A jury convicted appellant of capital murder and sentenced him to death. This Court affirmed (1) and later denied state habeas corpus relief. ⁽²⁾ The United States District Court for the Southern District of Texas, however, ordered the State of Texas to conduct another punishment hearing. ⁽³⁾ The State of Texas conducted another punishment hearing before another jury, and the trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at this punishment hearing. Appellant raises 39 points of error in an automatic direct appeal to this Court. We affirm.

In point of error one, appellant claims, as he did on direct appeal after his first trial, that the evidence is legally insufficient to support the jury's affirmative finding on the "future dangerousness" special issue. This claim requires the Court to view the evidence in the light most favorable to the jury's finding and then determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991), cert. denied, 114 S.Ct. 101 (1993).

The evidence from the new punishment hearing showed that, pursuant to a pre-meditated plan, appellant burst into his former girlfriend's apartment, threw gasoline on her and set her on fire. She died nineteen days later from the extensive burns that she suffered. The evidence also showed that appellant has a history of violence, especially toward current and former girlfriends. ⁽⁴⁾

Appellant presented some good character evidence and evidence that he had a drug and alcohol problem at the time of the offense. Appellant also presented evidence from various prison employees that he had no record of violence during the seven years he was incarcerated on death row after his first trial. The prosecution responded to this through cross-examination with, among other things, evidence that appellant's nonviolent behavior on death row could have been due to the fact that death row inmates are limited in their movements and spend most of the time locked in their cells.

The prosecution presented evidence that appellant was a disciplinary problem while he was incarcerated in the county jail for the new punishment hearing. This evidence showed that appellant was "pounding and screaming" at county jail personnel after he refused their instructions to come out of his cell to get ready for court.

Q. This is [appellant]?

A. [Appellant] refused to come out of the tank. I asked him what was going on. He said it was too early for him to be dressed-out, that he did not need to be in court until 9:00 o'clock, and that he needed his rest and it was a bunch of bull to get him dressed-out that early and to put him in one of the holding cells up front.

Q. And what did you say in response?

A. I went through, telling him that he knew that we had to get him dressed-out early enough so he would not be late for court, that he would be on time for court, and that we had other people and other things to do, and he had to be the priority. That morning we had to have him ready for court at 8:30.

Q. And what was his response to that?

A. He still refused to come out of the tank; stating over and over that it was too early, that he refused; and that he wasn't coming out and that he did not want to sit in that holding cell for that long a period of time.

Q. How long did you talk to him and try to explain to him that he was coming out?

A. Between five and seven minutes.

Q. And the other officers had already been there for about 15 minutes; is that correct?

A. That's correct.

Q. What did he say, and what was his response to you when you said that he had to come out of the cell?

A. Well, when I got there, he was mad. And then he got angry, and then he started pounding his fists into the palms of his hand and started screaming at me and refusing to come out of the tank.

Q. Can you demonstrate in front the [sic] jury when you say "pounding the palm of his hand?"

A. He had one hand like this and he was doing like this. And as he was doing that, he was screaming. (Indicating).

Q. And who was he directing that to?

A. To me.

Q. And in response to that, what did you do?

A. I told him he was coming out, and he said he was not. And I told him, fine, I would go call the [Detention Response Team] and he would come out.

Q. Before you told him you were going to call the DRT team-and we'll get into that-did you try and get that control door between the tank and the vestibule?

A. Yes, ma'am, but the noise was so loud that the control room person could not hear me telling him to shut the inside door, which is the sliding door that separates him from the vestibule into the tank.

Q. Why was the noise loud?

A. Because [appellant] was pounding and screaming at me.

Appellant's psychiatric expert expressed an opinion that there was no more than a 48 percent statistical probability that appellant would commit future acts of violence. This expert also testified that appellant's violence is "relationship driven" with "most of his major stuff" due to "some problem with women."

Q. All right. And would it be a fair statement to say, Doctor, that the actions of [appellant] are relationship driven?

A. They certainly do appear to be. I mean, everything that-most of his major stuff has come out of some problem with women.

Q. All right, Doctor. You're familiar with Special Issue 1-

A. Yes, sir.

Q. -are you not?

A. Yes, sir.

Q. That as written, "There's a probability [appellant] will commit future acts of violence that will constitute a continuing threat to society."

And I want to define for you, first, Doctor, as a probability being more likely than not. Okay?

A. All right.

Q. And with that particular definition of probability, do you have an opinion whether it is more likely than not, or probable, that [appellant] will commit future acts of violence that will constitute a continuing threat to society?

A. I do have an opinion.

Q. What is that opinion, Doctor?

A. Well, the data I have already cited, Mr. [appellant's lawyer], indicates that the statistical probability does not exceed that. In fact, worst case, it's 48 percent.

Q. All right. And, Doctor, when-you base your opinion statistically, and on what else?

A. Well, I think in terms of actually making that number judgment that you just put forth, I think our best guidance is from the actuarial.

Q. All right.

A. Certainly our feeling that there is-that [appellant] represents an elevated risk against the general population is well-supported in both the clinical analysis, and in looking at the pattern analysis of the things that he has done wrong.

On cross-examination, appellant's psychiatric expert testified that a free appellant would be "at an increased position for something bad." This expert also recognized that the "future dangerousness" special issue makes no distinction between "prison and real life."

Q. And as long as he's free, he's a danger?

A. If he's free, then we're at an increased position for something bad.

Q. I mean-I guess my question to you-I mean, would you regard [appellant] as dangerous?

A. You have to tell me what you mean by "dangerous" to answer your question.

Q. I think that's a fairly common accepted-

A. If you assume what [appellant's lawyer] says, yeah, probably so.

Q. Okay.

A. If-but we do not have any way to factor in the effects of aging and whatever effect this experience has had on him.

Q. You understand-

A. But, in the world, I would be a lot more worried about [appellant].

Q. Okay. You know that the question Special Issue No. 1-you've been testifying in these kinds of cases for a long time, about this question-also applies to prison?

A. Yes, sir, I do.

Q. In fact, you know that it doesn't make a distinction between prison and real life? The question asks this jury to determine, as he sits there, is he a future danger; right?

A. Generally, it's taken that way. And I believe that is an appropriate question.

During closing jury arguments, appellant claimed that he would not be dangerous in prison if he received a life sentence which meant that he would not be eligible for parole until he had served 40 years. ⁽⁵⁾ The prosecution responded that appellant is dangerous and that a life-sentenced appellant would be dangerous in prison.

We decide, as we did before, that the facts of the offense and the other evidence of appellant's prior history of violence are sufficient to support the jury's affirmative finding on the "future dangerousness" special issue. See Blue I, slip op. at 6-7. Point of error one is overruled.

In point of error two, appellant claims that the evidence is factually insufficient to support the jury's affirmative finding on the "future dangerousness" special issue. We do not review a jury's finding on this issue for factual sufficiency. See McGinn v. State, 961 S.W.2d 161, 166-169 (Tex.Cr.App.), cert. denied, 119 S.Ct. 414 (1998). Point of error two is overruled.

In point of error four, appellant claims that the trial court erroneously granted the prosecution's challenge for cause to veniremember Mata based on her personal beliefs against capital punishment in violation of Witherspoon v. Illinois, 88 S.Ct. 1770 (1968). A veniremember who can set aside her beliefs against capital punishment and honestly answer the special issues is not challengeable for cause. See Witherspoon, 88 S.Ct. at 1777; Colburn v. State, 966 S.W.2d 511, 517 (Tex.Cr.App. 1998). A veniremember is challengeable for cause if her beliefs against capital punishment would prevent or substantially impair the performance of her duties as a juror in accordance with the court's instructions and the juror's oath. See Colburn, 966 S.W.2d at 517.

We review a trial court's ruling on a challenge for cause with "considerable deference" because the trial court is in the best position to evaluate the veniremember's demeanor and responses. See id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997) (appellate courts afford "almost total deference" to trial court's resolution of issues that turn on an evaluation of credibility and demeanor). We will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

The record reflects that Mata's answers to various questions on her juror questionnaire form indicated that she had strong personal beliefs against capital punishment and that she could not impose the death penalty because of these personal beliefs. During voir dire, Mata testified that these personal beliefs had not changed even after an explanation of the capital sentencing process whereby "technically speaking, it's not the jury that sentences the defendant to death, it's the law based on the questions and the answers received by the jury."

The record further reflects that, during questioning by the prosecution, Mata provided conflicting answers on whether her personal beliefs would substantially interfere with her ability to serve as a juror. For example,

Q. Now, as I'm talking to you, if it's possible for you to do this-because, obviously, I'm representing the State of Texas. And, to be frank with you, I really would like to know that I have a jury of twelve people who, even though they may have reservations about the death penalty, or even though they may feel strongly about it, they could put all that aside and still give the State a fair shot.

The defense, obviously, wants to be sure of the same thing. So, to be very blunt with you, because of your answers on this thing, I don't think-it seems pretty clear to me that the State just doesn't have a shot with you in this case because of your strong feelings against the death penalty.

Is that a fair statement?

A. Yes, that would be a fair statement.

Q. Obviously, the defense would love to have you on this jury, because as you sit there, you probably have already decided-or you have, based on what I see in your questionnaire-that regardless of the evidence you hear in this case, you're going to answer these questions in such a way that the defendant receives a life sentence; is that a fair statement?

A. No, I don't think that would be a true statement.

Q. Why don't you explain to me?

A. I think if I had to serve on the jury, as hard as it would be, I would have to put my personal feelings out of it totally. I would have to go on the evidence and the statements presented to me.

My concern would be, would I be able to live with that decision, based on whatever it is, afterwards.

Q. Okay. Well, let me talk to you about some of the responses you gave in the questionnaire, because of what you just said-some of the questions, responses you gave in your questionnaire seem a little different to me.

A. Well, I guess, my main thing is, I don't feel like I'm an individual that could serve on the jury in this particular case.

Q. Now, why is that?

A. Because of my beliefs. I don't believe I have the right, even though the law says I do, I don't believe I have the right-to see someone put to death.

Q. So you disagree with the law?

A. Not totally. I think that is an individual choice.

Q. Okay.

A. I mean, some people do agree with it. I'm not against it. I mean, I don't know if I, personally, can justify it in my heart or mind.

Q. Okay. I presume that your feelings about the death penalty, are they rooted in your religious beliefs?

A. To a certain point, yes.

Q. In your questionnaire, we gave you a scale of (1) to (10). (10) being a person who believes that the death penalty should be assessed in nearly every case, when a person has been convicted of capital murder, and (1) being a person who believes that the death penalty should almost never be assessed for a person convicted of capital murder. "Circle the number that you believe best describes where you would fit on that scale," and we have (10) through (1).

So far, and we talked to 50 or 60 people, you are the only person who has put a zero and then circled that. Why did you do that?

A. Because, there again, my personal belief is, I don't believe I can do that.

Q. And putting down a (1) would have allowed-I mean, it says, I guess (1) being a person who believes that the death penalty should almost never be assessed of a person convicted of capital murder. You didn't choose that one.

A. I don't believe I could do that.

Appellant asked Mata no questions regarding her personal beliefs about capital punishment. The trial court then questioned Mata during which Mata testified that she did not know if she could "assess [the death penalty]."

Q. So, I mean, this is the only time that you'll ever be on a witness stand in this case; in other words, where people are asking you directly, "What is your answer going to be?"

Look on the top of the same page, and you circled, as far as attitudes go, with reference to the death penalty, "Which of the following best [sic] represent your feelings?" You circled Number 4: "I could never under any circumstances return a verdict which assessed the death penalty."

A. I guess my answer to that one was, I was looking at all of them. With Number 1 it, says, "I believe any person convicted should be given the death penalty." I don't agree with that.

"I believe that the death penalty is appropriate in some cases." Without knowing individual cases, I could not answer that one.

"Although I do not believe the death penalty ought to be revoked, as long as it provides it, I could assess it."

I don't-I personally, I'm totally against the death penalty, I don't know if I could assess it.

Q. Okay.

Mata ultimately stated in response to questioning by the trial court that her personal beliefs about capital punishment would not substantially impair her ability to serve on the jury.

Q. Okay. Well, do you believe that what you-do you believe that your feelings and your attitudes and your beliefs for the death penalty, and specifically about your personal involvement, do you think that would substantially impair your ability to serve on a jury where the State is seeking the death penalty?

A. As my duty as a citizen of the state, Brazos County, I would have to put those aside.

Q. Well, ma'am, I understand. I understand what you're saying.

A. It would be hard. Let's put it that way.

Q. Nobody-I have never come across-well, I don't think-I have yet to come across a person who has said, "You know, I would just simply disobey the judge's instructions and the Court's Charge, and I wouldn't follow the law." It's rare that a person would ever do that.

And so, I understand what you're saying. You seem to have a sense of duty in that regard.

A. Yes.

Q. And you've served on a jury before

A. Yes.

Q. Now, I'm just asking you about your attitudes and your feelings and your beliefs. Only you know your heart, okay?

I mean, the law tells you, you have to set those things aside. But sometimes people can't, or at least they can't to the point where it would not impair their ability to serve.

So, having gone through that explanation, do you think that your beliefs or your attitudes would substantially impair your ability to serve?

A. No.

In granting the prosecution's challenge for cause to Mata, the trial court stated that it did not believe Mata when she testified that "I can follow my oath."

I'm satisfied to the extent that she's answering these questions in such a way where "Sure, I can follow my oath."

I think she's simply saying what she thinks the Court or the attorney want to hear, and I don't believe her, so the challenge will be granted.

On this record, we cannot conclude that the trial court clearly abused its discretion to grant the prosecution's challenge for cause to Mata based on her conflicting answers about her ability to follow the law. See Colburn, 966 S.W.2d at 517 (appellate court should not second-guess trial court's ruling on challenge for cause where veniremember is "persistently uncertain" about her ability to follow the law and where her responses are "vacillating, unclear, or contradictory"). The trial court was in the best position to evaluate Mata's demeanor and responses. See id. Point of error four is overruled.

In point of error five, appellant claims that the trial court violated ex post facto provisions of the state and federal constitutions "when it denied [appellant's] motion to include the Geesa reasonable doubt [definition] in the court's charge on punishment." ⁽⁶⁾ The jury charge at appellant's first trial contained the Geesa definition of "reasonable doubt." The jury charge at appellant's new punishment hearing did not contain this definition because, at the time of appellant's new punishment hearing, this Court had overruled Geesa in Paulson.

Appellant claims that the trial court should have included the Geesa definition of "reasonable doubt" in the jury charge at the new punishment hearing because "Geesa was the law at the time of the offense and at the time of his first trial." We understand appellant to argue that the failure to include this definition in the jury charge violated the fourth definition of an ex post facto law by altering the legal rules of evidence and requiring less evidence to sustain the jury's answer on the "future dangerousness" special issue than the law required at the time of the commission of the offense. See Rogers v. Tennessee, 121 S.Ct. 1693, 1697 (2001) (setting out the four generally recognized definitions of an ex post facto law with the fourth definition being a law that alters the legal rules of evidence and requires less evidence to convict than the law required when the offense was committed); Carmell v. Texas, 120 S.Ct. 1620, 1627-36 (2000) (discussing and applying the fourth definition of an ex post facto law).

We disagree. The ex post facto clause of the federal constitution does not apply to judicial acts such as our decision in Paulson. See Rogers, 121 S.Ct. at 1697 (ex post facto clause of federal constitution is a limitation on legislative power and does not apply to "the Judicial Branch of government"). Even if it did, we do not see how the failure to include the Geesa definition of "reasonable doubt" in the jury charge altered the legal rules of evidence and required less evidence to sustain the jury's verdict on the "future dangerousness" special issue than the law required at the time of the commission of the offense.

Appellant nevertheless claims in points of error six through eight that the failure to include the Geesa definition of "reasonable doubt" in the jury charge violated various other state and federal constitutional provisions that recognize some limitations on ex post facto judicial decision-making. See, e.g., Rogers, 121 S.Ct. at 1697-1703 (recognizing that "limitations on ex post facto judicial decision-making are inherent in the notion of due process"). Appellant's arguments under these points are somewhat vague, but he seems to claim that the failure to include the Geesa "reasonable doubt" definition in the jury charge was fundamentally unfair because "it was given at his first trial and was the law at that time and at the time of the offense."

This case, however, does not implicate the ex post facto limitations on judicial decision-making discussed in cases such as Rogers. That case discussed "unforeseeable and retroactive judicial expansion of statutory language" that infringed the right to fair warning that certain conduct would give rise to criminal penalties. See Rogers, 121 S.Ct. at 1698-1700. Our decision in Paulson abrogating the Geesa definition of "reasonable doubt" could not have deprived appellant of fair warning that his conduct of dousing someone with gasoline and then lighting her on fire could give rise to criminal penalties. See id. In addition, we do not see how the failure to give the "redundant, confusing, and logically-flawed" Geesa definition of "reasonable doubt" could have possibly harmed appellant. See Paulson, 28 S.W.3d at 573. Points of error five through eight are overruled.

In point of error twenty, appellant claims that Article 37.071 violates various federal constitutional provisions because it does not require the prosecution "to prove beyond a reasonable doubt that the answer to [the mitigating evidence special issue] should be 'no.'" Appellant claims that the Supreme Court's recent decision in Ring v. Arizona ⁽⁷⁾ calls into question our settled case law rejecting the claim made in point of error twenty. ⁽⁸⁾ In point of error thirty-four, appellant claims that Article 37.071 violates various federal constitutional provisions and Ring "because it place[d] the burden of proof on the mitigation issue on [appellant]."

We resolved both of these claims adversely to appellant in a nonpublished decision in Basso v. State, No. 73,672, slip op. at 36-37 (Tex.Cr.App. January 15, 2003), in which we stated:

We have held that neither party bears the burden of proof at punishment on the mitigating evidence special issue. (Citations Omitted). The holding in [Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)] does not affect our prior decisions or our determination of the appellant's point. Where a finding of a fact (other than a prior conviction) increases the authorized punishment for a crime, the State must prove and a jury must find that fact beyond a reasonable doubt. Ring v. Arizona, 122 S.Ct. 2428, 2439 (2002); [Apprendi], 530 U.S. at 476 (emphasis added). Under Article 37.071, there is no authorized increase in punishment contingent on the jury's finding on the mitigating special issue. See Ring, 122 S.Ct. at 2439. A jury will answer the mitigation special issue only "if [it] returns an affirmative finding to each issue submitted under [the "future dangerousness" special issue]. (Citation Omitted). In other words, a jury's finding on mitigation occurs only after the State has proven the elements of capital murder, at the guilt stage, and the aggravating circumstances-evidence of the defendant's future dangerousness-beyond a reasonable doubt. (Citation Omitted). By the time the jury reaches the mitigation issue, the State has already demonstrated the defendant's eligibility for a death sentence; a negative answer on mitigation cannot increase his authorized punishment. The statute mandates only a reduction in punishment to a life sentence upon an affirmative finding of mitigation. (Citation Omitted). Therefore, [Apprendi] is not applicable to the appellant's point of error. The trial court did not err in not assigning the burden on the mitigation issue to the State.

We adopt this discussion and reasoning here. See also Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex.Cr.App. 2003); Allen v. State, 108 S.W.3d 281, 285 (Tex.Cr.App. 2003). Points of error twenty and thirty-four are overruled.

In point of error seventeen, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury to consider any evidence of the circumstances of the offense that "tend to show that [appellant] did not kill the deceased in the course of a burglary or attempted burglary." In point of error eighteen, appellant makes the same claim with respect to the trial court's failing to instruct the jury that a conviction for capital murder did not "preclude the jury from considering evidence of circumstances of the offense that tend to show another cause contributing to the death of the deceased, or tend to show that [appellant] did not commit the crime alleged." (Internal quotes omitted). In point of error nineteen, appellant makes the same claim with respect to the trial court's jury instruction that "appellant was guilty of intentionally causing the death of [the deceased] while in the course of committing the offense of burglary of a habitation and knowingly entering into the habitation without the effective consent of [the deceased]." In point of error twenty-nine, appellant claims that the trial court violated various federal constitutional provisions and the Supreme Court's decision in Ring "by failing to instruct the jury that they must consider any evidence of the circumstances of the offense that tend to show that the appellant did not kill the deceased in the course of burglary or attempted burglary or there were other contributing causes to the death of the victim."

The record reflects that the jury at appellant's first trial convicted appellant of murdering the victim during a burglary. ⁽⁹⁾ The trial court instructed the jury at the new punishment hearing that appellant was guilty of capital murder, specifically of murdering the victim "in the course of committing the offense of Burglary of a Habitation by intentionally or knowingly entering the habitation without the [victim's] effective consent." Appellant claims:

What were the jurors to do? The judge specifically instructed them that the appellant was guilty of capital murder and generally instructed them to consider the "circumstances of the offense." How was the jury to consider the circumstances of the offense when considering the court's specific instruction that the appellant was guilty of capital murder? If a juror had a doubt about whether the appellant committed a burglary, i.e., entered without the effective consent of the victim, would that juror be allowed to express that doubt in answering the special issues? The juror would be in an "impossible situation" because the court's charge instructed that the appellant was guilty of capital murder. Thus there was an internal contradiction in the charge between the specific and general instruction. Which instruction was the jury to follow?

We understand appellant to argue that the trial court's failure to submit appellant's requested instructions, coupled with the instructions actually submitted by the trial court, prevented the jury from being able to give mitigating effect to any "residual doubt" about whether appellant was guilty of burglary. A majority of the Supreme Court, however, rejected such a claim in Franklin v. Lynaugh, 108 S.Ct. 2320 (1988). See Franklin, 108 S.Ct. at 2327 (White, J., joined by Rehnquist, C.J., and Scalia and Kennedy, JJ.) (federal constitution does not require reconsideration by capital sentencing juries of "residual doubts" about a defendant's guilt because such doubts do not involve a defendant's character, record or a circumstance of the offense) ⁽¹⁰⁾ and at 2335 (O'Connor, J., joined by Blackmun, J.) ("residual doubt" about the defendant's guilt is not a mitigating circumstance).

We further note that appellant makes no claim that he was prevented from presenting any mitigating evidence. We also note that appellant had the opportunity to argue his "residual doubt" claim to the jury which could have given mitigating effect to any "residual doubt" in answering the special issues. See Franklin, 108 S.Ct. at 2327-28 (even if a constitutional right exists to have "residual doubt" considered as a mitigating factor, the trial court did not impair the defendant's exercise of that right and the special issues did not preclude the jury from giving mitigating effect to any "residual doubt").

[APPELLANT]: Now, there's another thing that is kind of important. I think it is. I think a person that would, you know, violate somebody's home and then come in and do something to them on the inside has got to be considered more dangerous than somebody else. And I think that's part of the State's case here. They want you to believe that [appellant]-he got into that apartment that morning without consent and without thinking he had consent-

[THE PROSECUTION]: Your Honor, we object. The State doesn't want to believe him. That is law. This [appellant] is guilty of capital murder by burglary into that apartment, as it is defined in Texas law. And we object.

[APPELLANT]: The evidence is in. I'm just arguing the evidence, and-

[THE PROSECUTION]: He's technically arguing outside the record. The facts is, as a matter of law, [appellant] is guilty of capital murder by entering that apartment without the effective consent of [the victim].

[APPELLANT]: But I'm arguing that his personal, moral blameworthiness is not as much as it might otherwise appear.

[THE COURT]: The objection is overruled. However, the jury will recall the evidence and the testimony that was presented during the trial.

[APPELLANT]: Okay. I would like for you to take into account the testimony of [a witness].

I believe, from memory, that when the prosecutor stood up here in opening statement three days ago, she, I believe, led you to believe that the relationship between [appellant and the victim] had been over for four months.

Then we asked [a witness] about [appellant and the victim]. She lived with [the victim] about two weeks, starting in late June, and these facts occurred in August. So, that's well within the four-month period of time, if you recall. I asked her, "Did [appellant] come to the apartment?"

"Yes."

"Did somebody-did you let him in?"

"Yes."

"Did [the victim] let him in?"

"Yes."

You see, I think it's entirely possible that the relationship with [appellant] wasn't over.

Thus, not only was appellant permitted to make the argument; he made the argument he wanted. Also, for the reasons set out in our discussion of points of error twenty and thirty-four, the trial court's failure to submit appellant's requested jury instructions did not violate the Supreme Court's decision in Ring. Finally, after making a common-sense evaluation of the record, particularly the overwhelming evidence that appellant did not have the victim's consent to enter her apartment, we cannot say that there is a reasonable likelihood that the trial court's failure to submit appellant's requested instructions, coupled with the instructions actually submitted by the trial court, prevented the jury from considering constitutionally relevant mitigating evidence. See Ex parte Tennard, 960 S.W.2d 57, 61-62 (Tex.Cr.App. 1997), cert. denied, 118 S.Ct. 2376 (1998). Points of error seventeen through nineteen and twenty-nine are overruled.

In points of error three, nine through sixteen, twenty-one through twenty-eight, thirty through thirty-three and thirty-five through thirty-nine, appellant raises various nonmeritorious claims. In point of error three, appellant claims that Article 37.071, Tex. Code Crim. Proc., violates various federal constitutional provisions "because it fails to provide a meaningful appellate review of the jury's answers to the special issues." In points of error nine and twenty-one, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "probability" in the "future dangerousness" special issue "meant a high probability, beginning at 95% and, if denied, then descending to a percentage no lower than 50%."

In points of error ten and twenty-two, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "criminal acts of violence" in the "future dangerousness" special issue mean "an act that resulted in serious bodily injury or death and not one that was trivial, accidental, reckless, or highly provoked acts." In points of error eleven and twenty-three, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "criminal acts of violence" in the "future dangerousness" special issue do "not mean mere property crimes not in conjunction or combination with crimes against the person." In points of error twelve and twenty-four, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "criminal acts of violence" in the "future dangerousness" special issue do "not mean mere property crimes not in conjunction or combination with crimes causing serious bodily injury or death."

In points of error thirteen and twenty-five, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "continuing threat to society" in the "future dangerousness" special issue means "a clear and present threat of serious bodily injury or death to others while in prison or free society." In points of error fourteen and twenty-six, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "continuing threat to society" in the "future dangerousness" special issue means "that [appellant] will be so incorrigible that his serious misconduct will continue after [appellant] becomes parole eligible."

In points of error fifteen and twenty-seven, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "society" in the "future dangerousness" special issue means "prison society for so long as [appellant] may be incarcerated." In points of error sixteen and twenty-eight, appellant claims that the trial court violated various federal constitutional provisions by failing to instruct the jury that "probability" in the "future dangerousness" special issue means "more likely than not."

In points of error thirty and thirty-one, appellant claims that Article 37.071 violates various federal constitutional provisions because its definition of mitigating evidence "narrows the jury's consideration of any evidence about [appellant's] character and background, the circumstances of the offense, and [appellant's] personal moral culpability to that which the jury might regard as reducing [appellant'] moral blameworthiness." In point of error thirty-two, appellant claims that the "12/10 rule" in Article 37.071 violates various federal constitutional provisions. In point of error thirty-three, appellant claims that Article 37.071 violates various federal constitutional provisions because "it prohibits the Court, the attorney representing the State, [appellant], and [appellant's] counsel from informing the jurors or the prospective jurors of the effect of the failure of a jury to agree on the [special] issues submitted."

In point of error thirty-five, appellant claims that Article 37.071 violates various federal constitutional provisions because the term "probability" is "so vague that it fails to provide in the sentencing process heightened reliability and a reasoned moral response." In point of error thirty-six, appellant makes the same claim with respect to the phrase "criminal acts of violence." In point of error thirty-seven, appellant makes the same claim with respect to the phrase "continuing threat to society." In point of error thirty-eight, appellant makes the same claim with respect to the phrase "personal moral culpability." In point of error thirty-nine, appellant makes the same claim with respect to the phrase "moral blameworthiness."

We have decided these and similar claims adversely to appellant. See Wright v. State, 28 S.W.3d 526, 537 (Tex.Cr.App. 2000), cert. denied, 121 S.Ct. 885 (2001); Ladd v. State, 3 S.W.3d 547, 572-73 (Tex.Cr.App. 1999), cert. denied, 120 S.Ct. 1680 (2000); Raby v. State, 970 S.W.2d 1, 8 (Tex.Cr.App.), cert. denied, 119 S.Ct. 515 (1998); Cockrell v. State, 933 S.W.2d 73, 93 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 1442 (1997). We, therefore, overrule points of error three, nine through sixteen, twenty-one through twenty-eight, thirty through thirty-three and thirty-five through thirty-nine.

We affirm the judgment of the trial court.

Hervey, J.

Delivered: October 22, 2003

Publish

1. Blue v. State, No. 72,106 (Tex.Cr.App. December 4, 1996) (nonpublished) ("Blue I").

2. Ex parte Blue, No. 39,705-01 (Tex.Cr.App. January 13, 1999) (nonpublished).

3. This order apparently was based on a claim presented for the first time on federal habeas corpus and supported by the Texas Attorney General's confession that it was error for the trial court to have admitted evidence from appellant's own psychiatric witness.

4. The record reflects that the prosecution presented at the new punishment hearing much of the same evidence that it presented at appellant's first trial. See Blue I, slip op. at 1-3, 5-7. We note, however, that the prosecution did not present at the new punishment hearing "testimony from a Bryan police officer that appellant was not a peaceful and law-abiding citizen" even though this evidence was presented at appellant's first trial. See Blue I, slip op. at 7. We also note that the prosecution did present at the new punishment hearing evidence of appellant's two prior misdemeanor convictions for evading and resisting arrest, even though it does not appear that the prosecution presented this evidence at appellant's first trial. See Blue I, slip op. at 6 (stating that the prosecution presented no evidence of prior convictions). Except as otherwise stated in this opinion, these appear to be the two arguably significant differences between the evidence presented at the new punishment hearing and the evidence presented at appellant's first trial.

5. See Smith v. State, 898 S.W.2d 838, 857-72 (Tex.Cr.App.), cert. denied, 116 S.Ct. 131 (1995) (explaining how minimum parole eligibility could be considered relevant mitigating evidence).

6. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App. 1991), overruled, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000).

7. See Ring v. Arizona, 122 S.Ct. 2428, 2443 (2002) (federal constitutional right to jury trial is violated by allowing "a sentencing judge, sitting without a jury, to find an aggravating circumstance" that increases the authorized punishment for a crime).

8. See Jackson v. State, 992 S.W.2d 469, 480-81 (Tex.Cr.App. 1999) (rejecting claim that mitigating evidence special issue is unconstitutional because it omits a burden of proof).

9. On direct appeal from appellant's first trial, we rejected appellant's claim that the evidence was legally insufficient to support a finding that he did not have the victim's consent to enter her apartment. See Blue I, slip op. at 3-4.

Finding a constitutional right to rely on a guilt-phase jury's "residual doubts" about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence-but not the underlying conviction-is struck down on appeal. (Citations omitted).

Blue v. Thaler, 665 F.3d 647 (7th Cir. 2010). (Federal Habeas)

Background: After affirmance of state prisoner's death sentence for capital murder, 125 S.W.3d 491, and dismissal of successive state petition for habeas relief, 230 S.W.3d 151, prisoner sought federal habeas corpus relief. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., denied the petition. Prisoner moved for certificate of appealability (COA).

Holding: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that prisoner failed to make a prima facie showing of mental retardation under Texas law, as basis for Atkins claim invoking the Eighth Amendment's prohibition of execution of the mentally retarded. Motion denied.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In a habeas proceeding under 28 U.S.C. § 2254, petitioner Carl Henry Blue raised twenty-one separate challenges to his death sentence. The district court denied relief. Blue seeks a certificate of appealability for five issues. We will deny the request.

I.

In 1994 a Texas jury found Carl Henry Blue guilty of capital murder, and Blue received a death sentence. The Texas Court of Criminal Appeals (“the CCA”) affirmed Blue's conviction on direct appeal in 1996 and denied his first state habeas application in 1999. The following year, the federal district court vacated Blue's death sentence on the ground that the State's expert witness had testified during the punishment-phase trial that Blue was more likely to be a future danger to society because he is black. A second punishment-phase trial took place in 2001. Once again the jury's answers to the special issues led the district court to sentence Blue to death. The CCA affirmed Blue's new sentence on direct appeal in 2003 and denied his second state habeas application in 2004. Blue timely filed a skeletal federal habeas petition in 2005. The district court then promptly stayed and abated the proceedings, enabling Blue to assert a claim under Atkins v. VirginiaFN1 in a third state habeas application. The CCA determined that Blue had not made out a prima facie case for Atkins relief and dismissed his third application as an abuse of the writ in 2007. Blue then returned to federal court, where the district court denied Blue's petition in its entirety in August 2010. FN1. 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits the imposition of the death penalty on anyone who is mentally retarded).

II.

Blue seeks to appeal the district court's determinations that he is not entitled to habeas relief on (1) his claim under Atkins v. Virginia that his mental retardation bars his execution; and (2) various claims that the jury instructions at his punishment-phase trial violated the Eighth Amendment. Before a § 2254 petitioner can appeal, he must obtain a certificate of appealability (“COA”).FN2 We will issue a COA only if the petitioner “has made a substantial showing of the denial of a constitutional right.”FN3 Where, as here, “a district court has rejected the constitutional claims on the merits,” a petitioner is not entitled to a COA unless he can “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.”FN4 In death penalty cases, “ ‘any doubts as to whether a COA should issue must be resolved in the petitioner's favor.’ ”FN5

FN2. 28 U.S.C. § 2253(c)(1)(A). FN3. Id. § 2253(c)(2). FN4. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). FN5. Stevens v. Epps, 618 F.3d 489, 502 (5th Cir.2010) (quoting Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005)) cert. denied, ––– U.S. ––––, 131 S.Ct. 1815, 179 L.Ed.2d 775 (2011).

Treating the Atkins-related issues and the jury-instruction issues in turn, we hold that the district court did not abuse its discretion by declining to hold an evidentiary hearing nor err by using IQ scores to assess Blue's general intellectual functioning; that the proper focus now is upon the CCA's determination of Blue's general intellectual functioning, a determination entitled to AEDPA deference; and that, in any event, any error would be harmless because Blue does not challenge the district court's determinations that he has failed to satisfy the other two elements of the test for mental retardation. We also reject the three remaining challenges as foreclosed by circuit precedent: Blue's challenge to the “moral blameworthiness” language in Texas's capital-sentencing jury instructions; Blue's challenge to the failure to assign a burden of proof on the mitigation special issue; and his challenge to the “10–12” Rule.

III.

Blue presented his Atkins claim to the CCA in his third state habeas application.FN6 Holding that Blue had “failed to meet his burden to present sufficient specific facts from which, even if true, we could reasonably conclude, by clear and convincing evidence, that no rational fact-finder would fail to find he is mentally retarded,”FN7 requirements of Texas Code of Criminal Procedure article 11.071, § 5(a)(3), the CCA dismissed Blue's habeas application as an abuse of the writ.FN8 Section 5(a)(3) codifies an actual-innocence-of-the-death-penalty exception to Texas's rule of procedural default.FN9

FN6. See generally Ex parte Blue, 230 S.W.3d 151 (Tex.Crim.App.2007). FN7. Id. at 167–68. FN8. Id. at 168. FN9. Rocha v. Thaler, 626 F.3d 815, 822 (5th Cir.2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 397, 181 L.Ed.2d 255 (2011). See generally Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

The State unsuccessfully argued to the district court that Blue had procedurally defaulted his Atkins claim,FN10 and did not re-urge procedural default in its response to Blue's motion for a COA. In short, the state accepts that the CCA decided the merits of Blue's Atkins claim. FN10. See Memorandum and Order at 11–15, Blue v. Thaler, No. H–05–2726 (S.D.Tex. Aug. 19, 2010).

Whether a habeas petitioner is mentally retarded is a question of fact.FN11 Under § 2254(d)(2) we cannot grant habeas relief unless the CCA's adjudication of Blue's Atkins claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”FN12 Section 2254(e)(1) supplements § 2254(d)(2) by further providing that “a determination of a factual issue made by a State court shall be presumed to be correct” in a subsequent federal habeas proceeding and that the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”FN13 The clear-and-convincing evidence standard of § 2254(e)(1)—which is “arguably more deferential” to the state court than is the unreasonable-determination standard of § 2254(d)(2)FN14—pertains only to a state court's determinations of particular factual issues, while § 2254(d)(2) pertains to the state court's decision as a whole.FN15

FN11. See Maldonado v. Thaler, 625 F.3d 229, 233 (5th Cir.2010) ( “[T]he ultimate issue of whether [a] person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility.” (quoting Ex parte Briseño, 135 S.W.3d 1, 9 (Tex.Crim.App.2004)), cert. denied, ––– U.S. ––––, 132 S.Ct. 124, 181 L.Ed.2d 46 (2011)); Rivera v. Quarterman, 505 F.3d 349, 361–63 (5th Cir.2007), cert. denied, 555 U.S. 827, 129 S.Ct. 176, 172 L.Ed.2d 44 (2008); see also Williams v. Quarterman, 293 Fed.Appx. 298, 308 (5th Cir.2008) (per curiam) (unpublished) (“The determination of whether Briseño's three prongs have been met is a factual finding ....”).

FN12. 28 U.S.C. § 2254(d)(2). FN13. Id. § 2254(e)(1). FN14. Wood v. Allen, ––– U.S. ––––, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010). FN15. See Miller–El v. Cockrell, 537 U.S. 322, 341–42, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

Section 2254(d)(2) commands substantial deference to the factual determinations made by state courts.FN16 It is not enough to show that a state court's decision was incorrect or erroneous. A petitioner must show that the decision was objectively unreasonable, “a substantially higher threshold.”FN17 To clear that threshold, the petitioner must show that “a reasonable factfinder must conclude” that the state court's determination of the facts was unreasonable.FN18 “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”FN19

FN16. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (“With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review.”), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); see also Hogues v. Quarterman, 312 Fed.Appx. 684, 686 (5th Cir.) (per curiam) (unpublished) (describing 28 U.S.C. § 2254(d)(2) & (e)(1) as “highly deferential to the state court”), cert. denied sub nom. Hogues v. Thaler, ––– U.S. ––––, 130 S.Ct. 373, 175 L.Ed.2d 143 (2009). FN17. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); see also Lockyer v. Andrade, 538 U.S. 63, 75–76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). FN18. Rice v. Collins, 546 U.S. 333, 341, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (emphasis added); see also Miller–El v. Dretke, 545 U.S. 231, 275, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Thomas, J., dissenting) (explaining that a petitioner is not entitled to relief under § 2254(d)(2) unless he can “show that, based on the evidence before the Texas state courts, the only reasonable conclusion was that” a constitutional violation occurred). FN19. Wood, 130 S.Ct. at 849, 130 S.Ct. 841; see also Collins, 546 U.S. at 342, 126 S.Ct. 969 (stressing that AEDPA forbids a federal court from using “a set of debatable inferences” to set aside a state court's factual determination). Discussing § 2254(d) generally, the Supreme Court recently explained that a petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786–787, 178 L.Ed.2d 624 (2011).

A.

Blue argues that the district court's refusal to hold an evidentiary hearing was an abuse of discretion because the conflicting expert testimony as to whether he is retarded created a genuine issue of fact as to the merits of his Atkins claim.FN20 “In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”FN21 The State concedes that § 2254(e)(2) does not bar Blue from obtaining an evidentiary hearing,FN22 so we will review the district court's decision not to hold a hearing for an abuse of discretion. FN23

FN20. Request for the Issuance of a COA and Supporting Brief at 16–17, Blue v. Thaler, No. 10–70025 (5th Cir. Dec. 3, 2010). FN21. Schriro, 550 U.S. at 468, 127 S.Ct. 1933; see also Clark v. Johnson, 202 F.3d 760, 765 (5th Cir.) (“[O]vercoming the preclusive effect of § 2254(e)(2) does not guarantee an evidentiary hearing, it only opens the door for one.”), cert. denied, 531 U.S. 831, 121 S.Ct. 84, 148 L.Ed.2d 46 (2000). If a petitioner “has failed to develop the factual basis of a claim in State court proceedings,” § 2254(e)(2) prohibits the district court from holding an evidentiary hearing unless the petitioner's claim falls within one of two narrow exceptions. FN22. Respondent's Opposition to Application for COA at 13, Blue v. Thaler, No. 10–70025 (5th Cir. Feb. 3, 2010). FN23. See, e.g., Pierce v. Thaler, 604 F.3d 197, 200 (5th Cir.2010) (citing Clark, 202 F.3d at 765–66).

This Court has long held that a district court's refusal to hold an evidentiary hearing in a § 2254 proceeding is an abuse of discretion only if the petitioner can show that (1) “the state did not provide him with a full and fair hearing,” and (2) the allegations of his petition, “if proven true, ... would entitle him to relief.”FN24 To this, the Supreme Court has recently added “that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” FN25 The same rule necessarily applies to a federal court's review of purely factual determinations under § 2254(d)(2),FN26 as all nine Justices acknowledged.FN27

FN24. Clark, 202 F.3d at 766 (citing Moawad v. Anderson, 143 F.3d 942, 947–48 (5th Cir.1998)); accord Hall v. Quarterman, 534 F.3d 365, 368–69 (5th Cir.2008) (per curiam); Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir.), cert. denied, 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000). FN25. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); see also Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011) (explaining that “§ 2254(d)(1) requires federal courts to ‘focu[s] on what a state court knew and did’ ” (alteration in original) (quoting Pinholster, 131 S.Ct. at 1399)). FN26. Just as § 2254(d)(1) “refers, in the past tense, to a state-court adjudication that ‘resulted in’ a decision that was contrary to, or ‘involved’ an unreasonable application of, established law,” Pinholster, 131 S.Ct. at 1398, § 2254(d)(2) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was “based on” an unreasonable determination of the facts. “This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.” Id. Indeed, this mandate is reflected even more clearly in the text of § 2254(d)(2), which expressly instructs that the state court's decision must be evaluated “in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The Third Circuit recently concluded that Pinholster applies with equal force under § 2254(d)(2). See Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir.) (“Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication.” (citing Pinholster, 131 S.Ct. at 1401–03)), cert. denied, ––– U.S. ––––, 132 S.Ct. 533, 181 L.Ed.2d 374 (2011). FN27. See Pinholster, 131 S.Ct. at 1400 n. 7 (noting “[t]he additional clarity of § 2254(d)(2) on this point”); id. at 1411–12 (Alito, J., concurring in part and concurring in the judgment); id. at 1412 (Breyer, J., concurring in part and dissenting in part); id. at 1415 (Sotomayor, J., dissenting).

Pinholster thus imposes a new limitation on the availability of evidentiary hearings in habeas cases, a limitation not fully captured by our two-part standard. In the broad run of cases, even when the first of the two preconditions to an evidentiary hearing is satisfied, § 2254(d) still requires deference to the state court's adjudication.FN28 And Pinholster prohibits a federal court from using evidence that is introduced for the first time at a federal-court evidentiary hearing as the basis for concluding that a state court's adjudication is not entitled to deference under § 2254(d).FN29

FN28. See Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir.2001) (holding that, in the broad run of cases, a state court's denial of a full and fair hearing “does not permit the district court to avoid the application of deference to the state court's adjudication on the merits”), cert. denied, 537 U.S. 883, 123 S.Ct. 106, 154 L.Ed.2d 141 (2002); see also id. at 951 (“[W]e hold that a full and fair hearing is not a precondition to according § 2254(e)(1)'s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)'s standards of review.”). FN29. See Pinholster, 131 S.Ct. at 1412 (Breyer, J., concurring in part and dissenting in part) (“There is no role in [the] analysis [under § 2254(d) ] for a habeas petitioner to introduce evidence that was not first presented to the state courts.”).

That is not to say that there is no basis on which the district court could have made that determination in this case, because Atkins claims fall outside that broad run of cases in some circumstances. “[W]hen a petitioner makes a prima facie showing of mental retardation, a state court's failure to provide him with an opportunity to develop his claim deprives the state court decision of the deference ordinarily due under the AEDPA.”FN30 This rule stems from the fact that Atkins created and protects a significant substantive liberty interest,FN31 a liberty interest that entitles the petitioner to a set of core procedural due process protections: the opportunity to develop and be heard on his claim that he is ineligible for the death penalty.FN32 This does not mean that states must give hearings to all persons with Atkins claims.FN33 The states retain discretion to set gateways to full consideration and to define the manner in which habeas petitioners may develop their claims. But if a state court dismisses a prima facie valid Atkins claim without having afforded the petitioner an adequate opportunity to develop the claim, it has run afoul of the Due Process Clause, and that due process violation constitutes an unreasonable application of clearly established federal law that is sufficient to deprive the state court's decision of AEDPA deference.FN34 Under these narrowly defined circumstances, a district court abuses its discretion if it does not conduct an evidentiary hearing on an Atkins claim.

FN30. Wiley v. Epps, 625 F.3d 199, 207 (5th Cir.2010) (citing Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir.2007)). FN31. See Rivera, 505 F.3d at 357–58 (explaining that Atkins, like Ford v. Wainwright[ , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) ], “affirmatively limit[s] the class of persons who are death penalty eligible” and “command[s] that ‘the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender.’ ” (quoting Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))). FN32. See id. at 357–58 & n. 31. FN33. Id. at 359; see also id. at 358 (“ Atkins did not specifically mandate any set of procedures ....”). FN34. See Wiley, 625 F.3d at 207 (“ ‘When a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires.’ ” (quoting Panetti v. Quarterman, 551 U.S. 930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007))); Rivera, 505 F.3d at 358 (“The lesson we draw from Panetti is that, where a petitioner has made a prima facie showing of retardation ..., the state court's failure to provide him with the opportunity to develop his claim deprives the state court's decision of the deference normally due.”).

Texas closed its gate to Blue, concluding that he failed to present a claim with prima facie validity.FN35 The propriety of the district court's decision not to grant further access to the federal decisional processes thus turns entirely on whether Blue's third state habeas application made a prima facie showing of mental retardation. FN35. See Rivera, 505 F.3d at 357 (explaining that the “procedural effect” of a finding by the CCA that an Atkins petitioner “has not made a prima facie showing” of mental retardation is to deprive the petitioner “of the opportunity to develop fully the substance of his claim before the state courts”).

The evidence that Blue presented to the CCA, even when taken as true, would not support a finding that he is mentally retarded. Atkins left it to the states to formulate and adopt their own definitions of mental retardation.FN36 In Ex parte Briseño, the CCA adopted the definition of mental retardation promulgated by the former American Association on Mental Retardation (“AAMR”).FN37 Under Texas law, “mental retardation is a disability characterized by: (1) significantly subaverage general intellectual functioning,” defined as an IQ of about 70 or below; “(2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.”FN38 A failure of proof on any one of these three elements will defeat an Atkins claim.FN39

FN36. Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). FN37. 135 S.W.3d 1, 7–8 (Tex.Crim.App.2004). The former AAMR is now known as the American Association of Intellectual and Developmental Disabilities. FN38. Id. at 7 (footnotes and internal quotation marks omitted). FN39. See Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006) (explaining that “[i]t is plain that” Briseño “require[s] that all three elements exist to establish mental retardation.”), cert. denied, 549 U.S. 1254, 127 S.Ct. 1373, 167 L.Ed.2d 163 (2007); see also Maldonado v. Thaler, 625 F.3d 229, 241 (5th Cir.2010) ( “[F]ulfillment of each prong is necessary to a finding of mental retardation ....”), cert. denied, ––– U.S. ––––, 132 S.Ct. 124, 181 L.Ed.2d 46 (2011); In re Salazar, 443 F.3d 430, 432 (5th Cir.2006) (per curiam) (“To state a successful claim, an applicant must satisfy all three prongs of this test.” (citing Hall v. State, 160 S.W.3d 24, 36 (Tex.Crim.App.2004) (en banc))).

Blue failed to tender evidence to the CCA that, if true, establishes that he exhibits significantly subaverage general intellectual functioning. The CCA follows the former AAMR in defining “significantly subaverage intellectual functioning” as “an IQ of about 70 or below.” FN40 IQ is measured using standardized testing instruments such as the Wechsler Adult Intelligence Scale. Such instruments “ ‘have a measurement error of approximately 5 points in assessing IQ,’ ” with the result that “any score could actually represent a score that is five points higher or five points lower than the actual IQ.”FN41 Thus, a person whose true Wechsler IQ score is 70 might obtain a score as high as 75 or as low as 65.FN42 While the CCA has declined to adopt a “bright-line [IQ-based] exemption from execution,” it does “interpret[ ] the ‘about 70’ language of the AAMR's definition of mental retardation to represent a rough ceiling, above which a finding of mental retardation in the capital context is precluded.”FN43 As a result, the CCA held in Ex parte Hearn that “non-IQ evidence [is] relevant to an assessment of intellectual functioning only where” the petitioner has also produced “a full-scale IQ score [that is] within the margin of error for standardized IQ testing”FN44—a full-scale IQ score, in other words, of 75 or lower.

FN40. Ex parte Hearn, 310 S.W.3d 424, 428 (Tex.Crim.App.), cert. denied sub nom. Hearn v. Texas, ––– U.S. ––––, 131 S.Ct. 507, 178 L.Ed.2d 376 (2010). FN41. Id. (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41 (rev. 4th ed. 2000)). FN42. Id. at 428 n. 8. FN43. Id. at 430; see also id. at 430 n. 17 (collecting cases that have applied this standard). FN44. Id. at 431.

Hearn establishes that, under Texas law, the lack of a full-scale IQ score of 75 or lower is fatal to an Atkins claim.FN45 This Court has previously held that Atkins gives the states discretion in how they define and determine the existence of mental retardation.FN46 The CCA's use of 75 as its upper-limit IQ-score cutoff point tracks the DSM–IV's diagnostic criteriaFN47 and finds support in Atkins itself. FN48 By acknowledging that a petitioner whose IQ score is just above 70 could still make a showing of mental retardation, the Hearn standard also takes heed of prior admonitions from both this Court and the CCA that IQ scores should be interpreted with awareness of the margin of error in the statistical analysis.FN49

FN45. See Maldonado v. Thaler, 625 F.3d 229, 240 (5th Cir.2010) ( “[T]he TCCA has indicated that a full-scale IQ score should provide the basis for any assessment of intellectual functioning.” (citing Hearn, 310 S.W.3d at 431)), cert. denied, ––– U.S. ––––, 132 S.Ct. 124, 181 L.Ed.2d 46 (2011). FN46. Clark v. Quarterman, 457 F.3d 441, 445 (5th Cir.2006), cert. denied, 549 U.S. 1254, 127 S.Ct. 1373, 167 L.Ed.2d 163 (2007); see also Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009) (noting that Atkins “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation” is entitled to habeas relief and instead “ ‘le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction’ ” (alteration in original) (quoting Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))). FN47. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41–42 (rev. 4th ed. 2000) (“[I]t is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit deficits in adaptive behavior.”). FN48. See Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242 (“[A]n IQ between 70 and 75 or lower ... is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” (citing 2 Kaplan & Sadock's Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds., 7th ed. 2000))). FN49. See, e.g., Ex parte Briseño, 135 S.W.3d 1, 7 n. 24 (Tex.Crim.App.2004); Clark, 457 F.3d at 444–45; Moore v. Quarterman, 342 Fed.Appx. 65, 70 n. 8 (5th Cir.2009) (per curiam) (unpublished), cert. denied sub nom. Thaler v. Moore, ––– U.S. ––––, 130 S.Ct. 1736, 176 L.Ed.2d 222 (2010).

Blue did not present the CCA with evidence that he had attained a full-scale IQ score of 75 or lower. The only evidence of IQ that Blue presented in his state-court proceeding was a transcript of a portion of the testimony of Dr. Windell Dickerson. Dr. Dickerson testified at Blue's punishment-phase trial that he had administered to Blue several short-form versions of the verbal portions of the Wechsler test and concluded that Blue “has an actual IQ in the range of 75 to 80.” This evidence is insufficient to support Blue's Atkins claim. While a full-scale IQ score of 75 might correspond to an actual IQ of 70,FN50 Dr. Dickerson did not testify that Blue received a score of 75 on a full-scale IQ test. Rather, Dr. Dickerson concluded from Blue's performance on short-form versions of the test that Blue's actual IQ was between 75 and 80. In any case, as Blue himself argued to the CCA, the result of a short-form test is not a reliable substitute for a full-scale IQ score.FN51 The CCA declined to “try to extrapolate an accurate IQ” based on “an incomplete test score” and instead chose to “simply regard the record as it comes to us as devoid of any reliable IQ score.”FN52 As a consequence, it concluded that “the only evidence of an IQ score that the applicant has tendered fails to present sufficient specific facts that, even if true, would establish significant sub-average general intellectual functioning by clear and convincing evidence.”FN53

FN50. See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex.Crim.App.), cert. denied sub nom. Hearn v. Texas, ––– U.S. ––––, 131 S.Ct. 507, 178 L.Ed.2d 376 (2010). FN51. See Ex parte Blue, 230 S.W.3d 151, 166 (Tex.Crim.App.2007) ( “The applicant argues that short form testing such as that which Dickerson utilized is not a reliable measure of IQ.”). FN52. Id. FN53. Id.

Nor did any of the other evidence that Blue presented to the CCA support a finding that he is mentally retarded or that he exhibits significantly subaverage general intellectual functioning. Blue offered into evidence some of his school records, affidavits from friends and family members, and a sworn declaration from Dr. James R. Patton. Dr. Patton prepared his declaration after reviewing all of the other record materials. The most relevant portions of his declaration state:

I want to note at the outset that there is a paucity of information presented that makes it impossible to conclude whether Mr. Blue is mentally retarded. There is, however, enough information that is consistent with Mental Retardation and that would justify a further inquiry, including full scale intellectual testing and a [sic] in depth investigation into Mr. Blue's background to determine the existence of mental retardation. In other words, Mr. Blue might well be mentally retarded and nothing that I have seen is inconsistent with that determination ....

Mr. Blue's school records indicate a number of troubling areas. There is a consistent inability to perform academically .... Clearly, these deficits in learning ability may well be attributable to causes other than mental retardation; for example, learning disabilities and/or an impoverished family background may well have played a role, even a determinative one. Mental Retardation, however, cannot be ruled out and additional assessment methods should be authorized and employed to determine this .... A review of the declarations of those who knew Mr. Blue best also support, but do not establish, a diagnosis of mental retardation and indicate a need for a more comprehensive assessment .... Most of the reports about Mr. Blue note his gullibility, a trait shared by individuals who are mentally retarded .... An inability to perform daily self-help functions is also an adaptive deficit common or frequently found among persons who are mentally retarded .... The lack of adaptive skills noted by these reporters is common to the patterns of behavior associated with persons who have mental retardation ....

All of these deficits suggest limitations in adaptive functioning and support a claim of mental retardation. While, as I have stated before, there are other possible explanations for these problems, mental retardation certainly cannot be ruled out and indeed, is strongly suggested by this pattern of adaptive deficits. Viewed in isolation, none of these factors would be dispositive; taken as an overall pattern, mental retardation is strongly suspected. Only a full and thorough assessment, however, can answer that question. Dr. Patton's affidavit is tentative and inconclusive at best. It also focuses exclusively on limitations in adaptive functioning, the second of Briseño's three criteria for diagnosing mental retardation. Nothing in the affidavit would support a conclusion that the first Briseño criterion, significantly subaverage general intellectual functioning, has been satisfied.

Finally, the new IQ evidence that Blue presented in the proceedings below also does not support a finding of significantly subaverage general intellectual functioning. Even if, despite Pinholster,FN54 we would consider it, Blue obtained two full-scale IQ scores of 76 and 77,FN55 both of which are above the rough ceiling of 75 established by Hearn. Blue advanced three theories to support his argument that his IQ score should be adjusted downward into the range that would qualify him for a diagnosis of mental retardation, but the district court rejected each of these theories by making findings of fact that are well supported by the record.FN56

FN54. See supra notes 26–30 and accompanying text. FN55. Memorandum and Order, supra note 10, at 21–22. FN56. See id. at 24–26. See generally Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) (per curiam) (“In an appeal from the denial of habeas relief, this court reviews a district court's findings of fact for clear error ....”), cert. denied, 534 U.S. 1001, 122 S.Ct. 476, 151 L.Ed.2d 390 (2001).

Even when the CCA's decision is evaluated in light of the newly expanded federal court record, its determination that Blue has not made out a prima facie claim of mental retardation is objectively reasonable. Accordingly, the CCA did not violate the Due Process Clause so as to deprive its decision of § 2254(d)(1) deference by denying Blue the opportunity to further develop his Atkins claim. Federal review thus must proceed under § 2254(d), and there was no reason for the district court to conduct an evidentiary hearing.

B.

Blue also challenges the district court's dismissal of his Atkins claim by asserting that the court employed an improper “ ‘bright-line’ standard for assessing intellectual disability.”FN57 Blue offers scant argumentative support for this assertion. He does no more than point out that “the District Court ... specifically implied that without at least one IQ score below 70 a Petitioner could not obtain relief under Atkins” before “respectfully submit [ting] that the fundamental unfairness involved in this type of gatekeeping by the District Court cast doubt on the Court's entire opinion.” FN58

FN57. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 18. FN58. Id. at 20.

This argument fails for three reasons. First, the district court did not adopt an improper bright-line, IQ-based test. The court's statement that an IQ score of 75 is “the base score that may qualify for a diagnosis of mental retardation”FN59 reflects the standard that the CCA announced in Hearn. The district court also undertook an exhaustive survey of this Court's precedent and correctly concluded that “the Fifth Circuit has only granted relief on Atkins claims where an inmate presents at least one base score below 70” and “has denied relief when an inmate has IQ scores both under and over 70 and when all his scores fall above 70.”FN60 After rejecting Blue's arguments that his full-scale scores of 76 and 77 should be scaled downward into the sub–75 range, the district court concluded that “Blue has not produced an IQ score within the parameters serving as a precursor to a diagnosis of mental retardation.”FN61 The court's treatment of the IQ issue was consistent with controlling precedent from this Court and the CCA.

FN59. Memorandum and Order, supra note 10, at 18. FN60. Id. at 19 (footnotes omitted) (collecting cases). FN61. Id. at 26; see also id. at 23 (“Taken at face value, none of Blue's IQ scores fall within the potentially broad range that allows for a finding of mental retardation.”).

Second, an error by the district court in its application of the § 2254(d)(2) standard of review is not, by itself, grounds for issuing a COA.FN62 At the COA stage, the question for decision is whether jurists of reason would debate the correctness of the conclusion that the state court's rejection of the petitioner's claim was objectively reasonable.FN63

FN62. See, e.g., Day v. Quarterman, 566 F.3d 527, 537 (5th Cir.2009) (“ ‘[T]his Court may affirm the denial of habeas relief on any ground supported by the record.’ ” (alteration in original) (quoting Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.2000))). FN63. See, e.g., Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005), cert. denied, 549 U.S. 828, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006).

Finally, even if the district court had erred in its assessment of Blue's general intellectual functioning, that error would have been harmless. Blue is entitled to a COA on his Atkins claim only if he can make a substantial showing that he has been denied his constitutional right to be exempt from execution due to mental retardation. To make that showing, he must satisfy all three elements of the Briseño test.FN64 The district court found that he cannot satisfy Briseño prong two: “Blue has not made a convincing showing that he suffers from significant adaptive deficits that would serve as a predicate for mental retardation.”FN65 Blue does not challenge that finding in his application for a COA. His failure to do so waives the issue.FN66 If a district court found that a habeas petitioner's Strickland claim failed because he could show neither deficient performance nor prejudice, a request for a COA only as to the deficiency issue would be futile. Similarly, because Blue has conceded that he cannot show that he suffers from significant limitations in adaptive functioning, reasonable jurists would not debate the correctness of the district court's conclusion that it was objectively reasonable for the CCA to determine that he is not mentally retarded.FN67 We must deny Blue's motion for a COA on this issue.

FN64. See supra note 43 and cases cited therein. FN65. Memorandum and Order, supra note 10, at 34. FN66. See, e.g., Ortiz v. Quarterman, 509 F.3d 214, 215 (5th Cir.2007) (per curiam) (“Although, in the proceedings below, Ortiz did raise a claim that his trial counsel rendered ineffective assistance ..., he did not raise this ineffective assistance claim in the brief in support of his application for a COA in this Court. Accordingly, Ortiz has waived this ineffective assistance claim.” (citing Hughes v. Johnson, 191 F.3d 607, 612–13 (5th Cir.1999))). See generally Brewer v. Quarterman, 475 F.3d 253, 254 (5th Cir.2006) (per curiam) (“[T]he waiver doctrine applies to COA applications.”). FN67. Accord Pierce v. Thaler, 604 F.3d 197, 214 (5th Cir.2010) (denying a COA on Atkins issues where the petitioner failed to challenge the district court's findings that he did not suffer from significant limitations in adaptive functioning).

IV.

Blue raises three challenges to the constitutionality of Texas's capital sentencing scheme, all of which focus on the manner in which the jury was instructed at his second punishment-phase trial. First, he contends that the jury instructions did not provide the jury with an adequate vehicle to give full consideration and effect to his mitigating evidence, as required by Penry v. Lynaugh and progeny. Second, he challenges the failure to assign a burden of proof on the mitigation special issue. Third, he argues that the “10–12” Rule affirmatively misleads the jury. Each of these challenges is foreclosed by Circuit precedent.

Here are the pertinent portions of the state district court's instructions to the jury in Blue's punishment-phase trial: In determining your answers to the questions or special issues submitted to you, you shall consider all the evidence submitted to you in this trial. You shall consider all evidence submitted to you during the whole trial as to the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty. The burden of proof as to Special Issue No. 1 rests upon the State, and it must be proved beyond a reasonable doubt that the answer to Special Issue No. 1 should be “Yes.” You are instructed that you may not answer Special Issue No. 1 “Yes” unless all jurors agree to such answer. Further, you may not answer this special issue “No” unless ten or more jurors agree ....

SPECIAL ISSUE NO. 1, with forms for answers, is as follows: Is there a probability that the defendant, Carl Henry Blue, would commit criminal acts of violence that would constitute a continuing threat to society? ANSWER: We the jury unanimously find and determine beyond a reasonable doubt that the answer to Special Issue No. 1 is “Yes,” with a signature space for the Presiding Juror, or ANSWER: We, the jury, because at least ten jurors have reasonable doubt as to the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, determine that the answer to Special Issue No. 1 is “No,” with a signature space for the juror.

In the event the jury is unable to agree upon an answer to Special Issue No. 1 under the conditions and instructions outlined above, the juror will not sign either form of answer to the special issue. The jurors shall not discuss or consider the effect of the failure of the jury to agree on the answer to the special issue. You are further instructed that if the jury makes an affirmative finding to Special Issue No. 1—that is, an answer of “Yes”—then the jury shall answer Special Issue No. 2 below. You will answer this Special Issue No. 2 “Yes” or “No.” You may not answer the issue “No” unless all jurors agree to such answer, and you may not answer such issue “Yes” unless ten or more jurors agree to such answer .... You are instructed that the term “mitigating evidence,” as used herein, means evidence that a juror might regard as reducing the defendant's moral blameworthiness.

The special issue with forms for answer is as follows: SPECIAL ISSUE NO. 2: Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? ... In the event the jury is unable to agree to an answer to this Special Issue under the conditions and instructions given herein, the Presiding Juror will not sign either form of answer to the Special Issue. The jurors shall not discuss or consider the effect of the failure of the jury to agree on the answer to the special issue.

A.

First, Blue argues that the instructions given to the jury at his second punishment-phase trial violated his Eighth Amendment rights by providing the jury with an inadequate vehicle for giving full consideration and effect to his mitigating evidence. Blue exhausted this claim by raising it as point of error number thirty in his direct appeal from the re-sentencing.FN68 The CCA rejected this claim on its merits,FN69 so Blue is entitled to federal habeas relief only if he can show that the CCA's adjudication of the claim “resulted in a decision that was contrary to, or involved and unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”FN70 The district court determined that Blue could not make this showing. This Court should issue a COA only if “reasonable jurists could debate whether ... the petition should have been resolved in a different manner.”FN71

FN68. See Blue v. State, 125 S.W.3d 491, 504 (Tex.Crim.App.2003). FN69. See id. at 505. FN70. 28 U.S.C. § 2254(d)(1). FN71. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

“[T]he Eighth Amendment requires that a capital sentencing jury's discretion be guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty in order to eliminate arbitrariness and capriciousness.”FN72 As this Court explained in its en banc decision in Nelson v. Quarterman, the decisions of the Supreme Court clearly establish that the instructions given to a capital jury are unconstitutional if there is:

FN72. Buchanan v. Angelone, 522 U.S. 269, 274, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (internal quotation marks omitted); see also Kansas v. Marsh, 548 U.S. 163, 173–74, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) ( “[A] state capital sentencing system must ... permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime.”).

a reasonable likelihood that the jury would interpret the Texas special issues in a manner that precluded it from fully considering and giving full effect to all of the defendant's mitigating evidence. This “full-effect” standard requires that a juror be able to express his reasoned moral response to evidence that has mitigating relevance beyond the scope of the special issues; i.e., a juror cannot be precluded from electing a sentence less than death if he believes that the mitigating evidence offered makes the defendant less morally culpable for the crime .... FN73. 472 F.3d 287, 293 (5th Cir.2006) (en banc) (citations omitted), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007).

This standard became clearly established no later than 1989,FN74 well before Blue's judgment of conviction became final in 2003. FN74. See Abdul–Kabir v. Quarterman, 550 U.S. 233, 246, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007) (“[W]ell before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty ....”).

A brief summary of the development in the law in this area helps put Blue's argument in context.FN75 For many years Texas required capital sentencing juries to answer three special issues: the deliberateness special issue,FN76 the future-dangerousness special issue,FN77 and the inadequate-provocation special issue.FN78 But in 1989, the Supreme Court held in Penry I that these three special issues failed to “inform[ ] the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and abused background” and therefore did not provide the jury with “a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.”FN79

FN75. For a more exhaustive history, see Judge Stewart's opinion in Nelson, 472 F.3d at 293–303. FN76. See Tex.Code Crim. Proc. art. 37.0711, § 3(b)(1) (asking “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result”). FN77. See id. § 3(b)(2) (asking “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”). FN78. See id. § 3(b)(3) (asking, “if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased”). FN79. Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“ Penry I ”), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

The Texas legislature responded to Penry I in 1991 by enacting a new special-issues scheme. In all cases in which a defendant is on trial for a capital offense committed on or after September 1, 1991, the jury must answer twoFN80 special issues: the same future-dangerousness issue from the old sentencing scheme, which is now codified at § 2(b)(1), and a new mitigation special issue. The mitigation special issue, codified at § 2(e)(1), asks the jury “[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” Under § 2(f)(4), the court must instruct the jury that, in answering the mitigation special issue, it “shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.”

FN80. In cases in which the defendant was convicted under the law of parties, the jury is also required to answer a third special issue, which asks whether the defendant actually caused the death, intended to cause a death, or anticipated a death. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(2).

Although this new special-issues scheme has now been on the books for nearly twenty years, it has yet to make its way to the Supreme Court. Because of the slow pace at which capital cases proceed through the courts, the rather substantial body of recent Supreme Court precedent sustaining constitutional challenges to Texas's use of the special issues has little bearing on this case. Those decisions considered either the described pre–1991 scheme or the pre–1991 scheme in conjunction with the infamous “nullification” instruction. In fact, the Supreme Court commented favorably on the § 2(e)(1) mitigation special issue—albeit in dicta—in Penry II, commending the “brevity and clarity of this instruction” and suggesting that such a “clearly drafted catchall instruction on mitigating evidence” likely would “have complied with Penry I.” FN81. Penry v. Johnson, 532 U.S. 782, 803, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“ Penry II ”).

Blue nonetheless contends that there is a reasonable likelihood that the jurors in his case interpreted the new special issues as prohibiting them from giving full consideration and effect to all of the mitigating evidence that he presented during his punishment-phase trial.FN82 Blue acknowledges that “the language in the Texas mitigation issue itself,” i.e., § 2(e)(1), is constitutionally adequate.FN83 But he argues that § 2(f)(4)'s definition of mitigating evidence as evidence that a juror might regard as reducing the defendant's moral blameworthiness is unconstitutionally narrow and “effectively nullifies the word ‘background’ in the special issue itself.”FN84 According to Blue, many reasonable, law-abiding jurors “will assume that the phrase ‘moral blameworthiness' relates only to those factors that are directly related to the commission of the crime, but not to the perhaps more remote socio-economic and psychological reasons why the defendant may have been predisposed to commit it.”FN85 Thus, he concludes, the evidence he presented of his “poor mental health, low IQ, and good conduct while incarcerated” were effectively put beyond the reach of the jury.FN86

FN82. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 21–22. FN83. Id. at 28 (citing Lockett v. Ohio, 438 U.S. 586, 604–05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). FN84. Id. at 31. FN85. Id. at 30–31. FN86. Id. at 31.

This Court considered and rejected this very line of argument in Beazley v. Johnson,FN87 where it held that the capital sentencing scheme presently codified in article 37.071 “does not unconstitutionally ‘preclude the jury from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”FN88 This Court concluded that “ all mitigating evidence can be given effect under the broad definition of mitigating evidence found in” § 2(e)(1)FN89 and that § 2(f)(4)'s “definition of mitigation evidence does not limit the evidence considered under” § 2(e)(1).FN90 On this latter point, the Beazley court stressed that “ ‘[v]irtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's ‘moral culpability.’ ” FN91 Over the last ten years, this Court has reaffirmed its holding in Beazley in at least four unpublished decisions.FN92

FN87. See 242 F.3d 248, 259 (5th Cir.) (“Beazley maintained on direct appeal that the Texas statute's definition of ‘mitigating evidence’ is facially unconstitutional because it limits ‘mitigation’ to factors that render a capital defendant less morally ‘blameworthy’ for commission of the capital murder.”), cert. denied sub nom. Beazley v. Cockrell, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). FN88. Id. at 260 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954). FN89. Id. (citing Prystash v. State, 3 S.W.3d 522, 534 (Tex.Crim.App.1999) (en banc), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Cantu v. State, 939 S.W.2d 627, 648–49 (Tex.Crim.App.) (en banc), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997)). FN90. Id. FN91. Id. (quoting Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). FN92. See Cantu v. Quarterman, 341 Fed.Appx. 55, 60–61 (5th Cir.2009) (per curiam) (unpublished), cert. denied, ––– U.S. ––––, 130 S.Ct. 2102, 176 L.Ed.2d 733 (2010); Roach v. Quarterman, 220 Fed.Appx. 270, 277 (5th Cir.2007) (unpublished); Jackson v. Dretke, 181 Fed.Appx. 400, 412–13 (5th Cir.2006) (unpublished); O'Brien v. Dretke, 156 Fed.Appx. 724, 735–36 (5th Cir.2005) (per curiam) (unpublished), cert. denied, 547 U.S. 1180, 126 S.Ct. 2353, 165 L.Ed.2d 281 (2006).

Beazley forecloses Blue's claim for relief in two ways. First, its conclusion that the new special-issue scheme is constitutional is very strong evidence that it was reasonable for the CCA to reach the same conclusion. FN93 Second, Beazley also held, on facts materially indistinguishable from those presented here, that the petitioner was not entitled to the issuance of a COA.FN94 That holding binds this panel and compels rejection of Blue's claim.FN95 Therefore, jurists of reason would not debate the district court's determination that the CCA's rejection of Blue's Penry claim is entitled to deference under § 2254(d)(1).

FN93. See Jackson, 181 Fed.Appx. at 413 (“Where ... a state court reaches a conclusion consistent with this circuit's precedent, it presumptively falls within the broad discretion afforded the state court under § 2254(d)(1), because we presumably would consider our own case law as within ‘the range of reasonable judgment’ afforded by Supreme Court decisions.” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004))). FN94. See Beazley, 242 F.3d at 255. FN95. Blue suggests that his is an as-applied challenge, not a facial challenge, see Request for the Issuance of a COA and Supporting Brief, supra note 21, at 20–21 & n. 3, but Beazley's categorical holding that “ all mitigating evidence can be given effect under the broad definition of mitigating evidence found in” § 2(e)(1), 242 F.3d at 260, elides the significance of this distinction.

Blue advances several counter-arguments, but none can overcome the binding authority of Beazley. First, he contends that Beazley is no longer good law in light of the later-in-time en banc decision in Nelson. FN96 However, the petitioner in Nelson was sentenced under the pre–1991 special issues scheme, which did not include the mitigation special issue. FN97 Nelson holds only that the future-dangerousness special issue does not, by itself, enable the jury to give full effect to certain kinds of mitigating evidence, including mental illness.FN98 Nelson did not overturn Beazley's holding that the mitigation special issue allows the jury to give full effect to any and all forms of mitigating evidence.FN99

FN96. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 29 & 31–33. FN97. See Nelson v. Quarterman, 472 F.3d 287, 290 & n. 1 (5th Cir.2006) (en banc), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007). FN98. See id. at 307–09. FN99. For the same reason, Blue's argument that “his low IQ could not be adequately considered under the future dangerousness issue alone,” Request for the Issuance of a COA and Supporting Brief, supra note 21, at 34, is a non-starter.

Next, Blue argues that the Supreme Court's decision in Skipper v. South CarolinaFN100 establishes that mitigation evidence extends beyond evidence that tends to reduce the defendant's moral culpability or blameworthiness.FN101 In actuality, Skipper holds that a defendant must be allowed to put on evidence of his good conduct in prison as mitigation evidence at a punishment-phase trial.FN102 A few years later, in Franklin v. Lynaugh, the Court held that when a Texas capital defendant puts on such evidence, the future-dangerousness special issue gives the jury an adequate vehicle for considering it.FN103 Thus, it is beyond dispute that Blue's jury was instructed in a manner that enabled them to consider the mitigating effect of his good conduct in prison. And nothing in Skipper lends any support to Blue's broader contention that it is unconstitutional to define mitigating evidence as evidence that reduces moral blameworthiness.

FN100. 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). FN101. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 32 & 34. FN102. See 476 U.S. at 4–5, 106 S.Ct. 1669. FN103. See 487 U.S. 164, 178, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion); id. at 185–86, 108 S.Ct. 2320 (O'Connor, J., concurring in the judgment); see also Nelson, 472 F.3d at 295.

Third, Blue points to the fact that in some capital trials Texas courts have chosen to supplement the statutorily mandated jury instructions and offer broader definitions of mitigating evidence.FN104 Be that as it may, Blue has not identified any authority that holds that the absence of such a supplemental instruction renders Texas's amended special-issues scheme constitutionally infirm. Beazley's conclusion that § 2(e)(1) “ ‘solves any potential narrowing problem in section 2(f)(4)’ ” because “ ‘the trial court's instructions pursuant to [ § 2(e)(1) ] provide the jury with a vehicle to respond to a broader range of mitigating evidence’ ” is squarely to the contrary.FN105

FN104. See Request for the Issuance of a COA and Supporting Brief, supra note 21, at 34–35 & 37–38. For example, in O'Brien, “the judge instructed the jury that ‘[a] mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, record, emotional instability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case.’ ” O'Brien v. Dretke, 156 Fed.Appx. 724, 736 (5th Cir.2005) (per curiam) (unpublished), cert. denied, 547 U.S. 1180, 126 S.Ct. 2353, 165 L.Ed.2d 281 (2006). FN105. Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.) (quoting Prystash v. State, 3 S.W.3d 522, 534 (Tex.Crim.App.1999)), cert. denied sub nom. Beazley v. Cockrell, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001).

In sum, Blue cannot show that the special issues did not allow the jury to give full consideration and effect to evidence of his good conduct in prison, mental-health issues, and low IQ. Franklin v. Lynaugh holds that the special-dangerousness issue allows the jury to consider good conduct in prison, and Beazley holds that the mitigation special-issue enables consideration of the evidence of mental illness and low IQ. Jurists of reason would not debate the district court's decision to dismiss Blue's Penry challenge. Accordingly, we deny Blue's motion for a COA on this claim.

B.

Blue also contends that the failure to assign either party the burden of proof on the mitigation special issue violates the Due Process Clause. Specifically, Blue argues that “the failure to assign a burden of proof ... fails to guide the discretion of the jury in a way that minimizes bias, arbitrariness and caprice in capital sentencing.”FN106 Blue exhausted this claim by raising it as point of error number thirty-four in his direct appeal from the re-sentencing, and the CCA rejected it on its merits. FN107 As Blue concedes,FN108 this Court has held on several occasions that “ ‘[n]o Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof.’ ”FN109 The absence of controlling Supreme Court precedent is fatal to Blue's claim under § 2254(d)(1).

FN106. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 46. FN107. See Blue v. State, 125 S.W.3d 491, 500–01 (Tex.Crim.App.2003). FN108. See Request for the Issuance of a COA and Supporting Brief, supra note 21, at 46. FN109. Druery v. Thaler, 647 F.3d 535, 546 (5th Cir.2011) (alteration in original) (quoting Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.2005)); see also Avila v. Quarterman, 560 F.3d 299, 315 (5th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 536, 175 L.Ed.2d 350 (2009); Coleman v. Quarterman, 456 F.3d 537, 541–42 (5th Cir.2006), cert. denied, 549 U.S. 1343, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007).

On a closely related but conceptually distinct note, Blue briefly argues that the failure to assign a burden of proof runs afoul of the Sixth Amendment's requirement that each element of a criminal offense must be proven beyond a reasonable doubt.FN110 This argument “ignores the distinction ... between facts in aggravation of punishment and facts in mitigation.”FN111 As this Court explained in Granados v. Quarterman, “not asking the jury to find an absence of mitigating circumstances beyond a reasonable doubt” is perfectly consistent with Ring and Apprendi because “a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.”FN112 Blue does attempt to distinguish these cases or otherwise suggest that they do not control.

FN110. Request for the Issuance of a COA and Supporting Brief, supra note 21, at 45. FN111. Apprendi v. New Jersey, 530 U.S. 466, 490 n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). FN112. 455 F.3d 529, 536–37 (5th Cir.), cert. denied, 549 U.S. 1081, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006); see also Paredes v. Quarterman, 574 F.3d 281, 292 (5th Cir.2009) (per curiam); Avila, 560 F.3d at 315; Ortiz v. Quarterman, 504 F.3d 492, 504–05 (5th Cir.2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2428, 171 L.Ed.2d 234 (2008); Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007).

Because both of Blue's arguments with respect to the burden of proof on the mitigation special issue are foreclosed by Fifth Circuit precedent, the correctness of the district court's decision to reject them is not subject to debate among jurists of reason.FN113 Therefore, we conclude that Blue is not entitled to a COA on this issue. FN113. Accord Druery, 647 F.3d at 546.

C.

Finally, Blue contends that Texas's system of instructing punishment-phase jurors on the consequences of a failure to agree on a sentence violates the Eighth Amendment. Article 37.071 requires capital jurors to be instructed that they can answer “Yes” to the future-dangerousness special issue and “No” to the mitigation special issue only if all twelve of them agree to do so and that they can give the opposite answers only if ten or more of them agree to do so.FN114 If the jurors answer “No” to the future-dangerousness issue or “Yes” to the mitigation issue, the defendant is sentenced to life without parole.FN115 The same result obtains if the jurors fail to agree on an answer, but the statute prohibits the court and the parties from informing the jurors of the effect of their failure to agree. FN116 “This is commonly known as the ‘10–12 Rule.’ ”FN117 Citing Romano v. Oklahoma,FN118 Blue contends that the 10–12 Rule is unconstitutional because it affirmatively misleads jurors about their role in the sentencing process. Blue exhausted this claim by raising it as points of error numbers thirty-two and thirty-three on his direct appeal from the re-sentencing proceeding, and the CCA rejected it on its merits.FN119

FN114. Tex.Code Crim. Proc. art. 37.071, § 2(d)(2), (f)(2). FN115. Id. § 2(g). FN116. Id. § 2(a)(1), (g). FN117. Smith v. Cockrell, 311 F.3d 661, 683 (5th Cir.2002) (citing Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.2000)), overruled in part on other grounds by Tennard v. Dretke, 542 U.S. 274, 283, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). FN118. 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). FN119. See Blue v. State, 125 S.W.3d 491, 504–05 (Tex.Crim.App.2003).

In Romano, the Supreme Court explained that remarks by a prosecutor or the court affirmatively mislead the jury regarding its responsibility for the sentencing decision if “ ‘the remarks ... improperly describe[ ] the role assigned to the jury by local law.’ ”FN120 However, the Supreme Court held in Jones v. United States that “a failure to instruct the jury as to the consequences of deadlock” in no way affirmatively misleads the jury about its role in the sentencing process.FN121 This Court has concluded that Jones insulates the 10–12 Rule from constitutional attack. FN122 And it has also held that the 10–12 Rule passes constitutional muster independently of the holding announced in Jones.FN123 Because no clearly established federal law invalidates the 10–12 Rule or calls its constitutionality into doubt, Blue is not entitled to a COA on this issue.

FN120. Romano, 512 U.S. at 9, 114 S.Ct. 2004 (quoting Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)). FN121. 527 U.S. 373, 381–82, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). FN122. See Druery, 647 F.3d at 544; Alexander, 211 F.3d at 897 n. 5. FN123. See Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir.) (citing Jacobs v. Scott, 31 F.3d 1319, 1329 (5th Cir.1994)), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000). See generally Greer v. Thaler, 380 Fed.Appx. 373, 389 (5th Cir.) (per curiam) (unpublished) (noting that the Supreme Court's holding in Jones does not address the argument that the 10–12 Rule “creates the risk that a juror would be misled” before rejecting that argument as meritless), cert. denied, ––– U.S. ––––, 131 S.Ct. 424, 178 L.Ed.2d 330 (2010).

To the extent that Blue's challenge to the 10–12 Rule urges us to adopt a new rule of constitutional criminal procedure, it also is barred under Teague.FN124 New rules of constitutional criminal procedure cannot be announced on federal habeas review unless one of two narrow exceptions applies.FN125 “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government,” which is to say, when its “result was not dictated by precedent existing at the time the defendant's conviction became final.”FN126 Blue maintains that Teague is not implicated because he seeks to enforce the rules of Romano,FN127 Penry I,FN128 Jurek v. Texas, FN129 and Gregg v. Georgia.FN130 However, in Webb v. Collins, this Court held that a habeas petitioner's Eighth Amendment challenge to “the jury instructions given pursuant to article 37.071(2) of the Texas Code of Criminal Procedure” was barred by Teague.FN131 This Court has reaffirmed that holding in numerous published opinions.FN132 Blue does not attempt to distinguish these cases or otherwise suggest that they do not control. Nor does he contend that either of the two exceptions to the Teague bar applies here.

FN124. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). FN125. Id. at 306, 310, 109 S.Ct. 1060. Teague was a plurality decision, but the rule it announced was subsequently adopted by a majority of the Court in Penry I. See Penry I, 492 U.S. 302, 313–14, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). FN126. Teague, 489 U.S. at 301, 109 S.Ct. 1060. FN127. 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). FN128. 492 U.S. 302, 109 S.Ct. 2934. FN129. 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). FN130. 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). FN131. 2 F.3d 93, 94–95 (5th Cir.1993) (per curiam). FN132. See Druery v. Thaler, 647 F.3d 535, 542–45 (5th Cir.2011); Hughes v. Dretke, 412 F.3d 582, 595 (5th Cir.2005), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.2000); Davis v. Scott, 51 F.3d 457, 466 (5th Cir.1995), overruled in part on other grounds by Tennard v. Dretke, 542 U.S. 274, 283, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004).

V.