Revised March 9, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11372 _____________________

JOE MARIO TREVINO, JR.

Petitioner-Appellant,

v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ February 19, 1999 Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.

KING, Chief Judge:

Joe Mario Trevino, a Texas death row inmate, filed a habeas

petition in federal district court, and the district court denied

habeas relief. Trevino argues that the district court judge,

Judge John McBryde, abused his discretion in denying Trevino’s

recusal motion, and Trevino requests this court to vacate Judge

McBryde’s order denying habeas relief and to remand the matter to

a different district court judge. In addition, Trevino requests

a certificate of appealability in order to appeal issues relating

to his state habeas proceeding and his underlying state-court conviction. We find that Judge McBryde did not abuse his

discretion in denying the recusal motion and we deny Trevino

leave to appeal all issues relating to his state habeas

proceeding and his underlying state-court conviction.

I. FACTS AND PROCEDURAL HISTORY

In 1984, Trevino was convicted of capital murder and

sentenced to death. The Texas Court of Criminal Appeals affirmed

his conviction seven years later. See Trevino v. State,

(Tex. Crim. App. 1991). The United States Supreme

Court granted certiorari and remanded to the Texas Court of

Criminal Appeals for further proceedings in light of Batson v.

Kentucky,

(1986). See Trevino v. Texas,

(1992). The Texas Court of Criminal Appeals remanded the case to

the trial court for a Batson hearing, see Trevino v. State,

(Tex. Crim. App. 1992), and later affirmed Trevino’s

conviction following the trial-court hearing, see Trevino v.

State,

(Tex. Crim. App. 1993). The Supreme Court

denied certiorari. See Trevino v. Texas,

(1994).

Trevino filed a petition for a writ of habeas corpus in the

state district court in 1994. The district court issued proposed

findings of fact and conclusions of law, which the Texas Court of

Criminal Appeals adopted in 1996, denying Trevino’s habeas

petition. The Supreme Court again denied certiorari. See

Trevino v. Texas,

(1997).

2 On June 4, 1997, Trevino filed a federal habeas corpus

petition pursuant to

in the Northern District of

Texas, Judge John McBryde presiding. Trevino also filed a motion

asking Judge McBryde to recuse himself under

(a).

He brought the recusal motion based on the fact that his

attorney, Art Brender (Brender), was subpoenaed by a special

investigatory committee of the Fifth Circuit Judicial Council to

testify regarding Judge McBryde. Judge McBryde denied the motion

to recuse on September 24, 1997, and on November 12, 1997, he

denied the habeas petition. On December 4, 1997, Judge McBryde

denied Trevino’s request for a certificate of appealability

(COA).

Trevino timely appealed to this court. Trevino asserts that

Judge McBryde abused his discretion in denying Trevino’s recusal

motion based on McBryde’s potential bias and prejudice against

Trevino’s attorney. Trevino also requests a COA to appeal

alleged errors in his state habeas proceeding and his underlying

state-court conviction. We address these issues in turn.

II. DISCUSSION

A. The Recusal Motion

Trevino first argues that Judge McBryde should have recused

himself from considering Trevino’s federal habeas petition due to

his attorney’s involvement in Fifth Circuit Judicial Council

proceedings relating to Judge McBryde. Brender had been

subpoenaed by a special investigatory committee of the Judicial

3 Council to testify regarding Judge McBryde. The special

investigatory committee held two evidentiary hearings relating to

the McBryde proceedings; one took place before Judge McBryde

ruled on Trevino’s recusal motion and the second occurred shortly

after his recusal ruling. Brender did not testify at the first

hearing, and, although the subpoena would have extended to the

second hearing, he did not testify at that hearing either.

After completion of the McBryde proceedings, the Fifth

Circuit Judicial Council issued an order (the Judicial Council

Order) reprimanding Judge McBryde. See In re: Matters Involving

United States District Judge John H. McBryde, Under the Judicial

Conduct and Disability Act of 1980, Nos. 95-05-372-0023 et al.

(Jud. Council 5th Cir. Dec. 31, 1997), aff’d, No. 98-372-001

(Jud. Conf. U.S. Sept. 21, 1998). One portion of that order

barred Judge McBryde from hearing any cases in which certain

attorneys who had testified in the Judicial Council proceedings

(Attachment A attorneys) were involved for a period of three

years. See Judicial Council Order at 2. Although Brender did

not actually testify in front of the special investigatory

committee, the Fifth Circuit Judicial Council included him on its

list of Attachment A attorneys. See

at Attachment A. The

Judicial Conference of the United States affirmed the portion of

the Fifth Circuit Judicial Council order relating to this ban,

finding “plenty of evidence in the record to support the judicial

council’s implicit conclusion that there was a significant risk

4 that Judge McBryde might attempt to retaliate in some fashion

against witnesses who had testified against him, or at least that

witnesses reasonably perceived such risk.” In re: Complaints of

Judicial Misconduct or Disability, No. 98-372-001, at 24 (Jud.

Conf. U.S. Sept. 21, 1998).

The Judicial Council Order did not affect Judge McBryde’s

power to adjudicate Trevino’s case directly because the portion

of the Judicial Council Order barring Judge McBryde from hearing

cases involving Attachment A attorneys did not go into effect

until February 9, 1998, after Judge McBryde had already denied

Trevino’s habeas petition and his COA application. Trevino

argues, however, that a reasonable person would question Judge

McBryde’s impartiality in deciding his habeas petition, and that

the judge therefore abused his discretion in denying the recusal

motion brought under

(a). Before we can evaluate

the merits of this issue we must address the respondent’s

contention that we lack jurisdiction to consider issues unrelated

to a habeas petitioner’s underlying state-court conviction.

Trevino filed his habeas petition in the federal district

court in June 1997; therefore, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) applies to his case. See Green

v. Johnson,

(5th Cir. 1997). Under AEDPA,

“[u]nless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from . . . the final order in a habeas corpus proceeding in which

5 the detention complained of arises out of process issued by a

State court.”

(c)(1)(A). A COA can only issue

if a habeas petitioner makes a “substantial showing of the denial

of a constitutional right.”

(c)(2). “A

‘substantial showing’ requires the applicant to ‘demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the

questions are adequate to deserve encouragement to proceed

further.’” Drinkard v. Johnson,

(5th Cir. 1996)

(quoting Barefoot v. Estelle,

, 893 n.4 (1983)),

cert. denied,

(1997). The COA requirement is

jurisdictional in nature--before an appellate court can address

the merits of an order denying federal habeas relief, the court

(or the federal district court) must grant a COA. See Whitehead

v. Johnson,

(5th Cir. 1998) (stating that

AEDPA’s COA requirement is jurisdictional); Carter v. Johnson,

, 457 n.3 (5th Cir. 1997) (stating that AEDPA

“imposed a jurisdictional prerequisite on appeal from a final

order in a federal habeas proceeding, prohibiting the appeal

unless a circuit justice or judge issues a ‘certificate of

appealability’”), cert. denied,

(1998). The

district court denied Trevino a COA to appeal his denial of

habeas relief on November 12, 1997. Therefore, the respondent

argues, unless we find that Trevino has made a substantial

6 showing of the denial of a constitutional right in connection

with his state-court conviction, we lack jurisdiction to consider

issues relating to the district court’s adjudication of Trevino’s

federal habeas petition.

There is some force to this argument. The AEDPA language

does preclude an appeal from a district court’s order denying

habeas relief until either the district court or the court of

appeals grants a COA. We assume arguendo, without deciding, that

a court can only issue a COA upon a finding that the applicant

has made a substantial showing of the denial of a constitutional

right with respect to his underlying state-court conviction.

Therefore, the reasoning goes, because Trevino’s contention that

Judge McBryde abused his discretion in failing to stand recused

is unrelated to his underlying state-court conviction, we lack

jurisdiction to consider the issue.

However, we find that we have jurisdiction to consider

whether Judge McBryde abused his discretion in denying Trevino’s

recusal motion. Trevino’s arguments regarding the recusal motion

are not addressed to the merits of Judge McBryde’s order denying

his habeas petition. Rather, he argues that Judge McBryde lacked

the authority to deny habeas relief because the judge should have

recused himself and that the order denying habeas relief must

therefore be vacated. While we lack jurisdiction to consider the

merits of a district court order denying habeas relief without

issuing a COA, we do have jurisdiction to consider whether a

7 district court judge properly declined to stand recused and

therefore had the authority to deny a habeas petition. We are

guided to this conclusion by our reasoning in Tramonte v.

Chrysler Corp.,

(5th Cir. 1998), where we

considered whether we had jurisdiction to determine whether a

district court judge abused her discretion in denying a recusal

motion before she remanded the case to state court. Our

jurisdiction was limited in that case by

(d),

which provides that “[a]n order remanding a case to the State

court from which it was removed is not reviewable on appeal or

otherwise.” See Tramonte,

. We found that even

though the district court’s actual order remanding the matter to

state court was unreviewable, we could adjudicate whether the

district court abused its discretion in denying the recusal

motion. See

. We noted that once a judge recuses

herself, that judge must take no further action save for

transferring the matter to a different federal judge, and that if

the district court judge should have recused herself, any orders

entered after disposing of the recusal motion should be vacated.

See

. Therefore, our review of the recusal issue

would not constitute a review of the remand order, a review

prohibited by statute. See

Instead, “we would be performing

an essentially ministerial task of vacating an order that the

district court had no authority to enter into for reasons

unrelated to the order of remand itself.”

Thus, we

8 concluded that we had jurisdiction over the appeal, and we

proceeded to analyze whether the district court judge should have

recused herself. See

We similarly find that we have jurisdiction to consider

whether Judge McBryde abused his discretion in denying Trevino’s

recusal motion in this case. As in Tramonte, if Judge McBryde

erred in refusing to stand recused, we must vacate any orders he

entered after denying the recusal motion. See United States v.

Anderson,

(5th Cir. 1998) (vacating sentence

after determining that Judge McBryde abused his discretion in

denying a recusal motion); United States v. Avilez-Reyes,

(5th Cir. 1998) (same); Tramonte,

(“Thus, if Judge Lemmon should have recused herself, any

orders she entered following disposition of the recusal motion

should be vacated.”). Our consideration of whether to vacate the

district court’s order denying habeas relief would therefore not

constitute an appeal of the merits of that order, a review

prohibited by AEDPA in the absence of the issuance of a COA.

Instead, as in Tramonte, we are determining whether we must

vacate an order that Judge McBryde may have had no authority to

enter.

Our conclusion that we have jurisdiction to consider whether

Judge McBryde abused his discretion in denying Trevino’s recusal

motion comports with the case law of several other circuits, in

which courts of appeals have considered whether a district court

9 judge should have recused himself or herself before denying

habeas relief without determining that the applicant had made a

jurisdictional showing. See Russell v. Lane,

(7th Cir. 1989) (finding jurisdiction to consider whether a

district court abused its discretion in denying a recusal motion

before it denied habeas relief, despite the fact that the issue

was unrelated to the applicant’s underlying state-court

conviction, because “federal procedural law governing recusal

entitles [the petitioner] to have his habeas corpus petition

heard by a[n unbiased] judge”); Taylor v. Campbell,

,

No. 87-5678,

(6th Cir. Oct. 13, 1987)

(unpublished opinion) (vacating a district court’s denial of

habeas petition based on violation of recusal statute without

granting a certificate of probable cause, the pre-AEDPA

equivalent of a COA); Rice v. McKenzie,

(4th

Cir. 1978) (vacating a district court’s denial of a habeas

petition brought by a state prisoner because district court

abused its discretion in denying recusal motion). We therefore

proceed to evaluate Trevino’s claim that Judge McBryde should

have recused himself.

Trevino brought his recusal motion under

(a),

which states that “[a]ny . . . judge . . . shall disqualify

himself in any proceeding in which his impartiality might

reasonably be questioned.” This recusal standard is objective;

the relevant inquiry is whether a “reasonable man, were he to

10 know all the circumstances, would harbor doubts about the judge’s

impartiality.” Health Servs. Acquisition Corp. v. Liljeberg,

(5th Cir. 1986) (internal quotation marks omitted),

aff’d,

(1988); see Air Line Pilots Ass’n, Int’l v.

Continental Airlines, Inc. (In re Continental Airlines Corp.),

, 1262 (5th Cir. 1990); In re Faulkner,

(5th Cir. 1988). We review a district court judge’s

decision not to recuse himself for abuse of discretion. See

United States v. Mizell,

(5th Cir.) (reviewing a

district court’s denial of a recusal motion for an abuse of

discretion), cert. denied,

(1996); In re City of

Houston,

(5th Cir. 1984) (“The issue of

judicial disqualification is solely one of law. It is a

sensitive question of assessing all of the facts and

circumstances in order to determine whether the failure to

disqualify was an abuse of sound judicial discretion.”) (citation

omitted) (internal quotation marks omitted).

On the facts of this case we hold that Judge McBryde did not

abuse his discretion by failing to recuse himself from Trevino’s

case. At oral argument, Trevino’s counsel analogized this case

to two recently decided cases where we held that Judge McBryde

abused his discretion by failing to recuse himself under § 455(a)

because of participation by counsel in Fifth Circuit Judicial

Council proceedings. See Anderson,

; Avilez-

Reyes, 160 F.3d at 259-60. In each case, we emphasized that, at

11 the time Judge McBryde ruled on the recusal motion, he was aware

that the defendant’s attorney had already testified against him.

See Anderson,

(“The average person when viewing

this specific situation, would question Judge McBryde’s ability

to be impartial in a case involving an attorney who has testified

adversely against Judge McBryde in a Judicial Council

proceeding.”); Avilez-Reyes,

(finding that

defendant’s case “became infected with the appearance of

impropriety once Stickney, [the defendant’s] attorney, testified

against Judge McBryde in the Fifth Circuit Judicial Council

proceedings” a month before the recusal motion was brought). In

contrast to Anderson and Avilez-Reyes, Brender never actually

testified in either of the evidentiary hearings relating to Judge

McBryde held by the special investigating committee of the Fifth

Circuit Judicial Council. In fact, the record is devoid of any

evidence as to what Brender would have said had he been called to

testify.1

1 Brender argues that he was prohibited from creating a record relating to his participation in the Judicial Council proceedings because of the confidentiality requirements of

(c)(14). Under that provision, “all papers, documents, and records of [the Judicial Council] proceedings . . . shall be confidential and shall not be disclosed by any person in any proceeding.”

However, Brender apparently made no effort to comply with the exception found in § 372(c)(14)(C), under which such records can be disclosed if “such disclosure is authorized in writing by the judge or magistrate who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee.” Without a record, or even a proffer, concerning Brender’s role in the Judicial Council proceedings, we are left only to speculate

12 Unlike the situations in Anderson and Avilez-Reyes, we are

convinced that a reasonable person, knowing all of the

circumstances of this case, would not harbor doubts about Judge

McBryde’s impartiality. We are mindful that the reasonable

person standard in the recusal context contemplates a “well-

informed, thoughtful and objective observer, rather than the

hypersensitive, cynical, and suspicious person.” United States

v. Jordan,

(5th Cir. 1995) (citing In re Mason,

(7th Cir. 1990)).

A showing of potential bias by a judge against a party’s

attorney does not generally suffice to require a judge to

disqualify himself or herself under § 455(a). Rather, the

general rule, adopted in this and several other circuits, is that

“an appellate court, in passing on questions of

disqualification[,] . . . should determine the disqualification

on the basis of conduct which shows bias or prejudice or lack of

impartiality by focusing on a party rather than counsel.” Davis

v. Board of Sch. Comm’rs,

, 1052 (5th Cir. 1975);

see FTC v. Amy Travel Serv., Inc.,

, 576 n.13 (7th

Cir. 1989) (“Friction between court and counsel does not

constitute bias.”); In re Cooper,

(1st Cir.

1987); Gilbert v. City of Little Rock,

(8th

Cir. 1983); United States v. Sibla,

(9th Cir.

as to the content of his proposed testimony.

13 1980). Bias against a party’s attorney does not require

disqualification unless “it can also be shown that such a

controversy would demonstrate a bias for or against the party

itself.” Henderson v. Department of Pub. Safety & Corrections,

(5th Cir. 1990) (citing Davis); see also In

re Cooper,

(“It is true that occasionally

exceptional circumstances do arise where a judge’s attitude

toward a particular attorney is so hostile that the judge’s

impartiality toward the client may reasonably be questioned.”);

In re Beard,

(4th Cir. 1987) (“Bias against an

attorney is not enough to require disqualification under § 455

unless petitioners can show that such a controversy would

demonstrate a bias against the party itself.”). Trevino does not

allege any circumstances suggesting that a reasonable person

would harbor doubts about Judge McBryde’s impartiality toward

him; his only argument is based on the relationship between Judge

McBryde and Brender. We find that a reasonable, well-informed

observer would not harbor doubt about Judge McBryde’s

impartiality in adjudicating Trevino’s habeas claim, where any

potential bias would have been directed against Trevino’s

attorney and there is no suggestion of bias directed at Trevino

himself.2

2 We did note in Davis that bias against a party’s attorney could provide grounds for recusal if the bias was of a “continuing and ‘personal’ nature over and above mere bias because of [the attorney’s] conduct.” 517 F.2d at 1051; see

14 B. The State Habeas Corpus Proceeding Claim

Trevino next claims that he is entitled to a COA to appeal

the district court’s denial of his habeas claim relating to his

state habeas proceeding. Specifically, Trevino argues that he

was denied due process in his state habeas proceeding because the

state habeas court adopted the district attorney’s proposed

findings of fact and conclusions of law only three hours after

they were filed with the court.

We cannot grant Trevino a COA on this issue. Our circuit

precedent makes clear that Trevino’s “claim fails because

infirmities in state habeas proceedings do not constitute grounds

for relief in federal court.” Hallmark v. Johnson,

(5th Cir.), cert. denied, Johnson v. Monroe,

(1997); see Nichols v. Scott,

(5th

Henderson,

(citing Davis); In re Beard,

(citing Davis). In explaining this exception in Davis, we stated that:

[T]here could be a case where the cause of the controversy with the lawyer would demonstrate bias of such a nature as to amount to a bias against a group of which the party was a member--e.g., all Negroes, Jews, Germans, or Baptists. This then would be bias of a continuing and ‘personal’ nature over and above mere bias against a lawyer because of his conduct.

517 F.2d at 1051. Trevino has not alleged that any potential bias against Brender was of a “continuing and personal nature” that would justify a finding of constructive bias against him. In addition, there is no suggestion in the record that the source of the bias against Brender, i.e., his potential testimony in the Judicial Council proceedings, would demonstrate a bias against a group of which Trevino was a part. We therefore decline to apply this exception on the facts of this case.

15 Cir. 1995) (“An attack on a state habeas proceeding does not

entitle the petitioner to habeas relief in respect to his

conviction, as it is an attack on a proceeding collateral to the

detention and not the detention itself.”) (internal quotation

marks omitted); Duff-Smith v. Collins,

(5th

Cir. 1992) (same); Millard v. Lynaugh,

(5th

Cir. 1987) (same); Vail v. Procunier,

(5th Cir.

1984) (denying petitioner a certificate of probable cause because

“[i]nfirmities in state habeas corpus proceedings do not

constitute grounds for federal habeas relief”). Other circuits

have similarly decided that habeas corpus relief is not available

to correct alleged errors in state habeas proceedings. See,

e.g., Jolly v. Gammon,

(8th Cir. 1994); Franzen v.

Brinkman,

(9th Cir. 1989); Bryant v. Maryland,

(4th Cir. 1988); Spradley v. Dugger,

(11th Cir. 1987); Kirby v. Dutton,

(6th Cir. 1986). But see Dickerson v. Walsh,

(1st Cir. 1984) (allowing a federal habeas claim relating to a

state court habeas proceeding).

The Eighth Circuit has specifically considered and rejected

the issue that Trevino raises for appeal. See Jolly,

. In that case, the petitioner claimed that he was deprived of

due process when the state habeas court adopted the state’s

proposed findings of fact and law verbatim. See

The Eighth

Circuit found that the petitioner could not raise that claim in

16 federal court on his § 2254 petition because it did not raise an

error of a “constitutional magnitude” and was collateral to the

petitioner’s detention and not a constitutional challenge of the

detention itself. Id. Trevino’s claim, in which he alleges

errors in his state habeas proceedings, must similarly fail. We

therefore decline to issue Trevino a COA on this issue.

C. The Underlying State-Court Conviction Claims

Finally, Trevino presents four issues for review related to

the punishment phase of his state trial--first, that the jury

instruction was deficient; second, that the state court erred by

refusing to allow Trevino to ask jurors about their ability to

consider youth as a potentially mitigating factor; third, that

the state failed to disclose certain documents; and fourth, that

the state court erred in finding a document inadmissible.3

Trevino’s petition for habeas relief in the state trial

court raised each of these issues. On each issue, the state

trial court entered findings of fact and conclusions of law,

recommending to the Court of Criminal Appeals that it should deny

relief. The Court of Criminal Appeals denied relief, explicitly

basing its decision on the findings of the trial court. This

3 At the end of his brief, Trevino lists 11 additional, undeveloped arguments relating to his state-court conviction. Because they are inadequately argued, we consider these issues waived. See Royal v. Tombone,

, 599 n.3 (5th Cir. 1998) (stating that a petitioner waived inadequately briefed issues in his appeal of the denial of his habeas petition); Cinel v. Connick,

(5th Cir. 1994) (stating that a party who inadequately briefs an issue waives the claim).

17 explicit denial of relief by the Texas Court of Criminal Appeals

of Trevino’s claims qualifies as an “adjudication on the merits”

entitled to deference under AEDPA. See Davis v. Johnson,

(5th Cir. 1998); Drinkard,

(finding

“no question” that a claim was adjudicated on the merits in state

court proceedings where state trial court entered explicit

findings later adopted by the Texas Court of Criminal Appeals in

denying relief); cf. Green v. Johnson,

(5th Cir. 1997) (stating that the question of whether a state-

court adjudication was a “resolution on the merits,” the pre-

AEDPA equivalent of an “adjudication on the merits,” turns solely

on whether the state court’s disposition was substantive or

procedural, and does not depend on the “quality of a court’s

review of claims”).

Under the AEDPA deference scheme, pure questions of law and

mixed questions of law and fact are reviewed under § 2254(d)(1),

and questions of fact are reviewed under § 2254(d)(2). See

Corwin v. Johnson,

(5th Cir. 1998); Drinkard,

. When reviewing a purely legal question, we

must defer to the state court unless its decision rested on a

legal determination that was contrary to clearly established

federal law as determined by the Supreme Court. See Lockhart v.

Johnson,

(5th Cir.), cert. denied,

(1997); Drinkard,

. Additionally, a federal

court “will not disturb a state court’s application of law to

18 facts unless the state court’s conclusions involved an

‘unreasonable application’ of clearly established federal law as

determined by the Supreme Court.” Davis,

(quoting

(d)(1)); see Lockhart,

.

An application of federal law is unreasonable only “when it can

be said that reasonable jurists considering the question would be

of one view that the state court ruling was incorrect.”

Drinkard,

; see Davis,

; Corwin,

. State factual findings are presumed to be

correct unless rebutted by clear and convincing evidence. See

Davis,

; Jackson v. Johnson,

(5th Cir. 1998).

With this deference standard in mind, we consider whether

Trevino has raised a substantial showing of the denial of a

constitutional right with respect to his underlying state-court

conviction.

1. Punishment Phase Jury Instructions

Trevino argues that the trial court erred in refusing his

request to instruct the punishment-phase jury that it could

consider his “social history and background,” age, immaturity, or

any other “extenuating circumstances” in determining his

appropriate sentence. Trevino also claims that the jury

instructions improperly precluded the jury from considering

mitigating factors in determining the proper punishment.

Specifically, Trevino objects to a portion of the jury

19 instruction, which read, “During your deliberations, you shall

not consider or discuss what the effect of your answer to the

above issues may be.”

The Texas Court of Criminal Appeals found that this claim

had no merit, adopting the trial court’s finding that the

punishment phase jury instruction did not prevent the jury from

giving effect to any potentially mitigating testimony. The court

found that the trial judge specifically told the jury before the

punishment-phase deliberations: “You are instructed in answering

the issues submitted to you, you may take into consideration all

of the facts shown by the evidence admitted before you in the

full trial of this case.” The state habeas court reasoned that

this instruction, together with the jury instruction taken as a

whole, allowed the jury to consider any evidence admitted in the

trial--including any evidence concerning Trevino’s age, his

social history and background, his immaturity, or any other

extenuating circumstances. In addition, the court noted that the

instruction given to the jury in this case was similar to the

instruction upheld by the Supreme Court in Johnson v. Texas,

(1993); in each, the jury was explicitly told it

could take into consideration any evidence admitted in the trial.

The state court concluded that the jury instruction did not

prevent consideration of any mitigating factors in fashioning an

appropriate sentence, and that the jury instructions were

therefore not deficient.

20 We find that Trevino has not made a substantial showing of

the denial of a constitutional right on this issue. The relevant

question, as the Texas Court of Criminal Appeals noted, is

“‘whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.’” Johnson,

-68 (quoting Boyde v. California,

(1990)). The state court’s conclusion that, given the trial

court’s explicit instruction to consider all evidence in

determining the proper sentence and the instruction taken as a

whole, there was no reasonable likelihood that the jury was

foreclosed from considering any mitigating evidence is not

contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court. See

Green v. Johnson,

(5th Cir. Nov. 11, 1998)

(denying certificate of probable cause to applicant seeking to

appeal district court’s denial of habeas relief on jury

instruction issue because applicant did not demonstrate any

likelihood that jury was prevented from considering mitigating

evidence during punishment-phase sentencing); Tucker v. Johnson,

(5th Cir. 1997) (denying certificate of

probable cause on jury instruction issue because jury was not

foreclosed from considering mitigating evidence). We therefore

decline to issue Trevino a COA on this issue.

2. Voir Dire Questioning

21 Trevino next argues that the trial court erred in refusing

to allow him to inquire during voir dire whether three

prospective jurors were able to consider youth as a potentially

mitigating factor. Trevino contends that youth is a “relevant

mitigating factor of great weight,” Eddings v. Oklahoma,

(1982), and that under Morgan v. Illinois,

(1992), the trial court’s refusal to allow him to question the

jurors regarding youth violated his due process rights.

The Texas Court of Criminal Appeals found no merit to this

contention for three principal reasons. First, it noted that it

had already considered and rejected this argument on Trevino’s

direct appeal, where it had found that Trevino’s attempt to

question the venirepersons amounted to an attempt to bind the

jurors to consider youth as a mitigating factor without informing

them of the applicable law. Second, the state court found that,

in fact, the trial court had allowed Trevino to inquire whether

these venirepersons could consider youth as a mitigating factor.

Third, the Texas Court of Criminal Appeals found that Morgan v.

Illinois only required a court to allow inquiry during voir dire

regarding whether jurors would, as a matter of course, impose the

death penalty after finding a defendant guilty of a capital

crime, and did not require inquiry into whether possible jurors

could consider individual extenuating circumstances to be

mitigating.

22 We find that Trevino does not raise a substantial showing of

a constitutional right with regard to this issue. To begin with,

Trevino has not presented any evidence that suggests that he was

not able to inquire whether each venireperson at issue would

consider youth to be a mitigating factor. Even if Trevino were

to contend that he was not allowed sufficient voir dire regarding

potential jurors’ views on youth as a mitigating factor, the

state habeas court’s application of Morgan v. Illinois was not

unreasonable. This circuit has previously stated that Morgan

only “involves the narrow question of whether, in a capital case,

jurors must be asked whether they would automatically impose the

death penalty upon conviction of the defendant.” United States

v. Greer,

, 437 n.7 (5th Cir. 1992) (internal

quotation marks omitted); see also United States v. McVeigh,

(10th Cir. 1998) (“[W]e have held that Morgan

does not require a court to allow questions regarding how a juror

would vote during the penalty phase if presented with specific

mitigating factors. Other courts have issued similar rulings,

holding that Morgan does not require questioning about specific

mitigating or aggravating factors.”) (citation omitted); United

States v. McCullah,

(10th Cir. 1996) (finding

that Morgan only requires questioning during voir dire regarding

whether jurors would automatically impose the death penalty, and

it does not require specific questioning regarding mitigating

factors), cert. denied,

(1997); United States v.

23 Tipton,

(4th Cir. 1996) (finding it was not an

abuse of the trial court’s discretion to refuse to allow detailed

questioning during voir dire concerning specific mitigating

factors), cert. denied,

(1997), and cert. denied,

(1997), and cert. denied,

(1997).

After applying the AEDPA-mandated standard of review to these

state-court findings and conclusions, we cannot say that Trevino

has made a substantial showing of the denial of a constitutional

right on this issue. We therefore decline to issue Trevino a COA

on this issue.

3. Failure to Disclose Documents

In his third claim relating to his underlying state-court

conviction, Trevino argues that the State of Texas suppressed

records material to the punishment phase of the trial in

violation of Brady v. Maryland,

(1963).

Specifically, Trevino maintains that the state refused to

disclose material records regarding Trevino’s upbringing in the

possession of the Harris County Independent School District,

Child Protective Services, and the Texas Youth Council.

The Texas Court of Criminal Appeals rejected Trevino’s Brady

contention on the basis of specific findings. First, the court

found that Trevino either had possession of the allegedly

suppressed records or that he could have obtained them through

24 the exercise of reasonable diligence.4 Second, the court found

that the allegedly suppressed records were not material.5

4 Specifically, the state habeas court in part found:

9. Each of the records that [Trevino] contends were suppressed are records which were and are readily accessible to [Trevino].

. . . .

25. The essence of [Trevino’s] complaint is that the State has suppressed his own records. However, educational records, medical records, juvenile records, TYC records, and prison records, are readily available to [Trevino] and, hence, are [Trevino’s] records.

. . . .

28. Hence, all of this information was fully available to [Trevino] and could be obtained through reasonable diligence.

. . . .

38. The documents which [Trevino] claims were suppressed were readily available to him through reasonable diligence, and not so readily available to the State.

. . . .

45. All of the purportedly suppressed information was readily available to [Trevino] and his attorneys, with [Trevino’s] consent.Hence, all of this information was fully available to [Trevino] and could be obtained through reasonable diligence. 5 The state habeas court adopted specific findings on this issue as well, including:

54. The documents which [Trevino] claims were suppressed were not “favorable” to him.

. . . .

58. The evidence which [Trevino] now claims would have

25 Therefore, the court found that Trevino was not entitled to

relief under Brady.

Trevino is not entitled to a COA on this issue because he

cannot overcome the deference we must afford these state-court

findings under AEDPA. To prevail on a Brady claim, Trevino must

show that the evidence was suppressed by the prosecution; that

the evidence was favorable to the defense; and that the evidence

was material. Brady,

. Whether documents must be

produced and whether they are material under Brady is a mixed

question of law and fact. See Brown v. Cain,

(5th Cir.), cert. denied,

(1997); Kennedy, 54

F.3d at 682. Given this standard, we cannot say that the state

habeas court’s application of Brady was unreasonable. Trevino

has made no attempt to rebut the presumption of correctness we

been mitigating does not “tend to justify, excuse, or clear” [Trevino] of the charge of capital murder. 59. The trial record shows that the supposedly suppressed documents are cumulative and, in some instances, out-of-date or incorrect.

. . . .

74. Based upon the cumulative nature of the supposedly suppressed evidence, there would be no probability sufficient to undermine the confidence in the outcome of the proceeding. Simply stated, additional background mitigation evidence, even if provided by way of expert testimony, or evidence of intoxication at the time of the offense would not have caused the jury to respond differently to the punishment issues submitted.The trial record shows that the supposedly suppressed documents are cumulative and, in some instances, out-of-date or incorrect.

26 must afford the state court’s findings that Trevino could have

obtained all of the information at issue with reasonable

diligence and that the records were not material. The state

court’s conclusion that the prosecution had no Brady obligation

to produce these records for Trevino is therefore not an

unreasonable application of clearly established federal law. See

Lucas v. Johnson,

(5th Cir. 1998) (denying

habeas relief on Brady issue because petitioner presented no

“convincing evidence that casts doubt on the state court’s

factual findings”); Brown,

(finding no Brady

violation where habeas applicant presented no evidence rebutting

state habeas court’s finding that relevant evidence was not

exculpatory). We find that Trevino has not made a substantial

showing of the denial of a constitutional right on this issue,

and we therefore deny Trevino’s request for a COA.

4. Evidentiary Issues

Trevino’s last claim relating to his underlying state-court

conviction challenges an evidentiary ruling of the state trial

court. During the punishment phase of his trial, the court ruled

that a report that Trevino’s counsel attempted to introduce was

inadmissible hearsay. Trevino claims that the report, prepared

by an educational psychologist who had examined him, found that

he had “limited judgment and possible impulsivity,” issues he

claims could have been considered in the punishment phase of his

trial.

27 Trevino does not argue that the trial court’s evidentiary

ruling deprived him of a constitutional right; his argument to

this court is simply that the trial court’s ruling incorrectly

excluded evidence relevant to the punishment phase of his trial.

The Texas Court of Criminal Appeals denied this claim, finding

that any error by the trial court in its evidentiary ruling was

subject to harmless-error review and that because Trevino had not

alleged that the ruling had an injurious effect on his sentence,

he was not entitled to habeas relief.

"[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions."

Estelle v. McGuire,

(1991). A petitioner is

not entitled to federal habeas relief due to trial error unless

“‘the error had substantial and injurious effect or influence in

determining the jury’s [sentence].’” Corwin,

(quoting Brecht v. Abrahamson,

(1993))

(further internal quotation marks omitted). Trevino has not

presented any evidence to rebut the state habeas court’s finding

that he failed to allege that the evidentiary ruling had an

injurious effect on his sentence. Indeed, he only argues to this

court that the report was “relevant.” The state habeas court’s

conclusion that he was not entitled to habeas relief is therefore

not an unreasonable application of federal law as determined by

the Supreme Court, and we decline to grant Trevino a COA on this

issue. See id. at 476-77 (denying petitioner a COA on

28 evidentiary issue because admission “did not have a substantial

and injurious effect or influence in determining the jury’s

verdict”) (internal quotation marks omitted).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

decision not to recuse and we DENY Trevino’s request for a COA on

all other issues.

29 DeMoss, Circuit Judge, dissenting:

I respectfully dissent. I would not reach the merits of

Trevino’s petition because Judge McBryde should have recused

himself from its original consideration.

The prior decisions of this Court in United States v.

Anderson,

(5th Cir. 1998), and United States v.

Avilez-Reyes,

(5th Cir. 1998), control the result in

this case. Applying

(a) to the question of

whether Judge McBryde should have recused himself from a

sentencing hearing in which the defendant was represented by an

Assistant Federal Public Defender who had testified against Judge

McBryde before the special investigatory committee of the

Judicial Council, we concluded that a reasonable person, when

apprised of the relevant circumstances that surround this case,

“would harbor doubts about Judge McBryde’s impartiality.”

Anderson,

; see also Avilez-Reyes,

. The considerations relied upon in Anderson included the

fact that many attorneys are reluctant to file complaints against

judges or testify against them for fear of retaliation, as well

as the fact that the Judicial Council itself saw fit to order

Judge McBryde not to participate in cases involving the

30 testifying attorneys for a period of three years. See Anderson,

. Given that the aim of § 455 is to avoid even

the appearance of impropriety, see Liljeberg v. Health Servs.

Acquisition Corp.,

,

(1988), we concluded that Judge McBryde abused his discretion in

failing to recuse.

The logic of these precedents should control the present

case. We must consider the facts and determine whether a

reasonable person who is aware of all of the relevant

circumstances would doubt Judge McBryde’s impartiality. Such a

reasonable person would know that Judge McBryde faced charges of

misconduct which specifically related, in part, to his treatment

of lawyers appearing in his court. See In re Complaints of

Judicial Misconduct or Disability (McBryde), No. 98-372-001,

manuscript op. at 2 (Jud. Conf. U.S. Sept. 21, 1998). Such a

reasonable person would know that an investigation of his conduct

had been ongoing for over two years, and that this investigation

involved taking testimony from lawyers who had practiced before

Judge McBryde. See

Such a reasonable person would know that

the proceedings were adversarial in every sense of the word, that

Judge McBryde was fully aware of all these complaints, that he

was represented by counsel, that he had been apprised of the

nature and substance of the complaints, and that he personally

attended many of the committee’s hearings in which testimony was

-31- 31 presented. Such a reasonable person would know that at the time

Trevino filed the recusal motion, Brender was under subpoena to

appear before the committee and testify. Such a reasonable

person would know that Judge McBryde was given “brief

explanation[s]” of the substance of the witnesses’ testimony in

advance of their appearances.

Such a reasonable person

would know that at the time Judge McBryde denied the motion on

September 24, 1997, there were still scheduled sessions at which

Brender could have been called to testify. See

Such a

reasonable person would know that Judge McBryde either knew with

certainty or would have inferred that Brender would give adverse

testimony.

If a reasonable person would harbor doubts about the

impartiality of a judge who knew of adverse testimony actually

supplied against him by the lawyers in a case, it stands to

reason that the same doubt would exist with respect to an

attorney who had been subpoenaed and for whom there was every

reason to believe that he would in fact be called to testify and

provide additional adverse testimony. This conclusion is

bolstered by the fact that despite the committee’s failure to

actually call Brender to testify, at the end of the proceedings

his name was nevertheless included on the list of lawyers over

whom Judge McBryde is not permitted to preside for a period of

three years. See In re Matters Involving United States District

-32- 32 Judge John H. McBryde, Under the Judicial Conduct and Disability

Act of 1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir.

Dec. 31, 1997) (order and public reprimand), aff’d,

No.98-372-001, manuscript op. at 24 (Jud. Conf. U.S. Sept. 21,

1998) (“There is plenty of evidence in the record to support the

judicial council’s implicit conclusion that Judge McBryde might

attempt to retaliate in some fashion against witnesses who had

testified against him, or at least that witnesses reasonably

perceived such a risk.”). The majority’s attempt to distinguish

Anderson and Avilez-Reyes is, quite frankly, a stretch.

In addition to our controlling precedents, requiring Judge

McBryde’s recusal comports with established interpretations of

the Code of Conduct for United States Judges published by the

Judicial Conference Committee on Codes of Conduct.****** Because I

****** Canon 3C(1) of the Code requires that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Notably, this requirement embodies the same standard for recusal as does § 455. Applying Canon 3C(1), the Committee has determined that “[a] judge who is personally involved in litigation with the IRS is recused, subject to remittal, from cases in which . . . the Assistant United States Attorneys appearing before the judge are also litigating the judge’s dispute with the IRS.” Compendium § 3.4-8(c). Additionally, “[a] judge should recuse from cases handled by a law firm, one of whose members or associates represents a party adverse to the judge in other litigation.” Compendium § 3.6-3(a). And although “[a]utomatic recusal is not necessary when a

complaint is filed” against a judge, because it may not be meritorious, “[a] judge should normally recuse if the complaint is not dismissed.” Compendium § 3.6-7. Each of these examples provides additional color around the edges of Judge McBryde’s situation, and each of them suggests generally that when a judge

g:\opin\97-11372.dis -33- 33 believe that our decision is controlled by Anderson and Avilez-

Reyes, and because I have no trouble concluding that a reasonable

person aware of all the facts would question Judge McBryde’s

impartiality in a case involving a lawyer who was named as a

witness in the investigation of Judge McBryde’s judicial

misconduct, I would vacate the judgment and remand the case for

proceedings before a different judge. I therefore dissent.

is involved in some variety of litigation, there ordinarily is sufficient doubt about the judge’s impartiality towards opposing counsel to trigger the obligation to recuse.

g:\opin\97-11372.dis -34- 34