UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-50392 ____________________

ROBERT EARL CARTER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (1:98-CA-067) _________________________________________________________________

November 2, 1999

Before WIENER, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Robert Earl Carter, sentenced to death in state court for

capital murder, appeals the denial of his habeas application, the

district court having granted a Certificate of Appealability (COA)

on two sentencing issues: refused parole eligibility instruction;

and Allen charge. AFFIRMED.

I.

Carter’s 1994 conviction and death sentence for the 1992

murder of six individuals during the same criminal offense was

affirmed by the Texas Court of Criminal Appeals. Carter v. State,

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 71,836 (Tex. Cr. App. 8 May 1996) (unpublished). The Supreme

Court of the United States denied certiorari. Carter v. Texas,

(1997).

Carter’s October 1997 state habeas application, which raised

the same issues as his direct appeal, was denied that November in

an unpublished order by the Court of Criminal Appeals. Ex parte

Carter, No. 35,746-01. Accordingly, Carter sought federal habeas

relief in February 1998.

Although the District Court denied relief, it granted a COA on

whether the trial court erred (1) in overruling Carter’s requested

corrective instruction on parole eligibility; and (2) in requiring

the jury, with a claimed improper “dynamite” charge, to continue

deliberating whether Carter should receive the death penalty.

II.

At issue is Carter’s sentence, not his conviction. The

Antiterrorism and Effective Death Penalty Act of 1996,

Stat. 1214 (AEDPA), applies because, subsequent to its

enactment, Carter filed his federal application. See Green v.

Johnson,

(5th Cir. 1997). Under AEDPA, a

COA is required for an appeal.

(c)(3). As noted,

the COA granted Carter allows review of two sentencing issues

(punishment phase of trial): (1) denial of the parole eligibility

instruction; and (2) an “Allen”/“dynamite” charge.

2 Under AEDPA, federal habeas relief is not available to a state

prisoner

3 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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.

(d) (emphasis added). Therefore, “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)”.

Corwin v. Johnson,

(5th Cir.), cert. denied, ___

U.S. ___,

(1998).

As a result, for reviewing a question of law pursuant to §

2254(d)(1), we defer to the state court’s ruling, unless its

“decision rested on a legal determination that was contrary to ...

clearly established federal law as determined by the Supreme

Court”. Lockhart v. Johnson,

(5th Cir.) (internal

quotation marks and citation omitted), cert. denied,

(1997). Likewise, we “will not disturb a state court’s application

of law to facts unless the state court’s conclusions involved an

‘unreasonable application’ of clearly established federal law as

determined by the Supreme Court”. Davis v. Johnson,

(5th Cir. 1998) (quoting

(d)(1)), cert. denied,

___ U.S. ___,

(1999); Lockhart,

.

Such “application of federal law is unreasonable when

reasonable jurists considering the question would be of one view

4 that the state court ruling was incorrect”. Davis,

(internal quotation marks and citation omitted). In this regard,

Carter maintains that we should wait for the Supreme Court to

decide Williams v. Taylor,

(4th Cir. 1998), cert.

granted, ___ U.S. ___,

(1999), concerning the

proper interpretation of § 2254(d)(1)’s “contrary to” and

“unreasonable application” provisions. But, no authority need be

cited for our being bound by our precedent pending change of law or

a decision by the Supreme Court. See also Hughes v. Johnson, No.

98-40171,

(5th Cir. 5 Oct. 1999); Corwin,

.

For factual issues, reviewed pursuant to § 2254(d)(2), state

court findings are presumed correct unless rebutted by clear and

convincing evidence.

(e)(1); see Davis,

.

A.

5 In claiming entitlement to the refused instruction on parole

eligibility in conjunction with a life-sentence, Carter maintains

that the prosecution made misleading statements about such

eligibility during voir dire, and that this contributed to his

death sentence. In support, he asserts that the prosecution made

improper comments to, or failed to correct improper statements by,

five potential jurors:

(1) Vernon Harvey Jensen

[JUROR]: Well, the case you’ve been just describing, I wouldn’t have no problem with the death penalty there.

[PROSECUTOR]: All Right.

[JUROR]: Because you put them in prison and in a few years they’re going to [be] out on the street again.

[PROSECUTOR]: All right, sir. You understand that Texas -- that Texas is not one of those states that has life without parole?

[JUROR]: Right. That’s what I’m saying.

[PROSECUTOR]: And in other words, at some point in time every murderer that’s sent to prison for life has a possibility of getting out.

(2) James Frederick Zeman

[PROSECUTOR]: In the state of Texas, just to clear up so you will understand, some states have life without parole. Texas is not one of those states. Texas does in fact provide for parole of anyone. There’s no guarantee that that person will be paroled. However, considering overcrowding and considering the fact the legislature could change the law at any time as to what the parole laws would be. But just so you understand that a person sentenced to life can be at some point paroled out in Texas and that part of it.

6 (3) Thomas Archie Whetstone

[PROSECUTOR]: One other thing that I do need to mention to you that I think is significant and that is that in Texas law if a person does receive life there is no such thing as life without parole. There is in some states. Texas is not one of those states. So a person that receives life in a capital murder case has a possibility of getting out at some time on parole irrespective of how long it may be. Right now there’s a certain number of years. Obviously, [the] legislature can change that at any time. But with prison overcrowding and this type of situation, [it’s] something to take into consideration.

(4) Joe Berry Townsend

[PROSECUTOR]: You understand also that Texas–-the alternatives in a capital murder case are either life or death. I want you to understand that Texas parole laws do not provide for parole –- life without parole. Texas doesn’t have that. In other words, it is possible for anyone sentenced to life in the state of Texas to get out of prison at some point in time. You understand that?

[JUROR]: (Nods affirmatively)

[PROSECUTOR]: You also understand that the Texas legislature can change the parole laws at any time?

[JUROR]: (Nods affirmatively)

[PROSECUTOR]: In fact, the prison overcrowding gets so bad they can say we parole you out after x-number of years and that’s always a possibility. But just understand that is something that does exist.

(5) Jeanne Leigh Creagh

[JUROR]: Do we have life in prison in Texas?

[PROSECUTOR]: We have life in prison in Texas. Yes, ma’am. There are –- ... provisions in Texas, depending on the temperature of the legislature, for parole and

7 things like that. There’s not life without parole in Texas.

[JUROR]: That’s what I meant.

[PROSECUTOR]: What parole means in Texas is best left undefined, because who knows.

(Emphasis added.) Carter did not object contemporaneously to these

now-contested comments.

Normally, the failure to so object would bar Carter from

prevailing on this claim in state court and on federal habeas. See

Hughes,

. However, the Court of Criminal

Appeals reached the merits on direct appeal, holding that the

prosecutor’s statements were not misleading, on the basis that they

were an accurate statement of Texas law. Carter, No. 71,836, slip

op. at 10. (The court continued that, if there was error, Carter

failed to preserve it, by not objecting contemporaneously.)

Likewise, the district court denied habeas relief on the merits and

granted a COA on the merits-issue. Therefore it is before us.

Carter’s requested charge stated that,

under the applicable law in this case, the defendant, if sentenced to a term of imprisonment, ... will not become eligible for parole until the actual time served ... [,] without consideration of good time[,] is 35 calendar years, which is the law.

This instruction, requested during the punishment phase, was

refused without reasons or the State even responding. Concerning

parole, the court did instruct as follows:

During your deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles Division of the Texas Department of Criminal Justice or of the Governor, or how long the defendant would be

8 required to serve to satisfy a sentence of life imprisonment.

(Emphasis added.)

1.

Carter raises several subissues about the refused instruction,

such as that prosecutorial misconduct misled the jury about

Carter’s parole eligibility; that the prosecutor failed to correct

juror misstatements about such eligibility; and that the district

court misapplied Texas law in not giving a corrective instruction

to correct community misunderstandings about the judicial system.

But, because a COA was not granted on any of these subissues, we

cannot consider them; AEDPA limits review to only those issues

designated in a COA. Lackey v. Johnson,

(5th

Cir. 1997).

2.

To support his corrective-instruction-needed claim, Carter

relies on a juror’s affidavit, which states that the parole

discussion at voir dire “may have had a bearing on our decision in

favor of the death penalty”. But, this affidavit was never

presented to the state courts; in fact, it was not signed until

August 1998, after completion of the state habeas proceeding.

Obviously, “it is improper ... to rely on an affidavit that the

state courts did not have an opportunity to review”. Livingston v.

Johnson,

, 306 n.7 (5th Cir.) (emphasis added), cert.

denied, ___ U.S. ___,

(1997); see Hogue v. Johnson,

(5th Cir. 1997), cert. denied, ___ U.S. ___,

(1998).

9 3.

As noted, the Court of Criminal Appeals held, on direct

appeal, that the prosecutor

did inform [the potential jurors] that Texas law does not provide for a sentence of life in prison without the possibility of parole. As this is an accurate description of the law, appellant cannot show harm or that the veniremembers were misled.

Carter, No. 71,836, slip op. at 10 (emphasis added).

Carter maintains that the instruction’s refusal conflicts with

Gardner v. Florida,

(1977), which held that a

defendant has a constitutional right to rebut information the

prosecution presented to the jury. In sentencing Gardner, the

trial judge reviewed a presentence report, only part of which was

revealed to Gardner. The Court held that Gardner was denied due

process, because he was sentenced, at least in part, on the basis

of information he had no opportunity to rebut. Gardner,

.

Carter’s situation is different. As discussed, he had the

opportunity at voir dire to rebut the prosecutor’s statements on

parole eligibility. In fact, Carter questioned a prospective juror

as follows:

[COUNSEL FOR CARTER]: ... just to follow up on what [the prosecutor] said [concerning, if sentenced to life, Carter will be paroled].

I disagree with his interpretation there. I don’t believe that there is necessarily a reasonable expectation that that person will be released. That person could be released after a length – well, in capital murder 35 years, but he does not have to be released.

10 Do you understand that?

Accordingly, because Carter had such opportunity and exercised it

with some, but not all prospective jurors, Gardner does not apply.

Carter also claims that Simmons v. South Carolina,

(1994), requires the requested instruction. In Simmons, the

prosecution maintained that Simmons would be a future danger to

society. However, Simmons was ineligible for parole if convicted,

and, therefore, could not be a future danger. Simmons’ request

that the jury be informed of his parole ineligibility was denied.

The Supreme Court remanded for resentencing, because the jury had

been misled about parole eligibility.

Again, Carter’s situation is different. Because he would be

eligible for parole if sentenced to life, the jury was not misled

about such eligibility; and, as discussed, he had the opportunity

to rebut the challenged statements. The Court of Criminal Appeals

ruled, on direct appeal, that Simmons was inapplicable, on the

basis that life without parole was not a sentencing option; that,

therefore, Carter was not entitled to the requested instruction.

Carter, No. 71,836, slip op. at 9-10; see Smith v. State,

(Tex. Cr. App.), cert. denied,

(1995).

(Our court has also interpreted Simmons to apply only when life

without parole is a sentencing option. See Hughes,

; Allridge v. Scott,

(5th Cir. 1994).)

Accordingly, pursuant to § 2254(d)(1), the state court

decision did not conflict with “clearly established Federal law, as

11 determined by the Supreme Court of the United States”. As a

result, habeas relief cannot be granted on this issue.

B.

The other COA issue concerns the supplemental instruction at

the punishment phase. It was given after the jury announced that

it had reached a verdict and returned the verdict form to the

court. Only one of the three death penalty special issues — No.

2 — had been answered. (Carter does not contest No. 2 — that he

actually murdered six persons.)

The court had instructed for No. 1 (future dangerousness):

You are instructed that you may not answer Special Issue No. 1 “Yes” unless all jurors agree to such an answer. Further, the jury may not answer ... “No” unless ten (10) or more jurors agree. ...

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 Foreman will not sign either form of answer to the Special Issue.

(Emphasis added.) And, it had instructed that No. 3 (mitigating

circumstances) did not have to be answered unless Nos. 1 and 2 were

answered “yes”.

To impose a death sentence, Nos. 1 and 2 had to be answered

“yes” and No. 3 “no”. As noted, after deliberating for two and

one-half hours, the jury announced that it had reached a verdict.

On the verdict form, the signature lines for all of the possible

answers for Nos. 1 and 3 were blank; the “Yes” answer for No. 2 was

signed by the jury foreman.

12 After the verdict form was delivered to the court, the trial

judge ordered counsel to approach the bench and an unrecorded bench

conference was held. The judge then stated: “Members of the jury,

you have been working hard, but I’m sorry, you have not completed

your job. I’m going to ask you to go back and continue your

deliberation”. Carter objected; he contended, based on the

instructions to leave a special issue blank and unsigned if a

verdict could not be reached on it, that the verdict form was

sufficient and resulted in a life-sentence. (Carter’s objection

that the first verdict form was complete and, therefore, resulted

in life imprisonment is not an issue for which a COA was granted.

Again, we cannot review it. See Lackey,

.)

After the supplemental charge, the jury deliberated for an

additional 90 minutes and returned a death-sentence. Carter

requested that the jury be polled; each juror responded that this

was his or her verdict.

On direct appeal, the Court of Criminal Appeals decided the

issue on the merits, holding that the supplemental charge was

proper. Carter, No. 71836, slip op. at 14-16. As discussed,

habeas relief can be granted on this issue only if, pursuant to §

2254(d)(1), that decision “was contrary to ... clearly established

Federal law as determined by the Supreme Court of the United

States”.

As Carter notes, such supplemental charges have long been

sanctioned. See, e.g., Lowenfield v. Phelps,

(1988); Allen v. United States,

(1896). Therefore,

13 Carter had to demonstrate to the Court of Criminal Appeals that the

“charge, under the totality of the circumstances, was so coercive

as to have unconstitutionally rendered the ... trial fundamentally

unfair”. Montoya v. Scott,

(5th Cir. 1995)

(emphasis added). “[W]e evaluate the constitutionality of a state

court’s supplemental instructions by comparing them to other

charges challenged on constitutional grounds in habeas corpus

cases”.

.

This instruction avoided the most troubling “feature of an

Allen charge [—] the exhortation to the minority to reexamine its

views in the light of the majority’s arguments”. United States v.

Cheramie,

(5th Cir. 1975) (emphasis added).

The supplemental instruction at issue in Boyd v. Scott,

(5th Cir. 1994) (emphasis in original), stated that “a

decision has to be reached by a jury. You are that jury, and it

seems to me that you ought to make every effort to arrive at a

unanimous verdict and to reach a conclusion”. Our court held that

this instruction was not constitutionally unfair.

As noted, in the light of the circumstances, the Court of

Criminal Appeals held that the challenged instruction (“ ... I’m

sorry, you have not completed your job. I’m going to ask you to go

back and continue your deliberation.”), given after only two and

one-half hours of deliberation, did not coerce the jury into a

verdict. This decision did not conflict with the clearly

established federal law, discussed supra. Therefore, habeas relief

cannot be granted on this issue.

14 III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.

15