Jones v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41459
_______________
ANZEL KEON JONES,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent -Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 6:99-CV-660
_________________________
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Anzel Jones appeals the denial of his peti-
tion for writ of habeas corpus sought pursuant
to the Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254. We affirm.
I.
In 1995, Jones entered the residence of
Edith Jones (“the mother”), age 72, and her
daughter Sherry Jones (“the daughter”),
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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age 49.1 Armed with a gun and a knife, Jones
beat and tortured both women, then confined
the mother in a closet while he continued to
beat the daughter. The mother escaped from
the closet and ran for the back door, but Jones
caught her before she could escape. He then
killed the daughter by stabbing her in the heart
and slitting her throat as her mother watched.
He raped the mother; then stabbed her in the
chest, slit her throat, and set the house on fire.
The mother survived by crawling outside the
burning house, where a neighbor saw her and
called authorities.
Jones’s fingerprint was found on a bottle of
fingernail polish found in the house; his DNA
matched the DNA found in semen swabbed
from the mother’s mouth; the mother’s blood
was found on his clothing; and the daughter’s
blood was fo und on his shoes. Though the
mother could not positively identify Jones be-
cause of poor eyesight, she did select his pic-
ture from an array of twelve photographs as
most resembling her attacker. Joe Dollins,
Jones’s best friend, testified that Jones had
confessed to the crime.
Jones was found guilty of capital murder.
At the penalty phase, the jury found that there
was a probability that he would constitute a
continuing threat to society and that there was
insufficient evidence of mitigating circum-
stances to preclude a death sentence.
II.
Jones argues that he had ineffective assis-
tance of counsel at trial because, in question-
ing Dollins, his attorney opened the door to
testimony of a collateral offense. Jones’s
counsel tried to impeach Dollins’s testimony
that Jones had confessed to the murder, using
statements made by Dollins claiming no
knowledge of the crime. After introducing the
inconsistent statements, counsel asked, “Well,
Mr. Dollins, tell this jury what suddenly caused
you on the 17th to finally tell the story that
you are now telling us is the truth?”
Dollins responded that the police had con-
fronted him with a letter indicating that Dollins
and Jones had conspired to kill Dollins’s father
and brother. On redirect, the court allowed
the state to have Dollins read the letter, which
described a murder plan in detail, with most of
the crime to be carried out by Jones. Dollins
also testified that he and Jones had discussed
the plan and that Jones was willing to commit
the crime.
In the district court, Jones argued that this
questioning was ineffective, because counsel
could have structured the questions so as to
impeach Dollins without opening the door to
the letter, and this prejudiced the verdict. The
court agreed that Jones’s counsel performed
deficiently under Strickland v. Washington,
466 U.S. 668 (1984), but opined that Jones
had failed to meet the second prong of Wash-
ington requiring a showing of prejudice.
Jones asserts that he has demonstrated pre-
judice, because the admission of the letter and
related testimony eliminated “residual doubt”
that Jones was the murderer and supported the
state’s case that Jones could represent a future
danger, bo th of which might have caused the
jury to impose the death sentence. The state
argues that Jones did not raise this argument
before the district court, that trial counsel’s
performance was not deficient, and that any
error was not prejudicial.
1 Jones was not related to the victims.

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A.
We review the district court’s factual find-
ings for clear error and its determinations of
law de novo. Evans v. Cockrell, 285 F.3d
370, 374 (5th Cir. 2002). Jones’s petition for
habeas relief is governed by the heightened
standard of review provided by AEDPA,
which “‘substantially restricts the scope of
federal review of state criminal court proceed-
ings.’” Id. (quoting Montoya v. Johnson, 226
F.3d 399, 404 (5th Cir. 2000)); Wiggins v.
Smith, 123 S. Ct. 2527, 2534 (2003). Under
the Act,
neither the district court nor this Court
may grant a writ of habeas corpus based
solely on a finding of error by a state
court. Rather, a writ may be granted
only if a state court arrives at a conclu-
sion opposite to that reached by the Su-
preme Court on a question of law or if
the state court decides a case differently
than [sic] the Supreme Court has on a
set of materially indistinguishable facts.
Without such a direct conflict, a writ
will be granted only if the state court
identifies the correct governing legal
principle from the Supreme Court’s de-
cisions but unreasonably applies that
principle to the facts of the prisoner’s
case.
Evans, 285 F.3d at 374-75 (citations and
punctuation omitted).
B.
The state contends that Jones has never be-
fore raised this argument as it relates to the
penalty phase, but rather has argued only that
the questioning prejudiced the guilt/innocence
phase. Jones now disclaims any argument that
the Dollins questioning prejudiced the verdict,
but does claim that it reduced residual doubt
about innocence and supported a finding of fu-
ture dangerousness sufficient to prejudice the
sentencing.
The argument Jones now presents is not
properly before us. In his state habeas peti-
tion, Jones argued that ineffective cross-exam-
ination of Dollins “deprived Applicant of a fair
trial in which the jury was to determine his
guilt or innocence of the offense changed in
the indictment.” Jones now contends that al-
though the petition did not address prejudice
as it related to sentencing, it also did not “limit
the effect of that error to the guilt phase ver-
dict.”
In his federal habeas petition, Jones again
failed to argue that the prejudice applied to
sentencing; rather, he asserted that it “under-
mined the guilt phase theory that the state’s
evidence failed to establish that Mr. Jones
killed Sherry Jones.” None of the words that
might imply an argument based on a prejudice
to sentencingSSsuch as sentencing, penalty
phase, residual doubt, or future dangerous-
nessSSappears in either petition’s discussion of
the Dollins questioning.2
Jones’s contention that the issue was raised
in the district court essentially rests on the no-
tion that his previous argument did not ex-
pressly contradict the argument he now raises.
Though this is debatable, we find it beyond
question that Jones’s petitions before the state
2 In his response to the state’s motion for sum-
mary judgment, Jones attempted, unconvincingly,
to recast his argument as relating to “[r]esidual
doubt, or lack of certainty about whether a person
actually killed the victim of a capital murder,
[which] is often a powerful basis for a jury to de-
cide not to impose death.” This marked the first
appearance of this argument.

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and district courts did not actually make the
argument. We are precluded from considering
the claim, because Jones did not raise it prop-
erly before the district court. Beazley v. John-
son, 242 F.3d 248, 271 (5th Cir. 2001) (stat-
ing that issues not raised in habeas proceedings
before the district court cannot be considered
on appeal).3
Even were we to find that Jones’s response
to summary judgment was sufficient to raise
the argument in the district court, it was also
not raised in state court. A claim is procedur-
ally defaulted if a petitioner has failed to ex-
haust all available state remedies, and the state
court to which he would be required to peti-
tion would now find that the claim is proce-
durally defaulted. Bledsoe v. Johnson, 188
F.3d 250, 254 (5th Cir. 1999). The Texas
Code of Criminal Procedure prohibits the filing
of subsequent or untimely habeas applications,
absent a demonstration of cause or actual in-
nocence. See TEX. CODE CRIM. PROC. art
11.071 § 5(a); Ex parte Davis, 947 S.W.2d
216 (Tex. Crim. App. 1996) (en banc) (up-
holding the constitutionality of art. 11.071).
Jones does not claim that he meets these ex-
ceptions; we find that he cannot, and therefore
his claim is procedurally barred.
III.
Jones argues that the testimony of Royce
Smithey at the sentencing phase prejudiced his
sentencing and denied him his right to an indi-
vidualized sentencing determination required
under the Eighth Amendment, as explicated in
Enmund v. Florida, 458 U.S. 782 (1982).
Smithey testified that a prisoner in another
Texas county, serving a life sentence for a cap-
ital murder conviction, escaped from a work-
release program. Though the Texas Court of
Criminal Appeals decided that the evidence
was irrelevant to the sentencing determination
and should not have been admitted over
Jones’s objection, it found the admission
harmless. The district court held the denial of
this claim was “neither contrary to, nor an
unreasonable application of, any clearly es-
tablished federal law,” see Wiggins, 123 S. Ct.
at 2534, and granted summary judgment; in
doing so, it addressed Jones’s Eighth Amend-
ment argument and found it to be without
merit.
Jones challenges this decision, arguing that
the decision of the Court of Criminal Appeals
was objectively unreasonable “because it failed
to take into account the profound effect the
prospect of an easy escape would have had on
the jurors’ assessment of Anzel Jones’s future
dangerousness.” We disagree that the decision
was objectively unreasonable.
A.
We first consider how Jones’s failure to ex-
haust this claim affects our review. On direct
appeal before the Court of Criminal Appeals,
Jones’s claim with respect to this evidence was
based entirely on the argument that the ev-
idence was not relevant under TEX. R. CRIM.
EVID. 401 and 402 and was prejudicial. His
arguments did not touch upon the Constitution
generally or the Eighth Amendment par-
ticularly, and he did not cite Enmund or any of
the other cases he relies on in his argument
3 It is the petitioner’s burden under Washington
to show that trial counsel’s errors were so serious
that they rendered the proceedings unfair or the re-
sult unreliable. Hopkins v. Cockrell, 325 F.3d
579, 586 (5th Cir. 2003); see Wiggins, 123 S. Ct.
at 2535. A petitioner who fails even to indicate
that prejudice influenced a given phase of a pro-
ceeding cannot be said to have raised the argument
with respect to that phase, and much less to have
met his burden under Washington.

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before this court. “[W]here petitioner ad-
vances in federal court an argument based on
a legal theory distinct from that relied upon in
the state court, he fails to satisfy the
exhaustion requirement.” Henry v. Cockrell,
327 F.3d 429, 432 (5th Cir. 2003) ) (citations
and quotation marks omitted). “It is not
enough that all the facts necessary to support
the federal claim were before the state courts
or that a somewhat similar state-law claim
was made.” Anderson v. Harless, 459 U.S.
4, 6 (1982) (internal citation omitted)
(emphasis added).
Though the state has not addressed Jones’s
failure to exhaust this claim, we raise the issue
sua sponte, because 28 U.S.C. § 2254(b)-
(1)(A) precludes granting a habeas petition un-
less the state, through counsel, has expressly
waived the exhaustion requirement. Although
the state has not done so here, “[a]n
application for a writ of habeas corpus may be
denied on the merits, notwithstanding the fail-
ure of the applicant to exhaust the remedies
available in the courts of the State.” § 2254-
(b)(2).
When we consider a claim that has not been
adjudicated on the merits by a state court, our
review is governed by Teague v. Lane, 489
U.S. 288 (1989). See Daniel v. Cockrell, 283
F.3d 697, 702 (5th Cir.), cert. denied, 123 S.
Ct. 286 (2002). Teague held that a federal
court may not create or apply new
constitutional rules on habeas review. The
Teague analysis involves three determinations:
(1) when the conviction became final; (2)
whether a state court considering the federal
claim when the conviction became final would
have felt compelled by existing precedent to
apply the rule the applicant now seeks; and (3)
if the applicant seeks to apply a new rule,
whether that rule falls within one of the narrow
exceptions to the non-retroactivity principle.
Id. at 705 (citations omitted). Jones did not
petition the Supreme Court for a writ of
certiorari on direct appeal, so his conviction
and sentence became final in 1999, after the
time for filing such a petition had elapsed.
Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.
1999).
B.
Enmund requires, 458 U.S. at 801, that, in
death penalty cases, punishment must be tai-
lored to the offender’s personal responsibility
and moral guilt. Enmund forbids the
imposition of the death penalty for a defendant
“who aids and abets a felony in the course of
which a murder is committed by others but
who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal
force will be employed.” Id. at 797. In Booth
v. Maryland, 482 U.S. 496, 504, 509 (1987),
another case cited by Jones, the Court rejected
the requirement of a state statute that the jury
consider a victim impact statement, finding
that it impermissibly took the focus of
sentencing away from the defendant and
placed it on “the character and reputation of
the victim and the effect on his family” and
their “emotionally charged opinions as to what
conclusions the jury should draw from the
evidence . . .”
Jones argues not that Texas’s death penalty
procedure is inadequate under the Eighth
Amendment,4 but rather that the improper ad
4 “The Texas capital-sentencing procedure
guides and focuses the jury’s objective consid-
eration of the particularized circumstances of the
individual offense and the individual offender be-
fore it can impose a sentence of death.” Jurek v.
Texas, 428 U.S. 262, 274 (1976). With the excep-
(continued...)

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mission of evidence within that proceeding in-
appropriately influenced the jury’s
determination of future dangerousness in a
manner unrelated to his personal responsibility
or guilt. This argument is akin to that raised
by the petitioner in Romano v. Oklahoma, 512
U.S. 1, 10-11 (1994), who argued that the
jury’s consideration of irrelevant evidenceSSin
that case the fact that the petitioner had
received a death sentence for a prior, separate
murder convictionSS”rendered his sentencing
proceeding so unreliable that the proceeding
violated the Eighth Amendment.” The Court
held “[t]hat the evidence may have been
irrelevant as a matter of state law, however,
does not render its admission federal
constitutional error.” Id. at 10. It rejected the
“proposition that the mere admission of
irrelevant and prejudicial evidence requires the
overturning of a death sentence,” affirming the
state appellate court’s determination that the
death penalty was warranted and supported
despite the improper admission. Id. at 11.
Concluding its discussion of the argument, the
Court held:
Petitioner’s argument, pared down,
seems to be a request that we fashion
general evidentiary rules, under the
guise of interpreting the Eighth
Amendment, which would govern the
admissibility of evidence at capital
sentencing proceedings. We have not
done so in the past, however, and we
will not do so today. The Eighth
Amendment does not establish a federal
code of evidence to supersede state
evidentiary rules in capital sentencing
proceedings.
Id. at 11-12 (emphasis added).
Given that the Court found no Eighth
Amendment violation in Romano, Jones has
not demonstrated an Eighth Amendment claim
under the facts before us. If anything, the
evidence considered here has even fewer
Eighth Amendment implications than did that
considered in Romano.5 A Texas court
considering Jones’s federal claim in 1999
would not have felt compelled by existing pre-
cedent to find an Eighth Amendment violation,
and accordingly we deny the claim.6
4 (...continued)
tion of a modification taken by the Texas legis-
lature to respond to Penry v. Lynaugh, 492 U.S.
302 (1989), “Texas’ death penalty scheme sub-
stantively is the same as the one the United States
Supreme Court upheld in Jurek[.]” Cockrell v.
State, 933 S.W.2d 73, 92-93 (Tex. Crim. App.
1996).
5 Though the Court in Romano did weigh the
prejudice of the remarks against the remaining un-
tainted evidence, it did so when considering the pe-
titioner’s alternative argument “that the introduc-
tion of the evidence in question violated the Due
Process Clause of the Fourteenth Amendment.”
Romano, 512 U.S. at 12-14. Jones has not raised
an argument based on the Due Process Clause, and
therefore we need not engage in such a weighing.
6 To the extent that Jones seeks the application
of a new rule that extends beyond the mandates or
relevant precedent, it plainly would not meet either
narrow exception to retroactivity laid out in
Teague. See Daniel, 283 F.3d at 708 (“The two
exceptions are for new rules that: (1) place certain
kinds of primary, private individual conduct be-
yond the power of the criminal law-making au-
thority to proscribe; or (2) are implicit in the con-
cept of ordered liberty.”) (quotation marks
omitted).

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IV.
Jones contends that the death penalty, as
applied to a seventeen-year-old, violates the
Eighth and Fourteenth Amendments. The
state argues, inter alia, that we should affirm
the district court, which found the claim pro-
cedurally barred because petitioner did not
present it to the Court of Criminal Appeals.
Jones does not address this holding, and we
find nothing in the record to undermine it.7
V.
Jones argues that he had ineffective
assistance at trial because counsel failed
adequately to develop and present evidence of
mental health problems that could have
mitigated against a death sentence. Jones
admits that the claim is unexhausted, because
he failed to raise it in state habeas proceedings,
and further concedes that he could not satisfy
the state’s requirements for filing a second
habeas application. See TEX. CODE CRIM.
PROC. art 11.071 § 5(a). He contends,
however, that counsel’s failure to raise the
issue in his state habeas application, together
with the refusal of the Court of Criminal
Appeals to allow a second filing, meets the
requirements of § 2254(b)(1)(B)(ii), which
allows a grant of a writ of habeas corpus
where “circumstances exist that render [state
corrective] process ineffective to protect the
rights of the applicant.”
Jones notes that Texas’s 1995 Habeas Cor-
pus Reform Act (“Reform Act”) provides that
“an applicant shall be represented by
competent counsel unless the applicant has
elected to proceed pro se . . . .” TEX. CODE
CRIM. PROC. ART. 11.071 § 2(a). Because
state habeas counsel failed to raise the
argument Jones wishes to assert here, Jones
reasons that Texas failed to meet its burden to
provide competent counsel, and therefore the
process was ineffective to protect his rights.
The district court rejected this argument and
found that it is procedurally barred.
Failure to exhaust under § 2254(b)(1)(B)(i)
cannot be excused by arguing that appointed
state habeas counsel provided ineffective as-
sistance. Martinez v. Johnson, 255 F.3d 229,
240-41 (5th Cir. 2001). Moreover, “failure to
provide ‘competent’ counsel for a state habeas
petition does not fall under the general catchall
exception provided in 28 U.S.C. § 2254(b)(1)-
(B)(ii).” Id. at 238 n.10.8 Jones argues that
we provided insufficient reasoning in Mar-
tinez, suggesting that perhaps the court mis-
understood the contention, and urges that we
“should fairly address the argument.” But,
absent “an intervening contrary or superseding
decision by this court sitting en banc or by the
United States Supreme Court, a panel cannot
overrule a prior panel’s decision.” Burge v.
Parish of St. Tammany, 187 F.3d 452, 466
(5th Cir. 1999). Under Martinez, Jones’s
claim is procedurally barred.
7 This argument also is foreclosed by precedent.
See Beazley, 242 F.3d at 268-69 (citing Stanford
v. Kentucky, 492 U.S. 361, 370-73 (1989)).
8 Furthermore, the statutory right created in
TEX. CODE CRIM. PROC. art. 11.071 § 2(a) relates
to “habeas counsel’s qualifications, experience, and
abilities at the time of his appointment,” not “the
final product of representation.” Ex parte Graves,
70 S.W.3d 103, 113-14 (Tex. Crim. App. 2002).
Jones’s argument rests entirely on state habeas
counsel’s inadequate representation in failing to
raise a particular claim; he makes no arguments as
to counsel’s general competence. Therefore, to the
extent that Jones’s argument rests on the guar-
antees of the Reform Act, his reliance is misplaced,
because we defer to the Court of Criminal Appeals’
interpretation of a Texas statute.

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AFFIRMED.

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