Moore v. Johnson

Revised, October 20, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50927
_______________
MICHAEL PATRICK MOORE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
August 23, 2000
Before JOLLY, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Michael Moore seeks a certificate of ap-
pealability (“COA”) to allow him to present six
claims to this court. Because Moore’s claims
lack merit under the requisite standard, we de-
ny a COA.
I.
Moore was convicted of capital murder and
sentenced to death. He directly appealed his

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conviction and sentence to the Texas Court of
Criminal Appeals, then petitioned the United
States Supreme Court for review, but was de-
nied both times. Moore then filed an applica-
tion for a writ of habeas corpus in the state
courts and federal district court but was denied
again at each stage. See Moore v. State, 935
S.W.2d 124, 126-27 (Tex. Crim. App. 1996),
cert. denied, 520 U.S. 1219 (1997).
The Court of Criminal Appeals’s opinion
denying Moore’s direct appeal set out the fol-
lowing facts underlying his conviction and
sentencing:
Armed with a gun and a knife, ap-
pellant entered the victim’s home at
about 2:20 am and headed toward the
bedrooms. At the time he entered the
home, appellant knew it was occupied.
He was dressed in black so that he
would not be seen in the dark. Appel-
lant encountered the victim and a strug-
gle ensued between them. The victim
was stabbed several times by appellant
who then dropped his knife. The victim
was screaming so appellant drew his re-
volver and shot her. Because of the
number and depth of the wounds the
victim received, the medical examiner
characterized the murder as “overkill”
and “particularly brutal.” The victim’s
fourteen year old son discovered her
body. Appellant then fled the scene of
the crime. Shortly thereafter, a police
officer spotted appellant driving without
his headlights. The officer attempted to
get appellant to pull over, but appellant
led the police on a high-speed car chase
followed by a pursuit on foot. After
appellant was apprehended, the police
found a .22 caliber pistol and 50 rounds
of ammunition in appellant’s car. While
the facts of the crime itself are perhaps
not alone sufficient to support an affir-
mative finding to the future dangerous-
ness special issue, additional evidence
introduced at trial does support such a
finding.
At the punishment phase the State
introduced records from the Conners
Children’s Home, where appellant re-
sided during part of his childhood, con-
taining information about appellant
when he was a child. The records indi-
cate appellant twice set fire to his house
and once to the Children’s Home,
threatened to kill his parents and blame
their deaths on his younger brother, and
tried to stab his younger brother with a
pair of scissors. As a child, appellant
continuously exhibited violent and im-
proper sexual behavior. While serving
in the Navy, appellant was on unautho-
rized absence three times and was con-
victed of grand larceny. The State also
introduced appellant’s notebook entitled
“The Girls of Copperas Cove” in which
he listed the names and addresses of 300
teenaged girls of Copperas Cove. Many
of these girls including T.R., the victim’s
daughter, testified that appellant stalked,
harassed, and threatened them. The
State introduced evidence of various
extraneous offenses, including several
burglaries which often took place while
the victims were home, perpetrated
against the girls listed in the notebook.
Letters that appellant wrote to several of
the girls in which he threatened to rape
them were introduced into evidence,
including one letter written to a junior
high student threatening to rape her and
her best friend. Appellant’s notebook

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3
also contained the license plate numbers
of a Coryell County Justice of the Peace
and a Copperas Cove police sergeant.
Appellant testified that the notebook
was not in its “final form.” On direct
examination, appellant admitted to being
involved in a physical altercation while
in jail.
The State also called Dr. Coons, a
psychiatrist, to testify to appellant’s
future danger to society. He noted ap-
pellant’s childhood displays of anger and
violence and his lawless behavior. Dr.
Coons reviewed the State’s files and re-
cords of appellant, as well as appellant’s
psychological and psychiatric records,
and was presented a hypothetical ques-
tion embodying the significant facts of
the case. Based on this information, Dr.
Coons stated that appellant lacks a con-
science, is a continuing threat to society,
and would continue to commit criminal
acts of violence. He stated violence and
anger were well integrated into appel-
lant’s personality and that appellant’s
behavior would carry over into prison
society. Dr. Coons testified that appel-
lant would be manipulative, vindictive,
and a threat to smaller prisoners.
Moore, 935 S.W.2d at 126-27.
In response to this testimony, Moore pre-
sented evidence that he had been beaten and
neglected by his mother in his infancy, cared
for by his maternal grandmother for a period,
placed in foster care, and eventually returned
to his family, where abuse began anew. He
dropped out of school, attempted suicide, and
joined the Navy. After honorable discharge,
he moved in again with his mother and her
new husband and found employment and a fi-
ancee. Two weeks before he was to be mar-
ried, however, he found that his fiancee was
seeing another man. Moore presented wit-
nesses who testified that he was not violent or
aggressive, including Dr. Windel Dickerson, a
licensed psychologist, and a social worker
from Moore’s foster home, who testified that
Moore wo uld not be a continuing threat in a
prison setting.
Following denial of the habeas petition, the
district court denied Moore a COA. He now
seeks one from this court.
II.
Under 28 U.S.C. § 2253(c)(1)(A), Moore
must first obtain a COA before he may receive
full appellate review of the denial of habeas re-
lief. A COA can issue only if Moore makes “a
substantial showing of the denial of a constitu-
tional right, a demonstration that . . . includes
showing that reasonable jurists could debate
whether . . . the petition should have been
resolved in a different manner or that the is-
sues presented were adequate to deserve en-
couragement to proceed further.” Slack v.
McDaniel, 120 S. Ct. 1595, 1603-04 (2000)
(internal quotation marks and citation omit-
ted).1 Uncertainly about the propriety of
1 Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.
2000), explains that earning a COA “requires the
applicant to demonstrate that the issues are debat-
able among jurists of reason; that a court could
resolve the issues (in a different manner); or that
the questions are adequate to deserve encourage-
ment to proceed further” (citing Drinkard v. John-
son, 97 F.3d 751, 755 (5th Cir.1996)) (internal
quotation marks omitted; emphasis added). Hill
was decided only a few days before Slack and only
two days after Williams v. Taylor, 120 S. Ct.
1495, 1521 (2000), in which the Court explained,
however, that the Fourth Circuit had erred in hold-
(continued...)

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granting a COA is resolved in Moore’s favor, and the severity of his prescribed penalty col-
ors our consideration of whether he has met
his “substantial showing” burden. Hill, 210
F.3d at 484.
In assessing whether [a petitioner] is
entitled to a COA, we must keep in
mind the deference scheme laid out in
28 U.S.C. § 2254(d). See Trevino v.
Johnson, 168 F.3d 173, 181 (5th Cir.),
cert. denied, . . .120 S.Ct. 22 . . .(1999).
Under that scheme, we review pure
questions of law and mixed questions of
law and fact under § 2254(d)(1), and
review questions of fact under § 2254-
(d)(2), provided that the state court ad-
judicated the claim on the merits. See
28 U.S.C. § 2254(d). . . .[2]
As a result, we must defer to the state
court unless its decision “was contrary
to, or involved an unreasonable applica-
tion 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 contrary 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 indistin-
guishable facts.” Williams v. Taylor,
. . . 120 S. Ct. 1495, 1523 . . .(2000).
Under § 2254(d)(1)’s “unreasonable ap-
plication” language, a writ may issue “if
the state court identifies the correct gov-
1(...continued)
ing that “a state-court decision involves an ‘unrea-
sonable application of . . . clearly established
Federal law’ only if the state court has applied fed-
eral law ‘in a manner that reasonable jurists would
all agree is unreasonable.’”
The Court thought the explication of “unrea-
sonable application” potentially misleading because
it threatened to “transform the inquiry into a sub-
jective one by resting [the court’s] determination
. . . on the simple fact that at least one of the Na-
tion’s jurists has applied the relevant federal law in
the same manner the state court did in the habeas
petitioner’s case.” Id. at 1521-22. The Court then
specified that in Drinkard this circuit had errone-
ously made such a subjectively based determina-
tion. Id. at 1522. The Williams court considered
the impropriety of the “reasonable jurist” language
with reference specifically to a denial of habeas
relief rather than to the denial of a COA, but we
nonetheless confidently follow the Court by remov-
ing this putatively subjective consideration from
our analysis in this instance.
Moore argues that a COA should be granted
because the district court, in denying him habeas
relief, mentioned that “[a] determination is ‘unreason-
able’ ‘only when it can be said that reasonable
jurists considering the question would be of one
view that the state court ruling was incorrect.’”
The district court did not, however, indicate that it
was employing a subjective, rather than an objec-
tive, test of “reasonability” and did not rely on the
subjective impressions of any jurists in coming to
its conclusion that habeas relief was unwarranted.
The district court’s stray reference to the “reason-
able jurist” standard, never mentioned again or
made part of the court’s analysis, though error, is
harmless error and not a sufficient basis upon
which to grant a COA. Cf. Orellana v. Kyle, 65
F.3d 29, 33 (5th Cir. 1995) (application of incor-
rect legal standard harmless if conclusion un-
changed).
2 The opinion of the Court of Criminal Appeals
affirming Moore’s conviction and sentence of death
reveals that the conviction followed adjudication on
the merits, Moore, 935 S.W.2d at 126, and Moore
does not challenge this revelation.

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erning legal principle from [the] Court’s
decisions but unreasonably applies that
principle to the facts of the prisoner’s
case.” Williams, 120 S. Ct. at 1523.
Factual findings are presumed to be cor-
rect, see 28 U.S.C. § 2254(e)(1), and
we will give deference to the state
court’s decision unless it “was based on
an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.” Id.
§ 2254(d)(2).
Id. at 484-85.
III.
Moore seeks a COA with regard to four
related claims, which at their root argue that
he should have been afforded, by the state,
expert assistance in jury selection and develop-
ment of mitigation evidence. Because this is a
quest ion of law, the district court could have
issued a writ of habeas corpus only if Texas’s
review procedures are “contrary to, or in-
volved 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). We can grant a COA
only if courts could objectively disagree with
regard to whether Texas has so erred, or if our
jurisprudence would be ennobled by further
consideration of the question.
With regard to the mitigation expert, it ap-
pears that the trial court provided Moore the
opportunity to present additional information
to demonstrate that the expert “would be sig-
nificantly more effective in marshaling the evi-
dence in [Moore]’s behalf than his own coun-
sel,” but that “no further request or showing of
necessity for a mitigation expert was made.”
Moore, as a result, did not enjoy the benefits
of a mitigation expert. Later, before the Court
of Criminal Appeals, Moore again failed to
argue that he should have been provided a
mitigation expert. That court held that “since
appellant does not make any arguments re-
garding expert assistance on this issue, we will
only address expert assistance on the jury se-
lection issue.” Moore, 935 S.W.2d at 130 n.2.
If a petitioner “offer[s] little more than unde-
veloped assertions that the requested assis-
tance would be beneficial, we find no depriva-
tion of due process in the trial judge’s deci-
sion” not to provide that assistance. Caldwell
v. Mississippi, 472 U.S. 320, 323 n.1 (1985).
Moreover, claims that are barred as a conse-
quence of a failure to comply with state proce-
dural rules do not merit habeas relief3 and
therefore cannot warrant issuance of a COA.
Moore’s claims that he was constitutionally
entitled to either of these experts fail on their
merits as well. He bases his argument on the
pronouncement in Ake v. Oklahoma, 470 U.S.
68 (1985), that states must provide indigent
defendants “access to a competent psychia-
trist” in cases in which “a defendant demon-
strates to the trial judge that his sanity at the
time of the offense is to be a significant factor
at trial.” Id. at 83. Moore argues that the Ake
holding compels a finding in his favor.
In coming to its conclusion, the Court in
Ake held that
[t]his Court has long recognized that
when a State brings its judicial power to
bear on an indigent defendant in a crimi-
nal proceeding, it must take steps to as-
sure that the defendant has a fair oppor-
tunity to present his defense. . . . [A]
criminal trial is fundamentally unfair if
3 Coleman v. Thompson, 501 U.S. 722, 754
(1991).

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the State proceeds against an indigent
defendant without making certain that
he has access to the raw materials inte-
gral to the building of an effective de-
fense. Thus, while the Court has not
held that a State must purchase for the
indigent defendant all the assistance that
his wealthier counterpart might buy, it
has often reaffirmed that fundamental
fairness entitles indigent defendants to
an adequate opportunity to present their
claims fairly within the adversary sys-
tem.
Id. at 76-77 (internal citations and quotation
marks omitted; emphases added). This circuit
has, in light of Ake, held that “non-psychiatric
experts . . . should be provided only if the
evidence is both critical to the conviction and
subject to varying expert opinion.” Yohey v.
Collins, 985 F.2d 222, 227 (5th Cir. 1993)
(citations and internal quotation marks omit-
ted).
Neither of Moore’s claims of right to expert
assistance can survive under these standards.
His purported right to a jury-selection expert
withers before the language of Ake. As the
Court explained, a defendant cannot expect the
state to provide him a most-sophisticated
defense; rather, he is entitled to “access to the
raw materials integral to the building of an ef-
fective defense.” Ake, 470 U.S. at 77. Most
of those raw materials come to the defendant
in the form of his court-appointed lawyerSSin
his expert knowledge about how to negotiate
the rules of court, how to mount an effective
defense, and so forth. Other materials come
from lay witnesses, such as evidence necessary
to the defendant to establish his defense. De-
fendants enjoy access to court-appointed psy-
chiatric professionals because the Court ex-
pects those professionals to
gather facts, through professional exam-
ination, interviews, and elsewhere, that
they will share with the judge or jury; []
analyze the information gathered and
from it draw plausible conclusions about
the defendant's mental condition, and
about the effects of any disorder on be-
havior; and [] offer opinions about how
the defendant’s mental condition might
have affected his behavior at the time in
question. They know the probative
questions to ask of the opposing party’s
psychiatrists and how to interpret their
answers. Unlike lay witnesses, who can
merely describe symptoms they believe
might be relevant to the defendant’s
mental state, psychiatrists can identify
the “elusive and often deceptive” symp-
toms of insanity, Solesbee v. Balkcom,
339 U.S. 9, 12 . . . (1950), and tell the
jury why their observations are relevant.
Further, where permitted by evidentiary
rules, psychiatrists can translate a medi-
cal diagnosis into language that will as-
sist the trier of fact, and therefore offer
evidence in a form that has meaning for
the task at hand. Through this process
of investigation, interpretation, and tes-
timony, psychiatrists ideally assist lay
jurors, who generally have no training in
psychiatric matters, to make a sensible
and educated determination about the
mental condition of the defendant at the
time of the offense.
Id. at 80.
Despite Moore’s claims to the contrary, ju-
ry selection is not a mysterious process to be
undertaken by those learned in the law only
with the assistance of outside professionals.
All competent lawyers are endowed with the
“raw materials” required to pick a jury fairly

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disposed toward doing substantive justice.
While the wealthiest of defendants might elect
to spend their defense funds on jury consul-
tants, indigent defendants are not privileged to
force the state to expend its funds on this ex-
ercise in bolstering an attorney’s fundamental
skills. Meanwhile, of course, a defendant does
not lack “an adequate opportunity to present
[his] claims fairly” because he has been denied
a jury consultant. Communicating with the ju-
ry is a quintessential responsibility of counsel.
Moore’s claim of entitlement to a mitiga-
tion expert fails under the Yohey explication of
a defendant’s right to non-psychiatric experts.
As the Yohey court explained, “[a]n indigent
defendant requesting non-psychiatric experts
must demonstrate something more than a mere
possibility of assistance from a requested ex-
pert.” Yohey, 985 F.2d at 227. Moore does
not make such a showing.
As the recital of facts indicates, Moore’s
defense included testimony from lay and psy-
chiatric witnesses favorable to him suggesting
that his childhood had been scarring and that
he did not present a threat to his fellow prison-
ers. He provides no explanation of how a mit-
igation expert might have provided “critical”
assistance to a defense team already including
a lawyer and psychiatrist, both cognizant of
the role of mitigating evidence in staving off
the death penalty.
The precedent of the Supreme Court and
this circuit, then, forecloses entirely Moore’s
arguments, denying him the chance to demon-
strate that our court could resolve the issues in
his favor or that the questions are adequate to
deserve encouragement to proceed further.
He therefore has not made a substantial show-
ing of the denial of a constitutional right and
cannot receive a COA on these grounds.4
IV.
Moore argues that we should issue a COA
on the question whether his constitutional
rights were violated by the failure to change
venue from the county in which the murder
occurred, because of the pretrial publicity sur-
rounding the murder and his alleged involve-
ment in it. Jury impartiality is a question of
fact. See King v. Lynaugh, 850 F.2d 1055,
1058 (5th Cir. 1988).
The trial court found, and the Court of
Criminal Appeals agreed, that “the record does
not support appellant’s claims” of jury partial-
ity. Moore, 935 S.W.2d at 129. In determin-
ing whether to grant habeas relief, a federal
court must presume the correctness of this
finding and “will give deference to the state
court’s decision unless it ‘was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.’” Hill, 210 F.3d at 485 (citing 28
U.S.C. § 2254(d)(2), (e)(1)). Unless we
decide that a court could find that the Texas
courts had made an unreasonable determina-
tion or that the issue merits further consider-
ation, we cannot issue a COA with regard to
this question.
We do not so decide. Moore presented no
4 Moore also asked for a COA so that this
circuit could consider the issue of whether the
district court erred by declaring that “an indigent
defendant could never be entitled to” a jury-selec-
tion or mitigation expert. It strains the language of
the district court’s opinion to argue that the court
so declared at all, especially with reference to the
mitigation expert (the appointment of whom was
denied, in part, because expert psychological tes-
timony had been allowed in this instance).

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evidence that individual jurors were preju-
diced. As we have explained, “[a]s a general
rule, a state defendant who seeks habeas relief
as a result of pretrial publicity must demon-
strate an actual, identifiable prejudice on the
part of members of the jury that is attributable
to that publicity.” Willie v. Maggio, 737 F.2d
1372, 1386 (5th Cir. 1984). Moore did submit
some evidence indicating that the press had
covered not only the murder but also his al-
leged involvement in it and the fact that Moore
had maintained a list of local high school girls.
The evidence suggested that the community
was scared and repulsed by this information.
This evidence raises the possibility that Moore
might have demonstrated, under the rule cre-
ated by Rideau v. Louisiana, 373 U.S. 723
(1963), that because
a petitioner [has adduced] evidence of
inflammatory, prejudicial pretrial public-
ity that so pervades or saturates the
community as to render virtually impos-
sible a fair trial by an impartial jury
drawn from that community, “(jury)
prejudice is presumed and there is no
further duty to establish bias.”
Mayola v. Alabama, 623 F.2d 992, 997 (5th
Cir. 1980) (explaining Rideau). The Court of
Criminal Appeals, however, noted that other
evidence had been adduced as well. Moore, it
explained,
called various representatives from the
local media to testify at the venue hear-
ing. These witnesses testified that the
pre-trial publicity had not been inflam-
matory or even excessive. Appellant
presented no evidence at all that “most
persons” in Copperas Cove were “terri-
fied” of him and worried that he would
be released from custody; to the con-
trary, the Sheriff of Coryell County tes-
tified that there had been no untoward
concern in Copperas Cove about appel-
lant. Appellant also produced no evi-
dence that the jurors “knew the victims
or their families, and would sympathize
with them.”
Moore, 935 S.W.2d at 129. On the basis of
this evidence, the trial court agreed with the
state that Moore had not demonstrated such
prejudice that the community had become per
se incapable of yielding an unbiased jury, and
the Court of Criminal Appeals agreed. On
collateral review, the district court determined
that this did not represent an “unreasonable”
determination of the facts, and denied habeas
relief. Because we do not think that any court
could come to a different conclusion, or that
justice would be served by considering this
issue further, we deny COA on this issue.5
5 Moore claims that in considering the question
of venue change on direct appeal, the Court of
Criminal Appeals employed a standard that is con-
trary to clearly established federal law. The stan-
dard explicated by the court was that
the reviewing court determines whether there
existed such a prejudice in the community
that it is doubtful that the defendant received
a fair trial by an impartial jury. Extensive
knowledge in the community of either the
crime or the defendant, without more, is in-
sufficient to render a trial unconstitutional.
Publicity about the case must be pervasive,
prejudicial and inflammatory. Appellant
must demonstrate an “actual, identifiable
prejudice attributable to that publicity on the
part of members of his jury” and that the
prejudicial effect has so permeated the com-
munity that the prospective jurors’ prejudi-
cial opinions cannot be set aside.
(continued...)

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V.
Moore contends we should grant a COA on
the question whether Texas violates the Con-
stitution by refusing to allow its appellate
courts to review the jury’s determination of
whether special mitigating factors exist to sen-
tence a criminal otherwise fully qualified for
death instead to life in prison. This, like the
issues of expert-provision, is a question of law.
The Court of Criminal Appeals explained
that
[i]n Texas, mitigating evidence
is admissible at the punishment
phase of a capital murder trial.
Once admitted, the jury may
then give it weight, if in their
individual minds it is appropri-
ate, when answering the ques-
tions which determine sen-
tence. However, “[t]he a-
mount of weight that the fact-
finder might give any particular
piece of mitigating evidence is
left to ‘the range of judgment
and discretion’ exercised by
each juror.”
Colella [v. State], 915 S.W.2d [834,]
844 [(Tex. Crim. App. 1995)] (citing
Banda v. State, 890 S.W.2d 42, 54
(Tex. Crim. App.1994), cert. denied,
515 U.S. 1105 . . . (1995)). “Mitigating
evidence” is defined as “evidence that a
juror might regard as reducing the defen-
dant’s moral blameworthiness.” TEX.
CODE CRIM. PROC. ANN. art. 37.071,
§ 2(f)(4) (emphasis added). Each juror
individually determines what evidence, if
any, mitigates against the just imposition
of the death sentence. Banda, 890
S.W.2d at 54. “Because the weighing of
‘mitigating evidence’ is a subjective de-
termination undertaken by each individ-
ual juror, we decline to review the evi-
dence for sufficiency.” Colella, 915
S.W.2d at 845. Whether to give partic-
ular evidence a mitigating effect is with-
in the prerogative of individual jurors;
thus, such a determination is unreview-
able.
Moore, 935 S.W.2d at 128.
The Supreme Court requires that a jury’s
determination that a death sentence should is-
sue must be guided by standards and reviewed
by appellate courts to determine its propriety
and non-arbitrariness.6 Moore does not deny
5(...continued)
Moore, 935 S.W.2d at 129 (citations omitted).
Moore argues that this standard does not suffi-
ciently account for the exception to the rule that
actual prejudice on the part of jury members must
be shown.
We agree that the Court of Criminal Appeals
might have explained the standard of review more
plainly. We note, however, that the court explicitly
found that Moore’s “suggestion that the trial court
was prejudiced by community outrage is unsup-
ported” because, largely, of evidence “that the pre-
trial publicity had not been inflammatory or even
excessive.” Id. (emphasis added). Publicity that is
neither inflammatory nor excessive cannot fit with-
in the rule of Rideau as understood in this circuit.
6 See, e.g., Clemons v. Mississippi, 494 U.S.
738, 749 (1990) (stating that “this Court has re-
peatedly emphasized that meaningful appellate re-
view of death sentences promotes reliability and
consistency”); Woodson v. North Carolina, 428
U.S. 280, 302 (1976) (explaining that the Court
had rejected “unbridled jury discretion in the im-
(continued...)

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that Texas provides for appellate review of the
jury’s determination that first-degree murder
has occurred and that a special aggravating
factor exists, and of whether the proper proce-
dures were followed in presenting to the jury
all relevantly offered mitigation evidence in a
separate punishment-phase hearing.
Neither can it be denied that the Court has
approved of state-court appellate review struc-
tures that analyze not only the jury’s guilt and
special-factor determinations, but its weighing
of the mitigation evidence as well. See, e.g.,
Pulley v. Harris, 465 U.S. 37, 51-53 (1984).
In fact, the Court has occasionally used lan-
guage implying that states must review the
jury’s consideration of demonstrated mitigat-
ing factors.
It cannot be gainsaid that meaningful
appellate review requires that the appel-
late court consider the defendant’s ac-
tual record. “What is important . . . is
an individualized determination on the
basis of the character of the individual
and the circumstances of the crime.”
Zant v. Stephens, 462 U.S. 862, 879 . . .
(1983).
Parker v. Dugger, 498 U.S. 308, 321 (1991).
This passing phrase, however, lacks the
force to withstand the much more explicit di-
rectives in Tuilaepa v. California, 512 U.S.
967 (1994), in which the Court distinguished
between a jury’s “eligibility decision,” in which
“the trier of fact must convict the defendant of
murder and find one ‘aggravating circum-
stance’ (or its equivalent),” id. at 971-72, and
its “selection decision,” in which “the senten-
cer determines whether a defendant eligible for
the death penalty should in fact receive it.” Id.
The Court recognized that “separate require-
ments” applied to each decision. Id. It ex-
plained that the selection decision has properly
been made “when the jury can consider rele-
vant mitigating evidence of the character and
record of the defendant and the circumstances
of the crime.” Id.
It is the eligibility decision that, according
to the Court, must be made with maximum
transparency to “make rationally reviewable
the process for imposing a sentence of death.”
Id. at 973. “The selection decision, on the
other hand, requires individualized sentencing
and must be expansive enough to accom-
modate relevant mitigating evidence so as to
assure an assessment of the defendant’s culpa-
bility.” Id.
Because of this concern for expansiveness
in the selection decision, the Court held that
[o]nce the jury finds that the defendant
falls within the legislatively defined cate-
gory of persons eligible for the death
penalty, the jury then is free to consider
a myriad of factors to determine whether
death is the appropriate punishment. In-
deed, the sentencer may be given unbri-
dled discretion in determining whether
the death penalty should be imposed af-
ter it has found that the defendant is a
member of the class made eligible for
that penalty.
Id. at 979-80 (quotation marks, ellipses, and
internal citation information omitted). It is just
6(...continued)
position of capital sentences” and requiring that
juries be provided standards to guide them in their
“inevitable exercise of the power to determine
which first-degree murderers shall live and which
shall die”).

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this narrowly cabined but unbridled discretion
to consider any mitigating factors submitted by
the defendants and weighed as the jury sees fit
that Texas has bestowed upon the jury. In so
doing, Texas followed Supreme Court instruc-
tions to the letter. No court could find that
Texas had acted contrary to federal law as
explained by the Supreme Court, and no bene-
fit will arise from further consideration of the
obvious.
The application for a COA is DENIED.

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