# Thacker v. Dretke > Court of Appeals for the Fifth Circuit · January 5, 2005 · 396 F.3d 607 URL: https://www.frixlaw.com/law-library/cases/37463 ## Case - **Full name:** Charles Daniel THACKER, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** January 5, 2005 - **Citations:** 396 F.3d 607; 2005 U.S. App. LEXIS 104; 2005 WL 18542 - **Precedential status:** Published - **Opinion:** Opinion by Smith - **Judges:** Smith, Demoss, Stewart - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/37463 ## How later opinions describe it (automated extraction) - explaining that in order to prevail on an ineffective assistance of counsel claim an individual must show that the attorney's failure to object to the jury charged fell below an objective standard of reasonableness thereby causing prejudice as set forth in Strickland - holding procedural bar resulting from petitioner’s failure to properly preserve federal constitutional complaint via a contemporaneous objection was not precluded by the state court’s alternate holding that constitutional claim lacked merit - recognizing neither the Fourteenth Amendment’s Due Process Clause nor the Eighth Amendment requires Texas to allow presentation of parole eligibility issues because Texas does not offer life imprisonment without possibility of parole as an alternative to the death penalty - stating that generally, a single jury instruction may not be judged in artificial isolation but must be viewed in the context of the overall charge ## Opinion text United States Court of Appeals Fifth Circuit F I L E D In the January 5, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-70026 _______________ CHARLES DANIEL THACKER, Petitioner-Appellant, VERSUS DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. _________________________ Appeal from the United States District Court for the Southern District of Texas _________________________ Before SMITH, DEMOSS, and STEWART, Thacker cannot make a substantial showing of Circuit Judges. the denial of a federal constitutional right, we deny a COA. JERRY E. SMITH, Circuit Judge: I. Charles Thacker seeks a certificate of ap- A state jury found Thacker guilty of capital pealability (“COA”) from the district court’s murder and further answered Texas’s special denial of his petition for a writ of habeas cor- issues in a manner that required imposition of pus pursuant to 28 U.S.C. § 2254. Because a death sentence. As summarized by the Texas Court of Criminal Appeals on direct review, leg of her jogging pants were pulled off; the the facts are as follows: other pants leg was pulled down to her ankle. Hall and another man administered On the evening of April 7, 1993, dur- CPR. They detected a heart beat, but she ing a telephone conversation with a friend, was not breathing. Some faint brain activ- Karen Crawford said that she was going to ity was detected when she arrived at the go to the store for dog food. That same hospital, but it ceased within twenty-four evening, a resident of her apartment com- hours. plex informed the maintenance supervisor, Arkan Hall, that Crawford’s keys were Medical examiners concluded that hanging from her mailbox, which was lo- Crawford’s death was the result of strangu- cated in a common area near the apartment lation. Crawford’s neck was bruised on the offices. Hall went to Crawford’s apart- front and left side and her face and eyes ex- ment, but she did not answer the door. He hibited a condition known as pinpoint hem- then noticed her car, with her dog inside, orrhaging. It was determined that a choke parked near the mail room. While checking hold or “hammerlock” was the probable the area of the mail room and pool, Hall method of strangulation. No evidence of a found the women’s restroom locked. He completed sexual assault was found. beat on the door, and a man’s voice an- swered from the inside. The man became In the early morning hours of April 8, quiet when Hall asked why he was using 1993, a police canine unit found [Thacker] the women’s restroom. hiding in a yard near Crawford’s apartment complex. A truck containing papers bear- Hall attempted unsuccessfully to force ing [Thacker’s] name was found parked open the door of the restroom. He then tel- outside the offices of Crawford’s apartment ephoned the apartment manager, Emily complex. [Thacker] was identified by sev- Vaughn. She and her husband Terrence eral witnesses who saw him loitering about Cowie arrived at the scene, and the three the mail room just before the offense. He discussed what to do. Suddenly, the rest- was also identified by witnesses who saw room door opened and [Thacker] emerged. him running where Crawford was found. A A fight ensued when Hall attempted to stop pubic hair matching a sample from Craw- him. Hall attempted to cut [Thacker] with ford was found in [Thacker’s] underwear. his pocket knife, but [Thacker] sprayed him with mace and got away. [Thacker] Thacker v. State, No. 71,891, at 2-3 (Sept. 18, sprayed Cowie as well, and then pushed his 1996). way through one of the two exit gates. Hall and others nearby chased [Thacker] Thacker appealed, raising fifty-seven down the block and tried to cut off his points of erro r. His conviction was affirmed escape. on direct review, so he sought state collateral review, raising eight points of error, but was In the meantime, Vaughn found Craw- again denied relief. This denial was affirmed in ford lying face down on the restroom floor. an unpublished opinion by the Court of Crimi- She was unconscious. One shoe and one nal Appeals. Ex parte Thacker, No. 74,034 2 (Tex. Crim. App. Dec. 19, 2001) (unpub- lished), cert. denied, 537 U.S. 829 (2002). To grant a COA, however, we need not de- Thacker filed his initial federal habeas peti- cide the ultimate merits of the underlying habe- tion, which the district court dismissed, with- as petition; we ask only whether the petitioner out prejudice, to allow for complete state has made “a substantial showing of the denial court exhaustion of his claim under Ring v. of a constitutional right.” 28 U.S.C. 2253- Arizona, 536 U.S. 584 (2002), which held that (c)(2). “A petitioner satisfies this standard by juries must make determinations regarding demonstrating that jurists of reason could aggravating and mitigating factors. After his disagree with the district court’s resolution of second state habeas petition was dismissed, Ex his constitutional claim or that jurists could parte Thacker, No. 48,092-02 (Tex. Crim. conclude the issues presented are adequate to App. Dec. 10, 2003) (unpublished), Thacker deserve encouragement to proceed further.” renewed his federal habeas petition, raising Miller-El v. Cockrell, 537 U.S. 322, 327 nine grounds for relief. The district court (2003). That is, our duty is to determine not denied relief and denied a COA. Thacker v. whether Thacker is entitled to relief, but Dretke, No. H-04-CV-126 (S.D. Tex. May 27, whether the district court’s conclusion (that 2004). the state court adjudication was not contrary to or an unreasonable application of federal II. law) is one about which jurists of reason could Our review on a request for COA is highly disagree.2 circumscribed by statute. Pursuant to the Anti-Terrorism and Effective Death Penalty III. Act of 1996 (“AEDPA”), to be entitled to re- In his COA application, Thacker raises sev- lief a petitioner must show that the state court en issues related to only two alleged errors: resolution of his case was either “contrary to, that (1) the instruction given the jury on his or involved an unreasonable application of, capital murder charge was a misstatement of clearly established federal law, as determined Texas law, or at the very least was substan- by the Supreme Court of the United States,” tially confusing to the jury as to the sufficient or “resulted in a decision that was based on an level of intent required to convict; and (2) the unreasonable determination of the facts in light trial court’s disallowance of any reference to of the evidence presented in the State court Thacker’s parole eligibility in the presence of proceeding.” 28 U.S.C. § 2254(d).1 This high the jury was unconstitutional. Thacker argues level of deference to state court proceedings that the erroneous jury charge violated his due “embodies the principles of federalism, comity, process rights under the Fourteenth Amend- and finality of judgments . . . .” Evans v. ment and the Trial by Impartial Jury Clause of Cockrell, 285 F.3d 370, 374 (5th Cir. 2002). the Sixth Amendment, and that he was de- 1 2 See also Yarborough v. Gentry, 540 U.S. 1, As the district court correctly noted and we 5 (2003) (“Where, as here, the state court’s appli- will discuss further, infra, “Other doctrines, such cation of governing federal law is challenged, it as the harmless-error doctrine and the non-retroac- must be shown to be not only erroneous, but ob- tivity principle, bridle federal habeas relief.” jectively unreasonable.”). Thacker, No. H-04-126, slip op. at 8. 3 prived of his Sixth Amendment right to effec- ous to human life causes death. Nevertheless, tive assistance of counsel. With respect to the Thacker contends that the phrase “murder, as parole eligibility question, Thacker avers that heretofore defined” confused the jury as to the purported error violates the Due Process whether a specific intent was required to find Clause of the Fourteenth Amendment, the him guilty of capital murder.3 Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Compulsory Pro- Thacker’s concern is not unfounded. In the cess Clause of the Sixth Amendment. midst of deliberations, the jury foreman sent a note to the court, querying, A. Texas law mandates that the court provide On page 3, t he charge says, “Now, if you the jury with a written charge that describes find . . . intentionally cause the death of the applicable law. See TEX. CODE CRIM. . . . .” Does that mean that the defendant PROC. ANN. art. 3614. This statute has been had to have the intent to cause her death to interpreted as requiring “the judge to provide be convicted of capital murder? Or as on the jury with both an abstract statement of the page 1, “. . . if he intends to cause serious law and an application of that abstract state- bodily injury and intentionally commits an ment to the evidence in the case.” Riley v. act clearly dangerous to human life . . .” State, 830 S.W.2d 584, 586-87 (Tex. Crim. sufficient to convict the defendant of capital App. 1992). The court instructed the jury, in murder in conjunction with the attempt to the abstract portion, as follows: commit aggravated sexual assault. A person commits the offense of murder if In response, the court directed the jury he intentionally causes the death of an indi- “[p]lease refer to the charge and continue de- vidual or if he intends to cause serious bod- liberating.” The jury continued deliberating ily injury and intentionally commits an act clearly dangerous to human life that causes the death of an individual. 3 The question of intent was significant at Thacker’s trial. On review of his state habeas pe- A person commits capital murder if he in- tition, the Court of Criminal Appeals noted, tentionally commits murder, as heretofore defined, and the person intentionally com- At trial the State acknowledged that the element mits murder in the course of committing or of intent was the weakest part of its case. attempting to commit aggravated sexual as- During a hearing outside the presence of the sault. jury, the prosecutor stated, “ . . . The State does not have evidence on the issue of [Thacker’s] intent to kill . . . .” Therefore, the prosecutor These instructions, when read in harmony, offered evidence that a few weeks before [the attempt to explain the uncontroversial princi- death of Crawford, Thacker] had committed ple that, under Texas law, one may not be con- another sexual assault [which involved an at- victed of capital murder without a finding that tempted choking]. death was specifically intended. Murder, on the other hand, can be committed without that Thacker, No. 74,034 at 2-3. The trial court admit- specific intent where an act obviously danger- ted this evidence as probative of motive and intent. See id. at 3. 4 for fifteen minutes before returning a guilty were sufficiently central to the entire trial,6 the verdict on the charge of capital murder. conviction would violate the Constitution. On review of Thacker’s first petition for The district court held that these claims are state habeas relief, the Court of Criminal Ap- procedurally foreclosed. We agree, and, be- peals held that the instructions did not contain cause this conclusion is not one about which “any error at all,” Ex parte Thacker, No. reasonable jurists can differ, we decline to is- 74,034, at 9; that any confusion was mitigated sue a COA. by the correct statement of law in the applica- tion paragraph of the charge;4 and that the “Under the procedural default doctrine, a court’s note to the jury to refer back to the federal court may not consider a state prison- charge therefore remedied any confusion. er’s federal habeas claim when the state based its rejection of that claim on an adequate and B. independent state ground. Martin v. Maxey, Thacker contends that the state court’s re- 98 F.3d 844, 846 (5th Cir. 1996).7 In no un- jection of his claim of jury-instruction error certain terms, the Court of Criminal Appeals was violative of his federal constitutional rejected Thacker’s claim with respect to the rights, to-wit, the Trial and Impartial Jury jury instruction because Thacker had “failed to clause of the Sixth Amendment and the Due object to the jury charge definition of murder Process clause of the Fourteenth Amendment. and/or capital murder at trial [and t]hus, he has Due process requires that conviction for a failed to preserve this issue for consideration in criminal offense must be supported by a find- a post-conviction writ of habeas corpus.” ing, beyond reasonable doubt, that all elements Thacker, No. 74,034, at 7. of the crime are present. In re Winship, 397 U.S. 358, 364 (1970). Similarly, in a jury trial In federal district court, Thacker contended the Sixth Amendment requires the same care.5 that the Court of Criminal Appeals’ alternative Consequently, if a jury instruction were to holdingSSthat the jury instruction was not er- permit conviction under circumstances that ror even if not procedurally-barredSSdemon- lightened this heavy constitutional burden on strates that the true basis of the rejection of his the prosecution, it is possible that, if the error 6 Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“The only question for us is whether the ailing in- struction by itself so infected the entire trial that the 4 Thacker concedes that there was no error in resulting conviction violates due process” (citation the application paragraphs. Significantly, it is the omitted)). application paragraph that authorizes conviction 7 under Texas law; the abstract paragraph merely This doctrine has an exception where the pe- state a theory of law. See McFarland v. State, 928 titioner can demonstrate the cause of his procedural S.W.2d 482, 515 (Tex. Crim. App. 1996). default and show actual prejudice as a result of the alleged violation of federal law, or that failing to 5 See United States v. Hebert 131 F.3d 514, consider his claim will yield a fundamental “mis- 521-22 (5th Cir. 1997) (stating that the Sixth carriage of justice.” Coleman v. Thompson, 501 Amendment requires that a jury find a defendant U.S. 722, 750 (1991). Thacker makes no such guilty of all elements of a crime to convict). argument. 5 claims was substantive, not procedural. The Court of Criminal Appeals was objectively rea- district court properly rejected that argument.8 sonable in finding that Thacker’s trial attor- Further, Thacker completely ignores this hur- ney’s conduct was not so egregious as to fall dle in his brief in support of his application for below an objectively reasonable standard of COA, so the issue is waived.9 professional performance. Therefore, for us to issue a COA on the issue of ineffective assis- C. tance, we must find that jurists of reason could The procedural bar, however, does not end disagree as to whether the district court erred our review of the complained-of instruction. in reaching such a conclusion. Thacker argues strenuously that the failure of trial counsel to object to the charge, or to re- Thacker’s court-appointed appellate coun- quest an additional instruction after the jury’s sel tries to surmount this obviously high hurdle note was received, constituted ineffective as- with admirable skill. In attempting to dem- sistance of counsel, contrary to the dictates of onstrate that the jury instructions were, at best, the Sixth Amendment. To review the inef- confusing, and at worst, downright erroneous, fective assistance claim, we must analyze the Thacker contends that the instructions violated alleged error regarding the jury instruction. the Sixth and Fourteenth Amendments by Nevertheless, under the Supreme Court’s allowing the jury to convict on the charge of Sixth Amendment jurisprudence, 10 Thacker capital murder without finding the requisite must demonstrate not just that the alleged jury element of specific intent. A cursory reading instruction was in error, and not just that his of the abstract paragraphs, excerpted above, lawyer’s failure to object to it was in error, but might lend support to that claim. The refer- that such a failure was so serious as to “fall[] ence in the second abstract paragraph to below an objective standard of reasonableness “murder, as heretofore defined” could easily be and thereby prejudice[] the defense.” Yarbor- read, especially by lay jurors, as allowing for ough v. Gentry, 540 U.S. 1, 5 (2003). conviction of capital murder without the requisite specific intent. The jury communi- Further, AEDPA, as discussed above, re- cated its confusion via its note to the court. quires that Thacker show that the state court resolution of this Sixth Amendment claim was Nevertheless, as Thacker concedes, it is a “not only erroneous, but objectively unreason- “well established proposition that a single jury able.” Id. The district court held that the instruction may not be judged in artificial iso- lation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 8 See Thacker, No. H-04-126 at 12 (quoting 141, 146-47 (1973). In that vein, the Court of Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. Criminal Appeals emphasized that the applica- 1998) (“[A]lternative rulings do not operate to vi- tion paragraphs (which Thacker concedes tiate the validity of a procedural bar that consti- were accurate) “explicitly stated, not once, not tutes the primary holding.”)). twice, but three times that before the jury 9 See, e.g., United States v. Thibodeaux, 211 could convict [Thacker] of capital murder, it F.3d 910, 912 (5th Cir. 2000). must find, beyond a reasonable doubt, that [Thacker] ‘intentionally caused the death of 10 See, e.g., Strickland v. Washington, 466 U.S. Karen Gail Crawford,’ ‘specifically intended to 668, 686 (1984). 6 cause the death of said Karen Gail Crawford,’ limitations of AEDPA, therefore, we cannot and ‘intentionally cause[d] the death of Karen issue Thacker a COA on his claim that the jury Gail Crawford.’” Thacker, No. 74,034, at 10- instruction violated his constitutional rights. 11. IV. Those three instances, coupled with the ab- A. stract portion of the jury charge, which the Thacker’s other claims relate to the lack of state court found to state the law correctly, discussion at trial of his potential eligibility for rendered a total of five times that the jury was parole if not sentenced to death. At trial, the instructed that specific intent was required to court forbade any reference to the potential for convict of capital murder. Additionally, in its parole eligibility that is possible for prisoners closing argument, even the prosecution specif- serving life sentences for capital murder in ically reminded the jury that intent to kill was Texas.11 Although Texas subsequently has al- required to convict on capital murder. Thack- lowed for jury instructions regarding parole er, No. 74,034, at 4. eligibility in capital murder cases,12 this was not the case at the time of Thacker’s trial. In- Even if we were convinced that the state stead, the jury was forced to consider, at the court’s conclusionSSthat the abstract portion sentencing phase, the issue of Thacker’s future was without flawSSis incorrect, that is a far cry dangerousness without hearing any testimony from reaching the level of error needed to or argument regarding the possibility or likeli- warrant relief at this stage. The Court of hood of his release on parole if given a life Criminal Appeals reasonably concluded that sentence. the jury charge, taken as a whole, did not vio- late Thacker’s constitutional rights. Though Thacker contends that his inability to raise this conclusion might be arguable, it certainly this issue violates his constitutional rights does not qualify as such an unreasonable ap- (1) to due process of law under the Fourteenth plication of settled Supreme Court precedent Amendment; (2) to be free from cruel and un- as to warrant relief under AEDPA. See 28 usual punishment as protected by the Eighth U.S.C. § 2254(d). Given that the state court Amendment; and (3) to exercise compulsory was not unreasonable in finding the jury charge process to present a complete defense by vir- sufficient, it would be logically impossible for tue of the Sixth Amendment. On state habeas us to hold that Thacker’s trial counsel’s fail- review, Thacker’s claims regarding parole ures to object to the charge fell below an objectively reasonable standard of professional conduct. In sum, although reasonable minds might 11 Specifically, while Texas does not allow for differ as to whether the jury charge was erro- life imprisonment without the possibility of parole, neous or confusing, reasonable jurists cannot if spared the death penalty, Thacker would have differ as to whether the Court of Criminal Ap- been ineligible for parole until he served thirty-five peals conclusively adjudicated those claims in years in prison. such a manner as not to be an unreasonable application of federal law. Under the strict 12 See TEX. CODE CRIM PROC. art. 37.071, § 2(e)(2)(B). 7 eligibility were summarily rejected.13 154, 169 (1994), the Court concluded that the possibility of a life sentence without possibility The district court rebuffed Thacker’s argu- of parole is relevant to a jury’s determination ment that this rejection was contrary to, or an of whether the defendant poses future harm to unreasonable application of, federal law. Re- society. Indeed, such a sentencing scheme lying on our numerous precedents holding that “necessarily undercut[s] the state’s argument Texas does not violate due process or the pro- regarding the threat the defendant poses to hibition against cruel and unusual punishment society.” Id. Nevertheless, under regimes that by not informing juries of parole eligibility, the allow for parole eligibility, the decision wheth- court found that Thacker had failed to dem- er to instruct the jury on t hat fact is reserved onstrate that the state court’s rejection of to the states, and the Court “shall not lightly these arguments amounted to a violation of second-guess” the decision. Id. at 168. federal law. Since Simmons was decided, we have re- Alternatively, the district court ruled that peatedly held that neither the Due Process the non-retroactivity principle of Teague v. clause nor the Eighth Amendment requires Lane, 489 U.S. 288 (1989), would preclude Texas to allow presentation of parole eligibility relief for Thacker even if his arguments re- issues, because Texas does not offer, as an garding due process and the Eighth Amend- alternative to capital punishment, life impris- ment were convincing. That is, were Thacker onment without possibility of parole.14 Unde- to convince the court that settled Supreme terred by this ample caselaw to the contrary, Court precedent yielded the Texas court’s re- Thacker urges that Supreme Court precedent jection of these claims unreasonable, he is still subsequent to Simmons (and even Simmons it- not entitled to relief on federal collateral re- self) extends to invalidate the sort of state re- view under Teague. gime employed in Texas. With respect to Thacker’s novel assertion In the noticeable absence of any settled fed- that the Sixth Amendment requires that he be eral law supporting Thacker’s notion, AEDPA allowed to present evidence on parole eligibil- precludes the federal courts from granting ha- ity to the jury, the state court, as we have said, beas relief. That is, it cannot be said that the summarily rejected that claim. The federal state court’s application of federal law was ob- district court held both that this was not con- jectively unreasonable. The “threshold inquiry trary to federal law and that Teague would bar [under AEDPA] does not require full con- relief under this theory. Thacker, No. H-04- sideration of the factual or legal bases adduced CV-126, at 42. in support of the claims. In fact, the statute forbids it.” Miller-El v. Cockrell, 537 U.S. B. 322, 336 (2003). Instead, our task is only to In Simmons v. South Carolina, 512 U.S. 14 See, e.g., Elizade v. Dretke, 362 F.3d 323, 13 Ex parte Thacker, No. 661,866-A, at 16-17 332-33 (5th Cir.), cert. denied, 125 S. Ct. 293 (338th Dist. Ct., Harris County, Tex., July 11, (2004); Woods v. Cockrell, 307 F.3d 353, 360-62 2000), aff’d, Thacker, No. 74,034, at 16 (sum- (5th Cir. 2002); Johnson v. Cockrell, 306 F.3d marily rejecting parole eligibility claims). 249, 256-57 (5th Cir. 2002). 8 determine whether the district court’s dispo- defendant’s right to present relevant evidence sition was “debatable among jurists of reason.” is not unlimited, but is subject to reasonable Id. at 330. restrictions.” Id. at 308. The Court went on to announce a framework for evaluating the Thus, settled precedent makes pellucid the reasonableness of such restrictions. For ex- reasonableness of the state court’s rejection of clusionary evidentiary rules to pass constitu- Thacker’s argument that Simmons and its pro- tional muster, they must not be “‘arbitrary’ or geny require that he be able to raise parole ‘disproportionate to the purposes they are de- eligibility with the jury. The district court’s signed to serve.’” Id. (quoting Rock v. Arkan- denial of his claims, therefore, is not reason- sas, 483 U.S. 44, 55 (1987)). ably debatable and cannot justify the issuance of a COA.15 Thacker posits that prohibiting discussion regarding parole eligibility unconstitutionally C. burdened his right to present mitigating evi- Thacker makes the creative claim that the dence in that the restriction is disproportionate Sixth Amendment’s Compulsory Process to the purposes it is designed to serve. Be- Clause guarantees him the right to present tes- cause this is a novel approach, Thacker faces timony and argument relating to parole eligi- the same non-retroactivity hurdle that he must bility. This argument rests principally on overcome with respect to his due process and United States v. Scheffer, 523 U.S. 303 Eighth Amendment claims. As we have said, (1998), in which the Court considered the Teague prevents federal courts from granting argument that the Sixth Amendment requires habeas relief predicated on a “new” rule of courts to allow a defendant to present alleg- constitutional law. edly exculpatory polygraph evidence. Reject- ing that theory, the Court explained that “[a] Thacker attempts to get around this barrier by arguing that if we conclude that the Sixth Amendment was violated, it will merely be an 15 Even if we were to agree that the Simmons “unremarkable” application of Scheffer to new line of cases rendered support for Thacker’s facts. Thacker analogizes his Sixth Amend- claims, the non-retroactivity principle of Teague ment claim to the application of Strickland v. would preclude relief. In Wheat v. Johnson, 238 Washington, 466 U.S. 668 (1984), in which F.3d 357, 361 (5th Cir. 2001), considering the the Court laid out a framework for evaluating identical parole eligibility issue, we stated, “Under ineffective assistance claims. Specifically, in Teague, a federal court may not create new consti- Wright v. West, 505 U.S. 277 (1992), Justice tutional rules of criminal procedure on habeas Kennedy explained that where a rule “is one review.” Although Thacker argues at length that which of necessity requires a case-by-case ex- applying Simmons in the way he proposes would amination of the evidence, then we can tolerate merely be an unremarkable application of existing precedent, this is plainly not the case. Given the a number of specific applications without volume of caselaw in this circuit holding that, saying that those applications themselves cre- despite Simmons, the Fourteenth and Eighth ate a new rule . . . .” Id. at 308-09 (Kennedy, Amendments do not require Texas to allow discus- J., concurring). sion of parole eligibility in capital trials, a decision to the contrary here would undoubtedly constitute Obviously, the application of the Washing- a “new rule” under Teague and is therefore barred. 9 ton rule16 is one that, by its very nature, re- cess, we need not decide today whether and quires a case-by-case examination of the evi- how the guarantees of the Compulsory dence. Scheffer, on the other hand, merely Process Clause differ from those of the holds that the exclusion of polygraph results is Fourteenth Amendment. not disproportionate or arbitrary in light of a defendant’s not unbridled right to present evi- Pennsylvania v. Ritchie, 480 U.S. 39, 56 dence in his defense. To hold that it extends (1987) (emphasis added except for the word to, and invalidates, all restrictions on discus- “greater”). Thus, although the two methods sion of parole eligibility would undoubtedly be of analysis are not equivalent, reference to our a bold new step, not an “unremarkable” ap- jurisprudence considering similar claims under plication of settled precedent. Thacker’s Sixth the Due Process clause is illuminating and Amendment argument, therefore, is so plainly persuasive. barred by Teague that we cannot conceive that reasonable jurists would disagree.17 In Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir. 1998), we held that “a state may ra- D. tionally conclude that its capital sentencing Even if Thacker’s claim based on the Com- scheme would be better served by not requir- pulsory Process Clause claim were not barred ing that courts inform juries of parole consid- by the non-retroactivity principle of Teague, erations . . . . The Texas Legislature could ra- its substance is insufficient for the issuance of tionally conclude that injection of parole issues a COA. Analysis of claims under the Sixth at the punishment phases of capital murder Amendment are routinely addressed by analy- trial would invite consideration of factors sis similar to that employed in due process unrelated to the defendant’s blameworthiness challenges. . . . .” Such restrictions, therefore, do not run afoul of the Fourteenth Amendment. Because the applicability of the Sixth Amendment to this type of case is unset- Given that conclusion, it can hardly be said tled, and because our Fourteenth Amend- that the Texas Court of Criminal Appeals act- ment precedents addressing the fundamen- ed contrary to, or engaged in an unreasonable tal fairness of trials establish a clear frame- application of, federal law. Where no court work for review, we adopt a due process has yet to publish an opinion considering analysis for purposes of this case. Thacker’s claim that the Sixth Amendment, Although we conclude that compulsory per Scheffer, protects his right to discuss par- process provides no greater protections in ole eligibility, and we have explicitly rejected this area than those afforded by due pro- such an argument under the analogous due process framework, we cannot say that Thack- er has made a substantial showing that the 16 Texas courts deprived him of a federal We discuss the contours of Washington in rightSSnor can we imagine that reasonable jur- part III.C., supra. ists could disagree. 17 See Aldrich v. Dretke, 83 Fed. Appx. 11 (5th Cir. 2003) (unpublished) (rejecting a similar Sixth The request for a COA is DENIED. Amendment claim as barred by Teague), cert. de- nied, 124 S. Ct. 2817 (2004). 10 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/37463. Public record. Not legal advice.