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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10142
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
LOUIS JONES,
Defendant - Appellant.
Appeals from the United States District Court
for the Northern District of Texas
March 27, 2002
Before WIENER, BENAVIDES, and PARKER, Circuit Judges
ROBERT M. PARKER, Circuit Judge
Appellant Louis Jones seeks a Certificate of Appealability
("COA") on the bases of ineffective assistance of counsel (two
particulars), racial discrimination stemming from an alleged
systematic pattern in the prosecution of death penalty cases by the
United States Attorney General's office, and alleged selective
prosecution of death penalty cases based on the geographic location
of the defendant at the time that the crime was committed. We deny
1

his application on all issues.
I. BACKGROUND.
Jones, a retired servicemember, was convicted of kidnaping
with death resulting to the victim, in violation of 18 U.S.C. §
1202(a)(2), punishable by death under the Federal Death Penalty Act
("FDPA") of 1994, 18 U.S.C. § 3591, et seq. Jones directly
appealed his conviction and death sentence to this court and to the
United States Supreme Court, both of which affirmed his sentences.
See United States v. Jones, 132 F.3d 232 (5th Cir. 1998), aff'd
Jones v United States, 527 U.S. 373 (1999). The details of the
crime and subsequent history are contained in those cases; a brief
summation is all that is necessary for this review.
Petitioner Louis Jones, Jr., kidnaped Private Tracie Joy
McBride at gunpoint from the Goodfellow Air Force Base in
San Angelo, Texas. He brought her to his house and
sexually assaulted her. Soon thereafter, petitioner
drove Private McBride to a bridge just outside of San
Angelo, where he repeatedly struck her in the head with
a tire iron until she died. Petitioner administered
blows of such severe force that, when the victim's body
was found, the medical examiners observed that large
pieces of her skull had been driven into her cranial
cavity or were missing.
See 527 U.S. at 376. Having exhausted his direct appeal, Jones
sought a COA on collateral attack under 28 U.S.C. § 2255 from the
district court, which denied his request. He now seeks such a COA
from this court, on the issues as outlined. We have jurisdiction
under 28 U.S.C. § 2253.
II. STANDARD OF REVIEW.
2

To prevail on an application for a COA, a petitioner must make
a "substantial showing of the denial of a constitutional right, a
demonstration that . . . includes showing that reasonable jurists
could debate whether. . . the petition should have been resolved in
a different manner or that the issues presented were adequate to
deserve encouragement to proceed further." Moore v. Johnson, 225
F.3d 495, 500 (5th Cir. 2000), quoting Slack v. McDaniel, 529 U.S.
473, 483 (2000). "Because the present case involves the death
penalty, any doubts as to whether a COA should issue must be
resolved in [the petitioner's] favor." Hernandez v. Johnson, 213
F.3d 243, 248 (5th Cir. 2000).
III. ANALYSIS.
A. Ineffective Assistance of Counsel.
Jones makes two claims under the heading of ineffective
assistance of counsel ("IAC"). First, he asserts that his trial
counsel's admission of Jones's responsibility for McBride's death
during his opening statement at trial violated Jones's rights under
the Fifth and Sixth Amendments. Second, Jones asserts that a jury
charge encompassing the language of 18 U.S.C. § 3593(e), as
requested by his trial counsel, violated his rights under the Sixth
Amendment.
We review IAC claims under the standard announced in
Strickland v. Washington, 466 U.S. 669 (1984). The petitioner must
show (1) that counsel's representation was deficient, and (2)
3

actual prejudice resulted from the deficient performance. Id. at
687; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999).
As to Jones's first IAC claim, the issue is whether his
counsel's comments regarding Jones's responsibility for Private
McBride's death during his opening statement was properly a matter
of considered trial strategy. Counsel's opening statement included
the following remarks:
"I want to say to you at the very outset that Louis Jones does
not dispute that he is responsible for the death of Tracie McBride.
You will hear no excuses about insanity or self-defense. You will
hear no evidence of justification." The remainder of counsel's
opening statement made it clear that the defense strategy was to
admit those incontestable issues that the defense could not avoid1
to the jury, force the government to prove each element of its
case, and rely on the presentation of mitigating evidence.2
Jones argues that this statement amounts to an admission of
guilt to his capital murder charge. He further contends that such
an admission amounts to an abandonment of his case by his defense
1
E.g., that Jones confessed orally and in writing and that his
ex-wife, Sandra Lane, had identified Jones as a possible suspect in
the McBride kidnaping/murder after Jones had kidnaped Lane and
sexually assaulted her as well.
2
E.g., that Jones was a 22-year Army combat veteran who had
retired with distinction to be with his then-wife, Sandra Lane,
during her active duty service, that he had suffered poverty and
sexual abuse as a child, that he was a religious man, and that he
had mentally suffered as the result of the dissolution of his
marriage to Lane.
4

counsel and is constitutionally infirm.
Jones further asserts that such a statement by counsel in the
guilt-innocence phase without his client's consent is ineffective
assistance of counsel. He notes, however, that the district court
found that he was fully apprised of his counsel's informed
strategic decision and that he concurred in its use, without
attempting to contradict that finding. The record supports such a
finding. Regardless, Jones argues as though his consent had not
been obtained and as though his counsel's statement amounted to an
"admission of guilt" of the crime charged. The authorities Jones
cites to support his position are factually distinguishable from
his case and are unconvincing.
The Eleventh Circuit has held that where a capital defendant
seeks a verdict of not guilty by his testimony as well as by his
plea, counsel, though faced with strong evidence against his
client, may not concede the issue of guilt merely to avoid a
somewhat hypocritical presentation during the sentencing phase and
thereby maintain his credibility before the jury. See Francis v.
Spraggins, 720 F.2d 1190, 1194 (11th Cir. 1983) (after an opening
statement, hearing the prosecution's strong evidence, and having
his capital defendant client testify that he denied any knowledge
of crimes charged or making exculpatory statements to the police,
defense counsel said to the jury at final argument, "I think [the
defendant] went in the house and I think he committed the crime of
5

murder. . ."). That circuit has also held that counsel is
ineffective in a capital case when he fails to understand the
reason for a bifurcated trial, attempts a wholly unsupported
affirmative defense of insanity and then abandons it mid-trial,
fails to argue that a lesser included manslaughter offense might be
applicable, commits various other blunders during trial, and openly
admits his client's guilt for malice murder during closing
arguments in the guilt-innocence phase while pleading for mercy
from the jury. See Young v. Zant, 677 F.2d 792, 796-98 (11th Cir.
1982).
Jones's other authorities are similar. See, e.g., United
States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991) ("[a] lawyer
who informs the jury [in his closing argument] that it is his view
of the evidence that there is no reasonable doubt regarding the
only factual issues that are in dispute has utterly failed to
subject the prosecution's case to meaningful adversarial testing")
(internal quotations and citations omitted). See also Wiley v.
Sowders, 647 F.2d 642, 649 (6th Cir. 1981) (defense counsel is
ineffective when he "surrender[s] the sword" by admitting in his
closing arguments that his clients were "guilty as charged by the
Commonwealth's Attorney's office" and that the prosecutor "has
proved to you beyond a reasonable doubt that these gentlemen are
guilty of this crime," without his clients' consent).
None of these authorities reflect the facts in Jones's case.
6

Jones's defense counsel recognized the strength of the
prosecution's evidence and decided not to attempt an affirmative
defense. He elected to rely on making the prosecution prove each
element of the offense and on his ability to negate that proof in
one or more elements. He did not put Jones on the stand, where
contrary testimony might have been elicited from him. He obtained
Jones's informed and knowing consent to pursue this trial tactic.
He informed the jury in his opening statement that he would require
the prosecution to prove each and every element of the offense
charged, that of capital murder. His statement that Jones "[did]
not dispute that he [was] responsible for the death of Tracie
McBride" and would not be presenting insanity, self-defense, or
justification defenses does nothing to undercut that trial tactic.
Furthermore, a statement of responsibility for a death is not an
admission as to each of the elements of a capital murder charge.
Where defense counsel has admitted his client's responsibility for
something less than the crime charged, we have held such a decision
to be a permissible trial tactic, depending on the circumstances.
Kitchens, 190 F.3d at 704 (in a capital murder case, pleading
guilty to murder and arguing in closing that the defendant had
committed a "very brutal, a very savage murder, but [] not a
capital murder. . ." was a valid strategic decision to bolster
credibility with the jury).
"Informed strategic decisions of counsel are given a heavy
7

measure of deference and should not be second guessed." Lamb v.
Johnson, 179 F.3d 352, 358 (5th Cir.), cert. denied, 528 U.S. 1013
(1999). There is nothing in the record to suggest that Jones's
counsel blundered through the trial, attempted to put on an
unsupported defense, abandoned a trial tactic, failed to pursue a
reasonable alternative course, or surrendered his client. "A
conscious and informed decision on trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness." Garland v. Maggio, 717 F.2d 199,
206 (5th Cir. 1983). There is no hint of unfairness; in this case,
counsel's tactic may have been the best available and the record
amply reflects that Jones consented to its use.
Regarding Jones's second IAC claim, the issue is tied into the
statutory language of § 3593(e), which provides that
the jury, or if there is no jury, the court, shall
consider whether all the aggravating factor or factors
found to exist sufficiently outweigh all the mitigating
factor or factors found to exist to justify a sentence of
death, or, in the absence of a mitigating factor, whether
the aggravating factor or factors alone are sufficient to
justify a sentence of death. Based upon this
consideration, the jury by unanimous vote, or if there is
no jury, the court, shall recommend whether the defendant
should be sentenced to death, to life imprisonment
without possibility of release or some other lesser
sentence.
(Emphasis added). Jones argues that the inclusion of "some other
lesser sentence" may have given the jury the impression that, if
the death penalty were not imposed, that some less-than "life
8

imprisonment without possibility of release" sentence might be
imposed, which could have influenced them to impose the death
penalty.
Strickland requires that we examine whether counsel's
assistance was reasonable considering all of the facts of the case
as of the time of counsel's conduct. See Strickland, 466 U.S. at
688-90 ("[t]hus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of
counsel's conduct"). Under existing Supreme Court precedent, due
process requires that where a jury is invested with the
responsibility to impose a sentence, a defendant has a liberty
interest in the jury's being informed of all sentences that the
governing statute allows it to impose. See Hicks v. Oklahoma, 447
U.S. 343, 346 (1980). In that view, because § 3593(e) refers to
the possibility of "a lesser sentence," even if the only actual
available sentences are the death penalty and life imprisonment
without possibility of release, it is difficult to infer that
counsel's inclusion of or failure to object to that language in
this case was ineffective assistance. In contrast, where the
government places a capital murder defendant's future dangerousness
at issue, as it did in Jones's case, and the only alternative to
the death penalty is life imprisonment without the possibility of
release, as it is under federal law, the jury must be so informed.
9

Simmons v. South Carolina, 512 U.S. 154, 163-64 (1994); Miller v.
Johnson, 200 F.3d 274, 290 (5th Cir.), cert. denied, 531 U.S. 849
(2000). Thus, Jones argues, the inclusion of the "lesser sentence"
language might lead to a juror's inference that life imprisonment
without parole may not be the sole alternative to the death
penalty.
To the extent that this quandary could lead to error on
counsel's part, Jones suffered no prejudice as a result of it. As
we noted previously in his case, the inclusion of that language
imposed no prejudice on Jones based on any danger that the jury
would believe that a non-unanimous deadlock between death and life
without release could result in a "lesser sentence." Because §
3593(e) requires unanimity in the imposition of any sentence, any
deadlock would have resulted in impaneling a second jury. See
United States v. Jones, 132 F.3d at 242-43, aff'd Jones v. United
States, 527 U.S. at 390-91. Similarly, Jones's latest argument on
this point is meritless. The district court's jury instruction
specifically informed the jury,
If you recommend the imposition of a death sentence, the
court is required to impose that sentence. If you
recommend a sentence of life without the possibility of
release, the court is required to impose that sentence.
If you recommend that some other lesser sentence be
imposed, the court is required to impose a sentence that
is authorized by the law. In deciding what
recommendation to make, you are not to be concerned with
the question of what sentence the defendant might receive
in the event you determine not to recommend a death
sentence or a sentence of life without the possibility of
release. That is a matter for the court to decide in the
10

event you conclude that a sentence of death or life
without the possibility of release should not be
recommended.
(Emphasis added). The jury had the knowledge that they, and they
alone, had the power to impose (1) the death sentence, (2) life
without the possibility of release, or (3) some lesser sentence
that the court would choose and impose and about which the jury
should not be concerned. The only thing that the jury did not know
was that if they imposed "some lesser sentence," the district court
would have been bound to sentence Jones to life without release.
That is immaterial and does not invoke the concern in Simmons that
a jury, not knowing that the sole alternative to death is life
without release, might choose the death penalty out of worry that
the defendant may one day wind up back on the street again.
For these reasons, we deny Jones's application for a COA on
the subject of ineffective assistance of counsel.
B. Racial Discrimination.
Jones also claims that the death sentence in his case was
applied, in part, because of a "systematic pattern of racial
discrimination by the Attorney General of the United States," which
violated his rights under the Fifth and Eighth Amendments.
To make a substantial showing of the denial of a federal right
in this instance, Jones must show that he was treated differently
under the FDPA than others who were similarly situated. He has
failed to do so.
11

In his request for a COA in the district court, Jones asserted
that he was the victim of general racial discrimination according
to a showing of statistics breaking down federal death penalty
sentences by race. The district court held that those statistics
were insufficient to meet the threshold showing that he was singled
out for prosecution under the FDPA but that others similarly
situated were not, and that there was no evidence in the record to
support a claim of selective prosecution on the part of the
government.
Jones has changed his claim on appeal. He now narrows the
field of his selective prosecution contention to assert that he is
the victim of racial discrimination because, of the six individuals
on federal death row as of July 20, 2000, for having committed
homicides involving interracial victims, five were black and one
was white. He otherwise relies on the same statistical background
provided by the federal government. See DEP'T OF JUSTICE, THE FEDERAL
DEATH PENALTY SYSTEM: A STATISTICAL SURVEY (1988 - 2000), at 6-37
(2000)("the DOJ Report"). Among other portions of the report, Jones
specifically cites Part IV, relating the determinations of Janet
Reno, the United States Attorney General during all pertinent
periods, and Part V, relating activities after authorization had
been granted to pursue the death penalty in the various federal
cases. On Jones's unopposed motion, the district court judicially
noticed that report in its entirety.
12

Having only argued the broader statistical issue in the
district court, Jones does not have grounds upon which to present
a new argument on appeal. To the extent that his current argument
is somehow buried within his original position, however, we make
the following observations.
For the timeframe Jones cites, 1995 - 2000, the Attorney
General authorized 159 total death penalty prosecutions. To reach
this end, the Attorney General had submitted 682 potential death
penalty cases for review by the combined United States Attorneys.
The U.S. Attorneys recommended 183 total prosecutions, which
included 48 white, 81 black, 39 Hispanic, and 15 "other"
defendants. Those recommendations were made by U.S. Attorneys from
49 of the 94 federal districts. Of the 682 cases submitted to the
U.S. Attorneys, 618 had been screened and remained active as of
July 20, 2000. The Attorney General's independent Review Committee
reviewed each of those 618 cases during the timeframe of the DOJ
Report. The Review Committee also recommended 183 death penalty
prosecutions, including 47 white, 80 black, 43 Hispanic, and 13
"other" defendants. The Attorney General then reviewed the 588
cases that had completed both reviews within the same report
timeframe. She selected the 159 cases to prosecute, including 44
white, 71 black, 32 Hispanic, and 12 "other" defendants.
We agree with the district court that these statistics are
insufficient to meet the threshold requirement that Jones was
singled out for prosecution under the FDPA but that others
13

similarly situated were not. "The requirements for a selective-
prosecution claim draw on ordinary equal protection standards. The
claimant must demonstrate that the federal prosecutorial policy had
a discriminatory effect and that it was motivated by a
discriminatory purpose. To establish a discriminatory effect in a
race case, the claimant must show that similarly situated
individuals of a different race were not prosecuted." United
States v. Armstrong, 517 U.S. 456, 465 (1996) (internal quotations
and citations omitted). By simply referring to raw statistics,
which themselves demonstrate that defendants of white, black,
Hispanic, and "other" ethnicity were prosecuted, Jones did not make
a substantial showing of the possibility of a denial of a federal
right on his broader statistical argument. Despite the narrower
assertion he now offers us, he has done no more than repeat his
error.
Jones argues that, instead of the racial discrimination
standard employed in Armstrong, we should look to civil rights
cases such as Whitus v. Georgia, 385 U.S. 545 (1967), in which the
U.S. Supreme Court determined that the then-employed method of
using tax records, in part, to populate juries disproportionately
excluded blacks and that the defendants had made a sufficient prima
facie case by showing the statistical imbalance between the juries
and the population demographics. We reject that approach. The
Court in that case also had the benefit of having seen the
14

defendants and having addressed the issue of jury composition in
their case twice before. Id. at 546-47. Also, rather than
screening the pool of potential jurors for the performance of a
civic duty through mass data bases, such as voter registration or
other means, criminal defendants are closely and individually
scrutinized on a variety of bases. "The decision to prosecute one
person and not another is a proper exercise of executive discretion
with which [courts] are reticent to interfere." United States v.
Webster, 162 F.3d 308, 333 (5th Cir. 1999). As we noted there, the
proper inquiry is the two-prong approach of Armstrong whereby a
petitioner's prima facie case must first show that he has been
singled out for prosecution but others similarly situated of a
different race were not prosecuted. Then, he must demonstrate that
the discriminatory selection of him for prosecution is invidious or
in bad faith, in that it rests on such impermissible considerations
as race, religion, or the desire to prevent his exercise of his
constitutional rights. Id. at 333-34. While we noted that
sufficiently "stark" statistics might open a prima facie case, mere
statistical evidence of racial disparity is usually per se
insufficient to support an inference of any "unacceptable risk" of
racial discrimination in the administration of capital punishment.
Id. at 334. The statistics quoted herein are less stark than those
we held insufficient in Webster.
To briefly examine Jones's modified claim, of all of the cases
15

considered by the Attorney General, 1593 involved interracial
homicides, in which at least one of the victims was of a different
ethnicity from the defendant. Of those 159 cases, 20 white, 87
black, 39 Hispanic, and 13 "other" defendants were involved. Out
of these, the Attorney General selected 7 white, 30 black, 9
Hispanic, and 5 "other" defendants to prosecute for the death
penalty for a total of 51. Thus the Attorney General selected
approximately one-third from each ethnic group except Hispanic,
from which she selected about one-fourth. These statistics were
also as of July 20, 2000, and reported in the DOJ Report dated
September 12, 2000.
Jones cites the DOJ Report for the statistic that of 19
federal defendants on death row as of July 20, 2000, only six had
been involved in an interracial homicide. Of those six, five were
black and one was white. On that basis, he ascribes former
Attorney General Janet Reno, solely and personally, as having
conducted the death penalty authorizations on a discriminatory
basis, presumably against black defendants who killed victims with
other than black ethnicity. The portion of the DOJ Report Jones
relies on, however, relates statistics going back to 1988, before
Ms. Reno was appointed. A snapshot statistic of conditions on a
3
By coincidence, the number 159 appears both as the number of
interracial homicides out of the 588 reviewed by the former
Attorney General and as the total number of cases selected out of
the 588 for death penalty prosecution. Those numbers do not
reflect the same population. Of the 159 total death penalty
prosecutions authorized, only 51 involved interracial homicides.
16

single day, without more, is unconvincing, and Jones's assertion
that a single actor was responsible and acted with discriminatory
intent is unsupported. Further, obviously, the group of 51 death
penalty defendants who had been involved in interracial homicides
documented in the DOJ Report included an ethnic mix of whites,
blacks, Hispanics, and "others" regardless of the racial mix of the
six with whom Jones takes issue as of one day in time.
These statistics cannot of themselves meet the threshold
requirement of establishing that Jones was singled out for
prosecution under the FDPA, whether for an interracial homicide or
otherwise, but that others similarly situated were not. Id.
We deny Jones's application for a COA on this issue.
C. Geographic Selectivity.
Finally, Jones argues that his death sentence was due, in
part, to an arbitrary factor of geography. Essentially, he asserts
that, although federal law applies equally throughout the states,
federal death penalty cases originate only or primarily from those
states, such as Texas, that also have a high propensity to pursue
the death penalty under state law. According to Jones, such
"geographic selectivity" of federal law violates his Fifth and
Eighth Amendment rights.
His argument is meritless. Of the 19 cases on federal death
row as of July 20, 2000, Jones asserts that 13 come from only three
states - Texas, Virginia, and Missouri. Those states tend to be
17

high in the rankings of states that prosecute death penalty cases
under their own state law.
The 19 cases Jones cites were not prosecuted under state law,
however. They represent independent prosecutions in various
federal judicial districts, managed under the Attorney General of
the United States. Jones presumably asserts that, somehow, being
located in a state that imposes the death penalty under state law
influences an office of the U.S. Attorney.
The same DOJ Report cited by Jones reports that the 19
defendants were prosecuted in 14 individual cases. Ten of those
cases included single defendants and four included two or more.
They were prosecuted in 12 judicial districts in 10 states. As we
have already observed, for the period 1995 - 2000, U.S. Attorneys
in 49 of 94 federal districts recommended death penalty
prosecutions. That is much broader than the districts limited to
the states that Jones has singled out. Jones has presented nothing
to show that any of those states, and Texas in particular, have had
any influence on their resident U.S. Attorney's offices as to
whether to prosecute the death penalty or to refrain from such
prosecution.
We deny Jones's application for a COA on this issue.
IV. CONCLUSION.
For the reasons stated above, Jones has not made a substantial
showing of the denial of a federal right and we therefore deny his
18

application for a certificate of appealability on these four
issues.
19