Reese v. Dretke

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 10, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10839
LAMONT REESE,
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 Northern District of Texas
(4:03-CV-359-A)
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Lamont Reese requests a certificate of appealability in order
to appeal the federal district court’s denial of habeas relief.
Reese was convicted by a jury and sentenced to death for murdering
Anthony Roney, Riki Jackson, and Alonzo Stewart during the same
criminal transaction. The Texas Court of Criminal Appeals affirmed

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1 Reese v. State, No. 73,989 (Tex. Crim. App. 2002).
2 Reese v. Texas, 123 S.Ct. 2581 (2003).
3 Ex Parte Reese, No. 55,443-01 (Tex. Crim. App. April 30,
2003).
2
Reese’s conviction and sentence on November 6, 2002.1 Reese’s
subsequent petition for certiorari review was denied by the Supreme
Court on June 15, 2003.2
Reese filed an application for writ of habeas corpus in the
trial court. The trial court entered findings of fact and
conclusions of law that were ultimately adopted by the Court of
Criminal Appeals in its written opinion denying Reese’s request for
habeas relief.3 The instant federal habeas proceeding followed.
Reese brings two issues:
Issue One:
Whether the Texas death penalty statute and the imposition of the
death penalty upon the petitioner, who is a mentally retarded
person, is unconstitutional under Atkins v. Virginia, the Eighth
and Fourteenth Amendments of the United States Constitution and
Section 19 of Article 1 of the Texas Constitution in that it would
be cruel and unusual punishment.
Issue Two:
Whether the statute under which petitioner was sentenced to death
is unconstitutional in violation of the due process requirements of
the Fourteenth Amendment because it places the burden of proving

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3
the mitigation special issue on petitioner rather than requiring a
jury finding against petitioner on that issue beyond a reasonable
doubt.
The first issue, to the extent it complains of any failure of
the State of Texas to construct procedural tracks for Atkins, is
meritless. Whatever the State’s obligation, Reese’s retardation
was rejected with abundant record support by the state habeas judge
with findings adopted by the Texas Court of Criminal Appeals.
There is no colorable showing here of retardation.
The second issue apparently attempts to launch an Apprendi-
Ring argument against Texas’s interrogatory submissions. This
argument is also flawed. The jury convicted Reese of capital
murder, here multiple murders in a single transaction. The
contention that mitigating factors are an element of the offense
within the meaning of Apprendi is meritless. The conviction of the
capital crime for which all elements were submitted to the jury for
a decision beyond a reasonable doubt exposed Reese to the death
penalty. Mitigation issues guide the jury in tailoring an
appropriate punishment – the individualized decision.
Judge McBryde filed a carefully drawn memorandum order,
rejecting numerous contentions by Reese, including the two Reese
presents to us. We refuse to issue a certificate of appealability
for essentially the reasons stated in his opinion.

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4
The application for certificate of appealability is DENIED.

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