JERRY E. SMITH, Circuit Judge:
A jury found Kent Sprouse guilty of the capital murder of a police officer, and he
In 2002, Sprouse entered a convenience store with a shotgun hung over his shoulder and, after returning to his vehicle, fired his weapon in the direction of two men. Then another customer saw Sprouse working on his vehicle and Pedro Moreno, yet another customer, filling his truck with gas. The customer noticed Sprouse attempting to speak to Moreno, who did not respond. Sprouse then reached into his vehicle, pulled out a gun, and shot and killed Moreno.
Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle, responded to the shooting. When he arrived, before turning toward Sprouse's car, he noticed Moreno on the ground. As he turned, Sprouse shot him twice. Steinfeldt returned fire but died from his injuries. A second officer arrived and took Sprouse into custody. Sprouse was transported to a nearby hospital, where a doctor thought he was under the influence of drugs. Testing revealed he had consumed amphetamines, methamphetamines, and cannabis within the past forty-eight hours.
Sprouse was indicted for capital murder of a police officer. His lawyer filed notice of intent to present an insanity defense. The issue of intoxication — both as an affirmative defense and as mitigating evidence — was raised with several potential jurors during voir dire. Specifically, the prosecutor questioned two jurors who were chosen — Ruby Martinez
At the close of the guilt phase, the jury was instructed on insanity
At the close of the punishment phase, the jury was given three general instructions regarding mitigating evidence. First, it was instructed on what constitutes "mitigating evidence."
Additionally, the court told the jury to answer the mitigation special issue: "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, do you find that there is sufficient mitigating ... circumstances to warrant that a sentence of life imprisonment rather than death be imposed?" Finally, the jury was given a catch-all instruction on mitigation: "You are to consider all evidence submitted to you during the whole trial as to defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty."
At the close of the punishment phase, during his initial closing argument
The TCCA affirmed on direct appeal. See Sprouse v. State, No. AP-4933, 2007 WL 283152, at *9 (Tex.Crim.App. Jan. 31, 2007). In deciding numerous issues raised on state habeas, the state trial court rejected the argument Sprouse presses on appeal,
Pursuant to 28 U.S.C. § 2254, Sprouse filed the instant petition, which the district court denied but granted a COA on the following issue: "Whether the jury instruction on intoxication during the punishment phase violated the Eighth Amendment, and whether counsel's failure to object or preserve it constituted ineffective assistance of trial counsel and/or appellate counsel."
In determining that reasonable jurists would find that issue debatable, the district court first recognized that Fifth Circuit caselaw foreclosed Sprouse's contention.
The district court denied a COA on all other issues raised in the motion. Sprouse appeals the Eighth Amendment issue and seeks COAs on five others.
"In a habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de
28 U.S.C. § 2254(d) (2012). We consider a state court decision to be "contrary to" clearly established Federal law
Id. at 407, 120 S.Ct. 1495.
Even if a state court errs in applying Supreme Court precedent, the court may still not have acted unreasonably for AEDPA purposes. See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by th[e] [Supreme] Court." Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).
Attempting to bypass this deferential standard, Sprouse challenges the constitutionality of § 2254(d).
Sprouse maintains that the voluntary-intoxication instruction required by Texas Penal Code § 8.04 unconstitutionally limited the jury's ability to consider mitigating evidence. Because the instruction could have just stated "Intoxication may be considered in mitigation" as opposed to "Evidence of temporary insanity caused by intoxication may be considered in mitigation," Sprouse contends that "[t]he jury must necessarily have been led to believe that they could not consider intoxication alone for mitigation." He avers that the negative implication of this instruction trumps or else contradicts the catch-all mitigation instruction and the mitigation special issue. In this vein, Sprouse urges that the state court unreasonably applied Penry I, Boyde, and Penry II.
Before specifically addressing Sprouse's position, we turn to the three Supreme Court cases on which he principally relies. In Penry I, the Supreme Court granted the habeas petition, holding that the Texas death-penalty statute had been applied unconstitutionally in that case. Because the Court was reviewing the habeas petition, it began by assessing the clear Supreme Court precedent available to the state court when Penry's conviction became final:
Penry I, 492 U.S. at 318, 109 S.Ct. 2934.
That is, the Eighth Amendment requires that a capital sentencing jury not be precluded from considering, as a mitigating factor, the character and record of the individual defendant and the circumstances of the particular offense. The Court in Penry I noted that the jury was not given any specific mitigation instruction,
At Penry's second sentencing trial, the state court, attempting to abide by Penry I, gave a supplemental instruction on mitigation. Penry II, 532 U.S. at 789-90, 121 S.Ct. 1910. If the jury believed that the mitigating evidence warranted a life sentence instead of death, it was directed to make a negative finding to one of the special issues even if it had already answered yes to that question. The mitigation instruction did not include a separate question for the jury.
The Supreme Court first emphasized its holding in Penry I:
Id. at 797, 121 S.Ct. 1910 (quoting Penry I, 492 U.S. at 319, 109 S.Ct. 2934). Having established that frame-work, the Court considered two possible ways of interpreting the "confusing instruction" and concluded that neither understanding satisfied its command in Penry I: (1) If the instruction was "understood as telling the jurors to take Penry's mitigating evidence into account in determining their truthful answers to each special issue ... the supplemental instruction placed the jury in no better position than was the jury in Penry I." Id. at 798, 121 S.Ct. 1910. (2) Alternatively, the instruction could be understood "as informing the jury that it could `simply answer one of the special issues `no' if it believed that mitigating circumstances made a life sentence ... appropriate ... regardless of its initial answers to the questions.'" Id. (citations omitted). This approach, however, "made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation." Id. at 799, 121 S.Ct. 1910. Therefore, under either approach, "[a]lthough the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical." Id. at 804, 121 S.Ct. 1910.
Finally, Boyde sets the standard for reviewing a claim of jury-charge error: A federal habeas court must ask "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380, 110 S.Ct. 1190. Two observations underpin that standard: (1) "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that
To obtain relief, Sprouse must establish that the state court unreasonably applied Penry I, Boyde, and Penry II. First, the state court had good reason to distinguish Sprouse's case from Penry I and Penry II. Unlike the situation in Penry I, the state court here instructed the jury with a specific mitigating special issue. And unlike the circumstance in Penry II, Sprouse's jury was given a separate special issue, which, as a discrete yes-or-no question, plainly specified the mechanism by which the jury could give effect to any mitigating circumstances it wished to consider. Put otherwise, the fact that Sprouse perceives a negative inference in one sentence of his jury charge does not demonstrate that his jury was confused about, and precluded from following, the comprehensive and catch-all affirmative command to the jury to consider mitigation circumstances.
Second, Sprouse has not demonstrated that the state court's reliance on precedent was itself unreasonable. Although it is true that Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997), and Drinkard preceded Penry II, that fact alone does make the state court's reliance unreasonable. For this reliance to be unreasonable, Sprouse would need to demonstrate that Boyde, Penry I, or Penry II squarely establishes a specific legal rule that Cantu and Drinkard violate.
In Cantu, the TCCA assessed the very conflict at issue here: "[The defendant] contends[ ] evidence of intoxication which did not rise to this level was precluded from being afforded mitigating effect in violation of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)." Cantu, 939 S.W.2d at 647. In light of the fact that an unambiguous, separate mitigation catch-all instruction was given, the court rejected the petitioner's arguments: "We hold that the inclusion of the latter instruction satisfied the constitutional deficiency appellant avers was created by the inclusion of the intoxication instruction. Thus, no egregious harm, if any harm at all, can be established." Id. at 647-48.
And in Drinkard, 97 F.3d at 759, we assessed a similar instruction.
In both Cantu and Drinkard, the trial court instructed the jury with a clear, separate mitigation instruction. In neither case was the jury required to take "mitigating evidence into account in determining their truthful answers to each special issue" or "simply [to] answer one of the special issues `no' if it believed that mitigating circumstances made a life sentence appropriate." Cantu and Drinkard therefore did not involve juries that were precluded from considering mitigating evidence in the manner at issue in Penry I or Penry II. Because those decisions do not necessarily violate any rule squarely established by Boyde, Penry I, or Penry II, for purposes of AEDPA, the state court's reliance on them was not unreasonable.
Third, other Fifth Circuit cases (not cited by the state court) further demonstrate that the state court's decision was not unreasonable. In Narvaiz, 134 F.3d at 692, for example, we addressed an instruction identical to the one here. And there, following Drinkard, we rejected the same Eighth Amendment argument Sprouse presses. See id. at 694.
Finally, Sprouse maintains that his case can be distinguished from Drinkard and Narvaiz on three grounds: (1) the additional first sentence given in his case that was not given Drinkard; (2) the prosecutor's statements made during voir dire to two chosen jurors (which were not made in Drinkard or Narvaiz); and (3) the prosecutor's "confusing" closing remarks made in this case (again not made in Drinkard or Narvaiz). This line of reasoning fails. First, as Sprouse readily concedes, Narvaiz included the additional first sentence. Second, as to the voir dire and closing remarks, even if Sprouse can show that those considerations constitute proper bases to distinguish Drinkard and Narvaiz, he has not demonstrated that the state court unreasonably applied Supreme Court precedent in failing to distinguish his case on these bases. We therefore conclude that the state court's decision was not an unreasonable application of Boyde, Penry I, or Penry II
Sprouse asks this court to grant COAs on five additional issues: whether trial counsel provided ineffective assistance by failing to challenge (1) the Texas death-penalty statute on the ground that it does not provide for meaningful appellate review; (2) the statutory definition of "mitigating evidence" as unconstitutionally narrow; (3) the statute on the ground that the aggravating factors are vague and do not properly channel the jury's discretion; (4) the statute on the ground that it prohibits informing the jury of the consequences of a "hold out" juror; and (5) the statute on the ground that it does not allocate to the state the burden of proving a lack of mitigating evidence. Because clear Fifth Circuit caselaw forecloses each of these challenges, we do not grant a COA on any of them.
AEDPA requires a state habeas petitioner to secure a COA before appealing a federal district court's denial of habeas relief.
As discussed above, Sprouse seeks a COA with regard to five related claims. In the main, he contends that trial counsel were ineffective because they did not bring various constitutional challenges to Texas's death-penalty scheme. We take each in turn.
Sprouse seeks a COA on whether trial counsel provided ineffective assistance of counsel ("IAC") by failing to challenge the statute on the ground that it does not provide for meaningful appellate review on the following three issues: (1) the jury's determination on mitigation; (2) the jury's determination on future dangerousness; and (3) comparative proportionality. In dismissing that argument, the TCCA noted, "[A]ppellant asserts that the death penalty scheme is unconstitutional because it fails to provide to provide a meaningful appellate review of mitigating evidence or a re-weighing of aggravating and mitigating circumstances.... The[se] arguments... have been previously raised and rejected by this Court."
Applying AEDPA's framework of "contrary to" or "unreasonable application" of Supreme Court law, Sprouse would need to show that the state court either applied the wrong test in deciding this issue or unreasonably applied the correct test to the facts. Sprouse has not pointed to any conflicting Supreme Court precedent, instead conceding that we have rejected similar challenges. See Martinez v. Johnson, 255 F.3d 229, 244-45 (5th Cir. 2001) ("We find that the [TCCA] was not objectively unreasonably in its application of the Jackson standard."); Moore, 225 F.3d at 506-07 ("It is just this narrowly
Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the statutory definition of "mitigating evidence" as unconstitutionally narrow. In dismissing that claim, the TCCA noted, "[A]ppellant asserts that Article 37.071's definition of mitigating evidence
Sprouse points to Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), contending that the Court has an expansive view of mitigating evidence. As Sprouse concedes, however, we have rejected that challenge. See Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.2001) ("[O]ur reading of the statute leads us to conclude that the amended statute does not unconstitutionally preclude[ ] [the jury] from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (citation and internal quotation marks omitted)). Reasonable jurists could not therefore conclude that the state court's opinion was contrary to or an unreasonable application of Supreme Court precedent.
Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the Texas death-penalty statute on the ground that the aggravating factors are vague and do not properly channel the jury's discretion. In dismissing that argument, the TCCA noted,
Sprouse, 2007 WL 283152, at *8 & n. 14 (citing Blue, 125 S.W.3d at 505).
Texas does not run afoul of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), or Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), by not expressly defining these terms. See Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir.2007) ("Because Turner is unable to point to any
Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the statute on the ground that it prohibits informing the jury of the consequences of a "hold out" juror. In dismissing that claim, the TCCA noted, "[A]ppellant asserts that the capital-sentencing statute is unconstitutional because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously decided this issue adversely to appellant." Sprouse, 2007 WL 283152, at *9 & n. 16 (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex.Crim.App. 2005)). Clear Supreme Court and Fifth Circuit precedent forecloses granting a COA on this issue. See Druery v. Thaler, 647 F.3d 535, 542 (5th Cir.2011) ("To the extent Petitioner's challenge to Texas's 12-10 rule rests on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and the Eighth Amendment, ... it is foreclosed by Fifth Circuit precedent."); see also Jones v. United States, 527 U.S. 373, 379, 382, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
Sprouse requests a COA on whether trial counsel provided IAC by failing to challenge the statute on the ground that it does not allocate to the state the burden of proving a lack of mitigating evidence. The TCCA rejected that contention by noting,
Sprouse, 2007 WL 283152, at *9 & n. 20 (citing Perry v. State, 158 S.W.3d 438, 446-47 (Tex.Crim.App.2004)). Although Sprouse maintains that the stated-court opinion runs counter to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), we have expressly rejected that argument. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007) ("We have specifically held that the Texas death penalty scheme did not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances. In [Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir.2006)], we stated that `the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum penalty of death,' and we concluded that `a finding of mitigating circumstances reduces a sentence from death, rather than
The judgment denying Sprouse's habeas petition is AFFIRMED. Sprouse's request for COAs on additional issues is DENIED.
Ex Parte Sprouse, No. 26824CR/A, slip op. at 12425 (40th Dist. Ct., Ellis Cnty., Tex. Jan. 25, 2007).