland v.
Washington, 466 U.S. 668 (1984), in which
the Court laid out a framework for evaluating
ineffective assistance claims. Specifically, in
Wright v. West, 505 U.S. 277 (1992), Justice
Kennedy explained that where a rule “is one
which of necessity requires a case-by-case ex-
amination of the evidence, then we can tolerate
a number of specific applications without
saying that those applications themselves cre-
ate a new rule . . . .” Id. at 308-09 (Kennedy,
J., concurring).
Obviously, the application of the Washing-
15 Even if we were to agree that the Simmons
line of cases rendered support for Thacker’s
claims, the non-retroactivity principle of Teague
would preclude relief. In Wheat v. Johnson, 238
F.3d 357, 361 (5th Cir. 2001), considering the
identical parole eligibility issue, we stated, “Under
Teague, a federal court may not create new consti-
tutional rules of criminal procedure on habeas
review.” Although Thacker argues at length that
applying Simmons in the way he proposes would
merely be an unremarkable application of existing
precedent, this is plainly not the case. Given the
volume of caselaw in this circuit holding that,
despite Simmons, the Fourteenth and Eighth
Amendments do not require Texas to allow discus-
sion of parole eligibility in capital trials, a decision
to the contrary here would undoubtedly constitute
a “new rule” under Teague and is therefore barred.

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10
ton rule16 is one that, by its very nature, re-
quires a case-by-case examination of the evi-
dence. Scheffer, on the other hand, merely
holds that the exclusion of polygraph results is
not disproportionate or arbitrary in light of a
defendant’s not unbridled right to present evi-
dence in his defense. To hold that it extends
to, and invalidates, all restrictions on discus-
sion of parole eligibility would undoubtedly be
a bold new step, not an “unremarkable” ap-
plication of settled precedent. Thacker’s Sixth
Amendment argument, therefore, is so plainly
barred by Teague that we cannot conceive that
reasonable jurists would disagree.17
D.
Even if Thacker’s claim based on the Com-
pulsory Process Clause claim were not barred
by the non-retroactivity principle of Teague,
its substance is insufficient for the issuance of
a COA. Analysis of claims under the Sixth
Amendment are routinely addressed by analy-
sis similar to that employed in due process
challenges.
Because the applicability of the Sixth
Amendment to this type of case is unset-
tled, and because our Fourteenth Amend-
ment precedents addressing the fundamen-
tal fairness of trials establish a clear frame-
work for review, we adopt a due process
analysis for purposes of this case.
Although we conclude that compulsory
process provides no greater protections in
this area than those afforded by due pro-
cess, we need not decide today whether and
how the guarantees of the Compulsory
Process Clause differ from those of the
Fourteenth Amendment.
Pennsylvania v. Ritchie, 480 U.S. 39, 56
(1987) (emphasis added except for the word
“greater”). Thus, although the two methods
of analysis are not equivalent, reference to our
jurisprudence considering similar claims under
the Due Process clause is illuminating and
persuasive.
In Green v. Johnson, 160 F.3d 1029, 1044
(5th Cir. 1998), we held that “a state may ra-
tionally conclude that its capital sentencing
scheme would be better served by not requir-
ing that courts inform juries of parole consid-
erations . . . . The Texas Legislature could ra-
tionally conclude that injection of parole issues
at the punishment phases of capital murder
trial would invite consideration of factors
unrelated to the defendant’s blameworthiness
. . . .” Such restrictions, therefore, do not run
afoul of the Fourteenth Amendment.
Given that conclusion, it can hardly be said
that the Texas Court of Criminal Appeals act-
ed contrary to, or engaged in an unreasonable
application of, federal law. Where no court
has yet to publish an opinion considering
Thacker’s claim that the Sixth Amendment,
per Scheffer, protects his right to discuss par-
ole eligibility, and we have explicitly rejected
such an argument under the analogous due
process framework, we cannot say that Thack-
er has made a substantial showing that the
Texas courts deprived him of a federal
rightSSnor can we imagine that reasonable jur-
ists could disagree.
The request for a COA is DENIED.
16 We discuss the contours of Washington in
part III.C., supra.
17 See Aldrich v. Dretke, 83 Fed. Appx. 11 (5th
Cir. 2003) (unpublished) (rejecting a similar Sixth
Amendment claim as barred by Teague), cert. de-
nied, 124 S. Ct. 2817 (2004).

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