Shamburger v. Cockrell

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20822
_____________________
RON SCOTT SHAMBURGER,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CV-1868
_________________________________________________________________
March 25, 2002
Before JOLLY, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Ron Scott Shamburger was convicted and sentenced to death in
Texas state court for the murder of Lori Baker during the course of
a burglary of her residence. The Texas Court of Criminal Appeals
affirmed his sentence. After the state courts denied his request
for post-conviction relief, Shamburger filed a habeas petition in
federal district court. The district court also denied relief.
Shamburger now seeks a certificate of appealability (“COA”) from

-- 1 of 11 --

2
this Court on two issues related to the imposition of the death
penalty in his case. Because we find that Shamburger has not made
a substantial showing of the denial of a constitutional right with
respect to either issue, we deny his application for a COA.
I
In 1994, Shamburger became obsessed with the victim, Lori
Baker, while they were both students at Texas A & M University. On
two separate occasions in August and September of 1994, Shamburger
unsuccessfully attempted to burglarize Baker’s home. In late
September 1994, Shamburger succeeded in breaking into Baker’s
house. Several days later, Shamburger returned to Baker’s house
with a can of gasoline, a 9mm semi-automatic pistol, and duct tape.
He entered the house through a window and broke into Baker’s locked
bedroom where she was sleeping. As Shamburger was binding Baker’s
hands together with the duct tape, he heard Baker’s roommate return
home. Shamburger immediately shot Baker in the head and killed
her. Shamburger then located Baker’s roommate, held her at
gunpoint, and locked her in the trunk of her car. After Shamburger
released the roommate some distance away, he returned to Baker’s
house and used the gasoline to light the house on fire in an
attempt to conceal the murder. Later that night, after consulting
with his minister, Shamburger turned himself in to the police and
confessed to Baker’s murder.
At his October 1995 capital murder trial, Shamburger did not
contest his guilt. During the sentencing phase of the trial,

-- 2 of 11 --

3
Shamburger presented a number of witnesses who attested to his good
character. The state countered by emphasizing the nature of the
murder and by presenting evidence of related burglaries and other
misconduct. After hearing this evidence, the jury found that
“there is a probability that the defendant . . . would commit
criminal acts of violence that would constitute a continuing threat
to society.” The jury also found that, “taking into consideration
all of the evidence, including the circumstances of the offense,
the defendant's character and background, and the personal moral
culpability of the defendant,” the mitigating circumstances were
not sufficient to warrant a sentence of life imprisonment rather
than a death sentence. As required by statute, the trial court
sentenced Shamburger to death. He appealed his sentence.
In an unpublished opinion, the Texas Court of Criminal Appeals
affirmed Shamburger’s death sentence based on its determination
that the jury heard sufficient evidence to support its finding on
future dangerousness. The United States Supreme Court denied
certiorari. In 2000, Shamburger filed a petition for post-
conviction relief in state court raising eight claims of error.
The state habeas court recommended that relief be denied, and the
Texas Court of Criminal Appeals adopted that recommendation in July
2000 without a written opinion. After retaining new counsel,
Shamburger filed a federal habeas petition in the Southern District
of Texas. In his petition, Shamburger attacked only his sentence
and raised claims concerning juror bias, improper jury

-- 3 of 11 --

4
instructions, improper remarks by the prosecutor, the introduction
of testimony by the victim’s parents, and the constitutionality of
the Texas death penalty scheme. The district court granted summary
judgment in favor of the government and dismissed Shamburger’s
petition. The court also denied Shamburger’s request for a COA.
Shamburger has now requested a COA from this Court on two issues.
II
Because Shamburger filed his federal habeas petition after
April 24, 1996, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs his case. Under the AEDPA, we may issue a COA
“only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy
this requirement, Shamburger must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473, 482 (2000) (citations
and internal quotation marks omitted). In conducting this inquiry,
we must determine whether reasonable jurists would find debatable
the district court’s conclusion that the state habeas court did not
unreasonably apply clearly established federal law. See Beazley v.
Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S.Ct. 329
(2001); see also 28 U.S.C. § 2254(d) (establishing the standard for
federal habeas review of state court determinations).
Shamburger requests a COA with respect to two issues. First,

-- 4 of 11 --

5
he argues that the Texas Court of Criminal Appeals unreasonably
applied federal law by declining to review the jury’s findings on
mitigating circumstances. Second, Shamburger argues that the
district court erred in holding that his claim of juror misconduct
was procedurally barred. We now turn to address whether Shamburger
is entitled to a COA on either of these claims.
A
During the sentencing phase of his trial, Shamburger presented
the testimony of various teachers, ministers, and other community
leaders as evidence of his good character and his service to the
community. The jury nevertheless found that Shamburger’s character
and background were not mitigating circumstances sufficient to
warrant a sentence of life imprisonment instead of a death
sentence. The Court of Criminal Appeals did not specifically
review this finding to determine whether it was consistent with the
evidence presented at trial and, instead, confined its review to
the sufficiency of the evidence supporting the jury’s future
dangerousness finding. This review was consistent with the court’s
position that it is impossible to review the sufficiency of the
evidence concerning mitigation because “the weighing of ‘mitigating
evidence’ is a subjective determination undertaken by each
individual juror.” Colella v. Texas, 915 S.W.2d 834, 845
(Tex.Crim.App. 1995) (en banc); McFarland v. Texas, 928 S.W.2d
482, 498 (Tex.Crim.App. 1996) (en banc), cert. denied, 519 U.S.
1119 (1997). Because the Texas death penalty statute authorizes a

-- 5 of 11 --

1 The Texas death penalty statute does not require the jury or
the appellate court to “weigh” the aggravating factors against the
mitigating factors before imposing a death sentence. See Hughes v.
Johnson, 191 F.3d 607, 623 (5th Cir. 1999).
2 The state also argues that (1) this argument is procedurally
barred because Shamburger did not present it “in its present form”
to the state court and (2) Shamburger’s argument is based on a
proposed constitutional rule that was not in effect at the time of
his conviction as required by Teague v. Lane, 489 U.S. 288, 301
(1989). Because we find that Shamburger’s argument is foreclosed by
our precedent, we do not address these arguments.
3 Parker v. Dugger, 498 U.S. 308, 321 (1991) (“We have
emphasized repeatedly the crucial role of meaningful appellate
review in ensuring that the death penalty is not imposed
arbitrarily or irrationally.”); Clemons v. Mississippi, 494 U.S.
738, 748-50 (1990) (same).
6
death sentence only where the jury finds insufficient mitigating
circumstances, however, Shamburger argues that the Court of
Criminal Appeals is obligated to review the mitigation evidence
presented at trial to ensure that the jury’s finding was not
arbitrary. Shamburger argues that the appellate court’s refusal to
conduct a separate review of the jury’s mitigation finding deprived
him of his right to “meaningful appellate review” of the jury’s
sentencing decision.1 The state responds that Shamburger does not
have a constitutional right to appellate review of mitigation
evidence.2
We have already decided this issue. Although a defendant in
a capital case is entitled to “meaningful appellate review” of a
death sentence under the Eighth and Fourteenth Amendments,3
appellate courts are not required to conduct an independent review
of the jury’s mitigation finding. Specifically, we have held that

-- 6 of 11 --

4 See also Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.
1999) (rejecting the argument that “the Court of Criminal Appeals's
refusal to review the mitigating factors independently violated his
right to ‘meaningful appellate review of his death sentence’ under
the Constitution”), cert. denied, 528 U.S. 1145 (2000); Martinez v.
Johnson, 255 F.3d 229, 241 n.17 (5th Cir. 2001) (“[T]he Eighth and
Fourteenth Amendments impose a constitutional floor on the
sufficiency of evidence required to sustain the jury's verdict on
the special issue of future dangerousness.” (emphasis added)).
5 The court considered Shamburger’s mitigation evidence in the
course of comparing the circumstances of this case to cases in
which the state presented insufficient evidence of future
dangerousness. The court’s analysis makes it clear that
Shamburger’s sentence was not arbitrarily imposed or
disproportionately severe compared with those cases.
7
a state appellate court satisfies the requirements under the
federal constitution if it provides a meaningful review of the
evidence of future dangerousness. See Beazley v. Johnson, 242 F.3d
248, 261 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001).4
In the present case, the Texas Court of Criminal Appeals
reviewed the sufficiency of the evidence supporting the jury’s
finding on future dangerousness, which included consideration of
the mitigation evidence presented at trial.5 This review of the
trial record provided an “‘individualized determination on the
basis of the character of the individual and the circumstances of
the crime’” and therefore satisfied the requirements of the Eighth
and Fourteenth Amendments. Parker, 498 U.S. at 321 (citations
omitted). Accordingly, we agree with the district court that
Shamburger has not made a substantial showing of the denial of his
constitutional rights and is not entitled to a COA on this issue.
B

-- 7 of 11 --

6 Shamburger asserts that, shortly before trial, a religious
advisor instructed one of the jurors to sentence Shamburger to
death if the juror concluded that he was guilty of murder.
Following this advice, the juror allegedly refused to consider any
mitigating evidence and believed that he was bound to vote for the
death penalty “based on scripture” once Shamburger conceded guilt.
8
Shamburger also argues that one of the jurors who participated
in the sentencing phase of his trial engaged in serious misconduct
and refused to consider the mitigation evidence presented at
trial.6 Shamburger concedes that he has not exhausted state
remedies on this claim because he did not raise it in his direct
appeal or in his state habeas petition. As a result, we may
consider the claim only if Shamburger can show cause for his
procedural default -- that is, he must show that “some objective
factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986).
Reduced to its essence, Shamburger’s argument is that his
habeas counsel was ineffective because he failed to conduct an
investigation that would have revealed the alleged juror
misconduct. Although an attorney’s error may constitute cause for
a procedural default if the error is serious enough to constitute
a violation of the defendant’s Sixth Amendment right to effective
assistance of counsel, see Coleman v. Thompson, 501 U.S. 722, 753-
54 (1991), the Sixth Amendment does not apply in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555-56

-- 8 of 11 --

7 See also Coleman, 501 U.S. at 752 (“There is no
constitutional right to an attorney in state post-conviction
proceedings. . . . Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such
proceedings.” (citations omitted)).
8 See also Coleman, 501 U.S. at 753-54 (“In the absence of a
constitutional violation [of the Sixth Amendment right to effective
assistance of counsel], the petitioner bears the risk in federal
habeas for all attorney errors made in the course of the
representation.”). Shamburger also argues that this case presents
a question not decided by Coleman: Do petitioners have a right to
effective assistance of counsel in the first forum in which a
federal claim can be raised? As Shamburger concedes, however, this
argument is foreclosed by our precedent. See Martinez v. Johnson,
255 F.3d 229, 240-41 (5th Cir. 2001) (rejecting petitioner’s claim
that he had a “constitutional right to effective assistance of
counsel in his first state habeas corpus proceeding so that he
could raise his claims of ineffective assistance of trial
counsel”).
9 At the time of Shamburger’s petition, the applicable Texas
statute provided up to $15,000 to compensate state habeas counsel.
Texas now provides up to $25,000 for this purpose. See Tex. Code
9
(1987).7 It follows that the ineffectiveness of state habeas
counsel cannot excuse a petitioner’s failure to exhaust state
remedies before raising a claim in a federal habeas petition. See
Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (“[W]e easily
conclude that the district court properly dismissed, as without
merit, any claim of ineffective assistance of habeas counsel as
‘cause’ for procedural default.”).8
Shamburger nevertheless argues that his procedural default
should be excused because the ineffectiveness of his state habeas
counsel was attributable to an external impediment: the state’s
“arbitrary” limitation on the funds available to compensate counsel
in state court post-conviction proceedings.9 Because this

-- 9 of 11 --

Crim. Proc. art. 11.071 § 2A(a).
10
limitation nullified his state law right to competent counsel, see
Tex. Code Crim. Proc. art. 11.071 § 2(a), Shamburger also contends
that he was deprived of meaningful access to the courts and due
process of law.
These arguments, too, are foreclosed by precedent. As noted
above, petitioners do not have a federal constitutional right to
effective habeas counsel -- even where they have a state law right
to counsel in post-conviction proceedings. See Finley, 481 U.S. at
555-56. Stated differently, Shamburger had no federal right to
funding (adequate or otherwise) for his state habeas petition. The
alleged inadequacies of the Texas compensation scheme for habeas
counsel therefore do not violate any federal constitutional right
and cannot constitute cause for Shamburger’s failure to raise his
juror misconduct claim in his state habeas petition. See Beazley
v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (“‘[I]nfirmities in
state habeas proceedings do not constitute grounds for relief in
federal court.’” (citation omitted)). Because Shamburger shows no
deprivation of a federal constitutional right to effective
assistance of counsel, we agree with the district court that his
juror misconduct claim is procedurally barred in these proceedings.
IV
For the reasons set out above, we conclude that Shamburger has
not made a substantial showing of the denial of a constitutional

-- 10 of 11 --

11
right, as required by 28 U.S.C. § 2253(c)(2). Accordingly,
Shamburger’s request for a COA on each of his two claims is
DENIED.

-- 11 of 11 --