Sprouse v. Stephens

¶4JERRY E. SMITH, Circuit Judge:

¶5A jury found Kent Sprouse guilty of the capital murder of a police officer, and he *612was sentenced to death. Among many other issues raised on direct appeal and on state habeas corpus review, Sprouse challenged the jury instructions given during the punishment phase of his trial. He claimed that the instructions, in violation of the Eighth Amendment, effectively precluded the jury from considering voluntary intoxication as mitigating evidence. The Texas Court of Criminal Appeals (“TCCA”) rejected that argument. On federal habeas review, Sprouse contends that the state court unreasonably applied Penry v. Lynaugh (“Penry I”), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Penry v. Johnson (“Penry II”), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). We disagree and affirm the denial of the habeas petition. We also decline to grant a certificate of appealability (“COA”) on any of the additional issues Sprouse raises.

¶6I.

¶7In 2002, Sprouse entered a convenience store with a shotgun hung over his shoulder and, after returning to his vehicle, fired his weapon in the direction of two men. Then another customer saw Sprouse working on his vehicle and Pedro Moreno, yet another customer, filling his truck with gas. The customer noticed Sprouse attempting to speak to Moreno, who did not respond. Sprouse then reached into his vehicle, pulled out a gun, and shot and killed Moreno.

¶8Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle, responded to the shooting. When he arrived, before turning toward Sprouse’s car, he noticed Moreno on the ground. As he turned, Sprouse shot him twice. Steinfeldt returned fire but died from his injuries. A second officer arrived and took Sprouse into custody. Sprouse was transported to a nearby hospital, where a doctor thought he was under the influence of drugs. Testing revealed he had consumed amphetamines, methamphetamines, and cannabis within the past forty-eight hours.

¶9Sprouse was indicted for capital murder of a police officer. His lawyer filed notice of intent to present an insanity defense. The issue of intoxication — both as an affirmative defense and as mitigating evidence — was raised with several potential jurors during voir dire. Specifically, the prosecutor questioned two jurors who were chosen — Ruby Martinez1 and Kathy Wilson2 — on that issue. Sprouse, however, did not object to that questioning. De*613fense counsel discussed the issue of intoxication with Martinez but not Wilson.

¶10At the close of the guilt phase, the jury was instructed on insanity3 but rejected that defense and convicted Sprouse of capital murder. At the punishment phase, Sprouse put forward no new evidence, instead relying on all the testimony and evidence that had been presented during the guilt phase.

¶11At the close of the punishment phase, the jury was given three general instruc-

¶12tions regarding mitigating evidence. First, it was instructed on what constitutes “mitigating evidence,”4 Second — the focus of this appeal — the jury was instructed on the issue of intoxication: <cYou are instructed that under our law neither intoxication5 nor temporary insanity of mind caused by intoxication constitute [sic] a defense to the commission of a crime. Evidence of temporary insanity caused by intoxication may be considered in mitigation of the penalty, if any, attached to the *614offense.”6 Third, the jury was instructed on the issue of temporary insanity.7

¶13Additionally, the court told the jury to answer the mitigation special issue: “Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, do you find that there is sufficient mitigating ... circumstances to warrant that a sentence of life imprisonment rather than death be imposed?” Finally, the jury was given a catch-all instruction on mitigation: “You are to consider all evidence submitted to you during the whole trial as to defendant’s background or character or the circumstances of the offense that mitigates against the imposition of the death penalty.”

¶14At the close of the punishment phase, during his initial closing argument8 and again on rebuttal,9 the prosecutor discussed the possibility of Sprouse’s intoxication as mitigating. Defense counsel also discussed that issue during closing.10 The jury determined (1) there was a probability that Sprouse would commit criminal acts of violence that would constitute a continuing threat to society; and (2) there was not sufficient mitigating circumstances to warrant a life sentence. In accordance with the verdict, the court sentenced Sprouse to death.

¶15The TCCA affirmed on direct appeal. See Sprouse v. State, No. AP-4933, 2007 WL 283152, at *9 (Tex.Crim.App. Jan. 31, 2007). In deciding numerous issues raised on state habeas, the state trial court rejected the argument Sprouse presses on appeal,11 and the TCCA denied Sprouse’s *615application for writ of habeas corpus. See Ex parte Sprouse, No. WR-66,950-01, 2010 WL 374959, at *1 (Tex.Crim.App. Feb. 3, 2010).

¶16Pursuant to 28 U.S.C. § 2254, Sprouse filed the instant petition, which the district court denied but granted a COA on the following issue: “Whether the jury instruction on intoxication during the punishment phase violated the Eighth Amendment, and whether counsel’s failure to. object or preserve it constituted ineffective assistance of trial counsel and/or appellate counsel.”12

¶17In determining that reasonable jurists would find that issue debatable, the district court first recognized that Fifth Circuit caselaw foreclosed Sprouse’s contention.13 As the court noted, “[Narvaiz v. Johnson, 134 F.3d 688 (5th Cir.1998),] reasoned that the general instruction to consider ‘all of the evidence’ admitted at trial negates any inference that the intoxication instruction precludes consideration of non-insane, voluntary intoxication.” Sprouse, 2013 WL 1285468, at *23. The district court, however, also observed that (1) Narvaiz, Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), and Lauti v. Johnson, 102 F.3d 166 (5th Cir.1996) all predate Penny 11. and (2) “[Penry II] appears to reject the type of reasoning relied upon in Nar-vaiz that a jury can logically and ethically follow two conflicting sets of instructions.” Id.

¶18The district court denied a COA on all other issues raised in the motion. Sprouse appeals the Eighth Amendment issue and seeks COAs on five others.

¶19II.

¶20“In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de *616novo, applying the same standards to the state court’s decision as did the district court.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), if the state court adjudicated Sprouse’s claim on the merits, federal ha-beas relief can be granted on that claim only if the adjudication of it

(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.

¶2128 U.S.C. § 2254(d) (2012). We consider a state court decision to be “contrary to” clearly established Federal law14 in two situations: “[ (1) ] the state court arrives at a conclusion opposite to that reached by this Court on a question of law ... [or (2) ] the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that Supreme Court decision].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Likewise, we consider a state court decision to be “an unreasonable application” of Supreme Court precedent in three situations:

[(1)] the state court ... unreasonably applies [the correct governing legal rule] to the facts of the particular [ ] case ... [(2)] the state court [ ] unreasonably extends a legal principle from our precedent to a new context where it should not apply or [(3) the state court] unreasonably refuses to extend that principle to a new context where it should apply.

¶22Id. at 407, 120 S.Ct. 1495.

¶23Even if a state court errs in applying Supreme Court precedent, the court may still not have acted unreasonably for AEDPA purposes. See Harrington v. Richter, - U.S.-, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id.“[Evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by th[e] [Supreme] Court.” Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

¶24Attempting to bypass this deferential standard, Sprouse challenges the constitutionality of § 2254(d).15 As Sprouse con*617cedes, we, like our sister courts,16 have rejected that challenge.17 We therefore apply AEDPA’s highly deferential standard to Sprouse’s appeal.

¶25III.

¶26Sprouse maintains that the voluntary-intoxication instruction required by Texas Penal Code § 8.04 unconstitutionally limited the jury’s ability to consider mitigating evidence. Because the instruction could have just stated “Intoxication may be considered in mitigation” as opposed to “Evidence of temporary insanity caused by intoxication may be considered in mitigation,” Sprouse contends that “[t]he jury must necessarily have been led to believe that they could not consider intoxication alone for mitigation.” He avers that the negative implication of this instruction trumps or else contradicts the catch-all mitigation instruction and the mitigation special issue. In this vein, Sprouse urges that the state court unreasonably applied Penry I, Boyde, and Penry II.

¶27A.

¶28Before specifically addressing Sprouse’s position, we turn to the three Supreme Court cases on which he principally relies.

¶29In Penry I, the Supreme Court granted the habeas petition, holding that the Texas death-penalty statute had been applied unconstitutionally in that case. Because the Court was reviewing the habeas petition, it began by assessing the clear Supreme Court precedent available to the state court when Penry’s conviction became final:

[I]t was clear from [Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] and [Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ] that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty.

¶30Penry I, 492 U.S. at 318, 109 S.Ct. 2934.

¶31That is, the Eighth Amendment requires that a capital sentencing jury not be precluded from considering, as a mitigating factor, the character and record of the individual defendant and the circumstances of the particular offense. The Court in Penry I noted that the jury was not given any specific mitigation instruction,18 so it *618could not adequately give effect to any mitigating circumstances it may have found.19

¶32At Penry’s second sentencing trial, the state court, attempting to abide by Penry I, gave a supplemental instruction on mitigation. Penry II, 532 U.S. at 789-90, 121 S.Ct. 1910. If the jury believed that the mitigating evidence warranted a life sentence instead of death, it was directed to make a negative finding to one of the special issues even if it had already answered yes to that question. The mitigation instruction did not include a separate question for the jury.

¶33The Supreme Court first emphasized its holding in Penry I:

Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.”

¶34Id. at 797,121 S.Ct. 1910 (quoting Penry I, 492 U.S. at 319, 109 S.Ct. 2934). Having established that framework, the Court considered two possible ways of interpreting the “confusing instruction” and concluded that neither understanding satisfied its command in Penry I: (1) If the instruction was “understood as telling the jurors to take Penry’s mitigating evidence into account in determining their truthful answers to each special issue ... the supplemental instruction placed the jury in no better position than was the jury in Penry 7.” Id. at 798, 121 S.Ct. 1910.(2) Alternatively, the instruction could be understood “as informing the jury that it could ‘simply answer one of the special issues ‘no’ if it believed that mitigating circumstances made a life sentence ... appropriate ... regardless of its initial answers to the questions.’” Id.(citations omitted). This approach, however, “made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation.” Id. at 799, 121 S.Ct. 1910. Therefore, under either approach, “[a]l-though the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical.” Id. at 804, 121 S.Ct. 1910.

¶35Finally, Boyde sets the standard for reviewing a claim of jury-charge error: A federal habeas court must ask “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. Two observations underpin that standard: (1) “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that *619lawyers might”; and (2) “Differences among [jurors] in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Id. at 380-81, 110 S.Ct. 1190. Moreover, “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Id. at 378, 110 S.Ct. 1190 (quoting Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 70 L.Ed. 857 (1926)).

¶36B.

¶37[9] To obtain relief, Sprouse must establish that the state court unreasonably applied Penry I, Boyde, and Penry II. First, the state court had good reason to distinguish Sprouse’s case from Penry I and Penry II. Unlike the situation in Pen-ry I, the state court here instructed the jury with a specific mitigating special issue. And unlike the circumstance in Pen-ry II, Sprouse’s jury was given a separate special issue, which, as a discrete yes-or-no question, plainly specified the mechanism by which the jury could give effect to any mitigating circumstances it wished to consider. Put otherwise, the fact that Sprouse perceives a negative inference in one sentence of his jury charge does not demonstrate that his jury was confused about, and precluded from following, the comprehensive and catch-all affirmative command to the jury to consider mitigation circumstances.20 In light of these differences, the state court did not act unreasonably in refusing to extend Penry I and Penry II to this case. Insofar as Sprouse points to dicta from those decisions that may suggest reversal, AEDPA directs us to consider only holdings. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

¶38Second, Sprouse has not demonstrated that the state court’s reliance on precedent was itself unreasonable. Although it is true that Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997), and Drinkard preceded Penry II, that fact alone does make the state court’s reliance unreasonable. For this reliance to be unreasonable, Sprouse would need to demonstrate that Boyde, Penry I, or Penry II squarely establishes a specific legal rule that Cantu and Drinkard violate.

¶39In Cantu, the TCCA assessed the very conflict at issue here: “[The defendant] eontends[] evidence of intoxication which did not rise to this level was precluded from being afforded mitigating effect in violation of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).” Cantu, 939 S.W.2d at 647. In light of the fact that an unambiguous, separate mitigation catch-all instruction was given, the court rejected the petitioner’s arguments: “We hold that the inclusion of the latter instruction satisfied the constitutional deficiency appellant avers was created by the inclusion of the intoxication instruction. Thus, no egregious harm, if any harm at all, can be established.” Id. at 647-48.

¶40And in Drinkard, 97 F.3d at 759, we assessed a similar instruction.21 The court *620had given a special instruction addressing temporary insanity caused by intoxication during the punishment phase. Id.We determined that the instruction was not Boyde error: “[W]e cannot say that there is a reasonable likelihood that the jury interpreted the instructions as precluding the consideration of Drinkard’s intoxication if it did not rise to the level of temporary insanity.” Id.

¶41In both Cantu and Drinkard, the trial court instructed the jury with a clear, separate mitigation instruction. In neither case was the jury required to take “mitigating evidence into account in determining their truthful answers to each special issue” or “simply [to] answer one of the special issues ‘no’ if it believed that mitigating circumstances made a life sentence appropriate.” Cantu and Drinkard therefore did not involve juries that were precluded from considering mitigating evidence in the manner at issue in Penry I or Penry II. Because those decisions do not necessarily violate any rule squarely established by Boyde, Penry I, or Penry II, for purposes of AEDPA, the state court’s reliance on them was not unreasonable.

¶42Third, other Fifth Circuit cases (not cited by the state court) further demonstrate that the state court’s decision was not unreasonable. In Narvaiz, 134 F.3d at 692, for example, we addressed an instruction identical to the one here. And there, following Drinkard, we rejected the same Eighth Amendment argument Sprouse presses. See id. at 694.

¶43Finally, Sprouse maintains that his case can be distinguished from Drinkard and Narvaiz on three grounds: (1) the additional first sentence given in his case that was not given Drinkard; (2) the prosecutor’s statements made during voir dire to two chosen jurors (which were not made in Drinkard or Narvaiz); and (3) the prosecutor’s “confusing” closing remarks made in this case (again not made in Drinkard or Narvaiz). This line of reasoning fails. First, as Sprouse readily concedes, Narvaiz included the additional first sentence. Second, as to the voir dire and closing remarks, even if Sprouse can show that those considerations constitute proper bases to distinguish Drinkard and Narvaiz, he has not demonstrated that the state court unreasonably applied Supreme Court precedent in failing to distinguish his case on these bases. We therefore conclude that the state court’s decision was not an unreasonable application of Boyde, Penry I, or Penry II

¶44IV.

¶45Sprouse asks this court to grant COAs on five additional issues: whether trial counsel provided ineffective assistance by failing to challenge (1) the Texas death-penalty statute on the ground that it does not provide for meaningful appellate review; (2) the statutory definition of “mitigating evidence” as unconstitutionally narrow; (3) the statute on the ground that the aggravating factors are vague and do not properly channel the jury’s discretion; (4) the statute on the ground that it prohibits informing the jury of the consequences of a “hold out” juror; and (5) the statute on the ground that it does not allocate to the state the burden of proving a lack of mitigating evidence. Because clear Fifth Circuit caselaw forecloses each of these challenges, we do not grant a COA on any of them.

¶46*621A.

¶47AEDPA requires a state habe-as petitioner to secure a COA before appealing a federal district court’s denial of habeas relief.22 The petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). For that, he must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citations and internal quotation marks omitted). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id.“Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “In assessing whether [a petitioner] is entitled to a COA, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d).” Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.2000).

¶48B.

¶49As discussed above, Sprouse seeks a COA with regard to five related claims. In the main, he contends that trial counsel were ineffective because they did not bring various constitutional challenges to Texas’s death-penalty scheme. We take each in turn.

¶501.

¶51Sprouse seeks a COA on whether trial counsel provided ineffective assistance of counsel (“LAC”) by failing to challenge the statute on the ground that it does not provide for meaningful appellate review on the following three issues: (1) the jury’s determination on mitigation; (2) the jury’s determination on future dangerousness; and (3) comparative proportionality. In dismissing that argument, the TCCA noted, “[A]ppellant asserts that the death penalty scheme is unconstitutional because it fails to provide to provide a meaningful appellate review of mitigating evidence or a re-weighing of aggravating and mitigating circumstances.... The[se] arguments ... have been previously raised and rejected by this Court.”23

¶52Applying AEDPA’s framework of “contrary to” or “unreasonable application” of Supreme Court law, Sprouse would need to show that the state court either applied the wrong test in deciding this issue or unreasonably applied the correct test to the facts. Sprouse has not pointed to any conflicting Supreme Court precedent, instead conceding that we have rejected similar challenges. See Martinez v. Johnson, 255 F.3d 229, 244-45 (5th Cir. 2001) (“We find that the [TCCA] was not objectively unreasonably in its application of the Jackson standard.”); Moore, 225 F.3d at 506-07 (“It is just this narrowly *622cabined but unbridled discretion to consider any mitigating factors submitted by the defendants and weighed as the jury sees fit that Texas has bestowed upon the jury. In so doing, Texas followed Supreme Court instructions to the letter. No court could find that Texas had acted contrary to federal law as explained by the Supreme Court, and no benefit will arise from further consideration of the obvious.”). Therefore, Sprouse has not demonstrated that reasonable jurists would find the district court’s determination to be debatable.

¶532.

¶54Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the statutory definition of “mitigating evidence” as unconstitutionally narrow. In dismissing that claim, the TCCA noted, “[Ajppellant asserts that Article 37.071’s definition of mitigating evidence24 is facially unconstitutional because it limits the Eighth Amendment concept of ‘mitigation’ to factors that render a capital defendant less morally blameworthy for the commission of a capital murder. We have previously rejected this argument.” Sprouse, 2007 WL 283152, at *8 & n. 13 (citing Blue v. State, 125 S.W.3d 491, 504-OS (Tex.Crim.App.2003)).

¶55Sprouse points to Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), Skipper v. South Carolina, 476 U.S. 1,106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), contending that the Court has an expansive view of mitigating evidence. As Sprouse concedes, however, we have rejected that challenge. See Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.2001) (“[0]ur reading of the statute leads us to conclude that the amended statute does not unconstitutionally preclude[ ] [the jury] from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (citation and internal quotation marks omitted)). Reasonable jurists could not therefore conclude that the state court’s opinion was contrary to or an unreasonable application of Supreme Court precedent.

¶563.

¶57Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the Texas death-penalty statute on the ground that the aggravating factors are vague and do not properly channel the jury’s discretion. In dismissing that argument, the TCCA noted,

Appellant argues ... Article 37.071 is unconstitutional because the aggravating factors used in the statute are vague and do not properly channel the sentencer’s discretion. Specifically, appellant asserts that the terms “probability,” “criminal acts of violence,” and “continuing threat to society” should be defined. This Court has previously decided this claim adversely to appellant.

¶58Sprouse, 2007 WL 283152, at *8 & n. 14 (citing Blue, 125 S.W.3d at 505).

¶59Texas does not run afoul of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), or Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), by not expressly defining these terms. See Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir.2007) (“Because Turner is unable to point to any *623clearly established federal law under which the terms of the Texas sentencing instructions could be unconstitutionally vague, he is unable to make a substantial showing of the denial of a federal constitutional right, and we deny a COA.”); Hughes v. Johnson, 191 F.3d 607, 615-16 (5th Cir.1999) (“We similarly have rejected contentions that ‘probability’ and other terms included in the statutory special issues are unconstitutionally vague.... Hughes has not made a substantial showing of the denial of a constitutional right as to this claim.”); James v. Collins, 987 F.2d 1116, 1120 (5th Cir.1993) (“Despite the fact that Texas is a ‘non-weighing’ state, the terms used in the special issues are not so vague as to require clarifying instructions.”)We therefore deny a COA on this issue.

¶604.

¶61Sprouse seeks a COA on whether trial counsel provided IAC by failing to challenge the statute on the ground that it prohibits informing the jury of the consequences of a “hold out” juror. In dismissing that claim, the TCCA noted, “[Appellant asserts that the capital-sentencing statute is unconstitutional because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously decided this issue adversely to appellant.” Sprouse, 2007 WL 283152, at *9 & n. 16 (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex.Crim.App. 2005)). Clear Supreme Court and Fifth Circuit precedent forecloses granting a COA on this issue. See Druery v. Thaler, 647 F.3d 535, 542 (5th Cir.2011) (“To the extent Petitioner’s challenge to Texas’s 12-10 rule rests on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and the Eighth Amendment, ... it is foreclosed by Fifth Circuit precedent.”); see also Jones v. United States, 527 U.S. 373, 379, 382, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

¶625.

¶63Sprouse requests a COA on whether trial counsel provided IAC by failing to challenge the statute on the ground that it does not allocate to the state the burden of proving a lack of mitigating evidence. The TCCA rejected that contention by noting,

[Appellant claims that the mitigation question submitted to the jury pursuant to Article 37.071, section 2(e), is unconstitutional because the statute does not require the State to prove beyond a reasonable doubt that there was insufficient mitigating evidence to support a life sentence. We have previously rejected this claim and appellant has given us no reason to revisit the issue here.

¶64Sprouse, 2007 WL 283152, at *9 & n. 20 (citing Perry v. State, 158 S.W.3d 438, 446-47 (Tex.Crim.App.2004)). Although Sprouse maintains that the stated-court opinion runs counter to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), we have expressly rejected that argument. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007) (“We have specifically held that the Texas death penalty scheme did not violate either Appren-di or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances. In [Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir.2006) ], we stated that ‘the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum penalty of death,’ and we concluded that ‘a finding of mitigating circumstances reduces a sentence from death, rather than *624increasing it to death.’ ”). We decline to grant a COA on this issue.

¶65The judgment denying Sprouse’s habeas petition is AFFIRMED. Sprouse’s request for COAs on additional issues is DENIED.