Tilon Carter v. William Stephens, Director, 805 F.3d 552

Carter petitions for a certificate of appealability after state courts denied habeas relief and the district court denied a COA.
At trial, Carter and his girlfriend robbed an elderly man, Tomlin; Tomlin died from smothering with positional asphyxia; Carter was convicted of capital murder and sentenced to death in Texas.
The Texas Court of Criminal Appeals affirmed; Carter later pursued state habeas relief, which was denied with largely adopted findings from a trial court.
Carter argued ineffective assistance of counsel for failing to timely obtain and present a forensic pathologist’s testimony about the death.
The defense theory was that Tomlin died from positional asphyxia without smothering, but the state’s autopsy (Dr. Peerwani) concluded smothering with positional asphyxia.
In federal court, the district court denied habeas relief and denied a COA; the Fifth Circuit reviews under 28 U.S.C. § 2254(d).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for not presenting pathologist
testimony	Carter asserts counsel's delay and failure to call Dr. Harvey prejudiced him.	State court found no prejudice because Harvey would not have contradicted Peerwani’s findings.	No substantial showing of prejudice; no COA on this claim.
Jury instruction on mitigating circumstances burden	Absence of mitigating factors should be beyond a reasonable doubt.	Circuit precedent does not require that burden; no error under § 2254(d).	No COA; Carter's burden-of-proof argument foreclosed by precedent.
Ten jurors must agree to life sentence instruction	Ten-to-twelve rule misstates jury's role and allows improper misdirection.	Texas rule does not misstate the jury's role; binding circuit precedent forecloses error.	No COA; the instruction does not raise a substantial issue.

Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for substantial showing of denial of constitutional right)
Slack v. McDaniel, 529 U.S. 473 (2000) (threshold for reasonable jurist encouragement to proceed)
Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005) (mitigation burden not constitutionally required to be proven beyond a doubt)
Avila v. Quarterman, 560 F.3d 299 (5th Cir. 2009) (binding precedent on burden of proof for mitigating factors)
Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011) (10-12 rule and misstatement of jury role in death penalty cases)
Parker v. Matthews, 132 S. Ct. 2148 (2012) (circuit precedent cannot create clearly established law under § 2254(d)(1))
Marshall v. Rodgers, 133 S. Ct. 1446 (2013) (circuit precedent may be consulted to assess whether point is clearly established)
Hinton v. Alabama, 134 S. Ct. 1081 (2014) (limits on evaluating expert qualifications for ineffective assistance claims)