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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 12, 2011

                                       No. 09-70024                         Lyle W. Cayce
                                                                                 Clerk

RONNIE PAUL THREADGILL,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Ronnie Paul Threadgill was convicted of capital murder and sentenced
to death in a Texas state court. The jury found that he shot and killed
seventeen-year-old Dexter McDonald while carjacking the vehicle in which
McDonald was a passenger. After exhausting state remedies, Threadgill filed
a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United
States District for the Northern District of Texas. The district court denied
relief, but granted him a certificate of appealability (“COA”) on his claim “that

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                         No. 09-70024

he was denied effective assistance of counsel under the Sixth and Fourteenth
Amendments when his trial counsel failed to adequately investigate and
challenge the State’s use of an extraneous offense” during the punishment
phase of his trial. Threadgill appealed and seeks a COA as to two additional
issues: (1) “[w]hether [he] was denied effective assistance of counsel under the
Sixth and Fourteenth Amendments [when his] trial counsel failed to request
a lesser-included offense instruction on felony murder” and (2) “[w]hether [he]
was denied due process of law when the trial court failed to charge the jury on
the lesser-included offense . . . of felony murder.”1 We deny his request for a
COA and affirm the district court’s judgment denying him any relief.
                                                I.
      On April 14, 2001, three young men walked out of a nightclub in
Navarro County, Texas, and got into a car. Kevin Williams sat in the front
passenger seat, and Dexter McDonald sat in the right rear passenger seat.
Christopher Lane, the car’s owner, got into the driver’s seat but then got back
out to talk to someone. Shortly thereafter, Ronnie Threadgill, the petitioner,
ran up and fired two shots from a handgun. The first shot did not hit anyone.
The second shot hit McDonald. The bullet passed through McDonald’s arm
and went into his chest. Williams got out of the car. Threadgill got into the
driver’s seat and began to drive away, but he then stopped at a nearby stop
sign, pulled McDonald out of the car, left him on the ground, and got back in
the car and drove away. McDonald was taken to a hospital, where he died
from the gunshot wound.
      Threadgill was charged under Texas’s capital murder statute, Texas
Penal Code § 19.03(a)(2). At trial, Williams testified that the first shot was
fired from outside the car, and that when the second shot was fired, the



      1
          Br. in Supp. of Mot. for Certificate of Appealability 1.

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shooter “was standing outside the car, bent over into the car.” Danyel
Nellums, who was nearby when the shooting happened, testified that
McDonald was intoxicated and was sitting in the back seat with his head
leaning against the window frame. Nellums specifically denied defense
counsel’s suggestion that McDonald was lying down or stretched out on the
seat.
        Threadgill’s defense counsel did not request a jury instruction on felony
murder,2 and the district court did not give such an instruction. The jury
convicted Threadgill of capital murder.
        During the punishment phase of the trial, the prosecution introduced a
variety of evidence tending to show that Threadgill would pose a future
danger to society. See Tex. Code Crim. Proc. art. 37.071, § 2(b)(1).3 Ten
witnesses, nine of whom were law enforcement officers or public officials,
testified that they knew of Threadgill’s reputation in the community for being
peaceful and law-abiding and that it was “bad” or “very bad.” The prosecution
established that Threadgill had prior misdemeanor convictions for assault,
resisting arrest, theft, criminal trespass, criminal mischief, and possession of
marijuana, as well as prior felony convictions for possession of cocaine and

        2
        Felony murder, under Texas Penal Code § 19.02(b)(3), occurs when a person “commits
or attempts to commit a felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight from the commission or
attempt, he commits or attempts to commit an act clearly dangerous to human life that causes
the death of an individual.” Felony murder is distinct from capital murder in that it does not
require the intent to kill and does not carry the death penalty.
        3
         At the punishment phase, to determine whether Threadgill would receive a sentence
of death or life imprisonment without parole, the jury first had to decide “whether there [was]
a probability that the defendant would commit criminal acts of violence that would constitute
a continuing threat to society.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1). The state bore the
burden of proving this issue beyond a reasonable doubt. Id. § 2(c). Second, the jury had to
decide “[w]hether, taking into consideration all of the evidence, . . . there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.” Id. § 2(e)(1). These two questions
are commonly known as the special issues of future dangerousness and mitigation.

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burglary. Threadgill, who was 29 years old at the time of trial, had been
incarcerated for most of the time since he had turned 18. During his
incarceration, according to law enforcement officers who testified at
sentencing, Threadgill had (1) gotten into a fight with another inmate; (2)
been disciplined for threatening other inmates; and (3) been found wearing
the wrong color jumpsuit, which could have made it easier for him to escape.
        Of particular relevance to the issue on which the district court granted
a COA, the prosecution also introduced two witnesses’ testimony indicating
that Threadgill had committed a previous shooting in Limestone County,
Texas. Threadgill had been charged with aggravated assault in connection
with that shooting, and spent approximately a year in jail before the charges
were dropped by the county attorney. The motion for dismissal, which was
introduced into evidence, cited “conflicting evidence” as the reason for
dropping the charges. The prosecution called Cassey Leon Forge, who
testified that he had seen Threadgill shoot Erik Martin in the Limestone
County incident; that he had identified Threadgill as the shooter in a photo
lineup; that he had given a statement to the police that Threadgill was the
shooter; and that he was positive about his identification of Threadgill. The
prosecution also called Limestone County Sheriff’s Department Chief Deputy
R.T. Beck, Jr., who testified that he had investigated the shooting and that
Forge was positive in his identification of Threadgill and never recanted it.
Beck also testified that most of the victims and others involved in the
Limestone County shooting incident had criminal records. On cross-
examination, the defense established that “conflicting evidence” was the
stated reason why the charge against Threadgill had been dismissed. Then,
on redirect, the following exchange took place between the prosecutor and
Beck:
        Q.    Do you have conflicting evidence in a lot of cases?

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      A.    Yes, sir.
      Q.    Are all cases that have conflicting evidence, are they
            dismissed?
      A.    No, sir, not that I’m aware of.
      Q.    As much as we don’t like to admit it, are sometimes cases
      dismissed because of the, who the victims are or what they’ve
      done in the past?
      MR. DUNN [defense counsel]: Objection, your Honor, relevance.
      THE COURT: I’ll overrule the objection, although I’ll, certainly
      the jury is free to draw its own conclusions with respect to
      whether the response to that question will be relevant. You may
      answer the question.
      A.    Yes, sir, I think that’s entirely possible.
      The defense called three witnesses during the punishment phase.
Threadgill’s mother testified that he had grown up in very difficult
circumstances involving poverty, instability, and violence. A clinical
psychologist, Dr. Gilda Kessner, testified about the harmful psychological
effects of Threadgill’s troubled childhood. She also testified that he had
generally behaved well in prison and that the few disciplinary incidents in
which he had been involved were minor. And a Texas prison warden gave
detailed testimony about the conditions under which Threadgill would be held
if he were given a life sentence, suggesting that it was unlikely that he would
ever be able to escape.
      The prosecution called Dr. Lisa Clayton, a psychiatrist, to rebut Dr.
Kessner. Dr. Clayton testified that in her opinion, “Mr. Threadgill will be a
future danger to society.” The state also called A.P. Merillat, an expert on
prison violence, who testified that despite the security measures in place,
there was still a significant level of violence within Texas prisons, thereby
suggesting that Threadgill could be a future danger to society even if he never
escaped from prison.

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      The prosecutor’s closing argument put significant emphasis on the
Limestone County shooting. He asserted that Threadgill had “shot another
guy” and criticized “prosecutors who don’t take these cases seriously and take
them to juries.” He stated that the victim in the Limestone County case was
“probably nobody” and “probably had a criminal record” and implied that this
was why the charge against Threadgill had been dropped. He urged the jury
not to act similarly. The prosecutor also emphasized Dr. Clayton’s opinion
that Threadgill would be a future danger to society; predicted that he would
likely commit future violent acts in prison; and argued that Threadgill’s hard
life was no excuse for murdering Dexter McDonald.
      The jury was presented with the two statutory special issues of future
dangerousness and mitigating circumstances. See Tex. Code Crim. Proc. art.
37.071. The jury determined that (1) there was a probability that Threadgill
would commit criminal acts of violence in the future that would constitute a
continuing threat to society, see id. § 2(b)(1); and (2) there were no mitigating
circumstances sufficient to spare Threadgill from a sentence of death, see id.
§ 2(e)(1). The trial court accordingly sentenced Threadgill to death.
      On direct appeal, Threadgill argued, inter alia, that the trial court
should have given a jury instruction on the lesser included offense of felony
murder. The Texas Court of Criminal Appeals (“TCCA”) rejected this
argument, explaining its reasoning as follows:
            The element distinguishing capital murder from felony
      murder is the intent to kill. [Fuentes v. State, 991 S.W.2d 267,
      272 (Tex. Crim. App. 1999).] Felony murder is an unintentional
      murder committed in the course of committing a felony while
      capital murder includes an intentional murder committed in the
      course of robbery. Id. To be entitled to an instruction on felony
      murder there must be some evidence that would permit a jury
      rationally to find the defendant had the intent to commit robbery
      but not to cause the death of the victim. The evidence reflects
      that appellant ran up to the car, leaned in, and fired two shots,

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      the second one into the backseat where the victim was seated.
      Appellant argues that some evidence suggests that the shooter
      did not even know that the victim was in the car, claiming Kevin
      Williams testified that the shots were fired from outside the car
      and that there was testimony that the victim was “slumped over”
      in the backseat. A closer look at the portion of Williams’
      testimony relied upon by appellant reflects that Williams did not
      testify the shots were fired from outside the car:
      [Prosecutor]. Okay. You said he got into the front seat and you
      were still in the car.
      [Williams]. He hadn’t got into the car yet.
      Q. You said a gun was in your face?
      A. Uh-huh.
      Q. And you were sitting in the car. Was he standing outside the
      car pointing a gun in your face?
      A. He was standing outside the car, bent over into the car.
             Although the shooter was standing outside of the car when
      he fired the shots, he was leaning into the car with his gun.
      Citing two pages of testimony, appellant also claims the evidence
      reflects that the victim was “slumped over” on the backseat.
      Review of that portion of the testimony reflects that the victim
      was intoxicated and was sitting in the backseat with his head
      leaning against or resting on the window frame. The witness
      [Nellums] denied defense counsel’s suggestion that the victim was
      lying down or stretched out on the seat. The trial court did not
      abuse its discretion in concluding that there was no evidence that
      would permit a jury rationally to find that appellant did not
      intend to kill the victim when he fired at him at close range inside
      the car.
Threadgill v. State, 146 S.W.3d 654, 665-66 (Tex. Crim. App. 2004).
Threadgill did not seek a writ of certiorari from the United States Supreme
Court.
      Concurrent with his direct appeal, Threadgill applied for a writ of
habeas corpus in state court. He argued, inter alia, that he had received
ineffective assistance of counsel because his attorneys had failed to request a

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jury instruction on felony murder and because they had failed to investigate
and rebut the prosecution’s evidence concerning the Limestone County
shooting. He contended that if his attorneys had reasonably investigated the
Limestone County matter, they could easily have found multiple eyewitnesses
who would have testified that he was not the shooter. The state trial court’s
findings of fact and conclusions of law rejected Threadgill’s claims. The court
determined that a felony murder instruction was not warranted by the
evidence; that Threadgill’s trial counsel acted appropriately by not focusing
their efforts on rebutting the prosecution’s evidence concerning the Limestone
County shooting; and that that evidence “was so insignificant in light of the
entire body of evidence that its admission did not prejudice [Threadgill].” The
TCCA adopted the trial court’s findings and conclusions and denied relief.
      Threadgill then filed a timely petition for a writ of habeas corpus in
federal court. The district court denied relief. Threadgill has filed a motion
for a COA as to two issues: (1) “[w]hether [he] was denied effective assistance
of counsel under the Sixth and Fourteenth Amendments [when his] trial
counsel failed to request a lesser-included offense instruction on felony
murder” and (2) “[w]hether [he] was denied due process of law when the trial
court failed to charge the jury on the lesser-included offense . . . of felony
murder.” Threadgill has also appealed concerning the one issue on which the
district court granted a COA: his claim “that he was denied effective
assistance of counsel under the Sixth and Fourteenth Amendments when his
trial counsel failed to adequately investigate and challenge the State’s use of
an extraneous offense” during the punishment phase of his trial.
                                        II.
      “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In order to make such a showing, “a petitioner must show that

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reasonable jurists could debate whether (or, for that matter, agree that) the
petition could have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      A federal court “may not issue a writ of habeas corpus for a defendant
convicted under a state judgment unless the adjudication of the claim by the
state court ‘(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State Court proceeding.’” Riddle v. Cockrell, 288
F.3d 713, 716 (5th Cir. 2002) (quoting 28 U.S.C. § 2254(d)).
      “In a habeas corpus appeal, we review the district court’s findings of
fact for clear error and review its conclusions of law de novo, applying the
same standard of review to the state court’s decision as the district court.”
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir. 1998)).
      A petitioner bringing a claim of ineffective assistance of counsel “must
demonstrate both that: (1) his counsel’s performance was deficient; and (2)
counsel’s deficient performance prejudiced his defense.” Harrison v.
Quarterman, 496 F.3d 419, 424 (5th Cir. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Counsel’s performance is deficient if
it ‘fell below an objective standard of reasonableness.’” Id. (quoting
Strickland, 466 U.S. at 688). “Judicial scrutiny of counsel’s performance
must be ‘highly deferential.’” Id. (quoting Strickland, 466 U.S. at 689).
“Deficient performance results in prejudice when ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a

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probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). “The result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the
outcome.” Strickland, 466 U.S. at 694.
                                       III.
      Threadgill seeks a COA as to his claim that he received ineffective
assistance of counsel because at trial, his lawyers failed to request a jury
instruction on felony murder as defined by Texas Penal Code § 19.02(b)(3).
Felony murder is not a capital crime, and (as the state acknowledges) is a
lesser included offense of the type of capital murder with which Threadgill
was charged under Texas Penal Code § 19.03(a)(2). Capital murder under
§ 19.03(a)(2) occurs when “the person intentionally commits the murder in
the course of committing or attempting to commit” one of several enumerated
crimes, including robbery. Felony murder under § 19.02(b)(3) takes place
when a person “commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits
or attempts to commit an act clearly dangerous to human life that causes the
death of an individual.” The difference between felony murder and capital
murder, as relevant here, is that a capital murder must have been
“intentionally” committed, per § 19.03(a)(2), whereas felony murder under
§ 19.02(b)(3) does not require the killing to have been intentional. Thus,
“[t]he element distinguishing capital murder from felony murder is intent to
kill.” Threadgill, 146 S.W.3d at 665 (citing Fuentes, 991 S.W.2d at 272).
      Threadgill cannot have received ineffective assistance of counsel on this
issue unless the evidence at trial would have actually warranted a felony
murder instruction. “A defendant is entitled to [a lesser included offense]

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instruction if the jury could rationally acquit the defendant on the capital
crime and convict on the non-capital crime.” Aguilar v. Dretke, 428 F.3d 526,
531 (5th Cir. 2006). Under Texas law, for a lesser included offense
instruction to be given, “there must be some evidence in the record that if the
defendant is guilty, he is guilty only of the lesser offense.” Richards v.
Quarterman, 566 F.3d 553, 568 (5th Cir. 2009). “Anything more than a
scintilla of evidence is sufficient to entitle a defendant to a lesser charge.”
Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
      Threadgill has identified four facts (or purported facts) which, he
argues, provided an evidentiary basis so that the jury could have rationally
concluded that he was guilty only of felony murder and not capital murder.
However, these asserted facts either are not supported by the record or else
fail to support a finding that Threadgill was guilty only of felony murder, i.e.,
that he lacked the intent to kill McDonald.
      First, Threadgill highlights that Williams, the other passenger in the
car, was not shot. Williams was sitting in the front passenger seat of the car,
but he jumped out when Threadgill started shooting. It is unclear whether
Threadgill may have intended to shoot Williams, considering that he fired
two shots, only one of which hit McDonald. But even if Threadgill did not
intend to shoot Williams, that would not mean he lacked the intent to kill
McDonald.
      Second, Threadgill asserts that “the victim was shot only one time, in
the arm, when he could have been shot multiple times.” This is a misleading
characterization of the facts because although the bullet first went through
McDonald’s arm, it then entered his chest, causing his death. Therefore, the
location where McDonald was hit by the bullet does not suggest that
Threadgill was not trying to kill him. Moreover, under Texas law, “where a
deadly weapon is fired at close range and death results the law presumes an

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intent to kill.” Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981). “It
is both a common-sense inference and an appellate presumption that a person
intends the natural consequences of his acts, and that the act of pointing a
loaded gun at someone and shooting toward that person at close range
demonstrates an intent to kill.” Ex parte Thompson, 179 S.W.3d 549, 556
n.18 (Tex. Crim. App. 2005).4 Threadgill fired a handgun at McDonald at
close range, from within the car, and hit him once; the bullet went through
his arm and into his chest, causing his death. This sequence of events
provides no basis for concluding that Threadgill did not intend the natural
consequence of his action, which was McDonald’s death.
       Third, Threadgill claims that “there was some evidence from which a
rational jury could have concluded that [he] was unaware of Mr. McDonald’s
presence in the back of the car.” The TCCA addressed this argument on
direct appeal and determined that there was no such evidence: “[T]he
testimony reflects that the victim was intoxicated and was sitting in the
backseat with his head leaning against or resting on the window frame. The
witness denied defense counsel’s suggestion that the victim was lying down or
stretched out on the seat.” Threadgill, 146 S.W.3d at 665-66. Threadgill’s
briefs fail to identify, and we have not found, any evidence in the record that
would indicate that the TCCA’s characterization of the facts was incorrect.
       Fourth, Threadgill argues that “McDonald[] was put out of the stolen
car, alive, in sight of those who could come to his aid.” But this does not
change the fact that Threadgill shot at McDonald at close range. Moreover,
the fact that Threadgill apparently preferred not to have McDonald with him


       4
            See also Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (“If a deadly
weapon is used in deadly manner, the inference is almost conclusive that he intended to
kill. . . . Naturally, the most obvious cases and the easiest ones in which to prove a specific
intent to kill, are those cases in which a firearm was used and was fired or attempted to have
been fired at a person.”).

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as he drove off in the stolen car has no bearing on whether he intended to kill
McDonald when he shot him.
      Therefore, none of Threadgill’s factual assertions and arguments
establish that there was even a scintilla of evidence from which a jury could
have rationally concluded that Threadgill did not intend the natural
consequence of his action — McDonald’s death — when he shot McDonald in
the chest at close range. Therefore, there is no reason why the trial court
should, or would, have given an instruction on felony murder if Threadgill’s
counsel had requested one. Consequently, the failure to request a felony
murder instruction does not fulfill either of the two requirements for a claim
of ineffective assistance of counsel: it did not amount to deficient
performance, and Threadgill was not prejudiced by it. It necessarily follows
that the TCCA’s denial of this claim of ineffective assistance of counsel was
not “contrary to, or an unreasonable application of, clearly established
[f]ederal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Nor was it “based on an unreasonable determination of
the facts in light of the evidence presented in the [s]tate court proceeding.”
Id. § 2254(d)(2). We believe that this conclusion is not debatable among
reasonable jurists. See Slack, 529 U.S. at 484. Therefore, we deny
Threadgill’s request for a COA on this issue.
                                       IV.
      Threadgill argues that due process required the trial court, sua sponte,
to give a jury instruction on the lesser included offense of felony murder, even
though his counsel did not request it. This argument relies on Beck v.
Alabama, 447 U.S. 625 (1980), in which the Supreme Court reasoned as
follows:
      when the evidence unquestionably establishes that the defendant
      is guilty of a serious, violent offense — but leaves some doubt


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                                  No. 09-70024

      with respect to an element that would justify conviction of a
      capital offense — the failure to give the jury the “third option” of
      convicting on a lesser included offense would seem inevitably to
      enhance the risk of an unwarranted conviction.
           Such a risk cannot be tolerated in a case in which the
      defendant’s life is at stake.
Id. at 637. Two years later, the Court clarified in Hopper v. Evans that “due
process requires that a lesser included offense instruction be given only when
the evidence warrants such an instruction.” 456 U.S. 605, 611 (1982).
      Under Beck and Hopper, the trial court’s failure to give a lesser
included offense instruction cannot have been a denial of due process if such
an instruction was not warranted by the evidence. For the reasons stated
above, none of the four facts (or purported facts) cited by Threadgill provides
even a scintilla of support for a finding that he did not intend to kill
McDonald. Because the evidence did not warrant an instruction on felony
murder, the lack of such an instruction was not a denial of due process.
Therefore, the TCCA’s rejection of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). We do not consider this conclusion to be debatable among
reasonable jurists, see Slack, 529 U.S. at 484; accordingly, we deny Threadgill
a COA on this issue.
                                        V.
      Threadgill received a COA from the district court on the issue of
whether he was given ineffective assistance of counsel when his trial
attorneys failed to investigate and rebut the prosecution’s evidence indicating
that he had committed the Limestone County shooting.
      Threadgill argues that his attorneys failed to consult obvious sources of
information — including court files on the Limestone County shooting case,
the attorney who had defended him in that case, and the prosecutor who


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                                  No. 09-70024

dropped the charges against him — which, if consulted, would have led them
to strong evidence that he was innocent of the shooting, including three
eyewitnesses who could have testified that he was not the shooter. He argues
that this deficiency in his attorneys’ performance was similar to what
occurred in Rompilla v. Beard, 545 U.S. 374 (2005), in which the Supreme
Court held that defense attorneys were ineffective when they failed to
uncover mitigating evidence that they could have easily found by looking at a
readily available court file concerning the defendant’s prior conviction. The
state counters that unlike the attorneys in Rompilla, Threadgill’s attorneys
did hire a private investigator to investigate the Limestone County shooting,
and therefore their performance was not deficient despite the investigator’s
apparent failure to look at the court file or talk to the prosecutor or the
defense attorney.
      The district court refrained from deciding whether Threadgill’s
attorneys’ performance was bad enough to amount to deficient performance
as defined under Strickland. Instead, the district court determined that
Threadgill was not prejudiced by this failure on the part of his attorneys
because there was a “mountain of adverse proof” against him on the future
dangerousness issue. We follow a similar approach.
      The prejudice element of an ineffective assistance of counsel claim
requires a claimant to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A
petitioner can establish prejudice “even if the errors of counsel cannot be
shown by a preponderance of the evidence to have determined the outcome.”
Id. Yet, under 28 U.S.C. § 2254(d), we may not grant habeas relief unless we
conclude that the TCCA’s determination that Threadgill was not prejudiced

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                                 No. 09-70024

was not “merely incorrect or unreasonable,” but was “objectively
unreasonable” in light of “clearly established law as determined by the
Supreme Court.” Rogers v. Quarterman, 555 F.3d 483, 488-89 (5th Cir.), cert.
denied, 130 S. Ct. 365 (2009).
      The prosecution used the evidence of the Limestone County shooting to
persuade the jury that Threadgill posed a continuing threat to society. See
Tex. Code Crim. Proc. art. 37.071, § 2(b)(1) (the court shall submit to the jury
the issue of “whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society”).
The prosecution was required to establish future dangerousness beyond a
reasonable doubt. Id. § 2(c).
      The Limestone County shooting was by far the most serious prior act
that was introduced against Threadgill to demonstrate his future
dangerousness. Despite the fact that the charge was officially dropped due to
“conflicting evidence,” the prosecutor’s closing argument and examination of
Deputy Beck undeniably encouraged the jury to believe that Threadgill’s
implication in the Limestone County shooting demonstrated his propensity
for violence and anti-social conduct. If defense counsel had investigated more
thoroughly, they might have presented multiple eyewitnesses whose
testimony would have questioned Threadgill’s culpability in that shooting.
Thus, Threadgill’s counsel missed the opportunity to raise serious doubts
about what was arguably the most compelling element of the prosecution’s
future dangerousness argument.
      However, in assessing whether Threadgill was prejudiced by his
counsel’s failure to adequately investigate and rebut the prosecution’s
evidence that he had committed the Limestone County shooting, we must
take into account all of the evidence that was presented to the jury regarding
Threadgill’s future dangerousness. Although the Limestone County shooting

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                                        No. 09-70024

was a significant element of the prosecution’s case during the punishment
phase, the jury was aware that the charge against Threadgill had been
dropped due to “conflicting evidence.” Moreover, the prosecution also offered
a substantial amount of other evidence of future dangerousness. The jury
learned that Threadgill had previously been convicted of several offenses
including assault, resisting arrest, burglary, and criminal mischief. The jury
heard from a parade of public officials and law enforcement officers, each of
whom testified that Threadgill had a “bad” or “very bad” reputation for being
peaceful and law-abiding. The jury also heard Dr. Clayton’s opinion that
Threadgill would be a future danger to society. And, of course, the jury was
familiar with the serious crime that is the basis of this case, in which
Threadgill killed a seventeen-year-old boy in order to steal a car.
       Threadgill’s attorneys offered little evidence tending to show that he
would not be a continuing threat to society. Threadgill’s mother’s testimony
about his difficult childhood went to the issue of mitigating circumstances,
not future dangerousness.5 Dr. Kessner expressly did not address future
dangerousness; she stated on cross-examination, “I wasn’t asked to assess his
future dangerousness. I was asked to look at the mitigation issues.”6 And,
while the prison warden’s detailed testimony about security measures tended
to show that it was unlikely that Threadgill would escape if sentenced to life
in prison, the warden also acknowledged that Threadgill might still commit
violent acts while incarcerated. See Estrada v. State, 313 S.W.3d 274, 284


       5
          The question of whether “there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole rather than a
death sentence be imposed” is a separate and distinct issue that the jury must answer if it
decides that the defendant would pose a future danger to society. Tex. Code Crim. Proc. art.
37.071, § 2(e)(1).
       6
       Threadgill’s lead trial counsel later explained, in an affidavit, that he chose not to ask
Dr. Kessner to assess future dangerousness because he thought she would opine that
Threadgill was likely to commit acts of criminal violence in the future.

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                                  No. 09-70024

(Tex. Crim. App. 2010) (“[T]he future-dangerousness special issue asks a jury
to determine whether there is a probability that the defendant would
constitute a continuing threat to society ‘whether in or out of prison.’”
(quoting Muniz v. State, 851 S.W.2d 238, 250 (Tex. Crim. App. 1993))), cert.
denied, 131 S. Ct. 905 (2011).
       In light of all the evidence presented at the punishment phase, it is
possible that Threadgill’s attorneys’ failure to rebut the prosecution’s
evidence regarding the Limestone County shooting may have affected the
jury’s decision. However, considering the strength of the other evidence
against Threadgill on the future dangerousness issue, we are not persuaded
that the TCCA made an objectively unreasonable decision when it determined
that there was not a reasonable probability of a different result if Threadgill’s
trial attorneys had performed more effectively. “For purposes of [28 U.S.C.]
§ 2254(d)(1), ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Harrington v. Richter, 131 S. Ct. 770,
786 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). “Even if
[we] might have reached a different conclusion as an initial matter, it was not
an unreasonable application of [Supreme Court] precedent for the [TCCA] to
conclude that [Threadgill] did not establish prejudice.” Cullen v. Pinholster,
131 S. Ct. 1388, 1411 (2011). Therefore, we affirm the district court’s denial
of relief.
                                       VI.
       For the foregoing reasons, Threadgill’s motion for a COA is DENIED,
and the district court’s decision to deny Threadgill a writ of habeas corpus is
AFFIRMED.




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