Nixon v. Epps , 111 F. App'x 237 ( 2004 )


Menu:
  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                       September 27, 2004
    Charles R. Fulbruge III
    _______________________                        Clerk
    NO. 02-60385
    _______________________
    JOHN B. NIXON, SR.,
    Petitioner-Appellant,
    versus
    CHRISTOPHER B. EPPS, COMMISSIONER,
    MISSISSIPPI DEPARTMENT OF CORRECTIONS,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    3:95-CV-91(Br)(S)
    Before JONES, SMITH and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    This habeas appeal arises out of the January 1985 murder
    of Virginia Tucker.       John B. Nixon, Sr. was convicted of capital
    murder by a Rankin County, Mississippi jury after a three-day
    trial.    In the penalty phase of the trial the jury returned a death
    penalty verdict and found that the capital offense was committed
    for   pecuniary   gain,    that   the   murder   was    especially    heinous,
    *
    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    opinion should not be published and is not precedent except under the limited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.
    atrocious and cruel, and that the defendant had previously been
    convicted of a felony involving the use or threat of violence to a
    person.     The conviction was affirmed on direct appeal by the
    Mississippi Supreme Court.       Nixon v. State, 
    533 So. 2d 1078
     (Miss.
    1987). Certiorari was denied by the United States Supreme Court in
    1989.     Nixon v. Mississippi, 
    492 U.S. 932
    , 
    110 S. Ct. 13
    , 
    106 L. Ed. 2d 628
     (1989).     Nixon exhausted his state post-conviction
    remedies.    Nixon v. State, 
    641 So. 2d 751
     (Miss. 1994), cert.
    denied, Nixon v. Mississippi, 
    513 U.S. 1120
    , 
    115 S. Ct. 922
    , 
    130 L. Ed. 2d 802
     (1995).     Nixon then filed a federal petition for a
    writ of habeas corpus.     The district court, in a series of three
    decisions between 1998 and 2002, denied habeas relief.        The case
    comes to this court on appeal from the district court’s grant of a
    certificate of appealability (COA) on Nixon’s claim of ineffective
    assistance of counsel and on Nixon’s motion to this court for a COA
    on ten other grounds.
    For the reasons that follow, we deny COA on most of the
    issues sought by petitioner, but grant COA and deny relief on his
    Batson/Powers claim.      We grant COA on his claim regarding the
    introduction of a prior violent felony conviction before the jury
    as an aggravator.    We defer ruling on the ineffective assistance
    claim pending briefing.
    I.    BACKGROUND
    2
    On January 22, 1985, Nixon and two other individuals
    arrived at the home of Thomas and Virginia Tucker.         Upon entering
    the house, Nixon pulled out a .22 caliber pistol and said, “I
    brought y’all something.” Mr. Tucker, who had married his wife six
    months earlier (a scant three months after her prior divorce was
    finalized),   immediately   surmised   that   men   had   been   hired   by
    Mrs. Tucker’s former husband, Elster Joseph Ponthieux.             Tucker
    offered Nixon money to spare their lives, but Ponthieux replied
    “[t]hat’s not what I’m after.         The deal’s already been made.”
    Nixon and one of his associates then shot at Tucker, who managed to
    escape despite being hit in the side.      Tucker made his way to his
    nearby place of work and asked a co-worker to check on his wife.
    Meanwhile, Nixon took the gun back from his associate, held the gun
    one inch behind Mrs. Tucker’s ear and fired a shot into her head.
    Nixon and his associates fled.    Mrs. Tucker was soon discovered by
    Tucker’s co-worker and was taken to the hospital, where she died
    the next day.    Nixon was arrested after being identified in a
    lineup by Mr. Tucker.
    At trial, as noted above, Nixon was convicted of capital
    murder and sentenced to death.    Following completion of his direct
    appeal and state post-conviction proceedings, Nixon filed a federal
    habeas petition that was denied by the district court.               This
    application for a COA followed.
    3
    II.   DISCUSSION
    Nixon has briefed ten separate grounds upon which he
    argues a COA should issue, and the state has responded.     We first
    set forth the applicable standards of review and then turn to the
    issues he has raised.
    A.   Standard of Review
    Nixon filed his original federal habeas petition in the
    district court on May 24, 1995.       Because the petition was filed
    before the effective date of the Anti-Terrorism and Effective Death
    Penalty Act of 1996 (“AEDPA”), pre-AEDPA standards apply to the
    district court’s review of the petition as well as to our review of
    the petition.   See Lindh v. Murphy, 
    521 U.S. 320
    , 326-27, 
    117 S. Ct. 2059
    , 2063, 
    138 L. Ed. 2d 481
     (1997); see also Slack v.
    McDaniel, 
    529 U.S. 473
    , 481, 
    120 S. Ct. 1595
    , 1602, 
    146 L. Ed. 2d 542
     (2000) (noting that “Lindh requires a court of appeals to apply
    pre-AEDPA law in reviewing the trial court’s ruling, for cases
    commenced there pre-AEDPA”).    However, because Nixon’s notice of
    appeal was filed in this court on January 14, 2003, the post-AEDPA
    version of 
    28 U.S.C. § 2253
     — the statute governing appeals of
    habeas petitions — sets forth the appropriate standard for this
    court to apply in determining whether Nixon has a right to appeal.
    Slack, 
    529 U.S. at 481
    , 
    120 S. Ct. at 1602
    .
    Part of Nixon’s appeal remains pending before this court
    following the district court’s grant of a COA on one issue.       In
    4
    this portion, however, we must decide whether to expand the COA
    grant after the district court refused it on the other issues.             In
    making the threshold inquiry into whether a COA should issue, the
    Supreme Court reminds us, AEDPA bars the courts of appeals from
    undertaking “full consideration of the factual or legal basis
    adduced in support of the claims.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 336, 
    123 S. Ct. 1029
    , 1039, 
    154 L. Ed. 2d 931
     (2003).          Rather,
    we must be careful to undertake only “an overview of the claims in
    the habeas petition and [make] a general assessment of their
    merits.”    Miller-El, 
    537 U.S. at 336
    , 
    123 S. Ct. at 1039
    .
    A COA should issue “only if the applicant has made a
    substantial showing of the denial of a constitutional right.”
    
    28 U.S.C. § 2253
    (c)(2) (2000 & Supp. 2003).              This standard is
    satisfied when the applicant demonstrates that “jurists of reason
    could   disagree   with   the   district   court’s     resolution   of    his
    constitutional claims or that jurists could conclude that the
    issues presented are adequate to deserve encouragement to proceed
    further.”    Miller-El, 
    537 U.S. at 327
    , 
    123 S. Ct. at 1034
    .         We may
    not, however, deny a COA merely because we believe “that the
    applicant will not demonstrate an entitlement to relief.”           
    Id. at 337
    , 
    123 S. Ct. at 1039
    .      Moreover, “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
    , 
    123 S. Ct. at 1040
    .
    Therefore, where the death penalty is at issue, “any doubt as to
    5
    whether a COA should issue must be resolved in [the petitioner’s]
    favor.”    Hernandez v. Johnson, 
    213 F.3d 243
    , 248 (5th Cir. 2000).
    In evaluating the district court’s resolution on the
    merits of issues presented to it, we review the district court’s
    findings of fact for clear error and its conclusions of law de
    novo.     Finley v. Johnson, 
    243 F.3d 215
    , 218 (5th Cir. 2001).   We
    review its determination of a procedural bar de novo.    Johnson v.
    Puckett, 
    176 F.3d 809
    , 814 (5th Cir. 1999).
    B.   Procedural Bars
    Nixon first argues that a COA should issue because the
    district court improperly found that the following claims were
    procedurally barred: (1) that the prosecution improperly dis-
    criminated on the basis of race in using its peremptory strikes
    during voir dire in violation of Batson v. Kentucky, 
    476 U.S. 79
    ,
    
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
     (1986), (2) that the evidence of
    Mr. Tucker’s identification of Nixon during the lineup and at trial
    was improper because it was derived from impermissibly suggestive
    and unreliable procedures, and (3) that the prosecution improperly
    withheld exculpatory evidence in violation of Brady v. Maryland,
    
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
     (1963).     The state
    argues that while the district court held these claims to be
    procedurally barred, it also addressed each claim on the merits in
    the alternative and as such, the COA should not issue because
    jurists of reason cannot dispute the district court’s resolution of
    6
    the merits issues.        Because each of these issues appears in a
    distinct procedural context, we will examine them along with any
    appropriate merits discussion.
    The general principles of procedural default may be
    quickly repeated.        A federal court may not grant habeas relief
    where the last state court to consider the claim raised by the
    petitioner expressly and unambiguously based its denial of relief
    on   an    independent   and   adequate     state   law   procedural   ground.
    Henderson v. Cockrell, 
    333 F.3d 592
    , 604 (5th Cir. 2003), cert.
    denied, Henderson v. Dretke, 
    124 S. Ct. 1170
    , 
    157 L. Ed. 2d 1208
    (2004).      A state procedural rule is independent if it does not
    “depend[] on a federal constitutional ruling,”                Ake v. Oklahoma,
    
    470 U.S. 68
    , 75, 
    105 S. Ct. 1087
    , 1092, 
    84 L. Ed. 2d 53
     (1985), and
    it is adequate if firmly established and regularly and consistently
    applied by the state court.        Henderson, 
    333 F.3d at 604
    .         Where a
    state court finds procedural default on the basis of an independent
    and adequate state ground, absent a showing of cause and actual
    prejudice, a federal habeas petitioner may not obtain relief. 
    Id.
    (citing Coleman v. Thompson, 
    501 U.S. 722
    , 750, 
    111 S. Ct. 2546
    ,
    2565, 
    115 L. Ed. 2d 640
     (1991)).
    C.   Batson Claim
    1.     Procedural Default on the Batson/Powers Claim
    The   district    court   considered    itself    precluded   from
    reviewing several of Nixon’s claims, including his Batson/Powers
    7
    claim, because the state courts had determined that Nixon failed to
    raise the claim properly during the state court proceedings.                 The
    state concedes, however, that the district court misinterpreted the
    Mississippi      Supreme    Court’s   ruling   concerning    this    claim   on
    collateral review, see Nixon, 641 So. 2d at 753-56, and a COA would
    be proper if the federal court’s discussion had stopped there.
    Because the federal court went on to resolve this claim on the
    merits, correctly, in the state’s view, the state concludes that no
    COA is required.       In a cautious approach to the Supreme Court’s
    decision in Miller-El, supra, we grant COA but hold that Nixon’s
    claim cannot prevail.
    2.     Batson, Powers and Teague Non-Retroactivity
    Nixon argues that the exclusion of all African-Americans
    from his jury violated the Fourteenth Amendment under Batson and
    Powers.     On direct appeal, the Mississippi Supreme Court held that
    as a white male, Nixon lacked standing to raise a Batson challenge
    based on the exclusion of jurors of a different race.               Nixon, 533
    So. 2d at 1086.     Two years after Nixon’s cert. petition was denied,
    however, the Supreme Court held that a white male could challenge
    the discriminatory use of peremptory challenges.            Powers, 499 U.S.
    at 416.       On post-conviction review, the state supreme court held
    that    the    non-retroactivity      principle   of   Teague   barred       the
    application of Powers and that Nixon could not obtain any relief on
    his Batson claim.          Nixon, 641 So. 2d. at 753-55.        The federal
    8
    district court agreed with the Mississippi Supreme Court and held
    that Powers was not retroactively applicable.
    To begin with, Batson itself is not retroactive to claims
    pending on collateral review.   Allen v. Hardy,   
    478 U.S. 255
    , 261,
    
    106 S. Ct. 2878
    , 2881, 
    92 L. Ed. 2d 199
     (1986) (per curiam) (“Our
    weighing of the pertinent criteria compels the conclusion that the
    rule in Batson should not be available to petitioner on federal
    habeas corpus review of his convictions.”).       While some of the
    logic underlying Allen has since been repudiated by the Supreme
    Court, the case nonetheless remains good law.       See Procter v.
    Butler, 
    831 F.2d 1251
    , 1254 n.4 (5th Cir. 1987) (noting that while
    the Supreme Court’s holding in Griffith v. Kentucky, 
    479 U.S. 314
    ,
    
    107 S. Ct. 708
    , 
    93 L. Ed. 2d 649
     (1987) that Batson applies to
    cases still pending on direct appeal “casts some doubt on the
    continued validity of Allen's reasoning,” the Court “limited its
    holding to cases still on direct appeal, and avoided any suggestion
    that Allen's holding — concerning cases on collateral review —
    should be changed”).   Since Nixon’s case became final on direct
    appeal following Batson, Batson applies to his claim.        United
    States v. Robinson, 
    367 F.3d 278
     (5th Cir. 2004) (citing Griffith,
    
    479 U.S. at 322
    , 
    107 S. Ct. at 712
    ).
    The determinative question in this case, and res nova in
    this court, is whether Powers sets forth a “new rule” that is not
    retroactively applicable under Teague.   As the state notes, every
    other circuit court to have directly addressed this issue has held
    9
    that Powers is not retroactively applicable to claims on collateral
    review.   See, e.g., Nguyen v. Reynolds, 
    131 F.3d 1340
    , 1351-52
    (10th Cir. 1997); Jones v. Gomez, 
    66 F.3d 199
    , 202-04 (9th Cir.
    1995); Van Daalwyk v. United States, 
    21 F.3d 179
    , 180-83 (7th Cir.
    1994); Farrell v. Davis, 
    3 F.3d 370
    , 371-72 (11th Cir. 1993);
    Echlin v. LeCureux, 
    995 F.2d 1344
    , 1349-51 (6th Cir. 1993).       Nixon
    agrees and cites no cases to the contrary, but he nonetheless
    argues that Powers does not constitute a new rule under Teague.
    Based on the strong consensus, not only of federal circuit courts
    but also of state supreme courts, that Powers is nonretroactive on
    collateral review, we disagree.    See Brown v. State, 
    798 So.2d 481
    ,
    505-06, ¶ 66 (Miss. 2001); Brewer v. State, 
    819 So.2d 1165
    ,
    1167-68, ¶¶ 13-14 (Miss. 2000); Holland v. State, 
    705 So.2d 307
    ,
    327-29, ¶¶ 45-47, 53-55 (Miss. 1997); King v. State, 
    656 So.2d 1168
    , 1174-78 (Miss. 1995); Fleming v. State, 
    604 So.2d 280
    , 294
    (Miss. 1992). Nixon’s citation of a footnote in J.E.B. v. Alabama,
    
    511 U.S. 127
    , 141 n.12, 
    114 S. Ct. 1419
    , 1427 n.12, 
    128 L. Ed. 2d 89
     (1994), which suggests doctrinal “compulsion” behind the Court’s
    prohibition   of   sex-based   peremptory   strikes,   also   fails   to
    persuade. J.E.B. followed Powers and Batson as a logical corollary
    of those cases’ holdings that race-based peremptory strikes violate
    the Equal Protection Clause.      The J.E.B. footnote expresses no
    opinion on, and certainly does not reach, the separate question
    whether it was “doctrinally compelled,” and therefore not a “new
    rule,” to hold that a defendant from one race or sex can challenge
    10
    discrimination in jury selection against members of another race or
    gender.     Nixon’s Batson/Powers claim fails on the merits.
    D.    Improper Identification Claim
    In his pre-trial motion to suppress, Nixon asserted that
    Mr. Tucker’s identification of him was the product of an unduly
    suggestive lineup.      The motion was eventually withdrawn by Nixon’s
    trial counsel and the issue was not raised at trial.                 On direct
    appeal, the Mississippi Supreme Court noted that no objection was
    made at trial on this issue, and therefore, the claim may not have
    been cognizable on appeal, Nixon, 533 So. 2d at 1086-87, but the
    court proceeded to consider and reject Nixon’s identification claim
    on the merits.     Id. On state post-conviction review, the identifi-
    cation claim was not addressed by the court, but was dismissed as
    procedurally barred.         Nixon, 641 So. 2d at 756 (“A published
    analysis of the remaining issues is unwarranted because Nixon has
    waived his right to raise them at this time.”).1
    It is unclear whether, in stating that this claim is
    procedurally barred from federal review, the district court relied
    upon the Mississippi Supreme Court’s ruling on direct appeal or on
    post-conviction review.        In any event, because the district court
    also discussed this claim in detail and rejected it on the merits,
    we   need   not   decide   the   correctness     of   the   district    court’s
    1
    The court based its procedural bar ruling on two bars available under
    Mississippi’s post-conviction review scheme: (1) failure to raise a claim on
    direct appeal and (2) res judicata where a claim was raised and disposed of on
    the merits on direct appeal. See Nixon, 641 So. 2d at 756 n.8.
    11
    procedural bar analysis.         More than that, we may not decide the
    merits of the identification claim either, for, unlike his Batson
    claim, Nixon has not requested a COA on the district court’s ruling
    on the merits.       Nor does Nixon brief or argue any substantive
    challenge to the district court’s merits ruling on the identifi-
    cation claim in this court.        As a result, Nixon has abandoned any
    argument that the district court’s resolution of the merits claim
    is debatable among jurists of reason.              See Foster, 
    293 F.3d. 766
    784 (5th Cir. 2002) (unbriefed claims are abandoned).               Even if we
    granted a COA on the procedural default question, our decision
    would   not    provide   Nixon   with    any   relief   because     the   merits
    determination by the district court must stand.                 See Slack, 
    529 U.S. at 484-85
     (where a procedural ruling is at issue, § 2253
    requires a petitioner to show debatable issues concerning both the
    denial of a constitutional right and error in a district court’s
    procedural ruling before a court of appeals may grant a COA and
    consider the appeal).       Thus, we decline to grant the COA on the
    district      court’s    procedural      default     ruling     regarding    the
    identification claim and we will not issue a COA on the merits of
    the claim.
    E.   Brady Claim
    When the Brady claim was first raised by Nixon on post-
    conviction review, the Mississippi Supreme Court held the claim
    procedurally barred.      Nixon, 641 So. 2d at 756.           Because the Brady
    12
    claim was not raised at trial or on direct appeal or discussed on
    its merits, it is apparent that the Mississippi court relied solely
    on the failure to raise bar.       This bar constitutes an independent
    state ground for rejecting a habeas petitioner’s claim in federal
    court. See Puckett, 
    176 F.3d at 823-24
     (discussing the application
    of MISS. CODE ANN. § 99-39-21(1) to the petitioner’s Batson claim);
    see also Stokes v. Anderson, 
    123 F.3d 858
    , 860 (5th Cir. 1997)
    (holding that Ҥ 99-39-21(1) does contain an independent state
    procedural bar”).
    The next question is whether the failure to raise bar is
    adequate as applied to Brady claims.          As the state notes, “[w]e
    presume the adequacy and independence of a state procedural rule
    when the state court expressly relies on it in deciding not to
    review a claim for collateral relief.”           Sones v. Hargett, 
    61 F.3d 410
    , 416 (5th Cir. 1995).     Further, the petitioner bears the burden
    of demonstrating the inadequacy of a state procedural rule and must
    show that the state has failed to apply the procedural bar to
    claims similar to those he raises.        Stokes, 
    123 F.3d at 860
    .     While
    Nixon   cites   no   cases   indicating   that    Mississippi   has   failed
    regularly to apply the procedural bar contained in § 99-39-21(1) to
    Brady-type claims, and therefore appears unable to carry his burden
    13
    in this regard, we are reluctant to foreclose the issue altogether
    because the cases cited by the state are less than compelling.2
    As a prudential matter, we shall assume arguendo that the
    state procedural bar applied to this claim was independent and
    adequate, and move on to Nixon’s contention that his claim is
    reviewable based upon a showing of cause and actual prejudice.
    Henderson, 
    333 F.3d at
    604 (citing Coleman, 
    501 U.S. at 750
    , 
    111 S. Ct. at 2565
    ).     We need not consider his allegation of cause for
    his procedural default, however, as Nixon cannot show actual
    prejudice from the alleged Brady violation.
    In order to succeed on a Brady claim, a defendant must
    show that (1) the state withheld evidence, (2) the evidence is
    favorable to the accused, and (3) the evidence is material to guilt
    or punishment.      DiLosa v. Cain, 
    279 F.3d 259
    , 262-63 (5th Cir.
    2002) (citing United States v. Bagley, 
    473 U.S. 667
    , 674, 
    105 S. Ct. 3375
    , 3379, 
    87 L. Ed. 2d 481
     (1985)).            Evidence is material
    2
    The cases cited by the state for the proposition that the Mississippi
    Supreme Court has consistently applied the failure to raise bar to Brady claims
    do not clearly stand for that proposition.         Indeed, at least one recent
    Mississippi Supreme Court case appears to indicate that the Mississippi court is
    not necessarily strict and consistent in its application of this bar in Brady
    cases. See Simon v. State, 
    857 So. 2d 668
    , 679 (Miss. 2003) cert. denied by
    Simon v. Mississippi, 
    124 S. Ct. 1885
     (2004) (refusing to impose the failure to
    raise procedural bar where a petitioner claimed he did not have access to the
    Brady materials at the time of his direct appeal). In addition, the state’s
    citation to Johnson v. Puckett, 
    176 F.3d 809
     (5th Cir. 1999), for the proposition
    that the failure to raise bar is adequate as applied to Brady claims is
    incorrect. Johnson considered a Brady claim that the petitioner conceded was
    barred and discussed only whether the petitioner had established cause and
    prejudice. See Johnson, 
    176 F.3d at 815-16
    . The Johnson court’s holding that
    the application of Mississippi’s failure to raise bar constituted an independent
    and adequate state ground for precluding federal habeas relief pertained only to
    a Batson claim. 
    Id. at 823-24
    .
    14
    under Brady “if there is a reasonable probability that, had the
    evidence   been    disclosed   to   the    defense,   the    result   of   the
    proceeding would have been different.”          Bagley, 
    473 U.S. at 682
    .
    The   evidence    proffered    by   Nixon    was   neither    material     nor
    prejudicial.
    Nixon alleges that Wade Carpenter, the man who sold the
    gun that was used to murder Mrs. Tucker, was shown a picture of an
    individual that the police believed to be the murderer and that
    Carpenter said he did not sell the gun to the individual in the
    photograph. This much of Nixon’s claim is supported by Carpenter’s
    affidavit.       However,   Nixon   also    claims,   with   no   evidentiary
    support, that Nixon’s photo was the one shown to Carpenter.            As the
    district court noted in its opinion, nothing in Carpenter’s affi-
    davit even suggests that Nixon was the man in the picture.                  In
    addition, given that one of Nixon’s co-conspirators testified at
    trial that Nixon was the triggerman who killed Mrs. Tucker, any
    benefit that Nixon would have gained from Carpenter’s statement,
    even if he was actually referring to a photo of Nixon, is illusory
    at best.     Identification of Nixon as the culprit was not a
    significant issue at trial.         Carpenter’s statement was neither
    material under Brady nor did Nixon suffer actual prejudice as a
    result of its being withheld.
    For these reasons, we pretermit the decision whether to
    grant a COA on the district court’s ruling that Nixon procedurally
    defaulted his Brady claim. And, because we agree with the district
    15
    court that Nixon cannot demonstrate that the allegedly withheld
    information was material or prejudicial under Brady, we decline to
    grant a COA on the merits of the claim.
    F.    Improper Jury Instructions Claim
    Nixon   asserts     that   the   jury   instructions    improperly
    emphasized the requirement of unanimity with regard to mitigating
    circumstances.        The parties dispute whether this claim was raised
    on   direct    appeal.      The    state      court   held   this   claim   to   be
    procedurally barred on post-conviction review.                Nixon, 641 So. 2d
    at 756.   The federal district court held that the claim was pro-
    cedurally barred because the claim had not been raised on direct
    appeal and, in the alternative, that the claim had no merit.
    Nixon now argues that it is debatable among reasonable
    jurists that the district court erred in its procedural bar ruling
    because his claim was actually raised on direct appeal in an
    Amendment to Petition for Rehearing.              He cites Hathorn v. Levon,
    
    457 U.S. 255
    , 
    102 S. Ct. 2421
    , 2424, 
    72 L. Ed. 2d 824
     (1982), for
    the proposition that new claims raised in rehearing petitions
    before the Mississippi Supreme Court may be considered by the
    federal courts.        In this case, as in Hathorn, the petition for
    rehearing was denied by the Mississippi Supreme Court without a
    published opinion.        Hathorn, 
    457 U.S. at 259
    , 
    102 S. Ct. at 2424
    .
    In Hathorn, the Supreme Court held that the Mississippi Supreme
    Court’s denial of rehearing without opinion did not constitute the
    16
    application of an “adequate” state procedural bar because the Court
    found it “difficult to know whether the Mississippi Supreme Court
    still adheres to the rule [barring review of questions raised for
    the first time on rehearing], applying it silently, or whether the
    court has abandoned the rule.”         
    Id. at 263
    .       The state essentially
    argues that Hathorn is no longer good law because since Hathorn,
    the Mississippi Supreme Court has repeatedly held that it will not
    consider arguments raised for the first time on rehearing.
    We need not address the question of Hathorn’s continued
    validity on this issue, however, because Hathorn is inapplicable to
    this case.      Here, the procedural bar was not applied “silently”
    because, unlike in Hathorn, the denial of rehearing was not the
    final ruling of the state courts on this issue.               Rather, on post-
    conviction review, the Mississippi Supreme Court held the claim to
    be procedurally barred.        Nixon, 641 So. 2d at 756.          In his brief
    before this court, Nixon does not argue that the Mississippi
    procedural bars are inadequate as applied to his jury instruction
    claim,   nor    does   he   argue   that    he   can    demonstrate   cause   and
    prejudice      sufficiently    to   overcome      the     application   of    any
    procedural bar on this issue.        Nixon’s argument against procedural
    bar has no debatable merit.            Since no jurist of reason could
    disagree with the district court’s ruling that the jury instruction
    17
    claim is procedurally barred, we decline to grant a COA on this
    claim.3
    G.    Surprise Testimony Claim
    Nixon contends that the prosecution violated his right to
    due process because it did not notify him prior to trial that
    Mr. Tucker and Jimenez, a co-conspirator, would testify that, in
    the course of committing the crime, Nixon told Mr. Tucker that “the
    deal’s already been made.”        The non-disclosure of this statement,
    Nixon argues, violated the state’s pretrial representation to Nixon
    and prejudiced his defense, which had been predicated on the
    state’s inability to support capital murder charges based on a
    murder-for-hire theory.
    Nixon’s    surprise    testimony    claim     before   this   court
    parallels his assertion before the state courts that the state had
    violated Mississippi discovery rules.            See Nixon, 533 So. 2d at
    1088-91.    The Mississippi Supreme Court held, on direct appeal,
    that the trial court had followed the proper guidelines under state
    law to address any discovery violations underlying the contested
    testimony and that at least some of the statements did not fall
    within the relevant state discovery rule.           Id.   The district court
    3
    Even if we considered the merits of Nixon’s jury instruction claim,
    we would hold that the district court’s alternative resolution of the claim on
    the merits is undebatable. The jury instructions given by the state trial court
    did not improperly suggest that the jury needed to find mitigating circumstances
    unanimously to avoid imposition of the death penalty. To the contrary, the jury
    instructions made clear that the jury was not required to find “any mitigating
    circumstances in order to return a sentence of life imprisonment.” Thus, even
    if we were to grant the COA on Nixon’s procedural claim, it would be unavailing
    to him because he would not be entitled to any relief on the merits.
    18
    reviewed the substance of this claim and found that it had no
    merit.
    As Nixon evidently recognizes, a claim that state law has
    been violated is generally not cognizable on federal habeas.
    Estelle v. McGuire, 
    502 U.S. 62
    , 67-68, 
    112 S. Ct. 475
    ,479-80, 
    116 L. Ed. 2d 385
     (1991).        He has attempted to recast his state claim
    as    a   federal     constitutional      claim      by    citation      to   Brady.
    Unfortunately for Nixon, this effort is unavailing. The ostensibly
    withheld      information   was    neither     exculpatory        nor    useful   for
    impeachment purposes, as Brady requires.                  Nixon claims only that
    his   trial    team   was   surprised     by   the   use    of    this   powerfully
    inculpatory     testimony.        Such   testimony,        when   not    useful   for
    impeachment purposes, simply does not fall within the ambit of
    Brady and its progeny.       See Strickler v. Greene, 
    527 U.S. 263
    , 280,
    
    119 S. Ct. 1936
    , 1947, 
    144 L. Ed. 2d 286
     (1999) (noting that the
    Brady obligation applies to “impeachment evidence as well as
    exculpatory evidence”).4
    More importantly, we agree with the district court that
    Nixon cannot demonstrate any prejudice arising from the allegedly
    improper withholding of this information.                  Jimenez made a post-
    arrest statement to the police, which was provided to the defense
    during discovery and clearly implicated Nixon in a murder-for-hire
    plot.     Thus, the defense was on notice that such testimony would
    4
    To hold otherwise would be creating an impermissible “new rule” of
    constitutional procedure. See Gray v. Netherland, 
    518 U.S. 152
    , 166-70 (1996).
    19
    likely be presented at trial.          The notion that the additional
    testimony regarding the “deal” so prejudiced the defense as to rise
    to the level of a due process violation is untenable.
    Jurists of reason cannot disagree with the district
    court’s analysis of this issue, and we decline to grant a COA.
    H.    “Especially Heinous, Atrocious or Cruel” Aggravator
    Nixon argues that the use of the “especially heinous,
    atrocious or cruel” aggravator violated his constitutional rights
    because it is unconstitutionally vague and did not properly narrow
    the class of individuals who are death-eligible.             The state court
    denied this claim on the merits on direct appeal.                Nixon, 533 So.
    2d at 1097-98.    In Maynard v. Cartwright, 
    486 U.S. 356
    , 
    108 S. Ct. 1853
    , 
    100 L. Ed. 2d 372
     (1988), the Supreme Court held that such an
    aggravator   is   unconstitutionally      vague    unless        an   appropriate
    limiting   instruction     is   provided.        
    Id. at 364
    .        The   jury
    instruction provided at Nixon’s trial defined a capital offense to
    be “especially heinous, atrocious or cruel,” where the offense is
    “a   conscienceless   or    pitiless     crime    which     is    unnecessarily
    torturous to the victim.”         This language was borrowed by the
    Mississippi Supreme Court from a Fifth Circuit opinion.                       See
    Clemons v. State,     
    535 So. 2d 1354
    , 1363 (Miss. 1988) (quoting
    Spinkellink v. Wainwright, 
    578 F.2d 582
    , 611 (5th Cir. 1978)).                The
    Fifth Circuit, in turn, quoted a Florida Supreme Court opinion.
    See State v. Dixon, 
    283 So.2d 1
    , 9 (Fla. 1973) (internal citation
    20
    omitted).      The Mississippi Supreme Court quoted the following
    language from these cases:
    What is intended to be included are those capital crimes
    where the actual commission of the capital felony was
    accompanied by such additional acts as to set the crime
    apart from the norm of capital felonies — the
    conscienceless or pitiless crime which is unnecessarily
    torturous to the victim.
    Clemons, 535 So.2d at 1363 (internal quotation marks and citations
    omitted).    The United States Supreme Court has at least implicitly
    endorsed    the   limiting      instruction     adopted    by   the     Mississippi
    Supreme Court, referring to it as “the proper limiting construction
    of the ‘especially heinous’ aggravating factor.”                        Clemons v.
    Mississippi,      
    494 U.S. 738
    ,   751,    
    110 S. Ct. 1441
    ,    1449,   
    108 L. Ed. 2d 725
     (1990) (emphasis added).               In doing so, the Supreme
    Court cited the page from the Mississippi Supreme Court’s opinion
    in Clemons that contains the above quotation. 
    Id.
     (citing Clemons,
    535 So. 2d at 1363).           Earlier in Clemons, the Court recited the
    Mississippi Supreme Court’s narrowing language to include “murders
    that are conscienceless or pitiless and unnecessarily torturous to
    the victim . . . .”       
    494 U.S. at 744
    , 
    110 S. Ct. at 1446
     (internal
    quotations and citations omitted).
    Notwithstanding        this    reasonably      clear      guidance    in
    Clemons, Nixon contends that the Supreme Court really meant to
    require in the narrowing construction that “the actual commission
    of the capital felony [must be] accompanied by such additional acts
    as to set the crime apart from the norm of capital felonies.”                    We
    21
    cannot accept Nixon’s position as reasonably debatable for two
    reasons.     First, the Supreme Court in Clemons never expressly
    refers to the language on which he relies.             Second, as the district
    court noted, a capital case jury can hardly be expected to know
    what facts set apart the case before them from “the norm of capital
    felonies.”       Such language would improperly invite speculation and
    references to wholly extraneous events.
    Finally, as we noted in Billiot v. Puckett, 
    135 F.3d 311
    (5th Cir. 1998), “a federal habeas court may not grant relief
    unless     the    petitioner    demonstrates        that    the   error    ‘had     a
    substantial and injurious effect or influence in determining the
    jury's verdict.’”      
    135 F.3d at 318
     (quoting Brecht v. Abrahamson,
    
    507 U.S. 619
    , 622, 
    113 S. Ct. 1710
    , 1714, 
    123 L. Ed. 2d 353
    (1993)).     As a result, “a federal habeas court must conduct a
    harmless error analysis of all trial errors . . . before granting
    habeas relief.”       
    Id.
        Here, it seems apparent, as it did to the
    district    court,    that     had   the    jury   been    instructed     with    the
    additional language sought by Nixon, the testimony adduced at trial
    regarding the execution-style killing of Mrs. Tucker would have
    inexorably led the jury to conclude beyond a reasonable doubt that
    an aggravating circumstance existed.5              Thus, any error in the jury
    5
    The Mississippi Supreme Court found that the murder qualified under
    the “especially heinous” aggravator based upon the following facts adduced at
    trial:
    Mr. Nixon forcibly entered the house of a couple who feared he was
    there to kill them; Nixon fired several shots at Mr. Tucker in the
    presence of Mrs. Tucker; Mrs. Tucker was wrestled to the floor in
    preparation for her murder; Nixon held a pistol an inch from Mrs.
    22
    instruction was harmless at best and the district court’s ruling to
    that effect is not debatable among jurists of reason.            COA is not
    warranted on this claim.
    I.    Prior Violent Felony Claim
    Nixon asserts that his prior Texas conviction for rape
    should not have been introduced before the jury to satisfy the
    “prior violent felony” aggravating circumstance because he pled
    guilty to statutory rape, not rape involving the use of force.           See
    
    Miss. Code Ann. § 99-19-101
    (5)(b)    (indicating    that   a   prior
    conviction for “another capital offense or of a felony involving
    the use or threat of violence to the person” is an aggravating
    circumstance under Mississippi law). Mississippi law requires that
    the   prosecutor   prove    each   aggravating    circumstance     beyond   a
    reasonable doubt.     See Nixon, 533 So. 2d at 1099; 
    Miss. Code Ann. § 99-19-103
     (Supp. 1986).
    The 1958 Texas indictment to which Nixon pled guilty
    accused him of “ma[king] an assault and . . . ravish[ing] and
    hav[ing] carnal knowledge” of a woman under eighteen years of age.
    The Mississippi Supreme Court held that this conviction qualified
    as a prior violent felony based on the Texas Court of Criminal
    Appeals decision in Rodrigues v. State, 
    308 S.W.2d 39
     (Tex. Crim.
    Tucker’s head and fired a bullet into her brain; Mrs. Tucker was
    left to die, but was found within one-half hour bleeding from the
    mouth and nose and gasping for breath; and Mrs. Tucker struggled to
    live but died the next day.
    Nixon, 533 So. 2d at 1097-98. These facts place the case beyond the norm even
    of capital felonies.
    
    23 App. 1957
    ).      Nixon, 533 So. 2d at 1098-99.      The district court
    independently reviewed the claim and agreed with the Mississippi
    court, reading Rodrigues to stand for the proposition that because
    an indictment including the terms “ravish” and “assault” could
    support a conviction for rape by force as well statutory rape, and
    because the terms were not necessary to a conviction for statutory
    rape, Nixon’s guilty plea qualified the conviction as a prior
    violent felony.
    The district court relied upon the language in Rodrigues
    which indicates that under Texas law,
    [t]he word “ravish” implies force and want of consent,
    and its use in the indictment in connection with the
    allegation of rape of a female between the ages of 15 and
    18 years, as here, renders the indictment sufficient to
    support a conviction for rape by force as well as for
    statutory rape.
    Rodrigues, 308 S.W.2d at 40.     However, as Nixon points out, the
    Texas court went on to hold that “[t]he word ‘ravish’ is not,
    however, descriptive of the offense, and it is therefore not
    necessary that force be proven in order to sustain a conviction
    under    such   indictment.”   Id.    (emphasis   added).   Indeed,   in
    Rodrigues, the Texas court rejected the state’s argument that such
    an indictment could only support a conviction for rape by force.
    Id.     As a result, the court held that the defendant should have
    been permitted to submit a jury instruction indicating that the
    previous unchaste behavior of the accuser would constitute a valid
    24
    defense to the indictment — a defense that was only available in
    statutory rape cases under Texas law at the time.6               Id.
    In addition to the dispute over the status of this
    conviction as an aggravator, there is a question whether its being
    placed before the jury amounted to harmless error.               See Billiott,
    supra.
    Thus, we find it at least debatable among jurists of
    reason whether a guilty plea to such an indictment can support a
    jury finding that Nixon had committed a prior violent felony and
    that such a finding may support the imposition of the death
    penalty.7    Therefore we grant the COA on this claim.
    J.    Double Use Claim
    Nixon next argues that the use of the “for pecuniary
    gain”    aggravator    was   inappropriate     in   his   case   because   this
    aggravator duplicates an element of his offense of conviction under
    Mississippi’s capital murder statute.          See 
    Miss. Code Ann. § 97-3
    -
    19(2)(d). The Mississippi Supreme Court on direct appeal held that
    6
    The state, in its brief before this court, provides no analysis of
    this issue and rather simply relies on the district court opinion and asserts
    that the district court’s resolution of the claim is not debatable.
    7
    In holding that this claim is debatable among jurists of reason, we
    do not suggest, as Nixon proposes, that it is appropriate to examine the Texas
    state court proceedings related to Nixon’s prior conviction or information beyond
    the fact of conviction, the underlying indictment and Nixon’s guilty plea to the
    indictment. As the state points out, Mississippi law relating to sentencing
    enhancements appears to indicate that such an examination is inappropriate
    because of the potential for extended proceedings to consider the nature of
    prior offenses. See Phillips v. State, 
    421 So. 2d 476
    , 481 (Miss. 1982) (“In
    fulfilling its mission to determine whether a prior conviction is
    constitutionally valid for the purpose of enhancing a defendant's sentence, the
    trial court must not be placed in position of ‘retrying’ the prior case.”).
    25
    claim   was     foreclosed     by   substantial    state   and   federal   court
    precedent.      Nixon, 533 So. 2d at 1097.          Like that court and the
    district court, we hold that Nixon’s claim was barred by existing
    precedent.      See Lowenfield v. Phelps, 
    484 U.S. 231
    , 246, 
    108 S. Ct. 546
    , 555, 
    98 L. Ed. 2d 568
     (1988) (the “fact that the aggravating
    circumstance duplicated one of the elements of the crime does not
    make [a death] sentence constitutionally infirm”); Tuilaepa v.
    California, 
    512 U.S. 967
    , 971-72, 
    114 S. Ct. 2630
    , 2634-35, 
    129 L. Ed. 2d 750
     (1994) (“To render a defendant eligible for the death
    penalty in a homicide case, we have indicated that the trier of
    fact must convict the defendant of murder and find one ‘aggravating
    circumstance’ (or its equivalent) at either the guilt or penalty
    phase.”     “The aggravating circumstance may be contained in the
    definition of the crime or in a separate sentencing factor (or in
    both).”) (emphasis added; internal citations omitted). Williams v.
    Taylor, 
    529 U.S. 362
    , 392 n.16, 
    120 S. Ct. 1495
    , 1513 n. 16, 
    146 L. Ed. 2d 389
       (2000)    .     Nixon’s     purported   distinctions    of
    Lowenfield and Tuilaepa are meritless; no COA is warranted.
    K.    Psychological Assistance Claim
    Nixon argues that the trial court’s failure to appoint a
    psychologist on his behalf violated his constitutional rights under
    Ake v. Oklahoma, 
    470 U.S. at 83
    , 105 S. Ct. at 1096, and the due
    process clause. The Mississippi Supreme Court denied this claim on
    the merits on direct appeal.           Nixon, 533 So. 2d at 1095-97.         The
    26
    federal district court on habeas rejected the claim on the merits
    holding that Nixon had not even made a preliminary showing or
    presented any evidence to the trial court, which suggested that an
    expert would have provided any useful information in this case.
    We have read Ake to impose
    a constitutional obligation [upon the state] to provide
    an indigent criminal defendant with access to the
    assistance of a psychiatrist in the following two
    circumstances: (1) “when a defendant demonstrates to the
    trial judge that his sanity at the time of the offense is
    to be a significant factor at trial” and (2) “in the
    context of a capital sentencing proceeding, when the
    State presents psychiatric evidence of the defendant's
    future dangerousness.”
    White v. Johnson, 
    153 F.3d 197
    , 200 (5th Cir. 1998) (quoting Ake,
    
    470 U.S. at 83
    ).        Nixon presented no evidence to the trial court
    that his sanity at the time of the offense would be a significant
    factor at trial nor did the state present psychiatric evidence at
    the sentencing phase.
    Nixon     posits    more    broadly     that   he   sought   expert
    assistance in order to obtain evidence in support of and to
    establish mitigating circumstances at the sentencing phase.                   As
    shown, this request does not state a valid claim under Ake, as
    interpreted by this court.          White, 
    153 F.3d at 204
    .        Moreover, as
    there   is    no     Supreme    Court    authority    enunciating     a   capital
    defendant’s        constitutional       right   to    obtain     court-appointed
    psychiatric counsel outside the standards of Ake, Nixon in effect
    asks this court impermissibly to create a “new rule” of law,
    contrary to Teague v. Lane, 
    489 U.S. 288
    , 
    109 S. Ct. 1060
    , 103
    
    27 L. Ed. 2d 334
     (1989).     The district court’s resolution of this
    issue is not reasonably debatable for purposes of granting a COA.
    L.   Claim for Ineffective Counsel at Motion for New Trial
    Finally, Nixon claims that he was denied his Sixth
    Amendment right to counsel during consideration of his motion for
    a new trial.     When this issue was raised on direct appeal, the
    Mississippi Supreme Court, after noting that Nixon had no absolute
    right to particular counsel because of the need to maintain an
    orderly trial process, evaluated and found Nixon’s claim wanting as
    an ineffective assistance claim under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984).   Nixon, 533 So.
    2d at 1101-02.     The district court denied Nixon’s claim on the
    merits, holding that he had demonstrated no conflict of interest
    and that he was never deprived of the right to counsel.
    On the morning of the hearing on his motion for a new
    trial, Nixon attempted to dismiss his trial counsel and obtain new
    representation.    Nixon based his argument for new counsel on an
    alleged conflict of interest that arose when his trial attorney
    brought his co-defendant’s lawyer to meet with Nixon following his
    conviction, and prior to the hearing on the new trial motion.
    Nixon’s trial lawyer, aware that his client did not want his
    services, repeatedly asked to be excused from his representation.
    The trial judge, ostensibly concerned that Nixon was attempting to
    delay the proceedings, denied Nixon’s motion.         However, upon
    28
    further consideration, the trial judge placed Nixon’s trial counsel
    under oath and began questioning him about the alleged conflict.
    After   hearing   from   both   Nixon’s   trial    counsel   and    his   co-
    defendant’s counsel, the trial judge determined that no conflict
    existed and that Nixon’s motion for new counsel would be denied.
    The motion for a new trial was then argued by Nixon’s trial
    counsel.
    Nixon now asserts that he was denied his Sixth Amendment
    right to counsel because an actual conflict existed between Nixon
    and his counsel, and he was completely deprived of counsel while
    his lawyer was discussing the alleged conflict under oath before
    the state trial court.      This issue is not reasonably debatable:
    the district court and the state courts were clearly correct in
    holding that there was no actual conflict that would have rendered
    ineffective Nixon’s trial attorney’s representation of him during
    the new trial motion.    There is no basis for Nixon’s claim that his
    lawyer had an a priori conflict of interest for bringing a co-
    defendant’s lawyer to meet with Nixon post-conviction.         In Bullock
    v. Whitley, 
    53 F.3d 697
     (5th Cir. 1995), we held that there was no
    constitutional conflict of interest where a co-defendant’s attorney
    took the lead in obtaining information from the defendant on behalf
    of the defendant’s lawyer prior to trial.         
    53 F.3d at 702
    .   Setting
    up a post-conviction meeting between the defendant and a co-
    defendant’s attorney could not create a conflict of interest,
    particularly when, as here, the state trial court found that Nixon
    29
    himself requested the meeting.        In addition, it can hardly be
    contended that Nixon’s trial attorney was testifying against his
    client’s interest when the state judge questioned him regarding the
    conflict of interest.   Given that both Nixon and his attorney had
    asked for his removal, the attorney was essentially advocating
    Nixon’s position at all times.
    Contrary to his assertions, Nixon was never deprived of
    his right to counsel prior to or during the motion for a new trial.
    Nixon had counsel — his trial attorney.    It is true that Nixon and
    the attorney were unhappy about the continued representation, but
    we have repeatedly stated that “[t]he Sixth Amendment . . . does
    not guarantee an absolute right to the counsel of one's choice.”
    United States v. Paternostro, 
    966 F.2d 907
    , 912 (5th Cir. 1992).
    Nixon cites no authority for the argument that he was deprived of
    his right to counsel while the judge was questioning his lawyer
    regarding the alleged conflict of interest. Further, the fact that
    dissenting judges on the Mississippi Supreme Court would have found
    a conflict of interest or would have presumed prejudice to Nixon
    from the circumstances does not automatically prove that reasonable
    jurists could disagree. With due respect, the dissenting justices’
    position does not follow this court’s interpretation of Strickland
    and Cuyler v. Sullivan, 
    446 U.S. 335
     (1980).     The question before
    this court is whether reasonable jurists could debate whether the
    state court’s adjudication of the claim was “reasonable” and
    whether the district court’s assessment of the constitutional issue
    30
    is debatable or wrong.    On the contrary, were we to hold as Nixon
    desires, we would be creating a “new rule” of constitutional law,
    a course barred to us by Teague.    See Wiley, 969 F.2d at 95-98.   As
    a result, a COA is unwarranted.
    III.   CONCLUSION
    For the reasons discussed above, Nixon’s application for
    a certificate of appealability is GRANTED IN PART and DENIED IN
    PART.   The certificate has been granted on Nixon’s Batson/Powers
    and prior violent felony claims, but the Batson/Powers claim fails
    on the merits.    Further briefing is needed on the prior violent
    felony claim.    As to all other claims treated in this opinion, COA
    is DENIED.
    31