Keele v. Quarterman , 185 F. App'x 334 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 14, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50475
Summary Calendar
LARRY EDDLIN KEELE,
Petitioner-
Appellant,
versus
NATANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-
Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CV-1122
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Larry Keele, Texas prisoner # 1077576, appeals from the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition, in which he challenged his jury-trial conviction on three counts
of indecency with a child. The district court granted Keele a certificate of appealability (COA) on
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
his federal habeas claim that his jury charge was unconstitutional in that it permitted the jury to
convict him upon less-than-unanimous agreement as to which conduct constituted the offense. Keele
has not made such an express request to expand his COA to include the additional issues of
ineffective assistance of trial and appellate counsels and arrest without probable cause which he raises
in his brief. Because this court’s review is limited to the issue specified in the grant of COA, these
issues will not be considered. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
Where, as here, there has been no clear adjudication on the merits of an issue raised in state
court, federal habeas review is conducted de novo. See Miller v. Johnson, 200 F.3d 274, 281 n.4
(5th Cir. 2000)(citation omitted). Habeas relief under 28 U.S.C. § 2254 is reserved for vindication
of federal constitutional rights. See Martinez v. Johnson, 255 F.3d 229, 246 (5th Cir. 2001).
The Supreme Court has not held that the Constitution imposes a jury unanimity requirement.
See Hoover v. Johnson, 193 F.3d 366, 369 & n.2 (5th Cir. 1999) (citing Richardson v. United States,
526 U.S. 813, 821 (1999)). A trial court is authorized to instruct a jury that it may find that the
defendant committed an offense by one or more specified means, even if the offense is charged in the
conjunctive. See Schad v. Arizona, 501 U.S. 624, 631 (1991); Capps v. Collins, 900 F.2d 58, 60 n.2
(5th Cir. 1990) (“Use of the conjunctive rather than the disjunctive in the indictment did not oblige
the state to prove both.”). The same is true under Texas state law. See, e.g., Kitchens v. State, 823
S.W.2d 256, 258 (Tex. Crim. App. 1991); Cruz v. State, 742 S.W.2d 545, 546 (Tex. App. 1988).
Based upon the foregoing authority, Keele cannot demonstrate constitutional error with
respect to his challenge to the disjunctive jury charge. See Martinez, 255 F.3d at 246. The judgment
of the district court is AFFIRMED.