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

                                                 FILED
                                                                        September 18, 2009

                                       No. 08-70039                    Charles R. Fulbruge III
                                                                               Clerk

JOSHUA MAXWELL

                                                   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 Western District of Texas, San Antonio Division
                             USDC No. 5:06-cv-00884


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Joshua Maxwell (“Maxwell”), convicted of capital murder in
Bexar County, Texas and sentenced to death, requests this Court to issue a
Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Maxwell
challenges the jury instructions submitted at both the guilt-innocence and
punishment phases of trial.           He also contends that his counsel rendered



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                     No. 08-70039

ineffective assistance by failing to object to the allegedly unconstitutional
instructions. Finding that Maxwell has not made a substantial showing of the
denial of a constitutional right, we DENY a COA.
      I.     PROCEDURAL HISTORY
      A Bexar County, Texas grand jury returned an indictment charging
Maxwell with committing intentional murder while in the course of committing
a robbery or kidnaping.       Tex. Penal Code § 19.03(a)(2).1         A jury convicted
Maxwell as charged, and the trial court, pursuant to the jury’s answers to the
special issues set forth in Code of Criminal Procedure Article 37.071, Sections
2(b) and 2(e), imposed a death sentence. The Texas Court of Criminal Appeals
affirmed Maxwell’s conviction in an unpublished opinion. Maxwell v. State, No.
AP-74309 (Tex. Crim. App. Nov. 17, 2004). Maxwell applied for state habeas
relief, and the trial court recommended denying relief. The Court of Criminal
Appeals adopted the findings and conclusions of the trial court and denied the
application. Ex parte Maxwell, No. WR-65268-01, 2006 WL 2848044 (Tex. Crim.
App. Oct. 4, 2006). Maxwell subsequently filed a federal petition for writ of
habeas corpus, which the district court denied in a memorandum opinion and
order. Maxwell v. Quarterman, No. SA-06-CA-884, 2008 WL 3200672 (W.D. Tex.
July 30, 2008). The district court also denied a COA. Maxwell now requests a
COA from this Court.
      II.    STANDARD OF REVIEW
      Maxwell filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus
after the effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy,
521 U.S. 320, 336 (1997). Pursuant to the federal habeas statute, as amended
by AEDPA, we defer to a state court’s adjudication of a petitioner’s claims on the

      1
          Because resolving the claims presented in this COA does not require knowledge of
the facts underlying the offense of capital murder, we do not recite them here.

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merits unless the state court’s decision was: (1) “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.” 28 U.S.C. § 2254(d). A state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A
state court’s decision constitutes an unreasonable application of clearly
established federal law if it is “objectively unreasonable.” Id. at 409. Further,
pursuant to section 2254(e)(1), state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d
941, 947 (5th Cir. 2001).
      Additionally, under AEDPA, a petitioner must obtain a COA before he can
appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see
also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“[U]ntil a COA has been
issued federal courts of appeals lack jurisdiction to rule on the merits of appeals
from habeas petitioners.”). As the Supreme Court has explained:
             The COA determination under § 2253(c) requires an overview
      of the claims in the habeas petition and a general assessment of
      their merits. We look to the District Court’s application of AEDPA
      to petitioner’s constitutional claims and ask whether that resolution
      was debatable among jurists of reason. This threshold inquiry does
      not require full consideration of the factual or legal bases adduced
      in support of the claims. In fact, the statute forbids it.

Miller-El, 537 U.S. at 336.




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      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327 (citation omitted). “The question is
the debatability of the underlying constitutional claim, not the resolution of that
debate.” Id. at 342. “Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.”    Id. at 338.   Moreover,
“[b]ecause the present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).
      III.   ANALYSIS
             A.    Jury Instructions
                   1.    Guilt-Innocence Phase of Trial
      Maxwell contends that his Sixth Amendment and Due Process rights were
violated when the trial court failed to submit a charge that required the jury to
unanimously agree upon which of the two alleged predicate felonies he
committed rendered the murder a capital offense.           More specifically, the
instructions did not require the jury to come to a unanimous conclusion with
respect to whether the victim was murdered during the course of a robbery or
a kidnaping.
      Maxwell’s claim is controlled by the Supreme Court’s plurality opinion in
Schad v. Arizona, and this Court’s subsequent precedent interpreting Schad.
501 U.S. 624 (1991) (plurality); Reed v. Quarterman, 504 F.3d 465, 479 (5th Cir.
2007).   In Schad, the jury was charged with the alternative theories of
premeditated murder or felony murder.         501 U.S. at 630.     The petitioner

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contended that the instructions’ failure to require the jury to unanimously agree
with respect to whether he murdered the victim with premeditation or in the
course of a robbery violated his constitutional rights. Id. The Supreme Court
explained that the relevant inquiry was not one of jury unanimity inasmuch as
the jury had unanimously determined that the State had proved what it was
required to prove pursuant to state law. Id. at 630–31. Instead, the “petitioner’s
real challenge [was] to Arizona’s characterization of first degree murder as a
single crime as to which a verdict need not be limited to any one statutory
alternative.” Id. Thus, the relevant inquiry was whether Arizona’s definition
of capital murder ran afoul of the Constitution. Id. at 631.
      In making this determination, the Supreme Court first looked to whether
the legislature intended to create separate offenses or different means of
committing one offense.    Id. at 636–37. The Court explained that if the state
court had interpreted the statute and determined that the alternatives are
means of committing a single offense, federal courts “are not at liberty to ignore
that determination and conclude that the alternatives are, in fact, independent
elements under state law.” Id. at 636. Previously, the Arizona Supreme Court
had determined that premeditation and felony murder were not separate
elements but instead were means of “satisfying a single mens rea element.” Id.
at 637.
      Secondly, the Supreme Court addressed whether Arizona’s definition of
the crime as one offense violated due process. The plurality opinion expressly
refused to formulate a “single test for the level of definitional and verdict
specificity permitted by the Constitution.” Id. at 637.     Instead, the plurality
opined that “our sense of appropriate specificity is a distillate of the concept of
due process with its demands for fundamental fairness, [citation omitted], and
for the rationality that is an essential component of that fairness.” Id. at 637.
The plurality explained that it would “look both to history and wide practice as

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guides to fundamental values, as well as to narrower analytical methods of
testing” to determine whether the alternative mental states may permissibly
“satisfy the mens rea element of a single offense.” Id. at 637. After analyzing
various state courts’ precedent, the opinion found considerable historical
evidence supporting Arizona’s use of alternative mental states as means to
satisfy the mens rea element of a single offense. The opinion further found that
it could reasonably be concluded that the two mental states were moral
equivalents.   Id. at 644.   Ultimately, the opinion concluded that the jury
instructions did not violate due process. Id. at 645.
      Subsequently, this Court, in Reed v. Quarterman, applied the analysis in
Schad to a case that is essentially on point with the case at bar. 504 F.3d 465,
479 (5th Cir. 2007). In Reed, the petitioner sought a COA based on his claim
that “allowing the jury to convict him under two alternative theories without
requiring unanimity as to one” violated due process. 504 F.3d at 479–82. In
that case, the jury had been instructed that it could convict Reed of capital
murder if it found that he committed murder in the course of robbery or
attempted robbery or in the course of attempted aggravated rape. Id. Reed
argued that Schad did not apply because his jury charge actually described two
separate offenses as opposed to two different means of committing the single
offense of murder. Id. at 480. Applying Schad, this Court recognized that
“numerous states have traditionally defined and continue to define first-degree
or aggravated murder as including both a killing in the course of robbery and a
killing in the course of rape or attempted rape.” Id. at 482. Indeed, the Arizona
statute at issue in Schad did so. Id. We further concluded that courts “could
reasonably find a moral equivalence between murder in the course of robbery
and murder in the course of attempted rape.” Id.        Thus, we denied a COA,
holding that reasonable jurists would not debate that the state court “reasonably
applied Schad when it rejected Reed’s challenge to his jury instructions.” Id. In

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view of this Court’s precedent applying the plurality’s reasoning, Maxwell is
precluded from demonstrating that whether Schad applies is debatable among
jurists of reason.
      Maxwell acknowledges the holding in Schad but asserts that Justice
Scalia’s concurrence, which was narrowly based on historical grounds, effectively
limited Schad either to its facts or to cases in which the jury is charged with the
alternative mental states of premeditation and felony murder. This assertion
is precluded by our above-discussed holding in Reed.      Maxwell also contends
that this Court should not rely on Reed or any other circuit case because the
Supreme Court’s precedent controls federal habeas claims. Maxwell is correct
that “[u]nder AEDPA, the state courts are bound, not by our jurisprudence or the
jurisprudence of our sister circuits, but by ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’” Summers v. Dretke,
431 F.3d 861, 875 (5th Cir. 2005) (quoting 28 U.S.C. § 2254(d)(1)). Nonetheless,
one panel of this Court is bound by a previous panel’s interpretation of Supreme
Court precedent. See United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999)
(explaining that one panel may not overrule the decision of a previous panel
absent an intervening Supreme Court opinion explicitly or implicitly overruling
our prior panel precedent). Maxwell likewise faults the district court for citing
Fifth Circuit precedent; however, the district court, like the instant panel, is
bound by our Court’s caselaw interpreting Supreme Court precedent.
      Maxwell also asserts that the state court’s ruling is not entitled to
deference under AEDPA because it was not an adjudication on the merits.
Maxwell does not, however, explain his basis for arguing that the state court’s
adjudication was not on the merits. In any event, an “‘adjudication on the
merits’ occurs when the state court resolves the case on substantive grounds,
rather than procedural grounds.” Valdez v. Cockrell, 274 F.3d 941, 946–47 (5th
Cir. 2001). During the instant state habeas proceedings, the state trial court,

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after a hearing, recommended denying relief on the merits, citing inter alia,
Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). The Court of Criminal
Appeals denied relief based on its review of the record and the findings of the
trial court. Ex parte Maxwell, No. 65268, 2006 WL 2848044 (Oct. 4, 2006). The
denial was on substantive grounds, which constitutes an adjudication on the
merits. Thus, the state court’s decision is entitled to deference under AEDPA.
      As set forth above, the state court denied relief on this claim relying upon
its holding in Kitchens, 823 S.W.2d 256. Maxwell contends that the Court of
Criminal Appeals’s holding in Kitchens—that the predicate offenses that elevate
murder to capital murder under Tex. Penal Code Ann. § 19.03 are not elements
of capital murder but instead are alternate methods or means to commit capital
murder—is wrongly decided. We need not tarry long here. “If a State’s courts
have determined that certain statutory alternatives are mere means of
committing a single offense, rather than independent elements of the crime, we
simply are not at liberty to ignore that determination and conclude that the
alternatives are, in fact, independent elements under state law.” Schad, 501
U.S. at 636; see also Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995)
(explaining that in a federal habeas proceeding, this Court will not review a
state court’s interpretation of the state’s own statute).
      Maxwell also argues that the Court of Criminal Appeals’s decision in
Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim. App. 2004), overruled Kitchens.
In Rodriguez, the question was whether Texas had territorial jurisdiction over
the capital murder offense even though only the kidnapping but not the actual
murder occurred in Texas.      The Court of Criminal Appeals explained that
“capital murder is a result of conduct offense which also includes nature of
circumstances and/or nature of conduct elements depending upon the underlying
conduct which elevates the intentional murder to capital murder.” Rodriguez,
146 S.W.3d at 677. The Court further explained that the offense of “kidnapping

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was the required aggravating ‘nature of conduct’ element that elevated the
offense from murder to capital murder.”          Id.   Accordingly, because the
kidnapping occurred in Texas, Texas had territorial jurisdiction over the capital
murder offense. Id. In an unpublished opinion, we have previously rejected the
contention that Rodriguez overruled Kitchens, noting (1) that the Court of
Criminal Appeals “did not state that it was in any way modifying or overruling
Kitchens” and (2) that the Court of Criminal Appeals was merely recognizing
that the state must prove a defendant engaged in other specified criminal
conduct to elevate the killing to a capital murder offense.        See Manns v.
Quarterman, 236 F. App’x 908, 915 n.6 (5th Cir. June 4, 2007). Moreover,
Maxwell has not cited a case addressing the issue at bar in which the Court of
Criminal Appeals has applied Rodriguez’s language to the instant jury
instruction challenge. Indeed, subsequent to Rodriguez, the Court of Criminal
Appeals continues to rely on Kitchens for the proposition that the predicate
offenses under § 19.03 are alternate methods or means to commit capital
murder. See, e.g., Luna v. State, 268 S.W.3d 594, 601 & n.16 (Tex. Crim. App.
2008) (citing Kitchens, 823 S.W.2d at 258). Thus, we reject Maxwell’s contention
that Kitchens has been overruled.
      In addition to contending that Texas state precedent has been overruled,
Maxwell argues that the Supreme Court’s plurality in Schad has been overruled
sub silentio by Richardson v. United States, 526 U.S. 808 (1999). In Richardson,
the Supreme Court held that a district court must instruct a jury to reach a
unanimous verdict as to each of the specified violations that comprise the alleged
“continuing series of violations” for the purposes of the continuing criminal
enterprise statute. 526 U.S. at 824. In Richardson, the Supreme Court cited
Schad several times and relied upon the teachings of the plurality opinion in its
analysis. Richardson, 526 U.S. at 817, 819, 820, 822 (citing Schad, 526 U.S. at
631–33, 645). Although the Supreme Court ultimately held that jury unanimity

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was required with respect to the violations pursuant to the continuing criminal
enterprise statute, Richardson is distinguishable from Schad. As previously set
forth, in Schad the plurality found considerable historical evidence supporting
Arizona’s use of alternative mental states as means to satisfy the mens rea
element of a single offense. In stark contrast, in Richardson, the government
“virtually concede[d] the absence of any such tradition when it [admitted] that
the statute departed significantly from common-law models and prior drug laws,
creating a new crime keyed to the concept of a ‘continuing criminal enterprise.”
526 U.S. at 821 (citation and internal quotations marks omitted). Thus, in light
of the very different history surrounding the two statutes at issue in Schad and
Richardson, we are not persuaded that reasonable jurists would find it debatable
that Richardson overruled Schad.
      Nonetheless, Maxwell cites the following language from a Texas Court of
Criminal Appeals opinion: “[T]he plurality opinion in Schad has been undercut
by the reasoning and result in the Supreme Court’s later decision in
Richardson.” Ngo v. State, 175 S.W.3d 738, 746 (Tex. Crim. App. 2005). We first
note that we are not bound by a state court’s holding with respect to the analysis
of a federal due process claim. Thompson v. Cockrell, 263 F.3d 423, 429 (5th Cir.
2001). In any event, Maxwell is not entitled to relief because neither Schad nor
our subsequent precedent interpreting it has been overruled implicitly or
explicitly. Accordingly, we are bound by Schad and Reed, which compel our
holding that reasonable jurists would not debate that the state court reasonably
applied Schad and rejected this claim.
      Finally, Maxwell contends that the following relatively recent precedent
of the Supreme Court reflects a shift toward (1) limiting the states’ legislative
discretion and (2) allowing greater federal court oversight with respect to
statutory definitions. Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New
Jersey, 530 U.S. 466 (2000); Richardson, 526 U.S. 808; Jones v. United States,

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526 U.S. 227 (1999). Once again, because this Court in 2007—subsequent to the
above-cited Supreme Court cases—applied Schad to an almost identical case, we
are bound to deny a COA. Reed, 504 F.3d at 479–82; accord Manns, 236 F. App’x
at 913–16 (denying relief on the claim at issue after previously discussing Ring
in the context of a challenge to the jury instructions submitted at the
punishment phase). We therefore are constrained to DENY a COA with respect
to Maxwell’s challenge to the jury instructions at the guilt-innocence phase of
trial.
                    2.    Punishment Phase of Trial
         Maxwell also challenges the instructions submitted to the jury at the
punishment phase of trial. The first special issue submitted to the jury provided
as follows: “Is there a probability that the defendant, Joshua Maxwell, would
commit criminal acts of violence that would constitute a continuing threat to
society?” Maxwell contends that the state trial court’s failure to define the terms
“probability,” “criminal acts of violence,” and “continuing threat to society”
rendered the instructions unconstitutionally vague, thereby depriving him of a
fair trial. This Court has held that there is no “clearly established federal law
under which the terms of the Texas sentencing instructions could be
unconstitutionally vague,” and therefore denied a COA with respect to an
identical claim to the above-quoted terms. Turner v. Quarterman, 481 F.3d 292,
299–300 (5th Cir.), cert. denied, 551 U.S. 1193 (2007); accord Leal v. Dretke, 428
F.3d 543, 553 (2005); Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir. 1999).
Maxwell also argues that the special issues failed to channel the jury’s
discretion. Because “Texas performs the constitutionally required narrowing
function before the punishment phase, [Maxwell’s] attack on the words used
during punishment is unavailing.” Paredes v. Quarterman, 574 F.3d 281, 294
(5th Cir. 2009) (footnotes omitted). Our precedent precludes Maxwell from



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making a substantial showing of the denial of a federal constitutional right. We
deny a COA on this claim.
      The second special issue submitted to the jury provided that: “Taking into
consideration all the evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal moral culpability of the
defendant, is there a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather than a death sentence be
imposed?” Maxwell argues that the second special issue is constitutionally
defective because it did not require the State to prove the aggravating elements
beyond a reasonable doubt. In Rowell v. Dretke, we rejected this precise claim.
Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005) (opining that “[n]o Supreme
Court or Circuit precedent constitutionally requires that Texas’s mitigation
special issue be assigned a burden of proof”). We are bound by our precedent
and therefore must conclude that Maxwell has not made a substantial showing
with respect to the denial of his right to a jury finding of beyond a reasonable
doubt. Scheanette v. Quarterman, 482 F.3d 815, 828-29 (5th Cir. 2007) (ruling
that reasonable jurists would not debate the district court’s rejection of
petitioner’s claim that the jury was required to find the mitigating issue beyond
a reasonable doubt). We DENY a COA with respect to this claim.
            B.    Ineffective Assistance of Counsel
      Maxwell further argues that counsel’s failure to object to the instructions
at both phases of trial based on the above arguments constitutes ineffective
assistance of counsel. To establish ineffective assistance of counsel, Maxwell
must show (1) defense counsel’s performance was deficient and (2) this deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). While “[j]udicial scrutiny of counsel’s performance must be highly
deferential,” Maxwell can demonstrate deficient performance if he shows “that
counsel’s representation fell below an objective standard of reasonableness.” Id.

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at 688–89. However, “[t]here is a ‘strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’” United States
v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting Strickland, 466 U.S. at
689). Strickland’s “prejudice” prong requires a reasonable probability that, but
for the deficient performance of his trial counsel, the outcome of his capital
murder trial would have been different. 466 U.S. at 694.
       With respect to the first prong, Maxwell has not shown that counsel’s
performance was deficient. As discussed above, the jury instructions at both
phases of trial were not constitutionally infirm and therefore any objection would
have been without merit. The failure to make meritless objections does not
constitute deficient performance. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.
1994). Thus, we need not reach the prejudice prong of Strickland. Maxwell has
not shown that reasonable jurists would find debatable this claim of ineffective
assistance.2
               C.    CONCLUSION
       We DENY a COA with respect to Maxwell’s challenges to the jury
instructions and his claims of ineffective assistance of counsel.




       2
          Maxwell also raises other grounds of error in his motion for a COA before this Court.
However, as the Respondent argues, Maxwell did not properly raise these issues in the district
court and thus, the district court did not address them. “Compliance with the COA
requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on a COA in the
district court causes this court to be without jurisdiction to consider the appeal.” Sonnier v.
Johnson, 161 F.3d 941, 946 (5th Cir. 1998).

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