Garcia White v. Rick Thaler, Director , 522 F. App'x 226 ( 2013 )

Case: 12-70032 Document: 00512193535 Page: 1 Date Filed: 04/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2013
No. 12-70032
Lyle W. Cayce
Clerk
GARCIA GLENN WHITE,
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
USDC No. 4:02-CV-01805
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Garcia Glenn White, a prisoner in the custody of the Texas Department
of Criminal Justice, moves this court for a certificate of appealability (“COA”)
following the district court’s dismissal of his 28 U.S.C. § 2254 motion. For the
following reasons, White’s application for a COA is DENIED.
FACTS AND PROCEEDINGS
White was convicted and sentenced to death for the murders of Bernette
and Annette Edwards. The Texas Court of Criminal Appeals (“TCCA” or “Court
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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of Criminal Appeals”) affirmed White’s conviction and sentence on direct review
on June 17, 1998. White v. State, No. 72,580 (Tex. Crim. App. June 17, 1998).
White then filed a state application for a writ of habeas corpus. The trial court
entered findings of fact and conclusions of law recommending that White be
denied relief, and the Court of Criminal Appeals adopted the trial court’s
findings and conclusions on February 21, 2001. Ex parte White, No. 48,152-01
(Tex. Crim. App. Feb. 21, 2001). White filed a second state habeas application
on January 11, 2002, but the Court of Criminal Appeals dismissed the
application for abuse of the writ on April 24, 2002. Ex parte White, No.
48,152-02 (Tex. Crim. App. April 24, 2002).
White filed a federal habeas petition on May 3, 2002. The district court
granted White an administrative stay pending the outcome of DNA retesting.
On September 30, 2011, after retesting, the district court denied White’s
petition, and denied White a COA. White v. Thaler, No. 4:02-01805 (S.D. Tex.
Sept. 30, 2011). White filed a motion to alter or amend the judgment pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure, which the district court also
denied. White then filed an application for a COA with this court.
STANDARD OF REVIEW
Federal habeas relief is available when a state court decision adjudicating
a claim on its merits is shown either: (1) to be “contrary to, or involve[] an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or (2) to be “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “Section 2254(d) reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring in the judgment)).
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To obtain a COA from this court, White must make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, White
must demonstrate that “his application involves issues that are debatable among
jurists of reason, that another court could resolve the issues differently, or that
the issues are suitable enough to deserve encouragement to proceed further.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). “[T]he determination
of whether a COA should issue must be made by viewing the petitioner’s
arguments through the lens of the deferential scheme laid out in 28 U.S.C.
§ 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Where, as
here, a district court has rejected a petitioner’s claims on the merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
The district court carefully considered each of White’s twenty one claims
for relief, and determined that each was foreclosed by clear, binding precedent.
White has not made the required showing that reasonable jurists would find the
district court’s conclusions debatable or wrong.
DISCUSSION
I. Ground One
White’s first allegation in support of a COA is that the district court erred
in rejecting his argument that the prosecution in the underlying state court
proceeding improperly struck a black member of the venire, in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). To succeed under Batson, White must
first make a prima facie showing that there was a racially discriminatory strike.
Id. at 96-97. If the prosecutor offers a race-neutral explanation, then the court
determines if the defendant has shown purposeful discrimination. Id. at 98.
After White presented his prima facie case, the trial court held a hearing in
which the State submitted race-neutral explanations for the strike. In
particular, the prosecutor stated that: (1) the juror refrained from giving his
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personal opinions about the various issues in the case; (2) the juror indicated
that the prosecutor was trying to trick him into providing an answer as to his
feelings about the death penalty; and (3) the prosecutor had a general feeling
that the juror did not trust him or was suspicious of him. White v. State, No.
72,580, slip op. at 9-10. The prosecutor also noted that two black men had
already been accepted for the jury.
The trial court accepted the State’s explanation, and overruled White’s
Batson challenge. The Texas Court of Criminal Appeals affirmed, noting that
White presented no evidence indicating that the prosecutor’s reasons for
dismissing the juror were pretextual. The district court agreed with the Texas
Court of Criminal Appeals, noting that:
Considering the trial court’s superior ability to make credibility
determinations, the absence of any evidence of a pattern of striking
minority venire members, and the fact that two African-Americans
sat on the jury that convicted White and sentenced him to death, the
TCCA’s conclusion that White failed to prove purposeful
discrimination is not an unreasonable determination of the facts, or
an unreasonable application of Batson.
White v. Thaler, No. 4:02-01805, slip op. at 19.
Because the focus of the inquiry in a Batson challenge is the credibility of
the prosecutor, the trial court’s findings are entitled to “great deference.”
Batson, 476 U.S. at 98 n.21. The state trial court made a credibility
determination in favor of the prosecutor, and White has presented no evidence
that the state court’s decision “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). Under our deferential standard of review, White has failed
to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), sufficient for appellate review.
II. Ground Two
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Three prospective jurors, Mary Raines, Kelly Guthrie, and Beatrice
Hamann, stated in response to voir dire questioning that they would hold the
State to a higher burden of proof than required by law in a death penalty case.
The State challenged these three jurors for cause, and the state trial court
accepted the challenge and dismissed the jurors. White challenged these
dismissals, arguing that they violated Witherspoon v. Illinois, 391 U.S. 510
(1968), which held that “a State may not constitutionally execute a death
sentence imposed by a jury culled of all those who revealed during voir dire
examination that they had conscientious scruples against or were otherwise
opposed to capital punishment.” Adams v. Texas, 448 U.S. 38, 43 (1980) (citing
Witherspoon, 391 U.S. at 519). As applied to White’s case, this means that “a
juror may not be challenged for cause based on his views about capital
punishment unless those views would prevent or substantially impair the
performance of his duties as a juror.” Id. at 45.
Because White failed to object to the dismissal of Mary Raines at trial, the
district court held that he did not sufficiently preserve his claim for appellate
review. Reasonable jurists would not disagree with this holding. To preserve
a claim for federal habeas review, a defendant must make a specific and timely
objection at the time of the allegedly objectionable conduct. Wainwright v.
Sykes, 433 U.S. 72, 86-87 (1977). Failure to object constitutes a procedural
default, which bars federal habeas relief unless the petitioner shows either cause
for the default and actual prejudice flowing from the alleged constitutional
violation, or a miscarriage of justice. Id. at 87-91. White failed to demonstrate
a fundamental miscarriage of justice for the reasons discussed in Section IV,
infra, and he did not offer any cause for the default. Accordingly, no reasonable
jurist would find that White is entitled to a COA on his Witherspoon claim, as
it relates to Mary Raines.
The state trial court engaged in extensive follow-up questioning of Kelly
Guthrie and Beatrice Hamann to determine whether they would be capable of
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following the law. Upon questioning, Beatrice Hamann stated that, if the State
proved all the elements of the offense beyond a reasonable doubt based on
testimony from a single eyewitness, she would require more evidence prior to
convicting. Kelly Guthrie stated that he would have to be “100% certain” of
guilt, and would also hold the State to a higher burden of proof with regard to
punishment. The trial court held that the jurors’ ability to perform their duties
was therefore substantially impaired, and the Texas Court of Criminal Appeals
affirmed.
A trial court’s finding of bias under a challenge for cause is a factual
finding that is presumed correct in federal habeas proceedings, unless
demonstrated to be clearly erroneous. Wainwright v. Witt, 469 U.S. 412, 429-30
(1985). The district court denied habeas relief after finding that White failed to
show that the trial court’s finding was erroneous. For the reasons expressed
above, we hold that this issue is not debatable among jurists of reason.
Accordingly, White is not entitled to a COA on any of his Witherspoon claims.
III. Grounds Three, Four, and Five
On July 21, 1995, White was validly arrested for the capital murder of a
convenience store clerk that had occurred eight days earlier (on July 13, 1995).
During the investigation of the July 13 murder, police received information from
Tecumseh Manuel (a friend of White’s) regarding the Edwards murders, as well
as a third capital murder involving White that had occurred in November 1989.
The police read White his Miranda rights and questioned him about the
Edwards murders on July 22. White waived his rights, and although he initially
denied involvement in the Edwards murders, he admitted to limited involvement
after being confronted with the information provided by Manuel.
White was appointed counsel for the July 13 murder on July 24, 1995. On
July 28, after obtaining new information, police again questioned White about
the Edwards murders. White had not yet been charged in the Edwards murders
and did not have counsel for that case. White claimed that he made a clear
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request for counsel with respect to the Edwards murders when he stated, after
receiving his Miranda rights: “I have a right to a, one . . . I definitely have the
right to have a lawyer present.” After White’s statement, the officer clarified
that White was correctly stating his rights as read to him, and asked White if he
was willing to waive those rights and discuss one of the other murders. White
agreed to do so.
The state trial court entered findings of fact and conclusions of law, finding
that White was informed of his rights; that he voluntarily waived them prior to
all interviews and recorded statements; and that White never invoked his right
to an attorney during any of the interviews. The Texas Court of Criminal
Appeals affirmed, holding that White’s invocation of his right to counsel was, at
best, ambiguous.
A valid invocation of the right to counsel “requires, at a minimum, some
statement that can reasonably be construed to be an expression of a desire for
the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994)
(quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). To invoke the right to
counsel, the suspect “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” Id. “[I]f a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood only that
the suspect might be invoking the right to counsel, our precedents do not require
the cessation of questioning.” Id. (emphasis in original).
The district court held that White’s statement was reasonably understood
as a reference to his previous conversation with the questioning officer, in which
the two had engaged in a substantial discussion about the right to counsel. In
other words, a reasonable officer would have understood White’s statement to
be nothing more than an acknowledgment that he had the right to an attorney.
The holding of the Texas Court of Criminal Appeals that White was informed of,
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and knowingly and voluntarily waived, his right to counsel was therefore not an
unreasonable application of the law sufficient to merit habeas relief. We hold
that this conclusion is not debatable among jurists of reason.
The district court found White’s argument—that substance abuse rendered
him incompetent to waive his rights—similarly unmeritorious. The interviewing
officer stated that White was not intoxicated at the time of questioning, and that
White specifically told him that he had been drug free for a few days. White did
not, and has not, offered rebuttal evidence to this testimony. Based on this
testimony, the state trial court entered factual findings that White was not
under the influence of drugs or alcohol at the time of the interviews; White was
not threatened, coerced, or promised leniency in return for his statements; and
that the statements were made voluntarily. The district court noted that White
did not present any evidence that he was so impaired that he did not understand
his rights or the consequences of waiver. The district court further concluded
that the trial court reasonably held that White was competent to waive his
rights at the time of questioning. See, e.g., Moran v. Burbine, 475 U.S. 412, 421
(1986) (noting that a waiver is voluntary if, under the totality of the
circumstances, “it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and “made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it.”). White has not made a substantial showing of the denial of a
constitutional right sufficient to merit a COA on his Fifth Amendment claims.
See 28 U.S.C. § 2253(c)(2).
White also raises a Sixth Amendment challenge to his questioning about
the Edwards murders. Because White had not been charged with the Edwards
murders during the relevant questioning, his Sixth Amendment right to counsel
had not yet attached. McNeil, 501 U.S. at 175-76; United States v. Gouveia, 467
U.S. 180, 187 (1984); Henderson v. Quarterman, 460 F.3d 654, 661-62 (5th Cir.
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2006). No reasonable jurist would find that the district court erred in denying
habeas relief as to this claim.
IV. Grounds Six, Seven, Eight, Nine, and Ten*
White makes various assertions of his actual innocence, including claims
relating to the presentation of new DNA evidence, claims relating to evidence of
his future dangerousness, and claims relating to evidence of mitigating
circumstances. The district court found that none of these claims provides an
appropriate ground for habeas relief.
“[A] claim of ‘actual innocence’ is not itself a constitutional claim, but [is
only] a gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits.” Herrera v.
Collins, 506 U.S. 390, 404 (1993). Instead, “[c]laims of actual innocence based
on newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Id. at 400. “[T]he traditional remedy for
claims of innocence based on new evidence, discovered too late in the day to file
a new trial motion, has been executive clemency.” Id. at 417.
The Supreme Court has assumed, without deciding, that “in a capital case
a truly persuasive demonstration of ‘actual innocence’ made after trial would
render the execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process such a claim.” Id.
The threshold showing for this assumed right would “necessarily be
extraordinarily high.” Id.; accord House v. Bell, 547 U.S. 518, 555 (2006) (noting
that such a standard, if it were to exist, would be higher than the standard set
out in Schlup v. Delo, 513 U.S. 298 (1995), for overcoming defaulted claims).
*
The numbering in White’s summary of the Grounds Presented for Review differs
slightly from the numbering in White’s Brief in Support for Application for a Certificate of
Appealability. We have followed the latter in this opinion, although some of White’s briefing
conflates these issues.
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However, “[n]ever having seen such a claim that was supported by anything that
even approached a ‘truly persuasive demonstration’ of actual innocence, ‘[t]he
Fifth Circuit has rejected this possibility and held that claims of actual
innocence are not cognizable on federal habeas review’ in accordance with our
pre-Herrera precedent.” Cantu v. Thaler, 632 F.3d 157, 167 (5th Cir. 2011)
(alterations in original) (quoting Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir.
2003)), cert. granted, judgment vacated on other grounds, 132 S. Ct. 1791 (2012).
Under the Fifth Circuit’s current standard, no reasonable jurist would find
that White can establish a constitutional violation through his various claims of
actual innocence. This includes those claims in which he insinuates that newly
discovered evidence would have affected the punishment that he received, to the
extent that these claims are premised on the argument that the jury’s
underlying guilty verdict was incorrect. See Herrera, 506 U.S. at 405
(“[P]etitioner’s claim is not that some error was made in imposing a capital
sentence upon him, but that a fundamental error was made in finding him guilty
of the underlying murder in the first place. It would be a rather strange
jurisprudence, in these circumstances, which held that under our Constitution
he could not be executed, but that he could spend the rest of his life in prison.”).
The district court also held that the newly presented evidence was not
sufficient to merit relief even under the Schlup standard of review. “[P]risoners
asserting innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’” House, 547 U.S. at
536-37 (quoting Schlup, 513 U.S. at 327). “Examples of new, reliable evidence
that may establish factual innocence include exculpatory scientific evidence,
credible declarations of guilt by another, trustworthy eyewitness accounts, and
certain physical evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.
1999) (citing Schulp, 513 U.S. at 324). The only evidence reflected by the DNA
retesting was evidence of a potential third party at the crime scene. However,
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evidence of a potential third party’s involvement does not rule out White’s guilt,
nor is it truly newly presented, as the jury heard evidence from a serological
expert who testified on cross-examination that there were indications of another
DNA contributor at the crime scene.
White also seeks to introduce evidence, developed during his time in jail,
that he “has existed within the prison society and pose[s] no future
dangerousness.” Although White could have presented this evidence at his
original hearing had it been available to him, see Skipper v. South Carolina, 476
U.S. 1, 4-10 (1986), this evidence is not the sort that is cognizable on collateral
review. See Sawyer v. Whitley, 505 U.S. 333, 347 (1992) (“[T]he ‘actual
innocence’ requirement must focus on those elements that render a defendant
eligible for the death penalty, and not on additional mitigating evidence that was
prevented from being introduced as a result of a claimed constitutional error.”).
This is especially true given that the evidence did not exist at the time of White’s
sentencing, so there is no argument that it would have been included but for
some constitutional defect. Finally, this evidence would not satisfy the elevated
Schulp standard, even if it were to be admissible. See, e.g., Hughes v. State, 897
S.W.2d 285, 294 & n.13 (Tex. Crim. App. 1994) (holding that 21 years of
crime-free, violence-free behavior, twelve years of good behavior in prison, and
other meaningful, productive activities were not sufficient to outweigh the
State’s evidence in support of the death penalty). Accordingly, White has not
made a substantial showing of the denial of a constitutional right with respect
to any variations of his claim of actual innocence. See 28 U.S.C. § 2253(c)(2).
V. Grounds Eleven and Twelve
White argues that the future dangerousness and mitigation sections of his
punishment charge violate Apprendi v. New Jersey, in which the Supreme Court
held that, except for prior convictions, “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The Supreme
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Court extended Apprendi to facts giving rise to capital punishment in Ring v.
Arizona, 536 U.S. 584, 589 (2002).
The district court held that application of Apprendi is barred by the non-
retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). After Teague, “[i]f a
new rule of constitutional criminal procedure has been announced, it is generally
unavailable retroactively to collateral cases in which judgment has become final
unless it falls within an exception to the general rule, or the Supreme Court
explicitly makes it retroactive.” Peterson v. Cain, 302 F.3d 508, 511 (5th Cir.
2002) (citation omitted). In other words, “federal habeas courts must deny relief
that is contingent upon a rule of law not clearly established at the time the state
conviction becomes final.” Id. (emphasis omitted). White’s conviction became
final in 1998, two years before Apprendi, and four years before Ring. These
cases do not apply retroactively to cases on collateral review. See, e.g., Schriro
v. Summerlin, 542 U.S. 348, 353-55 (2004); United States v. Brown, 305 F.3d
304, 309 (5th Cir. 2002); accord Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir.
2005) (discussing the inapplicability of Apprendi to Texas’s punishment charges
on future dangerousness and mitigation). Accordingly, no reasonable jurist
would find that White is entitled to relief for any of his claims under Apprendi.
VI. Grounds Thirteen and Fourteen
White argues that his statutory mitigation jury instruction was
constitutionally inadequate under the “mixed signals” analysis of Penry v.
Johnson, 532 U.S. 782 (2001) (“Penry II”) because it was ambiguous as to the
burden of proof. Reasonable jurists would agree with the district court that this
claim is Teague-barred, because the Supreme Court has never held that Penry
II’s ruling on “mixed signals” applies retroactively to cases on collateral review.
Alternatively, “no Supreme Court or Circuit precedent constitutionally requires
that Texas’s mitigation special issue be assigned a burden of proof.” Rowell, 398
F.3d at 378. Any argument that an ambiguity in the special issue regarding the
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burden of proof violates Penry is meritless. See id; see also Coleman v.
Quarterman, 456 F.3d 537, 542 (5th Cir. 2006) (citing Rowell, 398 F.3d at 378).
White also argues that Texas’s special issue “Penry-instruction,” created
pursuant to Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), violates the ex
post facto clause of the Constitution. The intervening change of law via Penry
I permitted defendants to persuade the jury that mitigating evidence cautioned
against imposing the death penalty. As the district court noted, this is not a
violation of the ex post facto rule, as nothing about this procedural change makes
punishable an act that was not punishable at the time it was committed, or
imposes more severe punishment than was permitted under the law at the time
of the act. See Weaver v. Graham, 450 U.S. 24, 28 (1981). In addition, the only
evidence White seeks to introduce through his Penry allegations is his good
behavior within the prison system and the presence of a potential third party at
the crime scene, neither of which (he alleges) were even available to him to
present at trial. He has therefore failed to make a substantial showing of the
denial of a constitutional right sufficient for a COA. See 28 U.S.C. § 2253(c)(2).
VII. Grounds Fifteen and Sixteen
White alleges that the Texas death penalty statute, codified at Article
37.071 of the Code of Criminal Procedure, violates the Eighth and Fourteenth
Amendments. A capital sentencing scheme will be upheld as constitutional as
long as it “rationally narrows the class of death-eligible defendants and permits
a jury to consider any mitigating evidence relevant to its sentencing
determination.” Kansas v. Marsh, 548 U.S. 163, 175 (2006). As the district court
acknowledged, both this court and the Supreme Court have held that the Texas
death penalty scheme meets this requirement. Jurek v. Texas, 428 U.S. 262, 271
(1976); Sonnier v. Quarterman, 476 F.3d 349, 366-67 (5th Cir. 2007); see also
Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001) (“[Texas’s] statutory
scheme has not radically changed from the version upheld in Jurek v. Texas,
except to incorporate the dictates of Penry.” (alterations and emphases omitted)
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(quoting Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App.–en banc 1997),
cert. denied 118 S. Ct. 557 (1997))).
The district court also noted that this court has specifically upheld Texas’s
mitigation and future dangerousness special issues as they relate to the death
penalty. Id. In Beazley v. Johnson, this court held that “all mitigating evidence
can be given effect under the broad definition of mitigating evidence found in [§
2(e)],” and that “the amended statute does not unconstitutionally ‘preclude [] [the
jury] from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.’” 242 F.3d at 260
(alterations and emphasis in original) (quoting Lockett v. Ohio, 438 U.S. 586, 604
(1978)). Therefore, no reasonable jurist would find that White is entitled to relief
on his claims under the Eighth and Fourteenth Amendments.
VIII. Grounds Seventeen, Eighteen, Nineteen, Twenty, and
Twenty One
White contends that Texas and Harris County discriminate in their
application of the death penalty on the basis of race. A defendant claiming an
equal protection violation in a death penalty case must prove that the prosecutor
acted with a discriminatory purpose in that particular case. McCleskey v. Kemp,
481 U.S. 279, 292-93 (1987). The district court held that White has presented
no evidence that the prosecutor in his case acted with such a purpose.
Furthermore, as the district court noted, White’s argument that McCleskey is no
longer good law after Bush v. Gore, 531 U.S. 98 (2000) is not well taken. See
Coleman v. Quarterman, 456 F.3d 537, 542-43 (5th Cir. 2006) (“In two
unpublished decisions, this court previously has discussed Bush v. Gore’s utter
lack of implication in the criminal procedure context. We adopt the reasoning of
those persuasive opinions and, likewise, conclude that the question is beyond
debate.” (citations omitted)). Thus, White has not made a substantial showing
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of the denial of a constitutional right in his allegation of disparate treatment in
Texas’s application of the death penalty. See 28 U.S.C. § 2253(c)(2).
White alleges that Texas’s clemency procedures discriminate on the basis
of race, and violate international law. White does not have an execution date,
and he has not filed a petition for executive clemency. Accordingly, no
reasonable jurist would find that his allegations relating to the clemency process
are ripe for review. See Texas v. United States, 523 U.S. 296, 300 (1998); New
Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586-87 (5th
Cir. 1987).
CONCLUSION
White has not satisfied his burden of showing that he is entitled to a COA
on any of the grounds discussed above, and his motion for a COA is DENIED.
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