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Click here for the full text of this decision FACTS:James Jackson seeks a certificate of appeal-ability from the denial of his petition for writ of habeas corpus. Jackson was found guilty of capital murder and was sentenced to death. During the sentencing phase, Jackson filed a motion asking the court to allow Jackson to question his friends and family on: 1. whether they wanted him to die and 2. what the impact on them would be if he were executed. The trial court denied the motion. The conviction was affirmed on direct appeal. Jackson filed a state petition for writ of habeas corpus. The trial court entered findings and conclusions recommending that relief be denied; the Court of Criminal Appeals adopted those findings and conclusions. Jackson filed a federal habeas petition alleging that the refusal to allow the “execution impact” testimony violated his Eighth and 14th Amendment rights. The district court granted summary judgment for the state on that claim, holding that the refusal to allow execution impact testimony was not an unreasonable application of Supreme Court precedent. The district court rejected Jackson’s other constitutional claims and declined to issue a COA. HOLDING:Denied. To grant a certificate of appeal, the court asks only whether he has made a substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322 (2003). The U.S. Supreme Court has determined that 28 U.S.C. �2254(d)(1) affords a petitioner two avenues to attack a state court application of law: 1. The state court decision is contrary to clearly established Federal law; or 2. The state court decision is an unreasonable application of clearly established Supreme Court precedent. Summers v. Dretke, 431 F.3d 861 (5th Cir. 2005) Because the Supreme Court has never included friend/family impact testimony among the categories of mitigating evidence that must be admitted, the district court was correct in deciding that Jackson failed via the first avenue. Considering Lockett v. Ohio, 438 U.S. 586 (1978), and its progeny as the governing Supreme Court rule, the question of the admissibility of the friends/family impact evidence requires application of this existing rule to the facts. The court agrees that the state court’s determination is not unreasonable � that is, the determination that Jackson’s evidence has no mitigating value and therefore does not meet even the low relevance threshold. Evidence of impact on friends and family does not reflect on Jackson’s background or character or the circumstances of his crime, so Jackson’s proffer of that evidence does not satisfy the second avenue available to him to obtain habeas relief. OPINION:Smith, J.; Davis, Smith and Dennis, J.J. DISSENT:Dennis, J. “The majority interprets Miller-El as a fairly restrictive standard of review when it was intended to be applied as an unrestrictive (one. . . . “As to the substance of this request for a COA, I believe that the issues presented are adequate to deserve encouragement to proceed further.”

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