Shelton Jones v. Lorie Davis, Director , 886 F.3d 458 ( 2018 )


Menu:
  •      Case: 15-70040   Document: 00514404133     Page: 1   Date Filed: 03/27/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-70040
    Fifth Circuit
    FILED
    March 27, 2018
    SHELTON DENORIA JONES,                                          Lyle W. Cayce
    Clerk
    Petitioner–Appellant,
    v.
    LORIE DAVIS, 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 PRADO, OWEN, and SOUTHWICK, Circuit Judges.
    PRISCILLA R. OWEN, Circuit Judge:
    Shelton Denoria Jones was convicted of the capital murder of a police
    officer and sentenced to death in Texas state court. Jones asserts he is entitled
    to federal habeas relief on his claim that the press coverage of the crime and
    the presence of uniformed police officers in the gallery during his trial created
    an inherently prejudicial atmosphere that violated his right to a fair trial. The
    federal district court denied Jones’s request for discovery on this issue and
    denied relief on the merits, but granted a Certificate of Appealability (COA).
    We affirm the judgment of the district court.
    Case: 15-70040      Document: 00514404133        Page: 2     Date Filed: 03/27/2018
    No. 15-70040
    In prior proceedings Jones sought and has been granted a new
    sentencing phase on his claim that, in violation of Penry v. Lynaugh, 1 the Texas
    special issues did not provide an adequate vehicle for the jury to give full
    consideration to his mitigation evidence. 2           His fair trial claim therefore
    pertains only to the guilt/innocence phase of his trial.
    I
    Jones was charged with capital murder of a police officer in Houston,
    Texas. Media coverage followed the crime, including an editorial calling for
    charges to be filed against Jones and a letter to the editor suggesting Jones be
    hung from a “tall tree” with a “short rope.” Jones moved unsuccessfully for a
    change of venue to diminish the effects of the pre-trial publicity. Uniformed
    officers attended each day of Jones’s trial, in varying numbers. Jones was
    convicted of capital murder and sentenced to death.               The Texas Court of
    Criminal Appeals (TCCA) affirmed Jones’s conviction and sentence on direct
    appeal. 3
    The TCCA appointed habeas counsel. With leave of the state habeas
    court, Jones submitted an incomplete application for state habeas relief in
    order to comply with newly-enacted filing deadlines under the Antiterrorism
    and Effective Death Penalty Act (AEDPA). 4 As the state-law imposed deadline
    approached, Jones filed an amended application that raised several grounds
    for relief but did not raise the fair trial claim presented here. Attributing the
    omission of the fair trial claim to a “fault in the word processor used by his
    counsel,” Jones then filed—before the state-law deadline had passed—a
    document styled Errata and Corrections to Amended Application, which
    1  
    492 U.S. 302
    (1989).
    
    2 Jones v
    . Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
    
    3 Jones v
    . State, No. 71,369 (Tex. Crim. App. May 4, 1994) (en banc) (not designated
    for publication).
    4 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
    2
    Case: 15-70040       Document: 00514404133      Page: 3    Date Filed: 03/27/2018
    No. 15-70040
    included the claim at issue here. After the deadline had passed, Jones filed a
    supplemental application consolidating both previous filings for ease of
    reference. This petition included evidence of the officers’ attendance at the
    trial, but much of the evidence of media coverage that was included in Jones’s
    federal petition was not included in his state application.
    The state trial court recommended that the TCCA deny relief on all of
    Jones’s claims. The trial court’s recommendation noted that Jones “failed to
    urge [the fair trial claim] as a point of error on direct appeal” and that in any
    event, Jones had not shown that the presence of the officers was either
    inherently or actually prejudicial.        The TCCA rejected Jones’s claim on
    procedural grounds. Determining, without reference to the Errata, that the
    fair trial claim was not raised until after the filing deadline for the state habeas
    petition, it concluded that the supplemental application was a subsequent
    application for writ of habeas corpus under section 5 of Texas Code of Criminal
    Procedure article 11.071 and dismissed the fair trial claim as an abuse of the
    writ. 5       The TCCA “also expressly reject[ed] all findings and conclusions
    related” to the fair trial claim. 6
    Jones filed his initial federal habeas petition in 2006, and, after various
    procedural delays not relevant here, the district court granted Jones a new
    sentencing hearing based on his Penry claim and denied the remaining claims,
    including the fair trial claim. 7 The district court held that federal review of
    the fair trial claim was barred because the TCCA’s dismissal was based on an
    independent and adequate state procedural ground, but it granted a certificate
    Jones v. Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
    5
    Oct. 26, 2005) (per curiam) (not designated for publication).
    6 
    Id. 7 Jones
    v. Thaler, 
    2011 WL 1044469
    , at *5, *18 (S.D. Tex. Mar. 3, 2011).
    3
    Case: 15-70040      Document: 00514404133        Page: 4    Date Filed: 03/27/2018
    No. 15-70040
    of appealability (COA) on that issue. 8 This court affirmed the district court’s
    grant of relief on Jones’s Penry claim. 9 Because the district court granted the
    COA on the fair trial claim without making the required determination that
    “reasonable jurists could find it debatable whether the petition states a valid
    claim of the denial of a constitutional right,” we vacated the COA and
    remanded the case for the district court to consider the question in the first
    instance. 10 We dismissed or denied Jones’s cross-appeal and applications for
    COAs on other claims. 11 On remand, the district court issued a COA supported
    by appropriate findings. 12
    We subsequently held Jones’s fair trial claim was not procedurally
    barred and remanded the case to the district court for a decision on the
    merits. 13 The district court ordered supplemental briefing but denied Jones’s
    motions for discovery and investigative services.                  The district court
    subsequently determined that Jones was not entitled to relief on the fair trial
    claim but issued a COA. 14
    II
    The State contends that Jones’s fair trial claim is barred by the non-
    retroactivity principle announced in Teague v. Lane, which precludes the
    creation of “new constitutional rules of criminal procedure” on federal habeas
    review. 15 The State argues that Jones seeks to have this court recognize the
    8 
    Id. at *7.
          
    9 Jones v
    . Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
    10 
    Id. at 409-10.
          11 
    Id. at 413.
          1
    2 Jones v
    . Stephens, 
    2014 WL 243251
    , at *2 (S.D. Tex. Jan. 22, 2014).
    1
    3 Jones v
    . Stephens, 612 F. App’x 723, 729-30 (5th Cir. 2015) (per curiam).
    
    14 Jones v
    . Stephens, 
    2015 WL 6553855
    , at *5-6 (S.D. Tex. Oct. 28, 2015).
    15 Teague v. Lane, 
    489 U.S. 288
    , 316 (1989) (plurality opinion); see also Chaidez v.
    United States, 
    133 S. Ct. 1103
    , 1107 (2013).
    4
    Case: 15-70040      Document: 00514404133        Page: 5    Date Filed: 03/27/2018
    No. 15-70040
    applicability of the test announced in Holbrook v. Flynn 16 to purely private
    spectator activity.      Jones counters that he relies on a rule of general
    applicability to a specific set of facts but does not seek a new rule. 17 The State
    acknowledges that it failed to raise this issue before the district court. This
    court has previously determined, however, that “absent a compelling,
    competing interest of justice in a particular case, a federal court should apply
    Teague even though the State has failed to argue it.” 18
    It is not clear whether the challenged conduct is purely private. Jones’s
    primary complaint is that the Houston Police Department officers were in their
    uniforms during his trial. At the very least, this raises a question as to whether
    there was some state involvement in the officers’ presence at trial. But this
    court is not the proper court to consider this fact-bound issue in the first
    instance. The State’s failure to present this issue in the district court, despite
    raising it in a prior appeal before this court, and despite the district court’s
    order to provide supplemental briefing on the fair trial claim, has prevented
    the development of the record on this issue. Given this lack of development
    below, we pretermit the Teague analysis and review the district court’s decision
    on the merits.
    III
    The TCCA expressly denied Jones’s fair trial claim on procedural
    grounds and rejected “all findings and conclusions” made by the trial court with
    respect to that claim. 19 The State asserts that much of the media-related
    evidence Jones presented in his federal habeas petition should not be
    16  
    475 U.S. 560
    , 567-68 (1986).
    17  See 
    Chaidez, 133 S. Ct. at 1107
    .
    18 Jackson v. Johnson, 
    217 F.3d 360
    , 363 (5th Cir. 2000).
    1
    9 Jones v
    . Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
    Oct. 26, 2005) (per curiam) (not designated for publication).
    5
    Case: 15-70040        Document: 00514404133           Page: 6     Date Filed: 03/27/2018
    No. 15-70040
    considered because it was not presented to the state court and is therefore
    barred from consideration under 28 U.S.C. § 2254(e)(2).                      “Although state
    prisoners may sometimes submit new evidence in federal court, AEDPA’s
    statutory scheme is designed to strongly discourage them from doing so.” 20
    AEDPA limits a federal habeas court’s review of a claim that has been
    adjudicated on the merits in state court to the state court record. 21 However,
    the highest state court expressly rejected all findings and conclusions made by
    the lower habeas court and decided the case on procedural grounds. 22 Because
    there was no decision on the merits, 28 U.S.C. § 2254(d) is inapplicable to this
    claim. 23 Similarly, because the TCCA decided the case on procedural grounds,
    there was no “determination of a factual issue made by a State court” to which
    the federal court could have deferred under § 2254(e)(1). 24
    The State points out that § 2254(e)(2) applies regardless of whether there
    was a merits determination in state court. 25 Section 2254(e)(2) provides that
    20   Cullen v. Pinholster, 
    563 U.S. 170
    , 186 (2011).
    21   28 U.S.C. § 2254(d).
    22 Jones, slip op. at 2.
    23 See 
    Pinholster, 563 U.S. at 185-86
    (explaining the difference in applicability of
    § 2254(d)(1) to cases decided on the merits and of § 2254(e)(2) to cases not decided on the
    merits in state court); see also Fisher v. Texas, 
    169 F.3d 295
    , 300 (5th Cir. 1999) (determining
    AEDPA to be inapplicable when the state court rejected the claim on purely procedural
    grounds).
    24 28 U.S.C. § 2254(e)(1) (affording state court determinations of fact a presumption of
    correctness); see Williams v. Quarterman, 
    551 F.3d 352
    , 358-59 (5th Cir. 2008) (explaining
    that “a state habeas trial court’s factual findings do not survive review by the [TCCA] where
    they [are] neither adopted nor incorporated into the appellate court’s peremptory denial of
    relief”); see also Williams v. Taylor, 
    529 U.S. 420
    , 434-37 (2000) (holding that a prisoner who
    does not diligently endeavor to develop material facts in state court cannot obtain an
    evidentiary hearing in federal court); 
    Pinholster, 563 U.S. at 185-86
    (explaining the difference
    in applicability of § 2254(d)(1) and § 2254(e)(2), and noting that the latter retains significance
    for cases not decided on the merits in state court); 
    Fisher, 169 F.3d at 300
    (holding that a
    state court’s “awareness of, and explicit reliance on, a procedural ground to dismiss [the
    petitioner’s] claim is determinative . . . and [the court] therefore cannot apply the AEDPA
    deference standards to the state court’s findings and conclusions”).
    25 See 
    Pinholster, 563 U.S. at 185-86
    .
    6
    Case: 15-70040        Document: 00514404133           Page: 7      Date Filed: 03/27/2018
    No. 15-70040
    federal district courts “shall not hold an evidentiary hearing” to consider
    evidence if the habeas applicant “has failed to develop the factual basis of a
    claim in State court proceedings” unless the stringent requirements of
    § 2254(e)(2)(A) and (B) are met. 26 The Supreme Court has established that an
    applicant “fail[s] to develop” the factual basis of claim if there is a “lack of
    diligence” in presenting the evidence in state court. 27                   Section 2254(e)(2)
    accordingly requires us to determine whether Jones was diligent in attempting
    to present the media reports in the state proceeding. 28 We conclude that he
    was not.
    Jones failed to exercise due diligence by not introducing the media
    reports until more than a decade after they were written, his attempts to
    obtain discovery and investigative services notwithstanding. “Diligence for
    26  28 U.S.C. § 2254(e)(2) provides:
    If the applicant has failed to develop the factual basis of a claim in State court
    proceedings, the court shall not hold an evidentiary hearing on the claim unless
    the applicant shows that—
    (A) the claim relies on—
    (i) a new rule of constitutional law, made retroactive to cases on
    collateral review by the Supreme Court, that was previously
    unavailable; or
    (ii) a factual predicate that could not have been previously
    discovered through the exercise of due diligence; and
    (B) the facts underlying the claim would be sufficient to establish by
    clear and convincing evidence that but for constitutional error, no
    reasonable factfinder would have found the applicant guilty of the
    underlying offense.
    27 
    Williams, 529 U.S. at 432
    , 434-37 (“For state courts to have their rightful
    opportunity to adjudicate federal rights, the prisoner must be diligent in developing the
    record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do
    so, himself or herself contributing to the absence of a full and fair adjudication in state court,
    § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court,
    unless the statute's other stringent requirements are met. Federal courts sitting in habeas
    are not an alternative forum for trying facts and issues which a prisoner made insufficient
    effort to pursue in state proceedings.”); see also 
    Pinholster, 563 U.S. at 186
    ; McDonald v.
    Johnson, 
    139 F.3d 1056
    , 1059 (5th Cir. 1998).
    28 See Dowthitt v. Johnson, 
    230 F.3d 733
    , 758 (5th Cir. 2000) (“[T]he petitioner must
    be diligent in pursuing the factual development of his claim.”).
    7
    Case: 15-70040      Document: 00514404133       Page: 8   Date Filed: 03/27/2018
    No. 15-70040
    purposes of the opening clause [of § 2254(e)(2)] depends upon whether the
    prisoner made a reasonable attempt, in light of the information available at
    the time, to investigate and pursue claims in state court.” 29 When the evidence
    the applicant seeks to present before a federal tribunal could have been easily
    obtained and introduced to the state court, the due diligence requirement is
    not satisfied. In Holland v. Jackson, 30 for example, a habeas applicant sought
    to introduce testimony to impeach the credibility of an eyewitness seven years
    after his conviction. 31 The Supreme Court observed that under § 2254(e)(2), it
    was “difficult to see . . . how [the applicant] could claim due diligence given the
    7-year delay.” 32 Similarly, in Dowthitt v. Johnson, this court held that because
    the applicant could have easily obtained and introduced the affidavits from
    family members that he sought to introduce in federal court, he did not exercise
    due diligence merely by requesting an evidentiary hearing in state habeas
    proceedings. 33 A “reasonable person in [the applicant’s] place,” we said, would
    have obtained the inexpensive affidavits and attempted to present them in
    state court. 34
    In this case, all of the articles that Jones seeks to produce were written
    in 1991. Jones submitted his proposed conclusions of law on his fair trial claim
    in the state-court proceedings on March 24, 2003—twelve years later—without
    mentioning the articles. Jones did not introduce the articles until he filed his
    federal habeas petition on June 11, 2009, approximately eighteen years after
    the reports were published.           Jones’s lengthy delay in producing publicly-
    29 
    Williams, 529 U.S. at 435
    .
    30 
    542 U.S. 649
    (2004).
    31 
    Id. at 653.
          32 
    Id. 33 230
    F.3d at 758.
    34 
    Id. 8 Case:
    15-70040       Document: 00514404133           Page: 9     Date Filed: 03/27/2018
    No. 15-70040
    available news reports does not constitute due diligence. That Jones requested
    discovery and investigative services in federal district court does not mitigate
    his lack of diligence in obtaining the eighteen-years-old media reports. 35 The
    publicly-available reports could have been obtained easily and inexpensively
    in the twelve years before Jones submitted his proposed conclusions of law to
    the state court.
    Because Jones’s lack of diligence means he “failed to develop the factual
    basis of a claim,” we must determine whether the media reports Jones proffers
    in his federal habeas petition meet the stringent requirements of § 2254(e)(2).
    They do not. Jones does not, and could not, allege that the media reports
    concern “a new rule of constitutional law, made retroactive to cases on
    collateral review by the Supreme Court, that was previously unavailable.” 36
    With regard to § 2254(e)(2)(A)(ii), the media reports Jones seeks to introduce
    existed at the time of the state proceeding, so they do not constitute “a factual
    predicate that could not have been previously discovered through the exercise
    of due diligence.” 37 Because the media reports in Jones’s federal petition do
    not satisfy the requirements of § 2254(e)(2)(A)’s conjunctive test, we do not
    consider the reports.
    We reach this conclusion even though the text of § 2254(e)(2) expressly
    limits federal courts from conducting “evidentiary hearings” and Jones sought
    only to include documentary evidence of the media reports in his federal
    habeas petition.      In Holland, the Supreme Court rejected the applicant’s
    attempts to introduce new evidence through means of a motion for a new trial
    and observed that § 2254(e)(2)’s restrictions on federal-court fact-finding
    35 See 
    id. 36 28
    U.S.C. § 2254(e)(2)(A)(i).
    37 
    Id. § 2254(e)(2)(A)(ii);
    Williams v. Taylor, 
    529 U.S. 420
    , 435-36 (2000).
    9
    Case: 15-70040       Document: 00514404133          Page: 10     Date Filed: 03/27/2018
    No. 15-70040
    “apply a fortiori when a prisoner seeks relief based on new evidence without
    an evidentiary hearing.” 38 Accordingly, § 2254(e)(2) bars consideration of the
    media reports included in Jones’s federal petition, and the district court
    properly declined to consider them.
    IV
    After carefully reviewing the record, we conclude that Jones’s fair trial
    claim does not warrant habeas relief.
    A
    “A fair trial in a fair tribunal is a basic requirement of due process.” 39
    Whenever a courtroom arrangement is challenged as inherently prejudicial,
    the question must be not whether jurors actually articulated a consciousness
    of some prejudicial effect, but rather whether “an unacceptable risk is
    presented of impermissible factors coming into play.” 40                  A federal court
    presented with a claim that the trial atmosphere was inherently prejudicial
    may only “look at the scene presented to jurors and determine whether what
    they saw was so inherently prejudicial as to pose an unacceptable threat to the
    defendant’s right to a fair trial.” 41 The reviewing court should consider the
    totality of the circumstances in rendering its decision. 42 The Supreme Court
    addressed the presence of uniformed security personnel in the courtroom in
    Holbrook v. Flynn. Determining that the officer’s presence was not inherently
    38 Holland v. Jackson, 
    542 U.S. 649
    , 653 (2004); see also Boyko v. Parke, 
    259 F.3d 781
    ,
    790 (7th Cir. 2001) (“When expansion of the record is used to achieve the same end as an
    evidentiary hearing, the petitioner ought to be subject to the same constraints that would be
    imposed if he had sought an evidentiary hearing.”).
    39 Irvin v. Dows, 
    366 U.S. 717
    , 722 (1961) (quoting In re Murchison, 
    349 U.S. 133
    , 136
    (1955)).
    40 Holbrook v. Flynn, 
    475 U.S. 560
    , 570 (1986) (quoting Estelle v. Williams, 
    425 U.S. 501
    , 505 (1976)).
    41 
    Id. at 572.
           42 See Sheppard v. Maxwell, 
    384 U.S. 333
    , 352 (1966).
    10
    Case: 15-70040        Document: 00514404133          Page: 11      Date Filed: 03/27/2018
    No. 15-70040
    prejudicial, 43 the Court noted that a “wide[] range of inferences” might be
    drawn from officer presence in the courtroom, contrasting prior cases that had
    focused on “unmistakable mark[s] of guilt” 44 such as prisoner attire, shackles,
    and gags. 45 Without “minimiz[ing] the threat that a roomful of uniformed and
    armed policemen might pose to a defendant’s chances of receiving a fair trial,” 46
    the Court noted that a “case-by-case” approach, rather than a presumption of
    prejudice, was appropriate. 47           Whether the officers’ presence created an
    “unacceptable risk” of “impermissible factors coming into play” should be based
    on an evaluation of the scene presented to the jury. 48 The mere presence of
    four uniformed state troopers “quietly sitting in the first row of a courtroom’s
    spectator section” was insufficient to create such a risk. 49
    More recently, in Carey v. Musladin, the Supreme Court considered a
    state court ruling that buttons displaying the victim’s image worn by a victim’s
    family during trial did not deny a defendant his right to a fair trial. 50 The state
    appellate court applied the test announced in Flynn and, though noting that
    button-wearing should be discouraged, determined that the buttons had not
    resulted in inherent prejudice to the defendant. 51 On federal habeas review,
    the Ninth Circuit, citing its own precedent, concluded that the state court’s
    application of Flynn “was contrary to, or involved an unreasonable application
    43 
    Flynn, 475 U.S. at 569
    , 572.
    44 
    Id. at 569,
    571 (citing 
    Williams, 425 U.S. at 518
    ).
    45 
    Id. at 568-69
    (noting various practices that are a threat to the fairness of the trial,
    including forcing the defendant to appear in prisoner’s clothing throughout trial and binding
    and gagging the defendant before the jury).
    46 
    Id. at 570-71.
           47 
    Id. at 569.
           48 
    Id. at 570-71.
           49 
    Id. at 571.
           50 
    549 U.S. 70
    (2006).
    51 
    Id. at 73.
    11
    Case: 15-70040       Document: 00514404133        Page: 12     Date Filed: 03/27/2018
    No. 15-70040
    of, clearly established federal law.” 52 The Supreme Court pointed out that the
    application of the test to spectators was “an open question” in its jurisprudence
    and observed that the “lack of guidance” on the issue had resulted in divergent
    treatment of spectator conduct claims in lower courts. 53 It vacated the Ninth
    Circuit’s judgment because “[n]o holding of [the Supreme Court] required the
    California Court of Appeal to apply the test of Williams and Flynn” to spectator
    conduct. 54
    In Musladin, the Supreme Court suggested that Flynn might not apply
    to claims involving purely spectator conduct, but it did not affirmatively
    resolve that issue, nor did it have occasion to consider the test’s applicability
    to cases involving conduct, like that at issue in this case, that is neither clearly
    private nor clearly state action. 55 The Supreme Court has recognized that a
    “carnival atmosphere,” 56 “considerable disruption,” 57 or a case in which the
    trial judge “los[es] his ability to supervise [the trial] environment” 58 may
    provide a basis for relief in contexts involving the conduct of the press and the
    public during trial, 59 suggesting activity not attributable to the state may
    provide a viable basis for a due process claim premised on the violation of the
    right to a fair trial.
    Our court has not previously assessed the merits of a fair trial claim
    premised on the conduct of persons in the gallery, though we did note in Mata
    52  
    Id. at 73-74
    (quoting 28 U.S.C. § 2254(d)(1)).
    53  
    Id. at 76
    (suggesting that Flynn and Williams might apply only to state-sponsored
    practices, but concluding only that the state court had not unreasonably applied the Flynn
    test in denying relief to the petitioner).
    54 
    Id. at 77.
            55 
    Id. at 76
    .
    56 Sheppard v. Maxwell, 
    384 U.S. 333
    , 358 (1966).
    57 Estes v. Texas, 
    381 U.S. 532
    , 536 (1965).
    58 
    Sheppard, 384 U.S. at 355
    .
    59 
    Estes, 381 U.S. at 536
    .
    12
    Case: 15-70040       Document: 00514404133          Page: 13     Date Filed: 03/27/2018
    No. 15-70040
    v. Johnson that “the combined effects of excessive pretrial publicity,
    conspicuous presence of heavily armed security personnel in and around the
    courtroom, installation of surveillance and metal detectors for the duration of
    the trial, and the intimidating presence of 30–40 uniformed prison guards as
    spectators in the courtroom throughout [the] trial” could provide the basis of a
    cognizable constitutional claim. 60 Though we ultimately remanded the case
    for the district court to hold an evidentiary hearing, there was no further
    development of the fair trial claim in federal court. 61
    Jones relies heavily on the Eleventh Circuit’s opinion in Woods v.
    Dugger, referenced by this court’s opinion in Mata. 62 The petitioner in Woods
    was tried for the murder of a prison guard. 63 The trial occurred in a rural
    county of just over 10,000 people, one-third of whom were prisoners, where the
    prison system constituted a substantial portion of the local economy. 64 The
    jurors were all drawn from the county where the guard was killed and where,
    prior to the trial, the officer’s death had “bec[o]me a focal point for the lobbying
    efforts” of the local correctional facility’s employee union. 65 The officer’s sister
    had circulated a petition, which garnered more than 5,000 signatures, calling
    for the death penalty for those who kill prison guards. 66 Of the jurors finally
    selected, only four neither knew of the case nor had relatives working in the
    60  Mata v. Johnson, 
    99 F.3d 1261
    , 1271 (5th Cir. 1996) (citing Woods v. Dugger, 
    923 F.2d 1454
    (11th Cir. 1991)), vacated in part on reh’g, 
    105 F.3d 209
    (5th Cir. 1997).
    61 See Mata v. Johnson, 
    210 F.3d 324
    (5th Cir. 2000) (considering petitioner’s
    competency to waive collateral review);
    62 See 
    Mata, 99 F.3d at 1271
    n.34.
    63 
    Woods, 923 F.2d at 1455
    .
    64 
    Id. at 1457-58.
            65 
    Id. at 1458
    (noting that most of the jurors who were excused either had relatives or
    close friends who worked in the prison system, knew of the case, or knew witnesses).
    66 
    Id. (noting, however,
    that not all the signatures were from the county where the
    officer was killed).
    13
    Case: 15-70040      Document: 00514404133        Page: 14     Date Filed: 03/27/2018
    No. 15-70040
    prison system. 67     Photographs of the trial showed that the gallery was
    completely filled with spectators, about half of whom were uniformed prison
    guards, 68 and the trial judge had to admonish the spectators to be quiet several
    times. 69
    The Eleventh Circuit determined that “prejudice ar[ose] from the
    presence of the uniformed corrections officers in the context of a trial being
    held in the midst of an angry community.” 70 The court distinguished the
    presence of the correctional officers from the additional security in Flynn,
    noting that the correctional officers in this case were not providing security or
    escorting witnesses; rather, they were present solely to “show solidarity with
    the killed correctional officer” and to communicate to the jury that they
    “wanted a conviction followed by the imposition of the death penalty.” 71 This
    scene, combined with the extensive pre-trial publicity, resulted in the
    conclusion that the trial presented an extreme case that posed “an
    unacceptable risk [of] impermissible factors coming into play.” 72
    In Hill v. Ozmint, the Fourth Circuit addressed a fair trial claim based
    on a large number of uniformed officers in the courtroom and courthouse
    during trial. 73 Hill was on trial for the murder of a police officer in a small
    town and challenged the fairness of his trial in light of pretrial publicity and
    “rampant . . . emotionalism” in a small community. 74 Though the community
    was “greatly impacted,” nothing in the record suggested the courtroom was
    67   
    Id. 68 Id.
           69 
    Id. at 1459.
           70 
    Id. 71 Id.
    at 1459-60.
    72 
    Id. at 1459
    (quoting Holbrook v. Flynn, 
    475 U.S. 560
    , 570 (1986)) (alteration in
    original).
    73 
    339 F.3d 187
    , 197-98 (4th Cir. 2003).
    74 
    Id. at 198
    (internal quotation marks omitted).
    14
    Case: 15-70040       Document: 00514404133        Page: 15   Date Filed: 03/27/2018
    No. 15-70040
    filled with officers or that those present were not dispersed. 75 Further, the
    witnesses were not sequestered, and many officers testified, making their
    presence in court less likely to suggest the defendant’s guilt. 76 The Court
    determined that the scene presented to the jury did not unacceptably threaten
    Hill’s right to a fair trial. 77
    In United States v. Thomas, the Seventh Circuit addressed a fair trial
    claim premised on the presence of uniformed firefighters, applying many of the
    same factors considered in similar cases, but without citing Flynn. 78 The
    victim’s son was a firefighter, and approximately twenty uniformed firefighters
    attended closing arguments. 79          Though there were no objections to their
    presence at closing, the defense moved for a new trial after the verdict. 80 The
    appellate court noted that no reference to the firefighters’ presence in the
    courtroom had been made in closing arguments, they had not in any way
    disrupted the proceedings, and nothing suggested they were there for any
    reason other than to show support for one of their own. 81 The court also noted
    that no evidence was put forth as to the size of the courtroom or what
    proportion of the spectators were firemen. 82 The court concluded that the
    defendant’s fair trial claim should be denied. 83
    B
    In the present case, the district court found that “uniformed police
    officers were a visible portion of the spectators in th[e] case,” ranging from “one
    75 
    Id. at 200.
           76 
    Id. 77 Id.
           78 
    794 F.3d 705
    , 710 (7th Cir. 2015).
    79 
    Id. 80 Id.
           81 
    Id. 82 Id.
           83 
    Id. 15 Case:
    15-70040     Document: 00514404133        Page: 16   Date Filed: 03/27/2018
    No. 15-70040
    quarter [to] one-third of the spectators,” but that nothing “suggest[ed] that
    their presence or any pretrial publicity had any undue influence or effect on
    the jury.”   The district court further reasoned that “Jones was tried in
    Houston—one of the largest cities in the United States—with a jury pool drawn
    from the even larger Harris County, Texas” and that “Jones points to no
    evidence that any juror had a friend or relative who was a police officer.”
    Resting much of its opinion on a comparative analysis of the Eleventh Circuit
    decision in Woods, the district court concluded that Jones “fail[ed] to
    demonstrate inherent prejudice in his trial” and denied habeas relief.
    We note that the record does not fully support the district court’s
    assertion that no jurors had friends of relatives who were officers; however,
    this discrepancy does not change the outcome of this case because only
    inherent prejudice has been alleged.     Our independent review of the record
    supports the district court’s other conclusions.
    Jones’s evidence shows that uniformed officers attended each day of
    Jones’s trial. The number of officers in attendance varied, but the highest
    estimates were “between fifteen and twenty five,” comprising between one-fifth
    and one-third of the spectators. According to one account, officers often arrived
    early to reserve the first two rows of seating, and some stood against the
    courtroom walls when no seating was available.
    Jones’s argument that the jury could only infer from the officers’
    presence that they demanded a guilty verdict is unpersuasive, not least
    because it contradicts his own assertions made to the state court, wherein he
    alleged the officers might have been present out of curiosity or in support of
    the family. Other courts have declined to find the mere presence of officers in
    16
    Case: 15-70040        Document: 00514404133           Page: 17      Date Filed: 03/27/2018
    No. 15-70040
    a courtroom sufficient to support inherent prejudice, 84 and the record before us
    does not suggest the police presence intimidated the jury or disrupted the fact-
    finding process in any way. 85
    C
    Even assuming that § 2254(e)(2) does not bar this court’s consideration
    of the media-related evidence presented for the first time in Jones’s federal
    habeas petition, his fair trial claim still fails.
    There was extensive newspaper coverage of the aftermath of the
    shooting, the officer’s eventual death and funeral, and the investigation and
    arrest of Jones. Jones also offers several articles reporting on voir dire and the
    commencement of trial. The majority of the articles offer positive support for
    the officer—calls for blood donations or commentary on the need for better
    procedures to ensure officer safety. The pre-trial articles that do mention
    Jones are written in a measured, factual manner, and note that the prosecution
    was attempting to avoid the kind of publicity that had resulted in a change of
    venue in another case. Jones cites to only one inflammatory remark, made
    shortly after the officer died, in a letter to the editor—a comment that “a tall
    tree and short rope” would be appropriate for Jones. Another article that Jones
    suggests calls for his death merely reports that two suspects had been
    84  See Smith v. Farley, 
    59 F.3d 659
    , 664 (7th Cir. 1995) (“[I]f you kill a policem[a]n and
    are put on trial for the crime, you must expect the courtroom audience to include policemen.”);
    Howard v. State, 
    941 S.W.2d 102
    , 118 (Tex. Crim. App. 1996) (en banc) (“[T]his Court cannot
    hold that the mute and distant presence of twenty peace officers—comprising roughly one-
    fifth of the spectator gallery—is prejudicial, per se, without some other indication of
    prejudice.”), on reh’g (Dec. 18, 1996) (en banc), overruled on other grounds by Easley v. State,
    
    424 S.W.3d 535
    (Tex. Crim. App. 2014), holding modified by Simpson v. State, 
    119 S.W.3d 262
    (Tex. Crim. App. 2003).
    85 Cf. Sheppard v. Maxwell, 
    384 U.S. 333
    , 354 (1966) (noting that “bedlam reigned” in
    the courtroom, members of the media “hound[ed]” the trial participants, and a press table
    was set up inside the bar in the courtroom); Woods v. Dugger, 
    923 F.2d 1454
    , 1459 (11th Cir.
    1991) (noting that the trial judge had to admonish the spectators to keep quiet).
    17
    Case: 15-70040      Document: 00514404133         Page: 18    Date Filed: 03/27/2018
    No. 15-70040
    previously charged with attempted capital murder, and, as the officer had died,
    it was expected that the charges would be upgraded to capital murder. Jones
    provided no evidence of any additional publicity for the nearly six months
    between the officer’s death and the start of trial. Articles concerning the trial
    itself were likewise objective, reporting on a suppression hearing and the start
    of voir dire.
    Jones does not allege the kind of harassing publicity, “carnival
    atmosphere,” 86 or “considerable disruption” the Supreme Court has recognized
    as unacceptable in contexts involving the press and the public. 87 Nor does he
    suggest that the trial judge “lost his ability to supervise [the trial]
    environment.” 88 Rather, Jones argues that the pretrial publicity shows the
    community was “angry” and “organized behind convicting . . . Mr. Jones.”
    However, the evidence, even if considered in the light most favorable to Jones,
    does not support this allegation.
    Though it is clear from the press that the community at large was aware
    of and troubled by the shooting, Houston, one of the largest cities in the
    country, was not a small, close-knit community like that in Woods or Hill. 89
    The lack of extensive publicity leading up to the trial further undermines the
    argument that the community was “angry” or “organized” with respect to the
    shooting of the officer at the time of trial. The trial court questioned each panel
    of veniremen about its exposure to the case, and most members of the venire
    remembered very little about the case other than the name of the officer who
    was killed.
    86 
    Sheppard, 384 U.S. at 358
    .
    87 
    Id. at 353-55;
    Estes v. Texas, 
    381 U.S. 532
    , 536 (1965).
    88 
    Sheppard, 384 U.S. at 355
    .
    89 See Jones v. Stephens, 
    2015 WL 6553855
    , at *5 (S.D. Tex. Oct. 28, 2015).
    18
    Case: 15-70040       Document: 00514404133         Page: 19     Date Filed: 03/27/2018
    No. 15-70040
    Finally, media reports suggest some of the officers present may have
    worn a black cloth or shroud over their badges with the motto “Nemo me
    impune lacessit,” Latin for “no one assails me with impunity.” Jones makes
    much of this possibility. Setting aside the dubious assumption that the jurors
    could read the words from the jury box and understood Latin, we decline to
    hold that mere adornment with a sign of mourning is sufficient to prejudice a
    defendant’s right to a fair trial. 90
    Considering the totality of the circumstances at Jones’s trial 91—even
    including the media coverage leading up to the trial and the dress of the officers
    in attendance—the scene presented does not support a finding of inherent
    prejudice. 92 We are mindful of the statement in Flynn that, when reviewing a
    state court proceeding, “[a]ll a federal court may do . . . is look at the scene
    presented to jurors and determine whether what they saw was so inherently
    prejudicial as to pose an unacceptable threat to defendant’s right to a fair
    trial.” 93 Jones has not shown that the presence of uniformed officers observing
    a criminal trial in solidarity with a fallen officer is such a threat.
    90  See, e.g., In re Woods, 
    114 P.3d 607
    , 616-17 (Wash. 2005) (en banc) (holding that
    black and orange ribbons without inscription did not express an opinion about the defendant’s
    guilt or innocence and, thus, did not cause inherent prejudice); Davis v. State, 
    223 S.W.3d 466
    , 474-75 (Tex. App.—Amarillo 2006, pet. dism’d) (rejecting the petitioner’s assertion that
    the presence of spectators wearing medallions with the deceased officer’s picture created
    inherent prejudice). But see Norris v. Risley, 
    918 F.2d 828
    , 830-31 (9th Cir. 1990) (holding
    that spectator buttons reading “Women Against Rape” inherently prejudiced the defendant).
    91 See 
    Sheppard, 384 U.S. at 352
    .
    92 Cf. Mata v. Johnson, 
    99 F.3d 1261
    , 1271 & n.34 (5th Cir. 1996) (noting “with some
    consternation” that the factual situation described by the petitioner, which was “virtually
    indistinguishable” from that in Woods v. Duggar, could “provide the basis of a cognizable
    constitutional claim” and remanding the case for an evidentiary hearing after determining
    the state’s procedural dismissal did not bar federal review of the claim), vacated in part on
    reh’g, 
    105 F.3d 209
    (5th Cir. 1997).
    93 Holbrook v. Flynn, 
    475 U.S. 560
    , 572 (1986).
    19
    Case: 15-70040        Document: 00514404133           Page: 20      Date Filed: 03/27/2018
    No. 15-70040
    V
    Jones also appeals the district court’s denial of additional investigative
    funding and discovery, arguing that summary judgment was premature absent
    further record development. We disagree. After our remand of the case for
    consideration of the merits, Jones sought funds for an investigator to conduct
    witness interviews and subpoenas for archived media records of the trial.
    These requests were denied
    A federal habeas “judge may, for good cause, authorize a party to conduct
    discovery.” 94 A petitioner seeking funding for investigative services must show
    that the requested services are “reasonably necessary.” 95 The Supreme Court
    has recently explained that this phrase “calls for . . . a determination by the
    district court, in the exercise of its discretion, as to whether a reasonable
    attorney would regard the services as sufficiently important.” 96 The Court
    continued, “[p]roper application of the ‘reasonably necessary’ standard thus
    requires courts to consider the potential merit of the claims that the applicant
    wants to pursue, the likelihood that the services will generate useful and
    admissible evidence, and the prospect that the applicant will be able to clear
    any procedural hurdles standing in the way.” 97 However, “the ‘reasonably
    necessary’ test requires an assessment of the likely utility of the services
    94  Rule 6(a) of Rules Governing § 2254 Cases.
    95  18 U.S.C. § 3599(f) (providing, in part, that “[u]pon a finding that investigative,
    expert, or other services are reasonably necessary for the representation of the defendant,
    whether in connection with issues relating to guilt or the sentence, the court may authorize
    the defendant's attorneys to obtain such services on behalf of the defendant and, if so
    authorized, shall order the payment of fees and expenses therefor under subsection (g).”).
    96 Ayestas v. Davis, __ S.Ct. __, __ (slip op. 15-16) (March 21, 2018); see also id. at __
    (slip op. 17) (“A natural consideration informing the exercise of that discretion is the
    likelihood that the contemplated services will help the applicant win relief.”).
    97 Id. at __ (slip op. 17-18).
    20
    Case: 15-70040       Document: 00514404133         Page: 21        Date Filed: 03/27/2018
    No. 15-70040
    requested, and § 3599(f) cannot be read to guarantee that an applicant will
    have enough money to turn over every stone.” 98
    The district court did not abuse its discretion in denying investigative
    services because Jones did not show those services were “reasonably
    necessary” to develop his fair trial claim. Jones claims that officer presence
    during his trial and pre-trial publicity inherently prejudiced his trial. In his
    request for investigative services, he notes that the record contains affidavits
    of six witnesses as well as multiple media accounts of the number of officers
    present in the courtroom. This evidence documents the officers’ positions and
    conduct during trial as well as the number present.                       Jones requested
    investigative services to interview some 15-20 additional witnesses about the
    “courtroom environment,” citing the “somewhat differing accounts” provided
    by the current record. However, Jones offers the court no reason the additional
    interviews (now 25 years later) would be any more precise or offer less
    variation than the accounts he already has. Because we determine he is not
    entitled to relief even under the most favorable view of the facts, we see no
    purpose served by additional discovery on these issues. 99
    Jones also seeks to subpoena several media outlets to obtain any
    archived press coverage, photographs, or video footage from the trial, evidence
    which he claims will show the number of officers, their ratio to civilians, and
    their location relative to the jury. We note that, upon objection by both parties,
    the state trial court specifically disallowed a camera during closing arguments.
    Based on the exchange between counsel and the court at that time, there is no
    reason to believe cameras were allowed during any other part of the
    proceedings prior to sentencing. 100 Further, the articles attached to Jones’s
    98 Id. at __ (slip op. 18).
    99 See Smith v. Dretke, 
    422 F.3d 269
    , 288-89 (5th Cir. 2005).
    100 
    Id. 21 Case:
    15-70040     Document: 00514404133        Page: 22   Date Filed: 03/27/2018
    No. 15-70040
    petition indicate that at least some are from periodical archives. Jones has
    offered no explanation as to how this information is incomplete, or why there
    is a reasonable expectation that additional requests would yield differing
    information.
    The evidence provided in the habeas petition itself provides the court
    with sufficient information as to the number, location, and ratio of officers in
    the courtroom—that is, the scene presented to the jury. The evidence also
    provides sufficient evidence of the type and quantity of publicity. Jones fails
    to show how the discovery he seeks would do more than supplement that which
    he has already provided and offers no explanation for why he failed to seek
    discovery on these issues until now. We therefore conclude that the district
    court did not abuse its discretion in denying discovery, nor did it err in resting
    its conclusion on the evidence presented in the federal habeas petition.
    *        *         *
    For the foregoing reasons, we AFFIRM the judgment of the district court
    denying habeas relief on Jones’s fair trial claim.
    22