IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 8, 2009
                                       No. 09-70014
                                                                       Charles R. Fulbruge III
                                                                               Clerk



MARTIN ROBLES,

                                                   Petitioner-Appellant,

versus

RICK THALER, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                   Respondent-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 2:07-CV-261




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Martin Robles seeks a certificate of appealability (“COA”) from the denial
of his petition for habeas corpus. We deny his application for a COA.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                         No. 09-70014

                                                I.
      Robles and an accomplice entered a dwelling while the occupants were
asleep and shot and killed two persons. He was convicted of capital murder and
sentenced to death. He appealed to the Texas Court of Criminal Appeals, which
denied his direct appeal and his petition for a writ of habeas corpus. Robles filed
a federal habeas petition, raising due process, Eighth Amendment, and Free Ex-
ercise Clause claims. The district court denied the petition, and he seeks a COA
on his due process and Eighth Amendment claims.


                                               II.
      Under the Antiterrorism and Effective Death Penalty Act of 1996, a peti-
tioner must secure a COA as a “jurisdictional prerequisite” to appealing the de-
nial of habeas relief.1 A COA will be granted only on “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To apply that
standard, however, we conduct only a “threshold inquiry” and must issue a COA
if “reasonable jurists would find the district court’s assessment of the constitu-
tional claims debatable or wrong.” 

(citations and in-
ternal quotations omitted). “Indeed, a claim can be debatable even though every
jurist of reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail.” 

penalty cases, we resolve in the petitioner’s favor any doubt about
whether a COA should issue. Pippin v. Dretke, 

, 787 (5th Cir. 1992).
Nevertheless, “issuance of a COA must not be pro forma or a matter of course,”
and “a prisoner seeking a COA must prove ‘something more than the absence of
frivolity.’” 

(quoting Barefoot v. Estelle, 

, 893 (1983)). Where the district court denies habeas relief on procedural



      1
          Miller-El v. Cockrell, 

(2003); see also 28 U.S.C. § 2253(c)(2).

                                                2
                                 No. 09-70014

grounds without reaching the underlying constitutional claims, the petitioner is
additionally required to show that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDan-
iel, 

, 484 (2000).


                                      III.
      Robles presents three claims of constitutional violation, all of which were
rejected by the district court. Each of those claims requires discussion.


                                       A.
      Robles argues that the death penalty in Texas violates the Eighth Amend-
ment’s prohibition against cruel and unusual punishment and the Fourteenth
Amendment’s guarantee of due process. The district court found that those
claims were procedurally defaulted because Robles failed to raise them on direct
appeal to the Texas Court of Criminal Appeals.
      We find it undebatable among jurists of reason that Robles’s Eighth and
Fourteenth Amendment claims were procedurally defaulted. “When a state
court declines to hear a prisoner’s federal claims because the prisoner failed to
fulfill a state procedural requirement, federal habeas is generally barred if the
state procedural rule is independent and adequate to support the judgement.”
Sayre v. Anderson, 

, 634 (5th Cir. 2001). Where a state prisoner has
defaulted his federal claims in state court pursuant to an independent and ade-
quate state procedural rule, federal habeas review of the claims is barred unless
he “can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thomp-
son, 

, 750 (1991).
      In his federal habeas petition, Robles failed to show cause for his default

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                                  No. 09-70014

and did not claim a fundamental miscarriage of justice. Instead, he now con-
tends that a facial challenge to the Texas death penalty law is structural in na-
ture and can be raised anytime. He cites no authority capable of supporting
such an assertion and offers no other argument for why this court should ignore
the independent and adequate procedural default. It is undebatable among
jurists of reason that the district court was correct in its procedural ruling, and
this conclusion is sufficient to deny a COA on the issue.
      Even assuming arguendo that those constitutional claims have not been
defaulted, Robles fails to raise any constitutional issue the resolution of which
would be debatable among jurists of reason. “We are bound by Supreme Court
precedent which forecloses any argument that the death penalty violates the
Constitution under all circumstance[s].” United States v. Jones, 

,
242 (5th Cir. 1998). Robles does not even attempt to show that the Texas death
penalty law is unconstitutional as applied to him. Instead, he raises only a facial
challengeSSarguing that the death penalty in any form violates the Eighth and
Fourteenth Amendments.
      This court, however, “cannot invalidate the statute on the ground that it
might conceivably be applied to reach an unconstitutional result in some other
defendant’s case.” United States v. Robinson, 

, 290 (citations omit-
ted). To succeed on a facial challenge on grounds other than the First Amend-
ment, Robles must show that “no set of circumstances exists under which the
[challenged statute] would be valid.” United States v. Salerno, 

, 745
(1987). Robles makes no such argument, so even if his claims were not default-
ed, his categorical arguments based on the Eighth and Fourteenth Amendments
fail to raise an issue that is debatable among jurists of reason.


                                        B.
      Robles contends that a grammatical error in the jury charge concerning

                                        4
                                        No. 09-70014

the mitigation special issue violated his constitutional rights, because its phras-
ing could confuse the jury and render them incapable of giving effect to mitigat-
ing evidence. A capital sentencing jury must “be able to consider and give effect
to a defendant’s mitigating evidence in imposing [a] sentence.” Penry v. John-
son, 

, 797 (2001) (internal quotation marks, citations, and brackets
omitted). The trial court instructed the jury as follows:
      You shall consider all evidence admitted at the guilt or innocence
      stage and the punishment stage, including evidence of the defen-
      dant’s background or character or the circumstances of the offense
      that militates for or mitigates against the imposition of the death
      penalty.

Robles argues that the term “mitigates against” is grammatically incorrect and
that this usage error created confusion among jurors such that they were not
able to give effect to mitigating evidence.
      Robles’s claim of grammatical error is correct; grammar, however, is not
the legal standard. An instruction is not unconstitutionally vague if the chal-
lenged term has “some ‘common sense core of meaning . . . that criminal juries
should be capable of understanding.’” Tuilaepa v. California, 

, 973
(1994) (quoting Jurek v. Texas, 

, 279 (1976)). It takes more than
bare grammatical error to render a jury charge constitutionally problematic.
      The term “mitigates against” has the common sense core of meaning neces-
sary to pass constitutional muster. First, the term is pervasive in everyday con-
temporary language. As demonstrated by the government, the pages of popular
periodicals and web sites are replete with its usage. Moreover, it has been used
repeatedly, without apparent vagueness or confusion, in caselaw. The Supreme
Court has employed the phrase freely in a significant number of death penalty
cases.2 Likewise, this court has employed the term without reservation in a

      2
          See, e.g., Abdul-Kabir v. Quarterman, 

, 251 n.13 (2007); Delo v. Lashley,
                                                                                 (continued...)

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                                       No. 09-70014

variety of recent decisions.3 That prevalence, in both everyday usage and legal
precedent, strongly suggests a “common sense core of meaning” that criminal
juries can understand and apply.
       Even without that widespread use, however, the meaning of the phrase re-
mains manifest when read in the context of the full charge. The words “miti-
gates against” follow immediately after the words “militates for.” The sentence
structure suggests a clear contrast and, when read in context, the meaning of the
later term is plain. Common sense suggests a meaning opposed to the words
preceding the disjunctive, and the jury was not likely to be confused by its usage.
The mitigation charge was not unconstitutionally vague, so this issue is not de-
batable among jurists of reason.


                                              C.
       Robles posits that the mitigation instruction placed an unconstitutional
limitation on mitigating evidence. He concedes that the initial jury charge con-
tained the appropriate language required under Texas law, but he argues that
the court’s failure specifically to refer the jury to both relevant sections of the
initial charge when presented with a jury question violated his rights.
       One section of the jury charge during the penalty phase instructed that
“you shall consider mitigating evidence to be evidence that the jury might regard
as reducing a defendant’s moral blameworthiness.” Robles argues that this in-
struction unconstitutionally limited the jury’s consideration of mitigating evi-
dence to that which relates to moral blameworthiness and therefore precluded



       2
        (...continued)

, 281 (1993); Franklin v. Lynaugh, 

, 170, 183, 184 (1988).
       3
        See, e.g., United States v. Alfaro, 

, 500 (5th Cir. 2009); Smith v. Quarter-
man, 

, 412 (5th Cir. 2008); United States v. Arias-Robles, 

, 249
(2007).

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                                   No. 09-70014

consideration of other relevant mitigating evidence. The full charge, however,
specifically instructed the jurors to take into account “all of the evidence, includ-
ing the circumstances of the offense, the defendant’s character and background,
and the personal moral culpability of the defendant.”
      Robles concedes that the full charge was valid but contends that, when the
jury requested clarification of the term “mitigating,” the court improperly point-
ed only to the former provision and neglected to direct the jury’s attention to the
latter. That argument fails to identify any mistake on the part of the trial court,
much less a mistake of constitutional significance.
      “[J]uries are presumed to follow their instructions.” Richardson v. Marsh,

, 211 (1987). Robles contends that the trial court’s narrow response
to the jury’s request for a definition of mitigating evidence created a risk that the
jury would not follow the entire charge. The full charge, however, was properly
administered, and a narrow yet fully accurate response to a jury question will
not upset the presumption that the jury followed its instructions.
      As a response to a specific jury question regarding “mitigation,” the direc-
tion of the jury to the most relevant provision in the punishment charge was per-
fectly reasonable and appropriate. Moreover, there was nothing in that provi-
sion that in any way contradicted the previous instruction to consider “all of the
evidence.” It merely contained the most direct guidance on the definition of miti-
gation and had none of the restrictive implications argued by Robles. Therefore,
this claim in the COA application also fails to raise an issue that is debatable
among jurists of reason.
      The application for a COA is DENIED.




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