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Click here for the full text of this decision FACTS:On the evening of Aug. 14, 1996, Kenneth E. Foster, Mauriceo Brown, DeWayne Dillard and Julius Steen embarked on armed robberies around San Antonio. Steen testified he rode in the front seat and looked for potential victims while Foster drove. The four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day, when Foster began following a vehicle driven by Mary Patrick. Patrick saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood. She saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet. Patrick heard a loud bang. Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot. Later that day, all four men were arrested. Each gave a written statement identifying Brown as the shooter. Brown admitted being the shooter but denied intent to kill. In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery. The jury found each guilty of that charge and answered the special issues at the penalty phase to impose a death sentence for each. On direct appeal, Foster contended that because he did nothing more than agree to commit and participate in robberies, his death sentence, inter alia, violated the Eighth Amendment. The court held that Foster’s sentence did not violate the Constitution because, before convicting him of capital murder as a party, the jury had to determine he intended to promote the commission of intentional murder. The U.S. Supreme Court denied a writ of certiorari. In April 1999, before the conclusion of his direct appeal, Foster filed for state habeas relief. After holding evidentiary hearings, the state-habeas court issued findings of fact and conclusions of law, recommending denial of relief; the Court of Criminal Appeals denied relief in an unpublished order. The Supreme Court again denied a writ of certiorari. Foster presented 14 claims in his federal habeas petition, including the actual-innocence claim for which he belatedly sought a certificate of appealability (COA) from the 5th U.S. Circuit Court of Appeals. On March 3, 2005, the district court granted conditional habeas relief as to sentencing for three claims and denied relief, as well as a COA, for the remaining 11. The district court granted conditional habeas relief on Foster’s claimed unconstitutional sentence under the Eighth Amendment because the jury did not make the requisite factual findings: 1. whether Foster acted with reckless indifference to human life; and 2. whether he played a major role in the activities leading to the murder. For Foster’s remaining 11 claims, the court denied relief and a COA. The state appealed the conditional habeas relief. In defending the district court’s ruling, Foster requested another COA to pursue a stand-alone actual-innocence claim. In so doing, he maintained a COA request for that claim had been inadvertently omitted from an earlier COA request. HOLDING:The 5th U.S. Circuit denied Foster a COA on his actual-innocence claim, vacated conditional habeas relief and denied habeas relief. First, the court denied Foster’s request for a COA on his actual innocence claim. The court then weighed Foster’s request for habeas corpus relief on 8th amendment grounds. On direct appeal and in his federal-habeas petition, Foster claimed that pursuant to the Eighth Amendment, he was ineligible for the death penalty because he did not kill, attempt to kill or intend to kill Michael LaHood. A death sentence violates the Eighth Amendment, the court stated, if it is not proportional to the crime for which the defendant was convicted. The court found that the Court of Criminal Appeals (CCA) determined Foster was a major participant in the night’s criminal activities, including the robbery and murder of Michael LaHood. The CCA, like the jury, rejected Foster’s claims that he did not participate in the robberies and did not know Brown was planning to rob Michael LaHood. Foster did nothing to disassociate himself from Brown after the shooting; instead, as the CCA noted, he waited for Brown to return to the car and drove away, later telling Brown to hide the murder weapon. In denying Foster’s claim that the evidence was insufficient to support the jury’s affirmative answer to the future-dangerousness special issue, the CCA noted: a day or two before Michael LaHood was murdered, Foster, Steen, Dillard and Brown had participated in another armed robbery; and, previously, Foster and a friend shot at people in a truck while driving alongside them on a highway. In sum, the court stated that a rational fact finder could have found: Foster was a major participant in the crime spree and he acted with reckless indifference to human life. The court found that, pursuant to AEDPA’s deferential standard of review, the CCA (and arguably the jury) made the requisite Enmund/Tison findings, and the CCA’s decision was not unreasonable. Accordingly, the court held that the district court erred in granting Foster habeas relief. OPINION:Barksdale, J.; Jones, C.J., and Barksdale and Prado, J.J.

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