UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30909

CHRISTOPHER SEPULVADO,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary; RICHARD L. STADLER,

Respondents-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (00-CV-596) _________________________________________________________________ January 13, 2003

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Christopher Sepulvado, a Louisiana state prisoner sentenced to

death for capital murder, requests a certificate of appealability

(COA) in order to appeal the denial of habeas relief. DENIED.

I.

In 1993, after being convicted of first-degree murder of his

six-year-old stepson, Sepulvado was sentenced to death.

(Sepulvado's wife, Yvonne Sepulvado, originally charged with first-

* Pursuant to 5th Cir. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. degree murder, was convicted of manslaughter. State v. Sepulvado,

, 161 n.1 (La. 1996).)

On Thursday, March 5, 1992, [Sepulvado] married the victim's mother, Yvonne. The next day, Friday, the victim came home from school, having defecated in his pants. Yvonne spanked him and refused to give him supper. [Sepulvado] returned home from work at approximately 9:00 p.m. That night, the victim was not allowed to change his clothes and was made to sleep on a trunk at the foot of his bed. On Saturday, the victim was not allowed to eat and was again made to sleep on the trunk in his soiled clothes. At around 10:00 a.m. on Sunday, [Sepulvado] and the victim were in the bathroom, preparing to attend church services. [Sepulvado] instructed the victim to wash out his soiled underwear in the toilet and then take a bath. When the victim hesitated to do so, [Sepulvado] hit him over the head with the handle of a screwdriver several times with enough force to render him unconscious. Thereafter, the victim was immersed in the bathtub which was filled with scalding hot water.

Approximately three hours later, at around 1:50 p.m., [Sepulvado] and his wife brought the victim to the emergency room at the hospital. At that time the victim was not breathing, had no pulse, and probably had been dead for approximately thirty to sixty minutes. All attempts to revive the victim were futile. The cause of death was attributed to the scald burns covering 60% of the victim's body, primarily on his backside. There were third degree burns over 58% of the body and second degree burns on the remaining 2%. The scalding was so severe that the victim's skin had been burned away. In addition to the burns, medical examination revealed that the victim had been severely beaten. The victim's scalp had separated from his skull due to hemorrhaging and bruising.

2 Also, there were deep bruises on the victim's buttocks and groin which were not consistent with accidental injury.

At trial, [Sepulvado] admitted that he hit the victim with a screwdriver, but contended that the victim fell into the tub accidentally. However, the state presented expert testimony that the burn marks on the victim's body did not indicate he accidentally fell into the tub, since there were no signs of splash marks that would result from a struggle. The experts testified that the marks were consistent with the victim being dipped or immersed into the scalding water.

.

Sepulvado’s conviction and sentence were affirmed by the

Louisiana Supreme Court.

. The United States Supreme

Court denied certiorari. Sepulvado v. Louisiana,

,

reh'g denied,

(1996).

In 1997, Sepulvado filed for state post-conviction relief,

claiming: (1) ineffective assistance of counsel; (2) denial of due

process due to the termination of his counsel; (3) prosecutor’s

misstatements of law regarding mitigation; (4) State’s failure to

provide him necessary funds for investigation of his post-

conviction claims; (5) lethal injection violated the Louisiana and

United States Constitutions; (6) retroactive application of the

contemporaneous objection rule; (7) State’s failure to adequately

and timely notify him of sentencing issues and its intention to

introduce certain evidence; (8) unconstitutional court-ordered

psychiatric evaluation; (9) improper jury instructions; (10)

3 unconstitutionally vague application of “especially heinous,

atrocious or cruel” aggravating circumstance; and (11)

discrimination in selection of grand jury forepersons.

The state habeas judge had served as trial judge. In 1998, an

evidentiary hearing was held on the ineffective assistance claims,

discussed infra. Both of Sepulvado’s trial counsel, a

psychiatrist, and an expert defense attorney testified.

In April 1999, that court denied post-conviction relief. And,

in March 2000, the Louisiana Supreme Court denied an application

for a supervisory or remedial writ.

Later that month, Sepulvado filed for federal habeas relief,

pursuant to

. He raised the same 11 issues as in

state court. In late 2001, the district court denied the petition;

nevertheless, it ordered an evidentiary hearing on the grand jury

forepersons claim. Sepulvado v. Cain, No. 00-596 (W.D. La. 21 Nov.

2001) (Original Opinion). That December, pursuant to a Rule 59(e)

motion, the district court withdrew the habeas denial, pending the

evidentiary hearing.

The evidentiary hearing was conducted by a magistrate judge in

April 2002. That June, the magistrate judge recommended denial of

the forepersons claim. That August, the district court adopted the

recommendation and denied relief. Sepulvado v. Cain, No. 00-596

(W.D. La. 9 Aug. 2002).

4 Sepulvado’s COA application was denied the next month

(September 2002).

II.

Pursuant to the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Sepulvado must obtain a COA in order to appeal the

habeas denial.

(c)(1)(A). For the 11 claims

raised in his § 2254 petition, he seeks certification on six: (1)

ineffective assistance of counsel; (2) discrimination in the

selection of grand jury forepersons; (3) unconstitutional, court-

ordered psychiatric evaluation; (4) prosecutor’s misstatements of

law regarding mitigation; (5) improper jury instructions; and (6)

retroactive application of the contemporaneous objection rule.

To obtain a COA, Sepulvado must make “a substantial showing of

the denial of a constitutional right”.

(c)(2). In

general, he must demonstrate “reasonable jurists could debate

whether (or, for that matter, agree that) the [federal habeas]

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further”. Slack v. McDaniel,

(2000)

(internal quotation marks omitted). Another statement of the

standard is that Sepulvado must show “reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong”.

5 To obtain a COA for a claim denied on procedural grounds,

Sepulvado must not only make the above-described showing concerning

the merits of a claim, but also must show “jurists of reason would

find it debatable whether the district court was correct in its

procedural ruling”.

Moreover, a COA request is viewed against the backdrop, under

AEDPA, for obtaining habeas relief. In that regard, and if a COA

is granted, we review state court decisions only to determine

whether they were “contrary to, or involved an unreasonable

application of, clearly established Federal law” or were “based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding”.

(d)(1)

& (2).

A.

Sepulvado contends that his trial counsel, Brown and Toups,

provided ineffective assistance, contrary to the Sixth Amendment.

To establish ineffective assistance, Sepulvado must satisfy the

well-known two-prong standard: counsel’s performance was

deficient, falling below an objective standard of reasonableness;

and this deficient performance prejudiced the defense, such that

there is a reasonable probability that, but for such performance,

the outcome of the trial would have been different. E.g.,

Strickland v. Washington,

(1984).

6 Sepulvado claims ineffective assistance at the trial's guilt

and penalty phases. (In addition to instances of claimed

ineffective assistance addressed in this part, Sepulvado's

ineffectiveness claim concerning grand jury forepersons is

addressed in part II.B.)

In general, Brown was to take the lead at the guilt phase;

Toups, the penalty phase. As noted, each testified at the state

habeas evidentiary hearing. As discussed below, none of the

ineffectiveness claims satisfies the standard for receiving a COA.

1.

Sepulvado maintains: Brown failed to interview a witness for

the State, Dr. McCormick, before questioning him at trial on the

defense theory that the murder was an “impulse” killing; instead

of interviewing that witness pre-trial, Brown relied on interview

notes made by Sepulvado’s prior attorney; Dr. McCormick answered

that the homicide was intentional, not impulsive, thereby

discrediting the defense theory; and not having expected that

answer, Brown was unprepared to call his own expert to testify to

the impulsive nature of the killing.

For this and all other ineffective assistance claims, the

state court ruled them “completely without a scintilla of merit”.

Having presided at trial, the state habeas judge noted:

In no case either during the guilt-innocence phase or the penalty phase did this Court observe that either attorney['s] performance had fallen below an objective standard of reasonableness and that the dereliction had

7 prejudiced the defendant to the extent that the trial has been rendered unfair and the jury verdict on either guilt or innocence or penalty suspect.

For the federal petition, the district court held counsel’s

failure to investigate the effectiveness of the “impulse” theory

was not deficient performance. Noting that 14 witnesses testified

during the penalty phase, it ruled “Brown conducted ample

investigation in an effort to mitigate petitioner’s sentence”.

Original Opinion at 7. More to the point, it ruled there had been

no showing that the introduction of the “impulse” theory would have

“altered the outcome of the trial”.

Sepulvado has adduced no other evidence in support of the

“impulse” theory. For example, he has not identified a witness

whose opinion would be contrary to Dr. McCormick’s. Reasonable

jurists would not find the district court’s assessment debatable or

wrong.

2.

Sepulvado claims Brown failed, during the penalty phase, to

offer neuropsychological test results showing Sepulvado was

positive for four of five brain dysfunction factors. This

constitutes deficient performance, according to Sepulvado, because

Toups (Sepulvado's other trial counsel) testified at the state

habeas evidentiary hearing that he would have brought such testing

to the jury’s attention.

8 As noted, the state court dismissed all of the ineffective

assistance claims as meritless. The federal district court found

that counsel had submitted evidence regarding the

neuropsychological issue through the testimony of a clinical social

worker, who testified about the “high number of deaths in

[Sepulvado]’s past, his childhood experiences and his alcoholism as

mitigating evidence”. Original Opinion at 9. The district court

ruled that counsel’s failure to perceive the need to “bolster this

expert with additional testimony” was a “tactical decision” that

“did not amount to a deficiency in representation”.

The report containing the brain dysfunction analysis indicated

that such dysfunction would not mitigate responsibility for the

crime. For this and similar reasons, Brown decided not to open the

door to the introduction of such facts. Reasonable jurists would

not find the district court’s assessment debatable or wrong.

3.

Sepulvado also challenges Toups’ comment in his penalty phase

opening statement that the decision facing the jury “would be a

tough one for [Toups]”.

Again, the state court summarily dismissed the ineffective

assistance claims. Although Sepulvado presented this claim in

federal district court, the court did not address it in its

opinion.

9 Notwithstanding the challenged statement, Toups encouraged the

jury to conclude that Sepulvado should be sentenced only to life in

prison. When read in the context of Toups’ entire statement,

reasonable jurists would not debate whether the petition should

have been resolved in a different manner or that this issue is

adequate to deserve encouragement to proceed further.

4.

As noted, Toups was to primarily handle Sepulvado's

representation during the penalty phase. Nevertheless, Brown

participated in the representation for that phase. Sepulvado

contends Brown's performance was deficient at this stage because he

was: “fatigued” and “stressed out” by the guilt phase; and at a

“psychological disadvantage”, having been the losing attorney

during the guilt phase.

Again, the state court summarily held Sepulvado’s ineffective

assistance claims were meritless. Although the issue was presented

in federal district court, the court did not address it in its

opinion.

Even if Brown’s participation could be considered deficient

performance, the record shows that Toups examined nine of the 14

penalty phase witnesses. Also, Sepulvado has offered no basis for

finding the outcome of the penalty phase would have been different

had Toups conducted all of the examination. Reasonable jurists

would not debate whether the petition should have been resolved in

10 a different manner or that this issue is adequate to deserve

encouragement to proceed further.

B.

Sepulvado contends his due process and equal protection rights

were violated because the State has discriminated against black

venire members in the selection of grand jury forepersons.

Although Sepulvado is not black, he has standing to make the claim.

Campbell v. Louisiana,

(1998).

The magistrate judge, after the evidentiary hearing,

recommended that Sepulvado had established a prima facie

discrimination claim. The magistrate judge recommended, and the

district judge agreed, however, with the state habeas ruling that

the claim was procedurally barred. The state court had ruled: “In

this case there was no objection, prior to the conviction, of the

grand jury process through a timely filing of a motion to quash.

This claim is therefore not properly before the Court....” (That

court also ruled that the claim was meritless, because the court

had “appoint[ed] a number of minorities to serve as grand jury

foremen....”)

“It is undisputable that under Louisiana law, a challenge to

the legality of the grand jury venire must be made by a pretrial

motion to quash.” Williams v. Cain,

(5th Cir.

1997), cert. denied,

(1998). Sepulvado seeks to

overcome this procedural bar by claiming cause for the failure to

11 move to quash and resulting prejudice. Reasonable jurists would

not find the district court's assessment debatable or wrong.

1.

First, Sepulvado claims the failure to timely raise the issue

was caused by ineffectiveness of counsel. Ineffective assistance

may be a cause for procedural default, but only if the attorney’s

performance was deficient under Strickland. Murray v. Carrier,

(1986). Sepulvado contends only that counsel were

“deficient” for failing to raise the grand jury issue at trial.

Apparently, he claims this “deficiency” reached unconstitutional

levels as described in Strickland and incorporated by Murray.

As the report and recommendation, adopted by the district

court, stated: “Counsel’s performance is not rendered

constitutionally deficient merely because he is insufficiently

prescient to file a motion in 1992 [when Sepulvado was indicted]

based on a rule of law that will not be announced until 1998 [in

Campbell]”.

In short, prior to Sepulvado’s indictment (1992), Campbell

(1998) had not been decided. And, Powers v. Ohio,

(1991), had held only that white defendants had standing to

challenge a prosecutor’s use of peremptory strikes against black

potential jurors; grand jurors were not at issue. Moreover, Hobby

v. United States,

(1984), had earlier rejected a due

12 process challenge to discrimination in the selection of a black

federal grand jury foreperson.

Campbell did “not state a new Fifth Amendment equal protection

rule” and “was dictated by the Court’s precedents”. Peterson v.

Cain,

(5th Cir. 2002). On the other hand, this

does not mean that an attorney’s failure to raise such a claim in

1992 fell below the objective level of competence required by

Strickland.

Absent such a deficiency, there is “no inequity in requiring

[Sepulvado] to bear the risk of attorney error that results in a

procedural default”. Murray,

.

2.

In the alternative, Sepulvado has not satisfied the COA

standard concerning the prejudice portion for “cause” and

“prejudice”. The report and recommendation, adopted by the

district court, noted:

Petitioner has not attempted to articulate how the foreman selection process (in connection with a grand jury that indicts on mere probable cause found by 9 of 12 members) worked to his actual prejudice when he was convicted by a lawfully chosen petit jury of twelve persons who unanimously found him guilty beyond a reasonable doubt.

Sepulvado states that, had a timely motion to quash been made,

the judgment would have been reversed on appeal on that basis; and,

on remand, he might have been offered a life sentence plea. He

offers no basis for this conclusory plea-claim.

13 In the alternative, Sepulvado urges that, absent a plea on

remand, a second trial would not have resulted in the death

penalty. Again, he provides no support for this conclusory claim.

(Along this line, Sepulvado does not make an “actual innocence”

claim as an alternative to a required showing of “cause” and

“prejudice”.)

C.

Sepulvado next claims the state court improperly ordered a

psychiatric evaluation for him.

1.

Both the state and district court, however, noted that

Sepulvado, at the time of that order, had filed a “Notice of

Defense based upon Mental Condition” and, therefore, ruled the

court-ordered examination was proper. Original Opinion at 16.

Reasonable jurists would not find the district court’s assessment

debatable or wrong.

2.

Alternatively, Sepulvado complains that, for the evaluation,

he was not advised of his rights to remain silent and to an

attorney. See Estelle v. Smith,

(1981).

Although this issue was raised in state court, that court did not

address it.

The district court first noted that no evidence was adduced by

Sepulvado supporting these allegations. Original Opinion at 16

14 n.5. It then assumed arguendo that such a constitutional violation

occurred, but held the error was harmless because none of the

psychiatrist’s findings were introduced at trial. Original Opinion

at 17; see also, e.g., Kotteakos v. United States,

(1946). Reasonable jurists would not find the district court’s

assessment debatable or wrong.

3.

Sepulvado summarily claims his Eighth Amendment right to a

constitutionally sound sentencing procedure was compromised because

the existence of the evaluation caused him to strategically refrain

from “explor[ing] ... psychiatric defenses”. Although presented to

them, neither the state nor district court addressed this specific

issue in their opinions.

Sepulvado does not describe what these claimed “psychiatric

defenses” would have been; nor does he claim they would have led to

a different outcome. Reasonable jurists would not debate whether

the petition should have been resolved in a different manner or

that this issue is adequate to deserve encouragement to proceed

further.

D.

Sepulvado claims that, during voir dire, the prosecutor

misstated the law concerning mitigating evidence. See Lockett v.

Ohio,

(1978). The prosecutor stated: prospective

jurors were to “consider” mitigating evidence to determine whether

15 the mitigating factors “fit”; they should be “open minded” with

regard to the evidence; and “considering” the evidence did not

compel a juror to “accept” it.

There was no contemporaneous objection. It does not appear

that either the state or federal court addressed whether this claim

is procedurally barred because of this failing. Nor does the State

assert such a bar here.

The state court ruled the statements were not misstatements of

the law, and, in any event, did not justify post-conviction relief.

Likewise, the district court held the prosecutor did not misstate

the law. Original Opinion at 13.

Lockett holds jurors must not “be precluded from considering,

as a mitigating factor, any aspect ... that the defendant proffers

as a basis for a sentence less than death”.

(first

emphasis added). Reasonable jurists would not find the district

court’s assessment debatable or wrong.

E.

Sepulvado claims the jury was improperly instructed on the

reasonable doubt standard. This claim is based on Cage v.

Louisiana,

(1990): an instruction is

unconstitutional if “a reasonable juror could have interpreted the

instruction to allow a finding of guilt based on a degree of proof

below that required by the Due Process Clause”. The Court refined

this test: the inquiry is whether it is reasonably likely that the

16 jury applied the instruction in an unconstitutional manner. See

Victor v. Nebraska,

(1994); Estelle v. McGuire,

, 72 n.4, (1991) (citing Boyde v. California,

(1990)).

The jury was instructed:

It is sufficient that the State prove the guilt of the defendant beyond a reasonable doubt.

***

A reasonable doubt is not a mere possible doubt; it should be actual doubt. It is such a doubt as a reasonable person would seriously entertain. It is a doubt that one could have reason for. It is an honest misgiving, or doubt, arising from proof or lack of proof in the case.

(Emphasis added.) Sepulvado claims use of “actual doubt” and

“honest doubt” instructed the jury that, for acquittal, a standard

higher than “reasonable doubt” was required.

Noting it was well aware of Cage when it instructed the jury,

the state court ruled that the instruction was a proper statement

of the law. The district court ruled that, although the phrase

“actual doubt” was used, the instruction as a whole correctly

conveyed the concept of reasonable doubt. Original Opinion at 21.

Cage held unconstitutional an instruction which equated

“reasonable doubt” with “grave uncertainty” and “actual substantial

doubt”, requiring only a “moral certainty” rather than an

“evidentiary certainty”.

. The Court held “actual

17 substantial doubt”, in that context, connoted, for acquittal, a

higher standard of doubt than “reasonable doubt”.

Although the trial court used the phrase “actual doubt”, it

did not include a substantiality requirement. Moreover, by

comparison, Victor held the use of “moral certainty” did not render

it unconstitutional (that phrase is not in the instruction at

issue).

. In the light of the entire instruction,

reasonable jurists would not find the district court’s assessment

debatable or wrong.

F.

For his final claim, Sepulvado maintains his rights were

violated by the arbitrary application of Louisiana’s

contemporaneous objection rule. Sepulvado's failure to identify

those claimed instances when an objection should have been made is

discussed below.

State v. Smith,

(La. 1989), crafted, for

cases in which the death penalty was applicable, an exception to

the rule that the Louisiana Supreme Court would not review an error

for which an objection had not been made in the trial court;

instead, unobjected-to errors would be reviewed, despite the

contemporaneous objection rule.

Sepulvado’s trial (1993) occurred during the period between

the decisions in Smith (1989) and State v. Taylor,

(La.), cert. denied,

(1996). For the guilt phase of

18 trial, Taylor repudiated the exception to the contemporaneous

objection rule, even for those cases tried after Smith — as was

Sepulvado's.

.

On Sepulvado's direct appeal, decided post-Taylor, the

Louisiana Supreme Court held that defendants, including Sepulvado,

could not claim reliance on Smith, because they could not have

known, during the guilt phase, “if [they] would ultimately receive

the death penalty”.

.

State v. Wessinger,

(La.), cert. denied,

(1999), extended this logic by repudiating the Smith

exception even for the penalty phase, but only applying that

repudiation prospectively.

The state court held itself bound by Taylor, and thus denied

relief on this issue. The district court noted that the failure to

make contemporaneous objections “may be raised as ineffective

assistance of counsel on post conviction relief”. Original Opinion

at 14. It then reviewed the claimed failures to object and found

that “no Strickland violations had been committed”. Id.

Sepulvado makes no showing that his attorneys relied on Smith

for not objecting when Sepulvado believes they should have, during

the guilt phase. Along this line, Sepulvado does not even describe

these unobjected-to errors, even though the district court

addressed them in its opinion and held no ineffective assistance.

19 Reasonable jurists would not find the district court’s assessment

debatable or wrong.

III.

For the foregoing reasons, each COA request is

DENIED.

20