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Click here for the full text of this decision FACTS:An apartment maintenance supervisor found Karen Crawford’s keys hanging from her mailbox in the common area. Crawford was not in her apartment, and a friend said that Crawford had called her earlier to say that she was going to the store for dog food. Crawford’s dog was found in Crawford’s car. Searching the apartment grounds, the supervisor found the women’s restroom locked. A man’s voice answered from inside but then said no more. As the supervisor and two neighbors discussed how to get the door opened, Charles Thacker came out of the restroom, sprayed the others with Mace and ran away. Crawford was found close to death inside the bathroom. One leg of her jogging pants had been pulled off, and the other was down to her ankle. Crawford was taken to a hospital, where she died a day later. An autopsy revealed that she had bruises on her neck and face, and other signs consistent with strangulation. No evidence of a completed sexual assault was found, though a pubic hair was taken, and the DNA matched that of Thacker, who had been found in the early morning hours after the attack hiding near Crawford’s apartment. Thacker was identified by others as the man seen running from the bathroom. Thacker was found guilty of capital murder, and the death penalty was imposed. The Court of Criminal Appeals affirmed the conviction on direct review, and again when Thacker raised eight points of error in a state collateral review. Thacker filed a federal habeas petition, which the district court dismissed without prejudice to allow for the complete state review process to run its course on his argument that juries must make determinations regarding aggravating and mitigating factors. After Thacker’s second state habeas petition was dismissed, Thacker renewed his federal habeas petition raising nine grounds for relief. The district court denied a certificate of appealability, and Thacker now appeals to this court for a COA. Thacker focuses on two errors. First, he says the instruction given the jury on his capital murder charge was a misstatement of Texas law, or at the very least was substantially confusing to the jury as to the sufficient level of intent required to convict. He says three constitutional errors were raised by this error: 1. his due process rights under the 14th Amendment; 2. his Sixth Amendment right to a trial by an impartial jury; and 3. his Sixth Amendment right to effective assistance of counsel. The second error Thacker focuses on is the trial court’s disallowance of any reference to Thacker’s parole eligibility in the presence of the jury. He contends this was unconstitutional in three ways: 1. it violated his due process rights under the 14th Amendment; 2. it violated his Eighth Amendment right against cruel and unusual punishment; and 3. it violated his Sixth Amendment right to compulsory process. HOLDING:Denied. The court discusses the purported jury charge error first. The court notes that the instructions given, when read in harmony, explain the uncontroversial principle that, under Texas law, one may not be convicted of capital murder without a finding that death was specifically intended. A different standard for murder is then explained. Thacker complains that a phrase “murder, as heretofore defined” was confusing to the jury as to whether specific intent was required to find him guilty of capital murder. Acknowledging that the jury apparently did have some difficulty with the term � judging by a note sent to the judge during deliberations � the court, however, notes that the Court of Criminal Appeals found the instructions free from “any error at all.” The CCA also found in the collateral review that Thacker failed to object to the jury charge and so did not preserve the issue for consideration in a post-conviction writ of habeas corpus. Though Thacker claims that the CCA’s rejection of his argument on the jury charge violated his Fourteenth or Sixth Amendment rights, the court agrees with the district court’s finding that Thacker’s arguments are procedurally foreclosed. Matters are procedurally foreclosed when the state court based its rejection of a claim on an adequate and independent ground. The dismissal based on Thacker’s waiver is such an independent basis. The court recognizes that even a procedurally barred claim can be reviewed when a complainant like Thacker argues that his trial counsel’s failure to object to the jury instruction constituted ineffective assistance of counsel. Thacker must demonstrate not just that the alleged jury instruction was in error and not just that his lawyer’s failure to object to it was in error, but that such a failure was so serious as to fall below an objective standard of reasonableness and thereby prejudiced his defense. Again noting that the instruction could have been confusing, the court also points out, and Thacker concedes, that a single jury instruction error cannot be read in isolation. The entire charge must be considered. The jury in Thacker’s case was instructed five times about the requirement of specific intent for capital murder. The state referred to the requirement in its closing argument, too. The CCA reasonably concluded that the charge as a whole did not violate Thacker’s constitutional rights, the court holds. “Though this conclusion might be arguable, it certainly does not qualify as such an unreasonable application of settled Supreme Court precedent as to warrant relief,” the court writes. The court then turns to the errors alleged relating to the disallowance of any reference to Thacker’s parole eligibility in the presence of the jury. The court notes that although Texas now allows for jury instructions regarding parole eligibility in capital murder cases, it did not at the time of Thacker’s case. Though the practice at the time was different in Texas from that of the federal courts, including this one, the district court found that the state’s court’s rejection of the practice did not amount to a violation of federal law. The court rejects Thacker’s “creative claim:” that the Sixth Amendment’s Compulsory Process Clause guarantees him the right to present testimony and argument relating to parole eligibility, because the prohibition unconstitutionally burdened his right to present mitigating evidence. The court finds this argument is foreclosed by the general rule that federal courts are prohibited from granting habeas relief predicated on a “new” rule of constitutional law. Even if his claim was not barred by this general rule, its substance is insufficient to justify the issuance of a COA, the court adds. Where no court has yet to publish an opinion considering claims like Thacker’s that the Sixth Amendment protects his right to discuss parole eligibility, and this court has explicitly rejected such an argument under the analogous due process framework, Thacker has not made a substantial showing that the Texas courts deprived him of a federal right. The court cannot imagine that reasonable jurists could disagree. OPINION:Jerry E. Smith, J.; Smith, DeMoss and Stewart, JJ.

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