     Case: 10-70025   Document: 00511704728    Page: 1   Date Filed: 12/22/2011




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

                                                                  FILED
                                                              December 22, 2011

                                  No. 10-70025                   Lyle W. Cayce
                                                                      Clerk



CARL HENRY BLUE,

                                            Petitioner – Appellant

v.

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



Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        In a habeas proceeding under 28 U.S.C. § 2254, petitioner Carl Henry Blue
raised twenty-one separate challenges to his death sentence. The district court
denied relief. Blue seeks a certificate of appealability for five issues. We will
deny the request.
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                                      I.
      In 1994 a Texas jury found Carl Henry Blue guilty of capital murder, and
Blue received a death sentence. The Texas Court of Criminal Appeals (“the
CCA”) affirmed Blue’s conviction on direct appeal in 1996 and denied his first
state habeas application in 1999. The following year, the federal district court
vacated Blue’s death sentence on the ground that the State’s expert witness had
testified during the punishment-phase trial that Blue was more likely to be a
future danger to society because he is black. A second punishment-phase trial
took place in 2001. Once again the jury’s answers to the special issues led the
district court to sentence Blue to death. The CCA affirmed Blue’s new sentence
on direct appeal in 2003 and denied his second state habeas application in 2004.
Blue timely filed a skeletal federal habeas petition in 2005. The district court
then promptly stayed and abated the proceedings, enabling Blue to assert a
claim under Atkins v. Virginia1 in a third state habeas application. The CCA
determined that Blue had not made out a prima facie case for Atkins relief and
dismissed his third application as an abuse of the writ in 2007. Blue then
returned to federal court, where the district court denied Blue’s petition in its
entirety in August 2010.
                                           II.
      Blue seeks to appeal the district court’s determinations that he is not
entitled to habeas relief on (1) his claim under Atkins v. Virginia that his mental
retardation bars his execution; and (2) various claims that the jury instructions
at his punishment-phase trial violated the Eighth Amendment. Before a § 2254




      1
         536 U.S. 304, 321 (2002) (holding that the Eighth Amendment prohibits the
imposition of the death penalty on anyone who is mentally retarded).

                                           2
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petitioner can appeal, he must obtain a certificate of appealability (“COA”).2 We
will issue a COA only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”3 Where, as here, “a district court has rejected
the constitutional claims on the merits,” a petitioner is not entitled to a COA
unless he can “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”4 In death penalty
cases, “‘any doubts as to whether a COA should issue must be resolved in the
petitioner’s favor.’”5
      Treating the Atkins-related issues and the jury-instruction issues in turn,
we hold that the district court did not abuse its discretion by declining to hold
an evidentiary hearing nor err by using IQ scores to assess Blue’s general
intellectual functioning; that the proper focus now is upon the CCA’s
determination of Blue’s general intellectual functioning, a determination entitled
to AEDPA deference; and that, in any event, any error would be harmless
because Blue does not challenge the district court’s determinations that he has
failed to satisfy the other two elements of the test for mental retardation. We
also reject the three remaining challenges as foreclosed by circuit precedent:
Blue’s challenge to the “moral blameworthiness” language in Texas’s capital-
sentencing jury instructions; Blue’s challenge to the failure to assign a burden
of proof on the mitigation special issue; and his challenge to the “10-12” Rule.




      2
          28 U.S.C. § 2253(c)(1)(A).
      3
          Id. § 2253(c)(2).
      4
          Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      5
        Stevens v. Epps, 618 F.3d 489, 502 (5th Cir. 2010) (quoting Ramirez v. Dretke, 398
F.3d 691, 694 (5th Cir. 2005)) cert. denied, 131 S. Ct. 1815 (2011).

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                                             III.
           Blue presented his Atkins claim to the CCA in his third state habeas
application.6 Holding that Blue had “failed to meet his burden to present
sufficient specific facts from which, even if true, we could reasonably conclude,
by clear and convincing evidence, that no rational fact-finder would fail to find
he is mentally retarded,”7 requirements of Texas Code of Criminal Procedure
article 11.071 § 5(a)(3), the CCA dismissed Blue’s habeas application as an abuse
of the writ.8 Section 5(a)(3) codifies an actual-innocence-of-the-death-penalty
exception to Texas’s rule of procedural default.9
       The State unsuccessfully argued to the district court that Blue had
procedurally defaulted his Atkins claim,10 and did not re-urge procedural default
in its response to Blue’s motion for a COA. In short, the state accepts that the
CCA decided the merits of Blue’s Atkins claim.




       6
           See generally Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007).
       7
           Id. at 167–68.
       8
           Id. at 168.
       9
       Rocha v. Thaler, 626 F.3d 815, 822 (5th Cir. 2010), cert. denied, No. 10-9659, 2011 WL
1060963, at *1 (Oct. 11, 2011). See generally Sawyer v. Whitley, 505 U.S. 333 (1992).
       10
         See Memorandum and Order at 11–15, Blue v. Thaler, No. H-05-2726 (S.D. Tex. Aug.
19, 2010).

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       Whether a habeas petitioner is mentally retarded is a question of fact.11
Under § 2254(d)(2) we cannot grant habeas relief unless the CCA’s adjudication
of Blue’s Atkins claim “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”12 Section 2254(e)(1) supplements § 2254(d)(2) by further providing
that “a determination of a factual issue made by a State court shall be presumed
to be correct” in a subsequent federal habeas proceeding and that the petitioner
“shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”13 The clear-and-convincing evidence standard of
§ 2254(e)(1)—which is “arguably more deferential” to the state court than is the
unreasonable-determination standard of § 2254(d)(2)14—pertains only to a state
court’s determinations of particular factual issues, while § 2254(d)(2) pertains to
the state court’s decision as a whole.15




       11
           See Maldonado v. Thaler, 625 F.3d 229, 233 (5th Cir. 2010) (“[T]he ultimate issue of
whether [a] person is, in fact, mentally retarded for purposes of the Eighth Amendment ban
on excessive punishment is one for the finder of fact, based upon all of the evidence and
determinations of credibility.” (quoting Ex parte Briseño, 135 S.W.3d 1, 9 (Tex. Crim. App.
2004)), cert. denied, No. 10-9511, 2011 WL 4530498, at *1 (Oct. 3, 2011); Rivera v.
Quarterman, 505 F.3d 349, 361–63 (5th Cir. 2007), cert. denied, 555 U.S. 827 (2008); see also
Williams v. Quarterman, 293 F. App’x 298, 308 (5th Cir. 2008) (per curiam) (unpublished)
(“The determination of whether Briseño’s three prongs have been met is a factual finding
. . . .”).
       12
            28 U.S.C. § 2254(d)(2).
       13
            Id. § 2254(e)(1).
       14
            Wood v. Allen, 130 S. Ct. 841, 849 (2010).
       15
            See Miller-El v. Cockrell, 537 U.S. 322, 341–42 (2003).

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       Section 2254(d)(2) commands substantial deference to the factual
determinations made by state courts.16 It is not enough to show that a state
court’s decision was incorrect or erroneous. A petitioner must show that the
decision was objectively unreasonable, “a substantially higher threshold.”17 To
clear that threshold, the petitioner must show that “a reasonable factfinder must
conclude” that the state court’s determination of the facts was unreasonable.18
“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first
instance.”19




       16
          See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (“With respect to the review
of factual findings, AEDPA significantly restricts the scope of federal habeas review.”), cert.
denied, 546 U.S. 1217 (2006); see also Hogues v. Quarterman, 312 F. App’x 684, 686 (5th Cir.)
(per curiam) (unpublished) (describing 28 U.S.C. § 2254(d)(2) & (e)(1) as “highly deferential
to the state court”), cert. denied sub nom. Hogues v. Thaler, 130 S. Ct. 373 (2009).
       17
        Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Lockyer v. Andrade, 538 U.S.
63, 75–76 (2003).
       18
          Rice v. Collins, 546 U.S. 333, 341 (2006) (emphasis added); see also Miller-El v.
Dretke, 545 U.S. 231, 275 (2005) (Thomas, J., dissenting) (explaining that a petitioner is not
entitled to relief under § 2254(d)(2) unless he can “show that, based on the evidence before the
Texas state courts, the only reasonable conclusion was that” a constitutional violation
occurred).
       19
          Wood, 130 S. Ct. at 849; see also Collins, 546 U.S. at 342 (stressing that AEDPA
forbids a federal court from using “a set of debatable inferences” to set aside a state court’s
factual determination). Discussing § 2254(d) generally, the Supreme Court recently explained
that a petitioner “must show that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 131 S. Ct. 770, 786-787 (2011).




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                                               A.
       Blue argues that the district court’s refusal to hold an evidentiary hearing
was an abuse of discretion because the conflicting expert testimony as to whether
he is retarded created a genuine issue of fact as to the merits of his Atkins
claim.20 “In cases where an applicant for federal habeas relief is not barred from
obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant
such a hearing rests in the discretion of the district court.”21 The State concedes
that § 2254(e)(2) does not bar Blue from obtaining an evidentiary hearing,22 so we
will review the district court’s decision not to hold a hearing for an abuse of
discretion.23
       This Court has long held that a district court’s refusal to hold an
evidentiary hearing in a § 2254 proceeding is an abuse of discretion only if the
petitioner can show that (1) “the state did not provide him with a full and fair
hearing,” and (2) the allegations of his petition, “if proven true, . . . would entitle
him to relief.”24 To this, the Supreme Court has recently added “that review


       20
        Request for the Issuance of a COA and Supporting Brief at 16–17, Blue v. Thaler, No.
10-70025 (5th Cir. Dec. 3, 2010).
       21
           Schriro, 550 U.S. at 468; see also Clark v. Johnson, 202 F.3d 760, 765 (5th Cir.)
(“[O]vercoming the preclusive effect of § 2254(e)(2) does not guarantee an evidentiary hearing,
it only opens the door for one.”), cert. denied, 531 U.S. 831 (2000). If a petitioner “has failed
to develop the factual basis of a claim in State court proceedings,” § 2254(e)(2) prohibits the
district court from holding an evidentiary hearing unless the petitioner’s claim falls within one
of two narrow exceptions.
       22
          Respondent’s Opposition to Application for COA at 13, Blue v. Thaler, No. 10-70025
(5th Cir. Feb. 3, 2010).
       23
        See, e.g., Pierce v. Thaler, 604 F.3d 197, 200 (5th Cir. 2010) (citing Clark, 202 F.3d
at 765–66).
       24
          Clark, 202 F.3d at 766 (citing Moawad v. Anderson, 143 F.3d 942, 947–48 (5th Cir.
1998)); accord Hall v. Quarterman, 534 F.3d 365, 368–69 (5th Cir. 2008) (per curiam); Murphy
v. Johnson, 205 F.3d 809, 816 (5th Cir.), cert. denied, 531 U.S. 957 (2000).

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under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.”25 The same rule necessarily applies to a
federal court’s review of purely factual determinations under § 2254(d)(2),26 as all
nine Justices acknowledged.27
       Pinholster thus imposes a new limitation on the availability of evidentiary
hearings in habeas cases, a limitation not fully captured by our two-part
standard. In the broad run of cases, even when the first of the two preconditions
to an evidentiary hearing is satisfied, § 2254(d) still requires deference to the
state court’s adjudication.28 And Pinholster prohibits a federal court from using


       25
          Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); see also Greene v. Fisher, 132 S.
Ct. 38, slip op. at 4 (Nov. 8, 2011) (explaining that “§ 2254(d)(1) requires federal courts to
‘focu[s] on what a state court knew and did’” (alteration in original) (quoting Pinholster, 131
S. Ct. at 1399)).
       26
          Just as § 2254(d)(1) “refers, in the past tense, to a state-court adjudication that
‘resulted in’ a decision that was contrary to, or ‘involved’ an unreasonable application of,
established law,” Pinholster, 131 S. Ct. at 1398, § 2254(d)(2) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that was “based on” an unreasonable
determination of the facts. “This backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that the record under review is limited
to the record in existence at that same time i.e., the record before the state court.” Id. Indeed,
this mandate is reflected even more clearly in the text of § 2254(d)(2), which expressly
instructs that the state court’s decision must be evaluated “in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The Third Circuit recently concluded
that Pinholster applies with equal force under § 2254(d)(2). See Rountree v. Balicki, 640 F.3d
530, 538 (3d Cir.) (“Importantly, the evidence against which a federal court measures the
reasonableness of the state court’s factual findings is the record evidence at the time of the
state court’s adjudication.” (citing Pinholster, 131 S. Ct. at 1401–03)), cert. denied, No. 11-6567,
2011 WL 4459942, at *1 (Oct. 31, 2011).
       27
          See Pinholster, 131 S. Ct. at 1400 n.7 (noting “[t]he additional clarity of § 2254(d)(2)
on this point”); id. at 1411–12 (Alito, J., concurring in part and concurring in the judgment);
id. at 1412 (Breyer, J., concurring in part and dissenting in part); id. at 1415 (Sotomayor, J.,
dissenting).
       28
          See Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001) (holding that, in the broad
run of cases, a state court’s denial of a full and fair hearing “does not permit the district court
to avoid the application of deference to the state court’s adjudication on the merits”), cert.

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evidence that is introduced for the first time at a federal-court evidentiary
hearing as the basis for concluding that a state court’s adjudication is not entitled
to deference under § 2254(d).29
       That is not to say that there is no basis on which the district court could
have made that determination in this case, because Atkins claims fall outside
that broad run of cases in some circumstances. “[W]hen a petitioner makes a
prima facie showing of mental retardation, a state court’s failure to provide him
with an opportunity to develop his claim deprives the state court decision of the
deference ordinarily due under the AEDPA.”30 This rule stems from the fact that
Atkins created and protects a significant substantive liberty interest,31 a liberty
interest that entitles the petitioner to a set of core procedural due process
protections: the opportunity to develop and be heard on his claim that he is
ineligible for the death penalty.32 This does not mean that states must give
hearings to all persons with Atkins claims.33 The states retain discretion to set



denied, 537 U.S. 883 (2002); see also id. at 951 (“[W]e hold that a full and fair hearing is not
a precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court
findings of fact nor to applying § 2254(d)’s standards of review.”).
       29
          See Pinholster, 131 S. Ct. at 1412 (Breyer, J., concurring in part and dissenting in
part) (“There is no role in [the] analysis [under § 2254(d)] for a habeas petitioner to introduce
evidence that was not first presented to the state courts.”).
       30
         Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010) (citing Rivera v. Quarterman, 505
F.3d 349, 358 (5th Cir. 2007)).
       31
          See Rivera, 505 F.3d at 357–58 (explaining that Atkins, like Ford v. Wainwright,
“affirmatively limit[s] the class of persons who are death penalty eligible” and “command[s]
that ‘the Constitution places a substantive restriction on the State’s power to take the life of
a mentally retarded offender.’” (quoting Atkins v. Virginia, 536 U.S. 304, 321 (2002))).
       32
            See id. at 357–58 & n.31.
       33
         Id. at 359; see also id. at 358 (“Atkins did not specifically mandate any set of
procedures . . . .”).

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gateways to full consideration and to define the manner in which habeas
petitioners may develop their claims. But if a state court dismisses a prima facie
valid Atkins claim without having afforded the petitioner an adequate
opportunity to develop the claim, it has run afoul of the Due Process Clause, and
that due process violation constitutes an unreasonable application of clearly
established federal law that is sufficient to deprive the state court’s decision of
AEDPA deference.34 Under these narrowly defined circumstances, a district court
abuses its discretion if it does not conduct an evidentiary hearing on an Atkins
claim.
       Texas closed its gate to Blue, concluding that he failed to present a claim
with prima facie validity.35 The propriety of the district court’s decision not to
grant further access to the federal decisional processes thus turns entirely on
whether Blue’s third state habeas application made a prima facie showing of
mental retardation.
       The evidence that Blue presented to the CCA, even when taken as true,
would not support a finding that he is mentally retarded. Atkins left it to the
states to formulate and adopt their own definitions of mental retardation.36 In


       34
         See Wiley, 625 F.3d at 207 (“‘When a state court’s adjudication of a claim is dependent
on an antecedent unreasonable application of federal law, the requirement set forth in
§ 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference
AEDPA otherwise requires.’” (quoting Panetti v. Quarterman, 551 U.S. 930, 944 (2007)));
Rivera, 505 F.3d at 358 (“The lesson we draw from Panetti is that, where a petitioner has
made a prima facie showing of retardation . . . , the state court’s failure to provide him with
the opportunity to develop his claim deprives the state court’s decision of the deference
normally due.”).
       35
         See Rivera, 505 F.3d at 357 (explaining that the “procedural effect” of a finding by the
CCA that an Atkins petitioner “has not made a prima facie showing” of mental retardation is
to deprive the petitioner “of the opportunity to develop fully the substance of his claim before
the state courts”).
       36
            Atkins v. Virginia, 536 U.S. 304, 317 (2002).

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Ex parte Briseño, the CCA adopted the definition of mental retardation
promulgated by the former American Association on Mental Retardation
(“AAMR”).37 Under Texas law, “mental retardation is a disability characterized
by: (1) significantly subaverage general intellectual functioning,” defined as an
IQ of about 70 or below; “(2) accompanied by related limitations in adaptive
functioning; (3) the onset of which occurs prior to the age of 18.”38 A failure of
proof on any one of these three elements will defeat an Atkins claim.39
       Blue failed to tender evidence to the CCA that, if true, establishes that he
exhibits significantly subaverage general intellectual functioning. The CCA
follows the former AAMR in defining “significantly subaverage intellectual
functioning” as “an IQ of about 70 or below.”40 IQ is measured using standardized
testing instruments such as the Wechsler Adult Intelligence Scale.                            Such
instruments “‘have a measurement error of approximately 5 points in assessing
IQ,’” with the result that “any score could actually represent a score that is five
points higher or five points lower than the actual IQ.”41 Thus, a person whose



       37
        135 S.W.3d 1, 7–8 (Tex. Crim. App. 2004). The former AAMR is now known as the
American Association of Intellectual and Developmental Disabilities.
       38
            Id. at 7 (footnotes and internal quotation marks omitted).
       39
          See Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006) (explaining that “[i]t is
plain that” Briseño “require[s] that all three elements exist to establish mental retardation.”),
cert. denied, 549 U.S. 1254 (2007); see also Maldonado v. Thaler, 625 F.3d 229, 241 (5th Cir.
2010) (“[F]ulfillment of each prong is necessary to a finding of mental retardation . . . .”), cert.
denied, No. 10-9511, 2011 WL 4530498, at *1 (Oct. 3, 2011); In re Salazar, 443 F.3d 430, 432
(5th Cir. 2006) (per curiam) (“To state a successful claim, an applicant must satisfy all three
prongs of this test.” (citing Hall v. State, 160 S.W.3d 24, 36 (Tex. Crim. App. 2004) (en banc))).
       40
          Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App.), cert. denied sub nom. Hearn
v. Texas, 131 S. Ct. 507 (2010).
       41
        Id. (quoting AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 41 (rev. 4th ed. 2000)).

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true Weschler IQ score is 70 might obtain a score as high as 75 or as low as 65.42
While the CCA has declined to adopt a “bright-line [IQ-based] exemption from
execution,” it does “interpret[] the ‘about 70’ language of the AAMR’s definition
of mental retardation to represent a rough ceiling, above which a finding of
mental retardation in the capital context is precluded.”43 As a result, the CCA
held in Ex parte Hearn that “non-IQ evidence [is] relevant to an assessment of
intellectual functioning only where” the petitioner has also produced “a full-scale
IQ score [that is] within the margin of error for standardized IQ testing”44—a full-
scale IQ score, in other words, of 75 or lower.
       Hearn establishes that, under Texas law, the lack of a full-scale IQ score
of 75 or lower is fatal to an Atkins claim.45 This Court has previously held that
Atkins gives the states discretion in how they define and determine the existence
of mental retardation.46 The CCA’s use of 75 as its upper-limit IQ-score cutoff




       42
            Id. at 428 n.8.
       43
            Id. at 430; see also id. at 430 n.17 (collecting cases that have applied this standard).
       44
            Id. at 431.
       45
          See Maldonado v. Thaler, 625 F.3d 229, 240 (5th Cir. 2010) (“[T]he TCCA has
indicated that a full-scale IQ score should provide the basis for any assessment of intellectual
functioning.” (citing Hearn, 310 S.W.3d at 431)), cert. denied, No. 10-9511, 2011 WL 4530498,
at *1 (Oct. 3, 2011).
       46
          Clark v. Quarterman, 457 F.3d 441, 445 (5th Cir. 2006), cert. denied, 549 U.S. 1254
(2007); see also Bobby v. Bies, 129 S. Ct. 2145, 2150 (2009) (noting that Atkins “did not provide
definitive procedural or substantive guides for determining when a person who claims mental
retardation” is entitled to habeas relief and instead “‘le[ft] to the States the task of developing
appropriate ways to enforce the constitutional restriction’” (alteration in original) (quoting
Atkins v. Virginia, 536 U.S. 304, 317 (2002))).

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point tracks the DSM-IV’s diagnostic criteria47 and finds support in Atkins itself.48
By acknowledging that a petitioner whose IQ score is just above 70 could still
make a showing of mental retardation, the Hearn standard also takes heed of
prior admonitions from both this Court and the CCA that IQ scores should be
interpreted with awareness of the margin of error in the statistical analysis.49
       Blue did not present the CCA with evidence that he had attained a full-
scale IQ score of 75 or lower. The only evidence of IQ that Blue presented in his
state-court proceeding was a transcript of a portion of the testimony of Dr.
Windell Dickerson. Dr. Dickerson testified at Blue’s punishment-phase trial that
he had administered to Blue several short-form versions of the verbal portions of
the Weschler test and concluded that Blue “has an actual IQ in the range of 75
to 80.” This evidence is insufficient to support Blue’s Atkins claim. While a full-
scale IQ score of 75 might correspond to an actual IQ of 70,50 Dr. Dickerson did
not testify that Blue received a score of 75 on a full-scale IQ test. Rather, Dr.
Dickerson concluded from Blue’s performance on short-form versions of the test
that Blue’s actual IQ was between 75 and 80. In any case, as Blue himself
argued to the CCA, the result of a short-form test is not a reliable substitute for


       47
         See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 41–42 (rev. 4th ed. 2000) (“[I]t is possible to diagnose Mental Retardation in
individuals with IQs between 70 and 75 who exhibit deficits in adaptive behavior.”).
       48
          See Atkins, 536 U.S. at 309 n.5 (“[A]n IQ between 70 and 75 or lower . . . is typically
considered the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” (citing 2 KAPLAN & SADOCK’S COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 2952 (B.
Sadock & V. Sadock eds., 7th ed. 2000))).
       49
         See, e.g., Ex parte Briseño, 135 S.W.3d 1, 7 n.24 (Tex. Crim. App. 2004); Clark, 457
F.3d at 444–45; Moore v. Quarterman, 342 F. App’x 65, 70 n.8 (5th Cir. 2009) (per curiam)
(unpublished), cert. denied sub nom. Thaler v. Moore, 130 S. Ct. 1736 (2010).
       50
         See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App.), cert. denied sub nom.
Hearn v. Texas, 131 S. Ct. 507 (2010).

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a full-scale IQ score.51 The CCA declined to “try to extrapolate an accurate IQ”
based on “an incomplete test score” and instead chose to “simply regard the
record as it comes to us as devoid of any reliable IQ score.”52 As a consequence,
it concluded that “the only evidence of an IQ score that the applicant has
tendered fails to present sufficient specific facts that, even if true, would establish
significant sub-average general intellectual functioning by clear and convincing
evidence.”53
         Nor did any of the other evidence that Blue presented to the CCA support
a finding that he is mentally retarded or that he exhibits significantly subaverage
general intellectual functioning. Blue offered into evidence some of his school
records, affidavits from friends and family members, and a sworn declaration
from Dr. James R. Patton. Dr. Patton prepared his declaration after reviewing
all of the other record materials. The most relevant portions of his declaration
state:
         I want to note at the outset that there is a paucity of information
         presented that makes it impossible to conclude whether Mr. Blue is
         mentally retarded. There is, however, enough information that is
         consistent with Mental Retardation and that would justify a further
         inquiry, including full scale intellectual testing and a [sic] in depth
         investigation into Mr. Blue’s background to determine the existence
         of mental retardation. In other words, Mr. Blue might well be
         mentally retarded and nothing that I have seen is inconsistent with
         that determination. . . .
               Mr. Blue’s school records indicate a number of troubling areas.
         There is a consistent inability to perform academically. . . . Clearly,
         these deficits in learning ability may well be attributable to causes

         51
         See Ex parte Blue, 230 S.W.3d 151, 166 (Tex. Crim. App. 2007) (“The applicant argues
that short form testing such as that which Dickerson utilized is not a reliable measure of IQ.”).
         52
              Id.
         53
              Id.

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      other than mental retardation; for example, learning disabilities
      and/or an impoverished family background may well have played a
      role, even a determinative one. Mental Retardation, however, cannot
      be ruled out and additional assessment methods should be
      authorized and employed to determine this. . . .
            A review of the declarations of those who knew Mr. Blue best
      also support, but do not establish, a diagnosis of mental retardation
      and indicate a need for a more comprehensive assessment. . . . Most
      of the reports about Mr. Blue note his gullibility, a trait shared by
      individuals who are mentally retarded. . . . An inability to perform
      daily self-help functions is also an adaptive deficit common or
      frequently found among persons who are mentally retarded. . . . The
      lack of adaptive skills noted by these reporters is common to the
      patterns of behavior associated with persons who have mental
      retardation. . . .
             All of these deficits suggest limitations in adaptive functioning
      and support a claim of mental retardation. While, as I have stated
      before, there are other possible explanations for these problems,
      mental retardation certainly cannot be ruled out and indeed, is
      strongly suggested by this pattern of adaptive deficits. Viewed in
      isolation, none of these factors would be dispositive; taken as an
      overall pattern, mental retardation is strongly suspected. Only a full
      and thorough assessment, however, can answer that question.
Dr. Patton’s affidavit is tentative and inconclusive at best. It also focuses
exclusively on limitations in adaptive functioning, the second of Briseño’s three
criteria for diagnosing mental retardation. Nothing in the affidavit would
support a conclusion that the first Briseño criterion, significantly subaverage
general intellectual functioning, has been satisfied.
      Finally, the new IQ evidence that Blue presented in the proceedings below
also does not support a finding of significantly subaverage general intellectual
functioning. Even if, despite Pinholster,54 we would consider it, Blue obtained



      54
           See supra notes 26–30 and accompanying text.

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two full-scale IQ scores of 76 and 77,55 both of which are above the rough ceiling
of 75 established by Hearn.            Blue advanced three theories to support his
argument that his IQ score should be adjusted downward into the range that
would qualify him for a diagnosis of mental retardation, but the district court
rejected each of these theories by making findings of fact that are well supported
by the record.56
       Even when the CCA’s decision is evaluated in light of the newly expanded
federal court record, its determination that Blue has not made out a prima facie
claim of mental retardation is objectively reasonable. Accordingly, the CCA did
not violate the Due Process Clause so as to deprive its decision of § 2254(d)(1)
deference by denying Blue the opportunity to further develop his Atkins claim.
Federal review thus must proceed under § 2254(d), and there was no reason for
the district court to conduct an evidentiary hearing.
                                               B.
        Blue also challenges the district court’s dismissal of his Atkins claim by
asserting that the court employed an improper “‘bright-line’ standard for
assessing intellectual disability.”57 Blue offers scant argumentative support for
this assertion. He does no more than point out that “the District Court . . .
specifically implied that without at least one IQ score below 70 a Petitioner could
not obtain relief under Atkins” before “respectfully submit[ting] that the




       55
            Memorandum and Order, supra note 10, at 21–22.
       56
         See id. at 24–26. See generally Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) (per
curiam) (“In an appeal from the denial of habeas relief, this court reviews a district court’s
findings of fact for clear error . . . .”), cert. denied, 534 U.S. 1001 (2001).
       57
            Request for the Issuance of a COA and Supporting Brief, supra note 21, at 18.

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fundamental unfairness involved in this type of gatekeeping by the District Court
cast doubt on the Court’s entire opinion.”58
       This argument fails for three reasons. First, the district court did not adopt
an improper bright-line, IQ-based test. The court’s statement that an IQ score of
75 is “the base score that may qualify for a diagnosis of mental retardation”59
reflects the standard that the CCA announced in Hearn. The district court also
undertook an exhaustive survey of this Court’s precedent and correctly concluded
that “the Fifth Circuit has only granted relief on Atkins claims where an inmate
presents at least one base score below 70” and “has denied relief when an inmate
has IQ scores both under and over 70 and when all his scores fall above 70.”60
After rejecting Blue’s arguments that his full-scale scores of 76 and 77 should be
scaled downward into the sub-75 range, the district court concluded that “Blue
has not produced an IQ score within the parameters serving as a precursor to a
diagnosis of mental retardation.”61 The court’s treatment of the IQ issue was
consistent with controlling precedent from this Court and the CCA.
       Second, an error by the district court in its application of the § 2254(d)(2)
standard of review is not, by itself, grounds for issuing a COA.62 At the COA
stage, the question for decision is whether jurists of reason would debate the




       58
            Id. at 20.
       59
            Memorandum and Order, supra note 10, at 18.
       60
            Id. at 19 (footnotes omitted) (collecting cases).
       61
         Id. at 26; see also id. at 23 (“Taken at face value, none of Blue’s IQ scores fall within
the potentially broad range that allows for a finding of mental retardation.”).
       62
          See, e.g., Day v. Quarterman, 566 F.3d 527, 537 (5th Cir. 2009) (“‘[T]his Court may
affirm the denial of habeas relief on any ground supported by the record.’” (alteration in
original) (quoting Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000))).

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correctness of the conclusion that the state court’s rejection of the petitioner’s
claim was objectively reasonable.63
       Finally, even if the district court had erred in its assessment of Blue’s
general intellectual functioning, that error would have been harmless. Blue is
entitled to a COA on his Atkins claim only if he can make a substantial showing
that he has been denied his constitutional right to be exempt from execution due
to mental retardation. To make that showing, he must satisfy all three elements
of the Briseño test.64 The district court found that he cannot satisfy Briseño
prong two: “Blue has not made a convincing showing that he suffers from
significant adaptive deficits that would serve as a predicate for mental
retardation.”65 Blue does not challenge that finding in his application for a COA.
His failure to do so waives the issue.66 If a district court found that a habeas
petitioner’s Strickland claim failed because he could show neither deficient
performance nor prejudice, a request for a COA only as to the deficiency issue
would be futile. Similarly, because Blue has conceded that he cannot show that
he suffers from significant limitations in adaptive functioning, reasonable jurists
would not debate the correctness of the district court’s conclusion that it was



       63
         See, e.g., Pippen v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005), cert. denied, 549 U.S.
828 (2006).
       64
            See supra note 43 and cases cited therein.
       65
            Memorandum and Order, supra note 10, at 34.
       66
          See, e.g., Ortiz v. Quarterman, 509 F.3d 214, 215 (5th Cir. 2007) (per curiam)
(“Although, in the proceedings below, Ortiz did raise a claim that his trial counsel rendered
ineffective assistance . . . , he did not raise this ineffective assistance claim in the brief in
support of his application for a COA in this Court. Accordingly, Ortiz has waived this
ineffective assistance claim.” (citing Hughes v. Johnson, 191 F.3d 607, 612–13 (5th Cir. 2007))).
See generally Brewer v. Quarterman, 475 F.3d 253, 254 (5th Cir. 2006) (per curiam) (“[T]he
waiver doctrine applies to COA applications.”).

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objectively reasonable for the CCA to determine that he is not mentally
retarded.67 We must deny Blue’s motion for a COA on this issue.
                                             IV.
       Blue raises three challenges to the constitutionality of Texas’s capital
sentencing scheme, all of which focus on the manner in which the jury was
instructed at his second punishment-phase trial. First, he contends that the jury
instructions did not provide the jury with an adequate vehicle to give full
consideration and effect to his mitigating evidence, as required by Penry v.
Lynaugh and progeny. Second, he challenges the failure to assign a burden of
proof on the mitigation special issue. Third, he argues that the “10-12” Rule
affirmatively misleads the jury. Each of these challenges is foreclosed by Circuit
precedent.
       Here are the pertinent portions of the state district court’s instructions to
the jury in Blue’s punishment-phase trial:
             In determining your answers to the questions or special issues
       submitted to you, you shall consider all the evidence submitted to
       you in this trial. You shall consider all evidence submitted to you
       during the whole trial as to the defendant’s background or character
       or the circumstances of the offense that militates for or mitigates
       against the imposition of the death penalty.
             The burden of proof as to Special Issue No. 1 rests upon the
       State, and it must be proved beyond a reasonable doubt that the
       answer to Special Issue No. 1 should be “Yes.”
              You are instructed that you may not answer Special Issue
       No. 1 “Yes” unless all jurors agree to such answer. Further, you may
       not answer this special issue “No” unless ten or more jurors
       agree. . . .



       67
          Accord Pierce v. Thaler, 604 F.3d 197, 214 (5th Cir. 2010) (denying a COA on Atkins
issues where the petitioner failed to challenge the district court’s findings that he did not
suffer from significant limitations in adaptive functioning).

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         SPECIAL ISSUE NO. 1, with forms for answers, is as follows:
   Is there a probability that the defendant, Carl Henry Blue, would
   commit criminal acts of violence that would constitute a continuing
   threat to society?
         ANSWER: We the jury unanimously find and determine
   beyond a reasonable doubt that the answer to Special Issue No. 1 is
   “Yes,” with a signature space for the Presiding Juror, or
         ANSWER: We, the jury, because at least ten jurors have
   reasonable doubt as to the probability that the defendant would
   commit criminal acts of violence that would constitute a continuing
   threat to society, determine that the answer to Special Issue No. 1 is
   “No,” with a signature space for the juror.
          In the event the jury is unable to agree upon an answer to
   Special Issue No. 1 under the conditions and instructions outlined
   above, the juror will not sign either form of answer to the special
   issue. The jurors shall not discuss or consider the effect of the failure
   of the jury to agree on the answer to the special issue.
         You are further instructed that if the jury makes an
   affirmative finding to Special Issue No.1—that is, an answer of
   “Yes”—then the jury shall answer Special Issue No. 2 below. You
   will answer this Special Issue No. 2 “Yes” or “No.”
         You may not answer the issue “No” unless all jurors agree to
   such answer, and you may not answer such issue “Yes” unless ten or
   more jurors agree to such answer. . . .
         You are instructed that the term “mitigating evidence,” as used
   herein, means evidence that a juror might regard as reducing the
   defendant’s moral blameworthiness.
         The special issue with forms for answer is as follows:
         SPECIAL ISSUE NO. 2: 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 a sufficient mitigating
   circumstance or circumstances to warrant that a sentence of life
   imprisonment rather than a death sentence be imposed? . . .



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             In the event the jury is unable to agree to an answer to this
       Special Issue under the conditions and instructions given herein, the
       Presiding Juror will not sign either form of answer to the Special
       Issue. The jurors shall not discuss or consider the effect of the
       failure of the jury to agree on the answer to the special issue.
                                               A.
       First, Blue argues that the instructions given to the jury at his second
punishment-phase trial violated his Eighth Amendment rights by providing the
jury with an inadequate vehicle for giving full consideration and effect to his
mitigating evidence. Blue exhausted this claim by raising it as point of error
number thirty in his direct appeal from the re-sentencing.68 The CCA rejected
this claim on its merits,69 so Blue is entitled to federal habeas relief only if he can
show that the CCA’s adjudication of the claim “resulted in a decision that was
contrary to, or involved and unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.”70 The
district court determined that Blue could not make this showing. This Court
should issue a COA only if “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner.”71
       “[T]he Eighth Amendment requires that a capital sentencing jury’s
discretion be guided and channeled by requiring examination of specific factors
that argue in favor of or against imposition of the death penalty in order to
eliminate arbitrariness and capriciousness.”72 As this Court explained in its en

       68
            See Blue v. State, 125 S.W.3d 491, 504 (Tex. Crim. App. 2003).
       69
            See id. at 505.
       70
            28 U.S.C. § 2254(d)(1).
       71
            Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       72
          Buchanan v. Angelone, 522 U.S. 269, 274 (1998) (internal quotation marks omitted);
see also Kansas v. Marsh, 548 U.S. 163, 173–74 (2006) (“[A] state capital sentencing system

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  Case: 10-70025         Document: 00511704728        Page: 22     Date Filed: 12/22/2011




banc decision in Nelson v. Quarterman, the decisions of the Supreme Court
clearly establish that the instructions given to a capital jury are unconstitutional
if there is:
       a reasonable likelihood that the jury would interpret the Texas
       special issues in a manner that precluded it from fully considering
       and giving full effect to all of the defendant’s mitigating evidence.
       This “full-effect” standard requires that a juror be able to express his
       reasoned moral response to evidence that has mitigating relevance
       beyond the scope of the special issues; i.e., a juror cannot be
       precluded from electing a sentence less than death if he believes that
       the mitigating evidence offered makes the defendant less morally
       culpable for the crime . . . .73
This standard became clearly established no later than 1989,74 well before Blue’s
judgment of conviction became final in 2003.
       A brief summary of the development in the law in this area helps put Blue’s
argument in context.75 For many years Texas required capital sentencing juries
to answer three special issues: the deliberateness special issue,76 the future-




must . . . permit a jury to render a reasoned, individualized sentencing determination based
on a death-eligible defendant’s record, personal characteristics, and the circumstances of his
crime.”).
       73
        472 F.3d 287, 293 (5th Cir. 2006) (en banc) (citations omitted), cert. denied, 551 U.S.
1141 (2007).
       74
         See Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007) (“[W]ell before our decision
in Penry I, our cases had firmly established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evidence that might provide a basis for
refusing to impose the death penalty . . . .”).
       75
            For a more exhaustive history, see Judge Stewart’s opinion in Nelson. 472 F.3d at
293–303.
       76
        See TEX. CODE CRIM. PROC. art. 37.0711 § 3(b)(1) (asking “whether the conduct of the
defendant that caused the death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another would result”).

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dangerousness special issue,77 and the inadequate-provocation special issue.78
But in 1989, the Supreme Court held in Penry I that these three special issues
failed to “inform[] the jury that it could consider and give effect to the mitigating
evidence of Penry’s mental retardation and abused background” and therefore did
not provide the jury with “a vehicle for expressing its ‘reasoned moral response’
to that evidence in rendering its sentencing decision.”79
       The Texas legislature responded to Penry I in 1991 by enacting a new
special-issues scheme. In all cases in which a defendant is on trial for a capital
offense committed on or after September 1, 1991, the jury must answer two80
special issues: the same future-dangerousness issue from the old sentencing
scheme, which is now codified at § 2(b)(1), and a new mitigation special issue. The
mitigation special issue, codified at § 2(e)(1), asks the jury “[w]hether, 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, there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without parole rather than a death
sentence be imposed.” Under § 2(f)(4), the court must instruct the jury that, in
answering the mitigation special issue, it “shall consider mitigating evidence to


       77
        See id. § 3(b)(2) (asking “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society”).
       78
         See id. § 3(b)(3) (asking, “if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to the provocation, if any, by
the deceased”).
       79
         Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (“Penry I”), overruled on other grounds
by Atkins v. Virginia, 536 U.S. 304 (2002).
       80
         In cases in which the defendant was convicted under the law of parties, the jury is
also required to answer a third special issue, which asks whether the defendant actually
caused the death, intended to cause a death, or anticipated a death. See TEX. CODE CRIM.
PROC. art. 37.071 § 2(b)(2).

                                             23
  Case: 10-70025         Document: 00511704728          Page: 24      Date Filed: 12/22/2011




be evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.”
      Although this new special-issues scheme has now been on the books for
nearly twenty years, it has yet to make its way to the Supreme Court. Because
of the slow pace at which capital cases proceed through the courts, the rather
substantial body of recent Supreme Court precedent sustaining constitutional
challenges to Texas’s use of the special issues has little bearing on this case.
Those decisions considered either the described pre-1991 scheme or the pre-1991
scheme in conjunction with the infamous “nullification” instruction. In fact, the
Supreme Court commented favorably on the § 2(e)(1) mitigation special
issue—albeit in dicta—in Penry II, commending the “brevity and clarity of this
instruction” and suggesting that such a “clearly drafted catchall instruction on
mitigating evidence” likely would “have complied with Penry I.”81
      Blue nonetheless contends that there is a reasonable likelihood that the
jurors in his case interpreted the new special issues as prohibiting them from
giving full consideration and effect to all of the mitigating evidence that he
presented during his punishment-phase trial.82 Blue acknowledges that “the
language in the Texas mitigation issue itself,” i.e., §2(e)(1), is constitutionally
adequate.83 But he argues that § 2(f)(4)’s definition of mitigating evidence as
evidence that a juror might regard as reducing the defendant’s moral
blameworthiness is unconstitutionally narrow and “effectively nullifies the word
‘background’ in the special issue itself.”84 According to Blue, many reasonable,


      81
           Penry v. Johnson, 532 U.S. 782, 803 (2001) (“Penry II”).
      82
           Request for the Issuance of a COA and Supporting Brief, supra note 21, at 21–22.
      83
           Id. at 28 (citing Lockett v. Ohio, 438 U.S. 586, 604–05 (1978)).
      84
           Id. at 31.

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law-abiding jurors “will assume that the phrase ‘moral blameworthiness’ relates
only to those factors that are directly related to the commission of the crime, but
not to the perhaps more remote socio-economic and psychological reasons why the
defendant may have been predisposed to commit it.”85 Thus, he concludes, the
evidence he presented of his “poor mental health, low IQ, and good conduct while
incarcerated” were effectively put beyond the reach of the jury.86
       This Court considered and rejected this very line of argument in Beazley
v. Johnson,87 where it held that the capital sentencing scheme presently codified
in article 37.071 “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.”88 This Court concluded that “all mitigating evidence
can be given effect under the broad definition of mitigating evidence found in”
§ 2(e)(1)89 and that § 2(f)(4)’s “definition of mitigation evidence does not limit the
evidence considered under” § 2(e)(1).90 On this latter point, the Beazley court
stressed that “‘[v]irtually any mitigating evidence is capable of being viewed as


       85
            Id. at 30–31.
       86
            Id. at 31.
       87
         See 242 F.3d 248, 259 (5th Cir.) (“Beazley maintained on direct appeal that the Texas
statute’s definition of ‘mitigating evidence’ is facially unconstitutional because it limits
‘mitigation’ to factors that render a capital defendant less morally ‘blameworthy’ for
commission of the capital murder.”), cert. denied sub nom. Beazley v. Cockrell, 534 U.S. 945
(2001).
       88
            Id. at 260 (quoting Lockett, 438 U.S. at 604).
       89
         Id. (citing Prytash v. State, 3 S.W.3d 522, 534 (Tex. Crim. App. 1999) (en banc), cert.
denied, 529 U.S. 1840 (2000); Cantu v. State, 939 S.W.2d 627, 648–49 (Tex. Crim. App.) (en
banc), cert. denied, 522 U.S. 994 (1997)).
       90
            Id.

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having some bearing on the defendant's ‘moral culpability.’”91 Over the last ten
years, this Court has reaffirmed its holding in Beazley in at least four
unpublished decisions.92
       Beazley forecloses Blue’s claim for relief in two ways. First, its conclusion
that the new special-issue scheme is constitutional is very strong evidence that
it was reasonable for the CCA to reach the same conclusion.93 Second, Beazley
also held, on facts materially indistinguishable from those presented here, that
the petitioner was not entitled to the issuance of a COA.94 That holding binds
this panel and compels rejection of Blue’s claim.95 Therefore, jurists of reason
would not debate the district court’s determination that the CCA’s rejection of
Blue’s Penry claim is entitled to deference under § 2254(d)(1).
       Blue advances several counter-arguments, but none can overcome the
binding authority of Beazley. First, he contends that Beazley is no longer good



       91
            Id. (quoting Graham v. Collins, 506 U.S. 461, 476 (1993)).
       92
          See Cantu v. Quarterman, 341 F. App’x 55, 60–61 (5th Cir. 2009) (per curiam)
(unpublished), cert. denied, 130 S. Ct. 2102 (2010); Roach v. Quarterman, 220 F. App’x 270,
277 (5th Cir. 2007) (unpublished); Jackson v. Dretke, 181 F. App’x 400, 412–13 (5th Cir. 2006)
(unpublished); O’Brien v. Dretke, 156 F. App’x 724, 735–36 (5th Cir. 2005) (per curiam)
(unpublished), cert. denied, 547 U.S. 1180 (2006).
       93
          See Jackson, 181 F. App’x at 413 (“Where . . . a state court reaches a conclusion
consistent with this circuit’s precedent, it presumptively falls within the broad discretion
afforded the state court under § 2254(d)(1), because we presumably would consider our own
case law as within ‘the range of reasonable judgment’ afforded by Supreme Court decisions.”
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))).
       94
            See Beazley, 242 F.3d at 255.
       95
          Blue suggests that his is an as-applied challenge, not a facial challenge, see Request
for the Issuance of a COA and Supporting Brief, supra note 21, at 20–21 & n.3, but Beazley’s
categorical holding that “all mitigating evidence can be given effect under the broad definition
of mitigating evidence found in” § 2(e)(1), 242 F.3d at 260, elides the significance of this
distinction.

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law in light of the later-in-time en banc decision in Nelson.96 However, the
petitioner in Nelson was sentenced under the pre-1991 special issues scheme,
which did not include the mitigation special issue.97 Nelson holds only that the
future-dangerousness special issue does not, by itself, enable the jury to give full
effect to certain kinds of mitigating evidence, including mental illness.98 Nelson
did not overturn Beazley’s holding that the mitigation special issue allows the
jury to give full effect to any and all forms of mitigating evidence.99
         Next, Blue argues that the Supreme Court’s decision in Skipper v. South
Carolina100 establishes that mitigation evidence extends beyond evidence that
tends to reduce the defendant’s moral culpability or blameworthiness.101 In
actuality, Skipper holds that a defendant must be allowed to put on evidence of
his good conduct in prison as mitigation evidence at a punishment-phase trial.102
A few years later, in Franklin v. Lynaugh, the Court held that when a Texas
capital defendant puts on such evidence, the future-dangerousness special issue
gives the jury an adequate vehicle for considering it.103 Thus, it is beyond dispute

         96
               Request for the Issuance of a COA and Supporting Brief, supra note 21, at 29 &
31–33.
         97
         See Nelson v. Quarterman, 472 F.3d 287, 290 & n.1 (5th Cir. 2006) (en banc), cert.
denied, 551 U.S. 1141 (2007).
         98
              See id. at 307–09.
         99
         For the same reason, Blue’s argument that “his low IQ could not be adequately
considered under the future dangerousness issue alone,” Request for the Issuance of a COA
and Supporting Brief, supra note 21, at 34, is a non-starter.
         100
               476 U.S. 1 (1986).
         101
               Request for the Issuance of a COA and Supporting Brief, supra note 21, at 32 & 34.
         102
               See 476 U.S. at 4–5.
         103
          See 487 U.S. 164, 178 (1988) (plurality opinion); id. at 185–86 (O’Connor, J.,
concurring in the judgment); see also Nelson, 472 F.3d at 295.

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that Blue’s jury was instructed in a manner that enabled them to consider the
mitigating effect of his good conduct in prison. And nothing in Skipper lends any
support to Blue’s broader contention that it is unconstitutional to define
mitigating evidence as evidence that reduces moral blameworthiness.
       Third, Blue points to the fact that in some capital trials Texas courts have
chosen to supplement the statutorily mandated jury instructions and offer
broader definitions of mitigating evidence.104 Be that as it may, Blue has not
identified any authority that holds that the absence of such a supplemental
instruction renders Texas’s amended special-issues scheme constitutionally
infirm. Beazley’s conclusion that § 2(e)(1) “‘solves any potential narrowing
problem in section 2(f)(4)’” because “‘the trial court’s instructions pursuant to
[§ 2(e)(1)] provide the jury with a vehicle to respond to a broader range of
mitigating evidence’” is squarely to the contrary.105
       In sum, Blue cannot show that the special issues did not allow the jury to
give full consideration and effect to evidence of his good conduct in prison,
mental-health issues, and low IQ. Franklin v. Lynaugh holds that the special-
dangerousness issue allows the jury to consider good conduct in prison, and
Beazley holds that the mitigation special-issue enables consideration of the
evidence of mental illness and low IQ. Jurists of reason would not debate the




       104
          See Request for the Issuance of a COA and Supporting Brief, supra note 21, at 34–35
& 37–38. For example, in O’Brien, “the judge instructed the jury that ‘[a] mitigating
circumstance may include, but is not limited to, any aspect of the defendant's character,
background, record, emotional instability, intelligence or circumstances of the crime which you
believe could make a death sentence inappropriate in this case.’” O’Brien v. Dretke, 156 F.
App’x 724, 736 (5th Cir. 2005) (per curiam) (unpublished), cert. denied, 547 U.S. 1180 (2006).
       105
         Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.) (quoting Prystash v. State, 3 S.W.3d
522, 534 (Tex. Crim. App. 1999)), cert. denied sub nom. Beazley v. Cockrell, 534 U.S. 945
(2001).

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district court’s decision to dismiss Blue’s Penry challenge. Accordingly, we deny
Blue’s motion for a COA on this claim.
                                               B.
       Blue also contends that the failure to assign either party the burden of
proof on the mitigation special issue violates the Due Process Clause.
Specifically, Blue argues that “the failure to assign a burden of proof . . . fails to
guide the discretion of the jury in a way that minimizes bias, arbitrariness and
caprice in capital sentencing.”106 Blue exhausted this claim by raising it as point
of error number thirty-four in his direct appeal from the re-sentencing, and the
CCA rejected it on its merits.107 As Blue concedes,108 this Court has held on
several occasions that “‘[n]o Supreme Court or Circuit precedent constitutionally
requires that Texas’s mitigation special issue be assigned a burden of proof.’”109
The absence of controlling Supreme Court precedent is fatal to Blue’s claim under
§ 2254(d)(1).
       On a closely related but conceptually distinct note, Blue briefly argues that
the failure to assign a burden of proof runs afoul of the Sixth Amendment’s
requirement that each element of a criminal offense must be proven beyond a
reasonable doubt.110 This argument “ignores the distinction . . . between facts in




       106
             Request for the Issuance of a COA and Supporting Brief, supra note 21, at 46.
       107
             See Blue v. State, 125 S.W.3d 491, 500–01 (Tex. Crim. App. 2003).
       108
             See Request for the Issuance of a COA and Supporting Brief, supra note 21, at 46.
       109
          Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011) (alteration in original) (quoting
Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005)); see also Avila v. Quarterman, 560 F.3d
299, 315 (5th Cir.), cert. denied, 130 S. Ct. 536 (2009); Coleman v. Quarterman, 456 F.3d 537,
541–42 (5th Cir. 2006), cert. denied, 549 U.S. 1343 (2007).
       110
             Request for the Issuance of a COA and Supporting Brief, supra note 21, at 45.

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aggravation of punishment and facts in mitigation.”111 As this Court explained
in Granados v. Quarterman, “not asking the jury to find an absence of mitigating
circumstances beyond a reasonable doubt” is perfectly consistent with Ring and
Apprendi because “a finding of mitigating circumstances reduces a sentence from
death, rather than increasing it to death.”112 Blue does attempt to distinguish
these cases or otherwise suggest that they do not control.
         Because both of Blue’s arguments with respect to the burden of proof on the
mitigation special issue are foreclosed by Fifth Circuit precedent, the correctness
of the district court’s decision to reject them is not subject to debate among jurists
of reason.113 Therefore, we conclude that Blue is not entitled to a COA on this
issue.
                                                   C.
         Finally, Blue contends that Texas’s system of instructing punishment-
phase jurors on the consequences of a failure to agree on a sentence violates the
Eighth Amendment. Article 37.071 requires capital jurors to be instructed that
they can answer “Yes” to the future-dangerousness special issue and “No” to the
mitigation special issue only if all twelve of them agree to do so and that they can
give the opposite answers only if ten or more of them agree to do so.114 If the
jurors answer “No” to the future-dangerousness issue or “Yes” to the mitigation




         111
               Apprendi v. New Jersey, 530 U.S. 466, 490 n.16 (2000).
         112
         455 F.3d 529, 536–37 (5th Cir.), cert. denied, 549 U.S. 1081 (2006); see also Paredes
v. Quarterman, 574 F.3d 281, 292 (5th Cir. 2009) (per curiam); Avila, 560 F.3d at 315; Ortiz
v. Quarterman, 504 F.3d 492, 504–05 (5th Cir. 2007), cert. denied, 553 U.S. 1035 (2008);
Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007).
         113
               Accord Druery, 647 F.3d at 546.
         114
               TEX. CODE CRIM. PROC. art. 37.071 § 2(c)(2), (f)(2).

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issue, the defendant is sentenced to life without parole.115 The same result
obtains if the jurors fail to agree on an answer, but the statute prohibits the court
and the parties from informing the jurors of the effect of their failure to agree.116
“This is commonly known as the ‘10-12 Rule.’”117 Citing Romano v. Oklahoma,118
Blue contends that the 10-12 Rule is unconstitutional because it affirmatively
misleads jurors about their role in the sentencing process. Blue exhausted this
claim by raising it as points of error numbers thirty-two and thirty-three on his
direct appeal from the re-sentencing proceeding, and the CCA rejected it on its
merits.119
       In Romano, the Supreme Court explained that remarks by a prosecutor or
the court affirmatively mislead the jury regarding its responsibility for the
sentencing decision if “‘the remarks . . . improperly describe[] the role assigned
to the jury by local law.’”120 However, the Supreme Court held in Jones v. United
States that“a failure to instruct the jury as to the consequences of deadlock” in no
way affirmatively misleads the jury about its role in the sentencing process.121
This Court has concluded that Jones insulates the 10-12 Rule from constitutional




       115
             Id. § 2(g).
       116
             Id. § 2(a)(1), (g).
       117
          Smith v. Cockrell, 311 F.3d 661, 683 (5th Cir. 2002) (citing Alexander v. Johnson, 211
F.3d 895, 897 (5th Cir. 2000)), overruled in part on other grounds by Tennard v. Dretke, 542
U.S. 274, 283 (2004).
       118
             512 U.S. 1 (1994).
       119
             See Blue v. State, 125 S.W.3d 491, 504–05 (Tex. Crim. App. 2003).
       120
             Romano, 512 U.S. at 9 (quoting Dugger v. Adams, 489 U.S. 401, 407 (1989)).
       121
             527 U.S. 373, 381–82 (1999).

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attack.122 And it has also held that the 10-12 Rule passes constitutional muster
independently of the holding announced in Jones.123                      Because no clearly
established federal law invalidates the 10-12 Rule or calls its constitutionality
into doubt, Blue is not entitled to a COA on this issue.
       To the extent that Blue’s challenge to the 10-12 Rule urges us to adopt a
new rule of constitutional criminal procedure, it also is barred under Teague.124
New rules of constitutional criminal procedure cannot be announced on federal
habeas review unless one of two narrow exceptions applies.125                         “[A] case
announces a new rule when it breaks new ground or imposes a new obligation on
the States or the Federal Government,” which is to say, when its “result was not
dictated by precedent existing at the time the defendant’s conviction became
final.”126 Blue maintains that Teague is not implicated because he seeks to
enforce the rules of Romano,127 Penry I,128 Jurek v. Texas,129 and Gregg v.



       122
             See Druery, 647 F.3d at 544; Alexander, 211 F.3d at 897 n.5.
       123
          See Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir.) (citing Jacobs v. Scott, 31 F.3d
1319, 1329 (5th Cir. 1994)), cert. denied, 531 U.S. 849 (2000). See generally Greer v. Thaler,
380 F. App’x 373, 389 (5th Cir.) (per curiam) (unpublished) (noting that the Supreme Court’s
holding in Jones does not address the argument that the 10-12 Rule “creates the risk that a
juror would be misled” before rejecting that argument as meritless), cert. denied, 131 S. Ct. 424
(2010).
       124
             Teague v. Lane, 489 U.S. 288 (1989).
       125
         Id. at 306, 310. Teague was a plurality decision, but the rule it announced was
subsequently adopted by a majority of the Court in Penry I. See Penry I, 492 U.S. 302, 313–14
(1989).
       126
             Teague, 489 U.S. at 301.
       127
             512 U.S.1 (1994)
       128
             492 U.S. 302.
       129
             428 U.S. 262 (1976).

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Georgia.130       However, in Webb v. Collins, this Court held that a habeas
petitioner’s Eighth Amendment challenge to “the jury instructions given
pursuant to article 37.071(2) of the Texas Code of Criminal Procedure” was
barred by Teague.131 This Court has reaffirmed that holding in numerous
published opinions.132         Blue does not attempt to distinguish these cases or
otherwise suggest that they do not control. Nor does he contend that either of the
two exceptions to the Teague bar applies here.
                                                V.
       The motion for a certificate of appealability is DENIED.




       130
             428 U.S. 153 (1976).
       131
             2 F.3d 93, 94–95 (5th Cir. 1993) (per curiam).
       132
          See Druery v. Thaler, 647 F.3d 535, 542–45 (5th Cir. 2011); Hughes v. Dretke, 412
F.3d 582, 595 (5th Cir. 2005), cert. denied, 546 U.S. 1177 (2006); Alexander v. Johnson, 211
F.3d 895, 897 (5th Cir. 2000); Davis v. Scott, 51 F.3d 457, 466 (5th Cir. 1995), overruled in part
on other grounds by Tennard v. Dretke, 542 U.S. 274, 283 (2004).

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