Case Information
*1 Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
KING, Chief Judge: [*]
Petitioner-Appellant Jasen Shane Busby applies for a certificate of appealability on five issues raised as part of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § *2 2254. We deny Busby’s request for a certificate of appealability on each contested issue.
I. FACTS AND PROCEDURAL BACKGROUND
On April 16, 1995, Jasen Busby spent the day with friends Christopher Kelly, Brandy Gray, and Tennille Thompson. The next day they were joined by another friend, Darrell Smith. After several hours of partying, Smith and Busby left the trailer where the group was staying. Shortly thereafter, Busby returned and shot Kelly, Gray, and Thompson; Gray and Thompson died immediately, but Kelly survived. After Busby and Smith left, Kelly walked to a neighbor’s house and reported that Busby had killed two people. Kelly described Busby and the vehicle which he and Smith had departed in to the police, and Busby was arrested soon afterward.
Busby was indicted on June 20, 1995 for capital murder under
Texas Penal Code § 19.03(a)(7)(A). After a jury trial, Busby was
convicted on July 19, 1996. A week later, after a separate trial
on punishment, the jury answered the statutory capital punishment
issues such that the trial court sentenced Busby to death. Busby
appealed to the Texas Court of Criminal Appeals, which affirmed
his conviction and sentence. Busby v. Texas,
On November 20, 1998, Busby filed an application in state court for post-conviction relief. Following a hearing, the court entered findings of fact and conclusions of law and recommended that Busby’s request for relief be denied. The Court of Criminal Appeals adopted the lower court’s findings, conclusions, and recommendation. Ex parte Busby, no. 28,761-01 (Tex. Crim. App. Sept. 13, 2000).
On September 12, 2001, Busby filed a § 2254 petition in the United States District Court for the Eastern District of Texas. Busby raised ten grounds for relief. While the district court denied Busby’s request for relief on all of the issues presented, the court did grant Busby’s request for a certificate of appealability (COA) on four of the issues: (1) whether Busby’s appellate counsel’s decision not to appeal the trial court’s denial of Busby’s motion to suppress his prison correspondence constituted ineffective assistance of counsel; (2) whether the trial court’s denial of Busby’s motion to suppress the prison letters violated his First Amendment rights; (3) whether the trial court’s denial of Busby’s motion for change of venue violated his right to a fair trial; and (4) whether Busby had properly exhausted his change of venue claim. Busby now seeks a COA on five additional issues raised before that court.
II. APPLICABLE LAW
Busby filed his federal habeas petition after the effective
date of the Anti-Terrorism and Effective Death Penalty Act of
*4
1996 (“AEDPA”). Lindh v. Murphy,
We may grant Busby’s request for a COA only if he can make a
“substantial showing of the denial of a constitutional right.”
Id. § 2253(c)(2). To make such a showing, Busby must demonstrate
that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Dowthitt v. Johnson,
Our review of whether Busby makes a substantial showing of
the denial of a constitutional right is also constrained by the
applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d
495, 501 (5th Cir. 2000), cert. denied,
Busby raises five claims rejected by the district court as potential grounds for a COA: (1) whether the trial court’s admission of the prison letters violated his Fourteenth Amendment due process rights; (2) whether the trial court’s jury charge concerning the voluntariness of Busby’s confession violated his Fourteenth Amendment due process rights; (3) whether the trial court’s denial of Busby’s request for an expert jury consultant violated his Sixth and Fourteenth Amendment rights to a fair *6 trial; (4) whether the trial court’s denial of Busby’s request for a drug abuse expert violated his Sixth and Fourteenth Amendment rights to a fair trial; and (5) whether the trial court’s failure to instruct the jury concerning parole eligibility violated Busby’s Eight Amendment and Equal Protection rights.
A. Busby’s Prison Correspondence and the Fourteenth Amendment
Busby’s first claim is that he was denied his Fourteenth
Amendment due process rights when the trial court admitted into
evidence, over objection, copies of his personal letters written
from jail while he awaited trial.
[1]
Busby argues that his
Fourteenth Amendment rights were violated because the letters
were obtained pursuant to “an irrational, arbitrary and
capricious procedure” given that whether mail was seized and
copied was left to the individual discretion of each prison
employee. Turner v. Safley,
The state habeas court found that “reading and copying an inmate’s outgoing non-privileged mail serves a valid penological purpose” and thus does not violate the inmate’s Fourteenth Amendment due process rights. The district court concluded that this finding was not contrary to, or an unreasonable application of, clearly established law. We do not think that reasonable jurists would find this debatable. The letters involved here concerned threats to witnesses, the trial judge and other inmates, plans for escape, suicidal thoughts, and prison drug use, letters that predictably would attract the attention of jail supervisors. Busby’s arguments that the selection of his letters for reading and copying was arbitrary (and, by extension, that the letters should have been suppressed) are meritless. He has failed to make a substantial showing of the denial of a constitutional right, and we decline to issue a COA on this issue.
B. Jury Instruction on the Voluntariness of Busby’s Confession
Busby’s second claim is that he was denied due process and the right to a fair trial when the trial court failed to instruct the jury properly on the issue of the voluntariness of his confession. Texas law requires that, once the issue of the voluntariness of a defendant’s confession has been raised before *8 the jury, the jury must be charged “generally, on the law pertaining to such statement.” T EX . C RIM . P RO . C ODE A NN . art. 38.22 § 7 (Vernon 1979). Busby claims that he raised the issue of the voluntariness of his confession on Miranda grounds but that the trial court instructed the jury only on the law as it relates to intoxication and voluntariness. The state habeas court found that there was “no evidence raising the issue of voluntariness of Applicant’s confession, only as it related to drug intoxication, which was given.”
The district court considered the evidence presented at trial and concluded that the state habeas court’s finding that there was no evidence raising the issue of voluntariness in the Miranda context was not unreasonable. Busby presents no new evidence or arguments before this court that would convince us that the district court erred in reaching this conclusion. That (as Busby argues) the confession was “core” to the state’s case does not in itself require that the jury be instructed on the voluntariness of the confession. Busby has not shown that he sufficiently raised the Miranda issue at trial to warrant the statutorily required voluntariness instruction.
Busby has failed to demonstrate that jurists of reason would find the district court’s resolution of this issue debatable. Therefore, he has not made a substantial showing of the denial of a constitutional right, and we decline to grant a COA on this issue.
C. Busby’s Requests for an Expert Jury Consultant and for a Drug Abuse Expert
Busby’s third and fourth claims are that the trial court
violated his Sixth and Fourteenth Amendment rights by rejecting
his requests for appointment of an expert jury consultant and a
drug abuse expert. Ake v. Oklahoma,
The district court considered the evidence and applicable
law and concluded that the state court’s findings were not
contrary to, or an unreasonable application of, clearly
established law. See, e.g., Moore v. Johnson,
Busby presents no new evidence or arguments in this court to persuade us that the district court erred in its conclusion. Jurists of reason would not find it debatable whether the district court properly resolved these issues. Because Busby has failed to make a substantial showing of the denial of the constitutional right to a court-appointed expert, we decline to grant a COA on either of these issues.
D. Busby’s Request for a Jury Instruction on Parole Eligibility
Busby’s final claim is that the trial court violated his
Eighth and Fourteenth Amendment rights by instructing the jury
that they were not to consider the possibility of parole during
the sentencing phase of the trial. Busby argues that, in giving
such an instruction, the court made the jury aware that parole
was a possibility and therefore should have also informed them
that, under the Texas capital sentencing statutes, Busby would
not have been parole eligible for at least forty years. Busby
contends that he could have used this information to rebut the
government’s arguments on the future dangerousness special issue.
See Simmons v. South Carolina,
On direct appeal the Court of Criminal Appeals rejected this
claim on the merits. Busby,
Busby presents no new arguments to this court calling the district court’s conclusion into question. This court has consistently and repeatedly rejected Simmons challenges to the Texas capital sentencing system. Jurists of reason would not find the district court’s resolution of this issue debatable. Busby has failed to make a substantial showing of the denial of a constitutional right, and he is therefore not entitled to a COA on this issue.
IV. CONCLUSION
We decline Busby’s application for a COA on each of the issues presented.
Notes
[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.
[1] In the district court, Busby raised First, Fourth, and Fourteenth Amendment challenges based on the prison’s reading and copying of his outgoing mail. The district court denied relief on all three issues but granted a COA on the First Amendment issue. Busby has apparently abandoned the Fourth Amendment issue and asserts on application to this court only the Fourteenth Amendment issue.