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United States Court of Appeals
Fifth Circuit
F I L E D
In the
January 5, 2005
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 04-70026
_______________
CHARLES DANIEL THACKER,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH, DEMOSS, and STEWART,
Thacker cannot make a substantial showing of
Circuit Judges.
the denial of a federal constitutional right, we
deny a COA.
JERRY E. SMITH, Circuit Judge:
I.
Charles Thacker seeks a certificate of ap-
A state jury found Thacker guilty of capital
pealability ("COA") from the district court's
murder and further answered Texas's special
denial of his petition for a writ of habeas cor-
issues in a manner that required imposition of
pus pursuant to 28 U.S.C. § 2254. Because
a death sentence. As summarized by the Texas

Court of Criminal Appeals on direct review,
leg of her jogging pants were pulled off; the
the facts are as follows:
other pants leg was pulled down to her
ankle. Hall and another man administered
On the evening of April 7, 1993, dur-
CPR. They detected a heart beat, but she
ing a telephone conversation with a friend,
was not breathing. Some faint brain activ-
Karen Crawford said that she was going to
ity was detected when she arrived at the
go to the store for dog food. That same
hospital, but it ceased within twenty-four
evening, a resident of her apartment com-
hours.
plex informed the maintenance supervisor,
Arkan Hall, that Crawford's keys were
Medical examiners concluded that
hanging from her mailbox, which was lo-
Crawford's death was the result of strangu-
cated in a common area near the apartment
lation. Crawford's neck was bruised on the
offices. Hall went to Crawford's apart-
front and left side and her face and eyes ex-
ment, but she did not answer the door. He
hibited a condition known as pinpoint hem-
then noticed her car, with her dog inside,
orrhaging. It was determined that a choke
parked near the mail room. While checking
hold or "hammerlock" was the probable
the area of the mail room and pool, Hall
method of strangulation. No evidence of a
found the women's restroom locked. He
completed sexual assault was found.
beat on the door, and a man's voice an-
swered from the inside. The man became
In the early morning hours of April 8,
quiet when Hall asked why he was using
1993, a police canine unit found [Thacker]
the women's restroom.
hiding in a yard near Crawford's apartment
complex. A truck containing papers bear-
Hall attempted unsuccessfully to force
ing [Thacker's] name was found parked
open the door of the restroom. He then tel-
outside the offices of Crawford's apartment
ephoned the apartment manager, Emily
complex. [Thacker] was identified by sev-
Vaughn. She and her husband Terrence
eral witnesses who saw him loitering about
Cowie arrived at the scene, and the three
the mail room just before the offense. He
discussed what to do. Suddenly, the rest-
was also identified by witnesses who saw
room door opened and [Thacker] emerged.
him running where Crawford was found. A
A fight ensued when Hall attempted to stop
pubic hair matching a sample from Craw-
him. Hall attempted to cut [Thacker] with
ford was found in [Thacker's] underwear.
his pocket knife, but [Thacker] sprayed him
with mace and got away. [Thacker]
Thacker v. State, No. 71,891, at 2-3 (Sept. 18,
sprayed Cowie as well, and then pushed his
1996).
way through one of the two exit gates.
Hall and others nearby chased [Thacker]
Thacker appealed, raising fifty-seven
down the block and tried to cut off his
points of erro r. His conviction was affirmed
escape.
on direct review, so he sought state collateral
review, raising eight points of error, but was
In the meantime, Vaughn found Craw-
again denied relief. This denial was affirmed in
ford lying face down on the restroom floor.
an unpublished opinion by the Court of Crimi-
She was unconscious. One shoe and one
nal Appeals. Ex parte Thacker, No. 74,034
2

(Tex. Crim. App. Dec. 19, 2001) (unpub-
lished), cert. denied, 537 U.S. 829 (2002).
To grant a COA, however, we need not de-
Thacker filed his initial federal habeas peti-
cide the ultimate merits of the underlying habe-
tion, which the district court dismissed, with-
as petition; we ask only whether the petitioner
out prejudice, to allow for complete state
has made "a substantial showing of the denial
court exhaustion of his claim under Ring v.
of a constitutional right." 28 U.S.C. 2253-
Arizona, 536 U.S. 584 (2002), which held that
(c)(2). "A petitioner satisfies this standard by
juries must make determinations regarding
demonstrating that jurists of reason could
aggravating and mitigating factors. After his
disagree with the district court's resolution of
second state habeas petition was dismissed, Ex
his constitutional claim or that jurists could
parte Thacker, No. 48,092-02 (Tex. Crim.
conclude the issues presented are adequate to
App. Dec. 10, 2003) (unpublished), Thacker
deserve encouragement to proceed further."
renewed his federal habeas petition, raising
Miller-El v. Cockrell, 537 U.S. 322, 327
nine grounds for relief. The district court
(2003). That is, our duty is to determine not
denied relief and denied a COA. Thacker v.
whether Thacker is entitled to relief, but
Dretke, No. H-04-CV-126 (S.D. Tex. May 27,
whether the district court's conclusion (that
2004).
the state court adjudication was not contrary
to or an unreasonable application of federal
II.
law) is one about which jurists of reason could
Our review on a request for COA is highly
disagree.2
circumscribed by statute. Pursuant to the
Anti-Terrorism and Effective Death Penalty
III.
Act of 1996 ("AEDPA"), to be entitled to re-
In his COA application, Thacker raises sev-
lief a petitioner must show that the state court
en issues related to only two alleged errors:
resolution of his case was either "contrary to,
that (1) the instruction given the jury on his
or involved an unreasonable application of,
capital murder charge was a misstatement of
clearly established federal law, as determined
Texas law, or at the very least was substan-
by the Supreme Court of the United States,"
tially confusing to the jury as to the sufficient
or "resulted in a decision that was based on an
level of intent required to convict; and (2) the
unreasonable determination of the facts in light
trial court's disallowance of any reference to
of the evidence presented in the State court
Thacker's parole eligibility in the presence of
proceeding." 28 U.S.C. § 2254(d).1 This high
the jury was unconstitutional. Thacker argues
level of deference to state court proceedings
that the erroneous jury charge violated his due
"embodies the principles of federalism, comity,
process rights under the Fourteenth Amend-
and finality of judgments . . . ." Evans v.
ment and the Trial by Impartial Jury Clause of
Cockrell, 285 F.3d 370, 374 (5th Cir. 2002).
the Sixth Amendment, and that he was de-
1 See also Yarborough v. Gentry, 540 U.S. 1,
2 As the district court correctly noted and we
5 (2003) ("Where, as here, the state court's appli-
will discuss further, infra, "Other doctrines, such
cation of governing federal law is challenged, it
as the harmless-error doctrine and the non-retroac-
must be shown to be not only erroneous, but ob-
tivity principle, bridle federal habeas relief."
jectively unreasonable.").
Thacker, No. H-04-126, slip op. at 8.
3

prived of his Sixth Amendment right to effec-
ous to human life causes death. Nevertheless,
tive assistance of counsel. With respect to the
Thacker contends that the phrase "murder, as
parole eligibility question, Thacker avers that
heretofore defined" confused the jury as to
the purported error violates the Due Process
whether a specific intent was required to find
Clause of the Fourteenth Amendment, the
him guilty of capital murder.3
Cruel and Unusual Punishment Clause of the
Eighth Amendment, and the Compulsory Pro-
Thacker's concern is not unfounded. In the
cess Clause of the Sixth Amendment.
midst of deliberations, the jury foreman sent a
note to the court, querying,
A.
Texas law mandates that the court provide
On page 3, t he charge says, "Now, if you
the jury with a written charge that describes
find . . . intentionally cause the death of
the applicable law. See TEX. CODE CRIM.
. . . ." Does that mean that the defendant
PROC. ANN. art. 3614. This statute has been
had to have the intent to cause her death to
interpreted as requiring "the judge to provide
be convicted of capital murder? Or as on
the jury with both an abstract statement of the
page 1, ". . . if he intends to cause serious
law and an application of that abstract state-
bodily injury and intentionally commits an
ment to the evidence in the case." Riley v.
act clearly dangerous to human life . . ."
State, 830 S.W.2d 584, 586-87 (Tex. Crim.
sufficient to convict the defendant of capital
App. 1992). The court instructed the jury, in
murder in conjunction with the attempt to
the abstract portion, as follows:
commit aggravated sexual assault.
A person commits the offense of murder if
In response, the court directed the jury
he intentionally causes the death of an indi-
"[p]lease refer to the charge and continue de-
vidual or if he intends to cause serious bod-
liberating." The jury continued deliberating
ily injury and intentionally commits an act
clearly dangerous to human life that causes
the death of an individual.
3 The question of intent was significant at
Thacker's trial. On review of his state habeas pe-
A person commits capital murder if he in-
tition, the Court of Criminal Appeals noted,
tentionally commits murder, as heretofore
defined, and the person intentionally com-
At trial the State acknowledged that the element
mits murder in the course of committing or
of intent was the weakest part of its case.
attempting to commit aggravated sexual as-
During a hearing outside the presence of the
sault.
jury, the prosecutor stated, " . . . The State does
not have evidence on the issue of [Thacker's]
These instructions, when read in harmony,
intent to kill . . . ." Therefore, the prosecutor
offered evidence that a few weeks before [the
attempt to explain the uncontroversial princi-
death of Crawford, Thacker] had committed
ple that, under Texas law, one may not be con-
another sexual assault [which involved an at-
victed of capital murder without a finding that
tempted choking].
death was specifically intended. Murder, on
the other hand, can be committed without that
Thacker, No. 74,034 at 2-3. The trial court admit-
specific intent where an act obviously danger-
ted this evidence as probative of motive and intent.
See id. at 3.
4

for fifteen minutes before returning a guilty
were sufficiently central to the entire trial,6 the
verdict on the charge of capital murder.
conviction would violate the Constitution.
On review of Thacker's first petition for
The district court held that these claims are
state habeas relief, the Court of Criminal Ap-
procedurally foreclosed. We agree, and, be-
peals held that the instructions did not contain
cause this conclusion is not one about which
"any error at all," Ex parte Thacker, No.
reasonable jurists can differ, we decline to is-
74,034, at 9; that any confusion was mitigated
sue a COA.
by the correct statement of law in the applica-
tion paragraph of the charge;4 and that the
"Under the procedural default doctrine, a
court's note to the jury to refer back to the
federal court may not consider a state prison-
charge therefore remedied any confusion.
er's federal habeas claim when the state based
its rejection of that claim on an adequate and
B.
independent state ground. Martin v. Maxey,
Thacker contends that the state court's re-
98 F.3d 844, 846 (5th Cir. 1996).7 In no un-
jection of his claim of jury-instruction error
certain terms, the Court of Criminal Appeals
was violative of his federal constitutional
rejected Thacker's claim with respect to the
rights, to-wit, the Trial and Impartial Jury
jury instruction because Thacker had "failed to
clause of the Sixth Amendment and the Due
object to the jury charge definition of murder
Process clause of the Fourteenth Amendment.
and/or capital murder at trial [and t]hus, he has
Due process requires that conviction for a
failed to preserve this issue for consideration in
criminal offense must be supported by a find-
a post-conviction writ of habeas corpus."
ing, beyond reasonable doubt, that all elements
Thacker, No. 74,034, at 7.
of the crime are present. In re Winship, 397
U.S. 358, 364 (1970). Similarly, in a jury trial
In federal district court, Thacker contended
the Sixth Amendment requires the same care.5
that the Court of Criminal Appeals' alternative
Consequently, if a jury instruction were to
holdingSSthat the jury instruction was not er-
permit conviction under circumstances that
ror even if not procedurally-barredSSdemon-
lightened this heavy constitutional burden on
strates that the true basis of the rejection of his
the prosecution, it is possible that, if the error
6 Estelle v. McGuire, 502 U.S. 62, 72 (1991)
("The only question for us is whether the ailing in-
struction by itself so infected the entire trial that the
4 Thacker concedes that there was no error in
resulting conviction violates due process" (citation
the application paragraphs. Significantly, it is the
omitted)).
application paragraph that authorizes conviction
under Texas law; the abstract paragraph merely
7 This doctrine has an exception where the pe-
state a theory of law. See McFarland v. State, 928
titioner can demonstrate the cause of his procedural
S.W.2d 482, 515 (Tex. Crim. App. 1996).
default and show actual prejudice as a result of the
alleged violation of federal law, or that failing to
5 See United States v. Hebert 131 F.3d 514,
consider his claim will yield a fundamental "mis-
521-22 (5th Cir. 1997) (stating that the Sixth
carriage of justice." Coleman v. Thompson, 501
Amendment requires that a jury find a defendant
U.S. 722, 750 (1991). Thacker makes no such
guilty of all elements of a crime to convict).
argument.
5

claims was substantive, not procedural. The
Court of Criminal Appeals was objectively rea-
district court properly rejected that argument.8
sonable in finding that Thacker's trial attor-
Further, Thacker completely ignores this hur-
ney's conduct was not so egregious as to fall
dle in his brief in support of his application for
below an objectively reasonable standard of
COA, so the issue is waived.9
professional performance. Therefore, for us to
issue a COA on the issue of ineffective assis-
C.
tance, we must find that jurists of reason could
The procedural bar, however, does not end
disagree as to whether the district court erred
our review of the complained-of instruction.
in reaching such a conclusion.
Thacker argues strenuously that the failure of
trial counsel to object to the charge, or to re-
Thacker's court-appointed appellate coun-
quest an additional instruction after the jury's
sel tries to surmount this obviously high hurdle
note was received, constituted ineffective as-
with admirable skill. In attempting to dem-
sistance of counsel, contrary to the dictates of
onstrate that the jury instructions were, at best,
the Sixth Amendment. To review the inef-
confusing, and at worst, downright erroneous,
fective assistance claim, we must analyze the
Thacker contends that the instructions violated
alleged error regarding the jury instruction.
the Sixth and Fourteenth Amendments by
Nevertheless, under the Supreme Court's
allowing the jury to convict on the charge of
Sixth Amendment jurisprudence,10 Thacker
capital murder without finding the requisite
must demonstrate not just that the alleged jury
element of specific intent. A cursory reading
instruction was in error, and not just that his
of the abstract paragraphs, excerpted above,
lawyer's failure to object to it was in error, but
might lend support to that claim. The refer-
that such a failure was so serious as to "fall[]
ence in the second abstract paragraph to
below an objective standard of reasonableness
"murder, as heretofore defined" could easily be
and thereby prejudice[] the defense." Yarbor-
read, especially by lay jurors, as allowing for
ough v. Gentry, 540 U.S. 1, 5 (2003).
conviction of capital murder without the
requisite specific intent. The jury communi-
Further, AEDPA, as discussed above, re-
cated its confusion via its note to the court.
quires that Thacker show that the state court
resolution of this Sixth Amendment claim was
Nevertheless, as Thacker concedes, it is a
"not only erroneous, but objectively unreason-
"well established proposition that a single jury
able." Id. The district court held that the
instruction may not be judged in artificial iso-
lation, but must be viewed in the context of the
overall charge." Cupp v. Naughten, 414 U.S.
8 See Thacker, No. H-04-126 at 12 (quoting
141, 146-47 (1973). In that vein, the Court of
Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.
Criminal Appeals emphasized that the applica-
1998) ("[A]lternative rulings do not operate to vi-
tion paragraphs (which Thacker concedes
tiate the validity of a procedural bar that consti-
were accurate) "explicitly stated, not once, not
tutes the primary holding.")).
twice, but three times that before the jury
9
could convict [Thacker] of capital murder, it
See, e.g., United States v. Thibodeaux, 211
must find, beyond a reasonable doubt, that
F.3d 910, 912 (5th Cir. 2000).
[Thacker] `intentionally caused the death of
10 See, e.g., Strickland v. Washington, 466 U.S.
Karen Gail Crawford,' `specifically intended to
668, 686 (1984).
6

cause the death of said Karen Gail Crawford,'
limitations of AEDPA, therefore, we cannot
and `intentionally cause[d] the death of Karen
issue Thacker a COA on his claim that the jury
Gail Crawford.'" Thacker, No. 74,034, at 10-
instruction violated his constitutional rights.
11.
IV.
Those three instances, coupled with the ab-
A.
stract portion of the jury charge, which the
Thacker's other claims relate to the lack of
state court found to state the law correctly,
discussion at trial of his potential eligibility for
rendered a total of five times that the jury was
parole if not sentenced to death. At trial, the
instructed that specific intent was required to
court forbade any reference to the potential for
convict of capital murder. Additionally, in its
parole eligibility that is possible for prisoners
closing argument, even the prosecution specif-
serving life sentences for capital murder in
ically reminded the jury that intent to kill was
Texas.11 Although Texas subsequently has al-
required to convict on capital murder. Thack-
lowed for jury instructions regarding parole
er, No. 74,034, at 4.
eligibility in capital murder cases,12 this was
not the case at the time of Thacker's trial. In-
Even if we were convinced that the state
stead, the jury was forced to consider, at the
court's conclusionSSthat the abstract portion
sentencing phase, the issue of Thacker's future
was without flawSSis incorrect, that is a far cry
dangerousness without hearing any testimony
from reaching the level of error needed to
or argument regarding the possibility or likeli-
warrant relief at this stage. The Court of
hood of his release on parole if given a life
Criminal Appeals reasonably concluded that
sentence.
the jury charge, taken as a whole, did not vio-
late Thacker's constitutional rights. Though
Thacker contends that his inability to raise
this conclusion might be arguable, it certainly
this issue violates his constitutional rights
does not qualify as such an unreasonable ap-
(1) to due process of law under the Fourteenth
plication of settled Supreme Court precedent
Amendment; (2) to be free from cruel and un-
as to warrant relief under AEDPA. See 28
usual punishment as protected by the Eighth
U.S.C. § 2254(d). Given that the state court
Amendment; and (3) to exercise compulsory
was not unreasonable in finding the jury charge
process to present a complete defense by vir-
sufficient, it would be logically impossible for
tue of the Sixth Amendment. On state habeas
us to hold that Thacker's trial counsel's fail-
review, Thacker's claims regarding parole
ures to object to the charge fell below an
objectively reasonable standard of professional
conduct.
In sum, although reasonable minds might
11
differ as to whether the jury charge was erro-
Specifically, while Texas does not allow for
life imprisonment without the possibility of parole,
neous or confusing, reasonable jurists cannot
if spared the death penalty, Thacker would have
differ as to whether the Court of Criminal Ap-
been ineligible for parole until he served thirty-five
peals conclusively adjudicated those claims in
years in prison.
such a manner as not to be an unreasonable
application of federal law. Under the strict
12 See TEX. CODE CRIM PROC. art. 37.071,
§ 2(e)(2)(B).
7

eligibility were summarily rejected.13
154, 169 (1994), the Court concluded that the
possibility of a life sentence without possibility
The district court rebuffed Thacker's argu-
of parole is relevant to a jury's determination
ment that this rejection was contrary to, or an
of whether the defendant poses future harm to
unreasonable application of, federal law. Re-
society. Indeed, such a sentencing scheme
lying on our numerous precedents holding that
"necessarily undercut[s] the state's argument
Texas does not violate due process or the pro-
regarding the threat the defendant poses to
hibition against cruel and unusual punishment
society." Id. Nevertheless, under regimes that
by not informing juries of parole eligibility, the
allow for parole eligibility, the decision wheth-
court found that Thacker had failed to dem-
er to instruct the jury on t hat fact is reserved
onstrate that the state court's rejection of
to the states, and the Court "shall not lightly
these arguments amounted to a violation of
second-guess" the decision. Id. at 168.
federal law.
Since Simmons was decided, we have re-
Alternatively, the district court ruled that
peatedly held that neither the Due Process
the non-retroactivity principle of Teague v.
clause nor the Eighth Amendment requires
Lane, 489 U.S. 288 (1989), would preclude
Texas to allow presentation of parole eligibility
relief for Thacker even if his arguments re-
issues, because Texas does not offer, as an
garding due process and the Eighth Amend-
alternative to capital punishment, life impris-
ment were convincing. That is, were Thacker
onment without possibility of parole.14 Unde-
to convince the court that settled Supreme
terred by this ample caselaw to the contrary,
Court precedent yielded the Texas court's re-
Thacker urges that Supreme Court precedent
jection of these claims unreasonable, he is still
subsequent to Simmons (and even Simmons it-
not entitled to relief on federal collateral re-
self) extends to invalidate the sort of state re-
view under Teague.
gime employed in Texas.
With respect to Thacker's novel assertion
In the noticeable absence of any settled fed-
that the Sixth Amendment requires that he be
eral law supporting Thacker's notion, AEDPA
allowed to present evidence on parole eligibil-
precludes the federal courts from granting ha-
ity to the jury, the state court, as we have said,
beas relief. That is, it cannot be said that the
summarily rejected that claim. The federal
state court's application of federal law was ob-
district court held both that this was not con-
jectively unreasonable. The "threshold inquiry
trary to federal law and that Teague would bar
[under AEDPA] does not require full con-
relief under this theory. Thacker, No. H-04-
sideration of the factual or legal bases adduced
CV-126, at 42.
in support of the claims. In fact, the statute
forbids it." Miller-El v. Cockrell, 537 U.S.
B.
322, 336 (2003). Instead, our task is only to
In Simmons v. South Carolina, 512 U.S.
14 See, e.g., Elizade v. Dretke, 362 F.3d 323,
13 Ex parte Thacker, No. 661,866-A, at 16-17
332-33 (5th Cir.), cert. denied, 125 S. Ct. 293
(338th Dist. Ct., Harris County, Tex., July 11,
(2004); Woods v. Cockrell, 307 F.3d 353, 360-62
2000), aff'd, Thacker, No. 74,034, at 16 (sum-
(5th Cir. 2002); Johnson v. Cockrell, 306 F.3d
marily rejecting parole eligibility claims).
249, 256-57 (5th Cir. 2002).
8

determine whether the district court's dispo-
defendant's right to present relevant evidence
sition was "debatable among jurists of reason."
is not unlimited, but is subject to reasonable
Id. at 330.
restrictions." Id. at 308. The Court went on
to announce a framework for evaluating the
Thus, settled precedent makes pellucid the
reasonableness of such restrictions. For ex-
reasonableness of the state court's rejection of
clusionary evidentiary rules to pass constitu-
Thacker's argument that Simmons and its pro-
tional muster, they must not be "`arbitrary' or
geny require that he be able to raise parole
`disproportionate to the purposes they are de-
eligibility with the jury. The district court's
signed to serve.'" Id. (quoting Rock v. Arkan-
denial of his claims, therefore, is not reason-
sas, 483 U.S. 44, 55 (1987)).
ably debatable and cannot justify the issuance
of a COA.15
Thacker posits that prohibiting discussion
regarding parole eligibility unconstitutionally
C.
burdened his right to present mitigating evi-
Thacker makes the creative claim that the
dence in that the restriction is disproportionate
Sixth Amendment's Compulsory Process
to the purposes it is designed to serve. Be-
Clause guarantees him the right to present tes-
cause this is a novel approach, Thacker faces
timony and argument relating to parole eligi-
the same non-retroactivity hurdle that he must
bility. This argument rests principally on
overcome with respect to his due process and
United States v. Scheffer, 523 U.S. 303
Eighth Amendment claims. As we have said,
(1998), in which the Court considered the
Teague prevents federal courts from granting
argument that the Sixth Amendment requires
habeas relief predicated on a "new" rule of
courts to allow a defendant to present alleg-
constitutional law.
edly exculpatory polygraph evidence. Reject-
ing that theory, the Court explained that "[a]
Thacker attempts to get around this barrier
by arguing that if we conclude that the Sixth
Amendment was violated, it will merely be an
15 Even if we were to agree that the Simmons
"unremarkable" application of Scheffer to new
line of cases rendered support for Thacker's
facts. Thacker analogizes his Sixth Amend-
claims, the non-retroactivity principle of Teague
ment claim to the application of Strickland v.
would preclude relief. In Wheat v. Johnson, 238
Washington, 466 U.S. 668 (1984), in which
F.3d 357, 361 (5th Cir. 2001), considering the
the Court laid out a framework for evaluating
identical parole eligibility issue, we stated, "Under
ineffective assistance claims. Specifically, in
Teague, a federal court may not create new consti-
Wright v. West, 505 U.S. 277 (1992), Justice
tutional rules of criminal procedure on habeas
Kennedy explained that where a rule "is one
review." Although Thacker argues at length that
which of necessity requires a case-by-case ex-
applying Simmons in the way he proposes would
amination of the evidence, then we can tolerate
merely be an unremarkable application of existing
a number of specific applications without
precedent, this is plainly not the case. Given the
saying that those applications themselves cre-
volume of caselaw in this circuit holding that,
ate a new rule . . . ." Id. at 308-09 (Kennedy,
despite Simmons, the Fourteenth and Eighth
J., concurring).
Amendments do not require Texas to allow discus-
sion of parole eligibility in capital trials, a decision
to the contrary here would undoubtedly constitute
Obviously, the application of the Washing-
a "new rule" under Teague and is therefore barred.
9

ton rule16 is one that, by its very nature, re-
cess, we need not decide today whether and
quires a case-by-case examination of the evi-
how the guarantees of the Compulsory
dence. Scheffer, on the other hand, merely
Process Clause differ from those of the
holds that the exclusion of polygraph results is
Fourteenth Amendment.
not disproportionate or arbitrary in light of a
defendant's not unbridled right to present evi-
Pennsylvania v. Ritchie, 480 U.S. 39, 56
dence in his defense. To hold that it extends
(1987) (emphasis added except for the word
to, and invalidates, all restrictions on discus-
"greater"). Thus, although the two methods
sion of parole eligibility would undoubtedly be
of analysis are not equivalent, reference to our
a bold new step, not an "unremarkable" ap-
jurisprudence considering similar claims under
plication of settled precedent. Thacker's Sixth
the Due Process clause is illuminating and
Amendment argument, therefore, is so plainly
persuasive.
barred by Teague that we cannot conceive that
reasonable jurists would disagree.17
In Green v. Johnson, 160 F.3d 1029, 1044
(5th Cir. 1998), we held that "a state may ra-
D.
tionally conclude that its capital sentencing
Even if Thacker's claim based on the Com-
scheme would be better served by not requir-
pulsory Process Clause claim were not barred
ing that courts inform juries of parole consid-
by the non-retroactivity principle of Teague,
erations . . . . The Texas Legislature could ra-
its substance is insufficient for the issuance of
tionally conclude that injection of parole issues
a COA. Analysis of claims under the Sixth
at the punishment phases of capital murder
Amendment are routinely addressed by analy-
trial would invite consideration of factors
sis similar to that employed in due process
unrelated to the defendant's blameworthiness
challenges.
. . . ." Such restrictions, therefore, do not run
afoul of the Fourteenth Amendment.
Because the applicability of the Sixth
Amendment to this type of case is unset-
Given that conclusion, it can hardly be said
tled, and because our Fourteenth Amend-
that the Texas Court of Criminal Appeals act-
ment precedents addressing the fundamen-
ed contrary to, or engaged in an unreasonable
tal fairness of trials establish a clear frame-
application of, federal law. Where no court
work for review, we adopt a due process
has yet to publish an opinion considering
analysis for purposes of this case.
Thacker's claim that the Sixth Amendment,
Although we conclude that compulsory
per Scheffer, protects his right to discuss par-
process provides no greater protections in
ole eligibility, and we have explicitly rejected
this area than those afforded by due pro-
such an argument under the analogous due
process framework, we cannot say that Thack-
er has made a substantial showing that the
Texas courts deprived him of a federal
16 We discuss the contours of Washington in
rightSSnor can we imagine that reasonable jur-
part III.C., supra.
ists could disagree.
17 See Aldrich v. Dretke, 83 Fed. Appx. 11 (5th
Cir. 2003) (unpublished) (rejecting a similar Sixth
The request for a COA is DENIED.
Amendment claim as barred by Teague), cert. de-
nied, 124 S. Ct. 2817 (2004).
10