UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 01-11170 _______________________

TORONTO MARKKEY PATTERSON, Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas 3-99-CV-808-G _________________________________________________________________ February 26, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Toronto Markkey Patterson, a Texas

prisoner, was convicted of capital murder and sentenced to death

in 1995. After exhausting some of his claims in state court,

Patterson filed a petition for a writ of habeas corpus, pursuant to

, in the United States District Court for the

Northern District of Texas. The district court denied his petition

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. for a writ of habeas corpus and then denied his application for a

Certificate of Appealability (“COA”). Patterson now requests that

this court grant him a COA to appeal the district court’s denial of

his habeas petition. See

(c). For the following

reasons, Patterson’s application for a COA is DENIED.

Patterson alleges four constitutional errors in his state

court proceedings. The first is without merit, the second is

waived, and the others are procedurally barred.

Patterson’s first contention is that the Texas courts

unreasonably failed to apply the rule of Crane v. Kentucky,

(1986), to the facts of this case. According to

Patterson, the detective who obtained his confession also had

elicited a presumably false confession from another capital murder

suspect who was later released from custody. Citing Crane,

Patterson contends that he was denied a fair trial because the

trial court excluded evidence regarding the interrogation tactics

used to obtain the other murder suspect’s confession. Patterson

suggests that such evidence is probative of whether his own

confession was reliable. To merit a COA on this issue, Patterson

“must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel,

(2000). Patterson

falls short of meeting this standard.

As the district court pointed out, Crane presented a much

different factual situation. In Crane, the Supreme Court held that

2 “the blanket exclusion of the proffered testimony about the

circumstances of petitioner’s confession deprived him of a fair

trial” and that the defendant should have been allowed to argue

that his confession, although voluntary, was unreliable. Crane,

. In this case, on the other hand, Patterson

testified about the circumstances and conditions of his own

interrogation, and Patterson’s attorney questioned the detective

who had conducted the interrogation. Patterson was by no means

“stripped of the power to describe to the jury the circumstances

that prompted his confession.”

.

Patterson contends, however, that the holding of Crane should

be extended to cover situations involving the confessions of other

suspects in unrelated offenses. But the Supreme Court has not

extended Crane into new contexts such as the one presented here.

The Court recently explained that its

holding [in Crane] that the exclusion of certain evidence in that case violated the defendant’s constitutional rights rested not on a theory that all “competent, reliable evidence” must be admitted. . . . Crane does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a “valid” reason.

Montana v. Egelhoff,

(1996)(plurality opinion). In

a later case, the Court reiterated this point:

A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus “‘bow to accommodate other legitimate interests in the criminal trial process.’”

3 United States v. Scheffer,

(1998)(citations

omitted). The Court went on to say that evidentiary rules “do not

abridge an accused’s right to present a defense so long as they are

not ‘arbitrary’ or ‘disproportionate to the purposes they are

designed to serve.’”

Consequently, Crane cannot be

interpreted to convert every arguable misapplication of state

evidentiary rules into an unconstitutional denial of a fair trial.

Given the factual dissimilarities between Crane and this case, and

the Supreme Court’s refusal to extend Crane, no reasonable jurist

could conclude that the district court erred in deciding that

Patterson was not denied the right to a fair trial.

Patterson has raised three other issues: (1) The sentence of

death violates a provision of a federal treaty, the International

Covenant on Civil and Political Rights (“ICCPR”), regarding the

execution of minors; (2) Patterson’s counsel was ineffective for

not raising the ICCPR issue in state court;1 and (3) Patterson’s

counsel was ineffective for failing to discover and present

mitigating evidence during the punishment phase of the trial.

The Supremacy Clause claim has never been raised in state or

federal court and must be deemed waived. This court has held that

the COA requirement of

(c) “is jurisdictional as to

each issue.” Whitehead v. Johnson,

(5th Cir.

1 Patterson attempted to raise this issue in a successive state habeas application, but this writ application was dismissed as an abuse of the writ.

4 1998). Because the district court had no opportunity to rule on

this issue, this court is without jurisdiction to consider it on

appeal.

The latter two claims were raised for the first time in

federal habeas proceedings. The district court ruled that these

ineffective assistance claims are procedurally barred and that

Patterson has not “demonstrate[d] that failure to consider the

claims will result in a fundamental miscarriage of justice.” See

Coleman v. Thompson,

(1991); see also Edwards v.

Carpenter,

(2000) (explaining when a procedurally

defaulted claim may be reviewable on federal habeas review). When

a district court has denied a habeas petition on procedural

grounds, a COA should issue only if the prisoner can show that

reasonable jurists would find it debatable (1) whether the petition

states a valid claim of the denial of a constitutional right and

(2) whether the district court was correct in its procedural

ruling. Slack,

. With these principles in mind, we

turn to Patterson’s two remaining claims.

Patterson asserts that he received ineffective assistance of

counsel because his attorneys failed to raise the Supremacy Clause

issue in state court. However, Patterson has not shown that

reasonable jurists would find it debatable whether this issue

presents a valid claim of the denial of his Sixth Amendment rights.

Patterson cannot show that he was prejudiced by counsel’s failure

to raise this claim because this circuit has held unambiguously

5 that the International Covenant on Civil and Political Rights does

not apply to capital cases tried within the United States. Beazley

v. Johnson,

, cert. denied,

(5th

Cir. 2001). Without a showing of prejudice, Patterson cannot

plausibly claim the denial of a constitutional right under

Strickland v. Washington,

(1984).

Patterson’s final claim is that his trial counsel was

ineffective during the punishment phase of the trial. The district

court ruled that this claim is procedurally barred because it was

not raised in state court. Patterson contends that the issue is

reviewable nevertheless because he can establish “cause” for his

failure to present the claim to state court. See Coleman,

. Specifically, Patterson maintains that the ineffective

assistance of his state habeas counsel is adequate, excusable

“cause” for his failure to raise this issue (i.e., the ineffective

assistance of his trial counsel) in state habeas proceedings. The

district court concluded that, because there is no constitutional

right to counsel in post-conviction proceedings, any alleged

deficiency of the state habeas counsel cannot serve as cause for

the default. See, e.g., Martinez v. Johnson,

(5th Cir. 2001). In light of clear Fifth Circuit precedent,

Patterson’s argument is unavailing, and reasonable jurists would

not find debatable the district court’s procedural ruling on this

issue.

6 For the foregoing reasons, Patterson’s application for a COA

is DENIED.

7