Wednesday, November 6, 2013
Media Advisory: Jamie Bruce McCoskey scheduled for execution

AUSTIN – Pursuant to a court order by the 185th Judicial District Court of Harris County, Texas, Jamie Bruce McCoskey is scheduled for execution after 6 p.m. on Nov. 12, 2013. In November 1992, a Harris County jury found McCoskey guilty of capital murder for the killing of Michael Keith Dwyer.

FACTS OF THE CRIME

The Texas Court of Criminal Appeals accurately set forth the facts of the crime as follows: The evidence in this case reveals that between approximately 6:00 and 6:30 p.m. on November 13, 1991, an engaged couple returned to their apartment complex from a brief shopping trip. They went upstairs to their apartment and the decedent unlocked the door, leaving the keys in the lock until they could get the groceries inside. As he turned to remove the keys from the door, the decedent encountered McCoskey standing in the doorway. McCoskey unzipped his jacket to reveal a hunting knife in a scabbard in the waist of his pants. When asked what he wanted, McCoskey responded that he wanted a ride and they were going to take him where he needed to go. The decedent stated that he did not have any gas in the car or any money with which to put some in, but McCoskey told him that did not matter.

The decedent eventually agreed to take McCoskey where he wanted to go on the condition that his fiance be allowed to stay behind, but McCoskey insisted that she come along. The three originally got into the car with the couple in the front seat and McCoskey in the back. McCoskey instructed the man to go to a gas station and put gas in the car, which he did. Two or three blocks away from the station, McCoskey decided that he wanted to ride up front in the passenger seat so he could get out quickly in case a police officer pulled them over. After McCoskey and the woman changed positions, McCoskey instructed the driver to get onto the highway I-10 eastbound.

While they were on the highway, McCoskey apparently made several contradictory statements, including: (1) he was going to kill the couple; (2) he just needed a ride and he knew no one would volunteer; (3) he knew how to kill people using martial arts techniques; and (4) he was doing this for someone else who wanted him to steal the car. Eventually McCoskey instructed the driver to exit I-10 and directed him (somewhat indirectly) to an embankment in the middle of an empty field. Apparently McCoskey was looking for an isolated place. After the car was stopped, McCoskey took the keys and proceeded to a Suburban parked nearby to tell its occupants that the land was private property and they needed to leave. After a brief conversation with McCoskey, the occupants of the Suburban left.

McCoskey returned kind of . . . jumpy, grabbed the decedent around the neck, pulled him down, and put the knife to his throat. McCoskey then ordered the woman to handcuff the decedents hands behind him. McCoskey then moved the coats that were in the trunk to the back seat and placed the man in the trunk. McCoskey then got into the drivers seat and figured out how to drive the car. He ordered the woman to take off her shorts because he did not want her to jump out of the car and run. McCoskey left the embankment, but could not find his way out of the surrounding neighborhood. After asking some construction workers for directions, McCoskey got back onto the highway. During the ensuing period, McCoskey started fondling the woman. When she started crying, he turned up the radio so she would not get embarrassed and so her boyfriend could not hear. McCoskey then unzipped his pants and tried to force the woman to engage in oral sex with him by pushing her head down, but when she started gagging, he discontinued the assault.

As McCoskey drove in the direction of the couples apartment, the decedent attempted to tell him that the woman was pregnant and asked him not to hurt her. McCoskeys response was that he better shut up and not make him mad. McCoskey then told them that he was going to leave the decedent with some friends and then drop the woman off at the apartment, and after leaving the apartment he would call his friends to release the man; this way he could ensure that the two would be too scared to call the police. However, as they neared the apartments, McCoskey turned away and eventually came to an empty house close to the freeway. McCoskey took the woman into the house at knifepoint and proceeded to sexually assault her. He then returned her to the car and took the man into the house. The next sound the woman heard was something like if somebody hit you in the stomach and you get the breath knocked out of you and recognized the sound was coming from her fiance.

The woman then jumped from the car and fled across a gravel road and through a field to a nearby home. The occupant of the house would not allow her to enter, but then McCoskey appeared with a knife in hand, shaking his head. The occupant let the woman in and locked the door, whereupon she then called 911. McCoskey fled in the couples vehicle. When the police arrived on the scene, they found the mans body inside the empty house; he had been stabbed approximately two dozen times. The police eventually located McCoskey. Upon his arrest, they noticed knife scabbards strapped to both his belt and his right leg. The knife used in the stabbing was located a few feet away from him on the floor.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendants prior criminal conduct during the second phase of the trial which is when they determine the defendants punishment.

uring the punishment phase of trial, the State offered evidence of McCoskeys prior bad acts and convictions, which were accurately summarized by the Court of Criminal Appeals as follows: a 1981 juvenile commitment to the custody of the Texas Youth Council for an unnamed, but apparently serious, offense; a 1983 conviction for kidnapping for which McCoskey received shock probation. The probation was revoked later that year after McCoskey committed an assault; while in the penitentiary, McCoskey committed several rules violations, including five fights and four incidents of striking or threatening an officer; 1987 convictions for misdemeanor assault and possession of marijuana; [and] a 1992 incident of striking another inmate in the Harris County jail with a chisel, cracking his skull. Evidence was also presented that after McCoskey had been found guilty, but prior to the punishment stage, when the jury was out of the courtroom, McCoskey picked up a chair and threw it at the prosecutors, accusing them of lying at trial.

PROCEDURAL HISTORY

On Jan. 24, 1992, a Harris County grand jury indicted McCoskey for the offense of capital murder for the killing of Dwyer. On Nov. 12, 1992, a jury convicted McCoskey of capital murder. After the jury recommended capital punishment, the trial court sentenced McCoskey on Nov. 16, 1992, to death by lethal injection.

On May 22, 1996, the Texas Court of Criminal Appeals affirmed McCoskeys sentence. On Jan. 6, 1997, the U.S. Supreme Court denied review of McCoskeys petition for certiorari.

On May 17, 1997, McCoskey filed an application for a state writ of habeas corpus. While that application was still pending, McCoskey filed a subsequent application on June 17, 2003. The Court of Criminal Appeals denied McCoskeys second application on June 6, 2007, and denied the first application on March 11, 2009.

McCoskey then appealed his conviction and sentence in federal district court. The Southern District of Texas, Houston Division, denied his petition for a federal writ of habeas corpus on May 31, 2011. On May 29, 2012, the U.S. Court of Appeals for the Fifth Circuit affirmed the federal district courts denial of relief. On Jan. 7, 2013, the U.S. Supreme Court denied review of McCoskeys petition for certiorari.

On June 27, 2013, the 185th Judicial District Court of Harris County scheduled McCoskeys execution to take place on Nov. 12, 2013. The order was amended on July 18, 2013.

Texas Execution Information Center by David Carson.

Jamie Bruce McCoskey, 49, was executed by lethal injection on 12 November 2013 in Huntsville, Texas for the abduction and murder of a 20-year-old man.

At approximately 6:00 or 6:30 p.m. on 13 November 1991, Michael Dwyer and his 19-year-old fiancee returned to their Houston apartment from a brief trip to the grocery store. Dwyer went upstairs and unlocked the apartment door, leaving it open while the couple brought their groceries inside. When they came back upstairs, they were confronted by McCoskey, then 27, standing in their doorway. McCoskey unzipped his jacket, revealing a hunting knife in a scabbard in the waistband of his pants. When asked what he wanted, McCoskey answered that he wanted a ride, and they were going to take him where he needed to go. Dwyer argued with him, but eventually agreed to give him a ride, provided that his fiancee could stay behind. McCoskey insisted, however, that she come with them.

McCoskey climbed into the back seat of Dwyer's two-door car, and the couple got in front, with Dwyer driving. McCoskey instructed Dwyer to go to a gas station and put gas in the car, which he did. Two or three blocks from the gas station, McCoskey had Dwyer pull over so he could switch places with the woman - whose name is not given in court documents or news articles - so that he could flee quickly if they were pulled over by police. Next, McCoskey instructed Dwyer to drive east on Interstate Highway 10. Along the way, he made several contradictory statements about what he planned to do, from killing the couple to stealing the car, to merely getting a ride from them. He said he knew how to kill people using martial arts techniques.

Eventually, McCoskey instructed Dwyer to exit I-10. He continued to order Dwyer around, and with some uncertainty in direction, they ended up in the middle of a field in a neighborhood. After the car was stopped, McCoskey took the keys. He walked over to a sports utility vehicle parked nearby and told its occupants that they were on private property and had to leave. The SUV drove off. McCoskey then returned to Dwyer, grabbed him around the neck, pulled him down to the ground, and put the knife to his throat. He ordered the woman to handcuff Dwyer's hands behind him. McCoskey then opened the trunk, moved some coats from the trunk into the back seat, and placed Dwyer in the trunk. He then got in the driver's seat. He ordered the woman to get in the passenger seat and remove her shorts, saying he did not want her to jump out of the car and run away.

McCoskey had difficulty finding his way back to the highway and had to stop and ask some construction workers for directions. When they got back on the highway, McCoskey began fondling the woman. When she started crying, he turned up the radio so "she would not get embarrassed and so her boyfriend could not hear." He then unzipped his pants and briefly forced her to perform oral sex on him. Dwyer, still in the trunk, told McCoskey that his fiancee was pregnant and asked him not to hurt her. McCoskey responded that he had better shut up and not make him mad. McCoskey told the couple that he was going to leave Dwyer with some friends, then return the woman to the apartment. After he left the apartment, he would call his friends and instruct them to release Dwyer. As they got close to the apartment complex, however, McCoskey turned away.

He eventually came to an empty house near the freeway. He took the woman inside at knifepoint and raped her. He then returned her to the car and took Dwyer into the house. From the car, the woman heard Dwyer make a sound she described later as "if somebody hit you in the stomach and you get the breath knocked out of you." The woman bolted out of the car and ran across a gravel road, then through a field to a nearby house. The occupant of the house initially refused to let her inside, but when McCoskey appeared with a knife in his hand, the woman was allowed in. She then called 9-1-1. McCoskey fled in Dwyer's car.

The police found Dwyer's body inside the empty house. He had been stabbed approximately two dozen times. McCoskey left Dwyer's car in front of an apartment complex where he once lived. While police were searching the car, a resident, hearing a description of the suspect, told them they were looking for Jamie McCoskey, whose 6-foot-7-inch frame and rectangular face had earned him the nickname "Lurch", after the character from the 1960s television show, "The Addams Family." McCoskey was wearing knife scabbards strapped to both his belt and his right leg when he was arrested. The murder weapon was on the floor a few feet away. The rape victim then picked him out of a police lineup.

McCoskey had a previous conviction for kidnapping in Austin. In January 1983, he was given a 10-year sentence, but he was released on "shock probation" after less than five months. He was returned in October 1984 for committing an assault. He was released again in June 1987, then returned to prison again in October 1988. He was released early for the third time in May 1991, six months before Dwyer's murder. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) While in the Harris County jail awaiting trial for murder, McCoskey struck another inmate on the head with a chisel, fracturing his skull.

A jury found McCoskey guilty of capital murder in November 1992 and sentenced him to death. The day after his conviction, after entering the courtroom, McCoskey picked up a heavy oak chair and threw it at the prosecutors. The chair flew ten feet, hitting one prosecutor on the arm and grazing another before crashing into the jury box rail. "That's for lying in court!" he shouted at the prosecutors.

Several of McCoskey's appeals argued that he was insane or mentally ill. The Texas Court of Criminal Appeals affirmed his conviction and sentence in May 1996. All of his subsequent appeals in state and federal court were denied.

McCoskey was sanguine at his execution. He began his last statement by saying, "The best time in my life is during this period. If I had to do [it] again, I would not change a thing. I have been touched by an angel's wings." "If I had it to do again, I would change Dwyer's parents suffering," he reconsidered, with a tear rolling down his face, "because I know they are. I know that is not going to eliminate the pain, because I have a child." McCoskey then thanked the people who supported him during his 21-year stay on Texas' death row. "And if this takes the pain away, so be it," he concluded. "I love you. I'm ready to go." The lethal injection was then started. "There better not be a mix-up here," McCoskey then said with a loud laugh. "I don't want no stay." He was pronounced dead at 6:44 p.m.

Huffington Post

"Texas executes inmate for abduction, slaying," by Michael Graczyk. (AP November 12, 2013 08:11 PM EST)

HUNTSVILLE, Texas (AP) — A Texas man convicted of abducting a young Houston couple, raping the woman and fatally stabbing the man in 1991 was put to death Tuesday evening. Jamie McCoskey, 49, already was on a form of probation when he was arrested for the slaying of 21-year-old Michael Dwyer, who had been stabbed nearly two dozen times, and the rape of Dwyer's pregnant fiance. The couple had been abducted from their apartment.

Asked if he had any final statement, McCoskey replied: "The best time in my life is during this period. ... I have been touched by an angel's wings." He said that if he could, he would "change Dwyer's parents' suffering, because I know they are." During his brief comments, and as a tear ran down the side of his face just above a tattoo teardrop and below his right eye, McCoskey said he wanted "to say some things so bad." He said he appreciated people who had helped him, then turned his gaze toward Dwyer's mother and stepfather, saying, "And if this takes the pain away, so be it."

After telling the warden he was "ready to go," McCoskey turned his head back toward the warden in the seconds before the lethal dose of pentobarbital began taking effect and said loudly: "Better not be no mix-up here. I don't want no stay." McCoskey let out a loud laugh, then began taking deep breaths that became several snores. He was pronounced dead at 6:44 p.m. CST, 19 minutes after the lethal drug began to be administered. Dwyer's mother and stepfather declined to speak with reporters afterward.

McCoskey became the 15th convicted killer executed this year in Texas, which carries out the death penalty more than any other state.

The U.S. Supreme Court earlier this year refused to review McCoskey's case, and his attorneys filed no last-day appeals in the courts. Evidence showed the couple had left the door of their apartment open while they were bringing home groceries and were confronted by the knife-wielding McCoskey exactly 22 years ago Wednesday. He ordered them to their car, handcuffed Dwyer, drove around Houston and stopped at an abandoned ramshackle house where he raped the woman. She fled to a nearby home to seek help when she realized sounds she was hearing were of Dwyer being stabbed repeatedly.

Their car was found at an apartment complex where McCoskey once lived. Based on a description of the attacker, residents there identified McCoskey, whose 6-foot-7-inch height and square facial features had earned him the nickname "Lurch," after the hulking Frankenstein-like servant to the fictional "Addams Family" television comedy of the 1960s.

His mother testified at his trial that McCoskey had an abusive childhood that led to behavioral problems. After stints in juvenile facilities, his offenses escalated as he reached adulthood. Before reaching death row, he had a kidnapping conviction in Austin, assaults while in prison, marijuana possession busts and a jail term where records show he used a chisel to crack the skull of a fellow Harris County inmate. He also was remembered for walking into the Houston courtroom the day after his capital murder conviction in 1992, grabbing a heavy oak chair and heaving it about 10 feet. It hit one prosecutor in the arm and grazed another before crashing into the jury box rail. "That's for lying in court!" McCoskey shouted at the prosecutors.

Jurors weren't present yet and didn't see the incident. Days later, they rejected defense arguments McCoskey was insane and mentally ill and decided he should be put to death. Prosecutors presented testimony McCoskey had an anti-social personality disorder but did know right from wrong. "My only wish for Jamie is godspeed," Jim Peacock, his lead defense lawyer, said. "And I hope whatever there is for him after this point is kinder to him than his past has been." At least seven other Texas prisoners are set to die in the coming months, including one next month.

Houston Chronicle

"Montrose rape-killer executed for 1991 night of terror," by Mike Tolson. (November 13, 2013)

HUNTSVILLE - Almost 22 years to the day since he showed up in the doorway of a Montrose couple's apartment bent on violence, Jamie Bruce McCoskey was executed Tuesday evening after expressing regret for the years of suffering endured by the parents of his victim. "The way she is looking at me right now, no way she would accept an apology," McCoskey said from the gurney, looking toward the witness room at the mother of Michael Dwyer, whom he stabbed to death after raping his fiancee. "If she could, she would shoot me."

After a nervous giggle, the 49-year-old McCoskey indicated that if he had a chance to live his life again he would do something to alleviate the pain inflicted on Dwyer's parents. He stopped short of declaring himself sorry for his actions or explicitly stating a desire that he could undo his criminal conduct. "I know that it is not going to eliminate their pain, because I have a child," he said. He then thanked friends who showed up in support. "The best years of my life have been in this period. If I had to do it again, I would, because I have been touched by the wings of an angel."

Perhaps realizing how that sounded, he added, "I would change Dwyer's parents' suffering, because I know they are." As he lay staring at the ceiling of the execution chamber, McCoskey struggled to find words for his last statement. "God, I want to say something so bad," he said. "I appreciate the people who have helped me out. Know that I love you, angel, and your family. If this takes the pain away, so be it. I'm ready to go." While waiting for the pentobarbital to flow, McCoskey seemed impatient. "Better not be a mix-up here. I don't want no stay," he said.

McCoskey was the 15th person executed this year in Texas.

McCoskey was arrested on Nov. 14, 1991, the day after he abducted Dwyer and his pregnant fiancee from their apartment on Fairview Street. After he displayed a knife and demanded a ride, Dwyer asked that only he be taken. McCoskey refused. The three crowded into Dwyer's economy car and drove to several locations before ending up back in Montrose in an abandoned home just blocks away from the couple's apartment. McCoskey handcuffed Dwyer and locked him in the trunk. He then took his fiancee into the house and sexually assaulted her. Afterward, he returned to the car for Dwyer and left the woman in it. Hearing Dwyer being stabbed, she ran to a nearby house, where the resident let her in as McCoskey watched from the doorway of the house where Dwyer lay.

McCoskey's trial lawyers tried to convince a jury that lifelong mental illness and an abusive childhood were responsible for his violent, erratic behavior. Among those testifying for prosecutors was George Denkowski, a Fort Worth psychiatrist who often testified for the state. Denkowski's methods later were concluded to have little validity. The jury rejected an insanity defense.

Subsequent appeals re-examined McCoskey's mental illness and also any evidence of retardation, an outdated term that the U.S. Supreme Court used when barring use of the death penalty for those of certain intellectual disability. None of the appellate courts found his functioning to be low enough to qualify, however, nor was McCoskey considered incapable of understanding the reason for his punishment.

Houston Chronicle

"Texas inmate set to die for '91 abduction, slaying," by HUNTSVILLE, Texas (AP) — An abusive childhood led Jamie McCoskey to a juvenile offense record that kept escalating as he reached adulthood. He had a kidnapping conviction in Austin, assaults while serving time in prison, marijuana possession and a jail term where records show he used a chisel to crack the skull of a fellow Harris County inmate. Then he reached death row for abducting a Houston couple 22 years ago this week, killing a 21-year-old art student and raping the man's pregnant fiance.

On Tuesday evening, McCoskey, 49, was set to become the 15th convicted killer executed this year in Texas, which carries out capital punishment more than any other state. The U.S. Supreme Court earlier this year refused to review McCoskey's case and his lawyers said they planned no last-minute appeals to try to save his life.

At 6-feet-7 inches tall and square features, McCoskey was known to his acquaintances as "Lurch," the hulking Frankenstein-like butler to the fictional "Addams Family" of 1960s comedy TV fame. Besides his imposing physical appearance, McCoskey achieved notoriety during his 1992 trial in Houston for walking into the courtroom the day after his capital murder conviction, grabbing a heavy oak chair and heaving it about 10 feet where it hit one prosecutor in the arm and grazed another before crashing into the jury box rail. "That's for lying in court!" McCoskey shouted at the prosecutors. Jurors had not yet entered the courtroom and didn't see the outburst. Days later, they decided he should receive the death penalty.

Jim Peacock, his lead trial attorney, recalled last week McCoskey "clearly was mentally ill, not normal." McCoskey's height, square jaw and the result of being hit in the head with an iron when he was a child contributed in the "Lurch" resemblance, Peacock said. He called McCoskey's trial "a classic insanity defense" and the case "a tragedy in so many ways, it was a tragedy for the victims, a very, very horrible brutal horrific crime. It was also a horrific terrible life that he lived leading up to that time."

The rape victim testified how she and her boyfriend, Michael Dwyer, were entering their apartment after shopping the evening of Nov. 13, 1991, when they were confronted by McCoskey. He was armed with a hunting knife, forced them to drive around southeast Houston, had the woman put handcuffs on Dwyer and forced him into the trunk of their car while he molested her. She testified they stopped at a shabby vacant house where she was raped. She then told of hearing sounds as if "somebody hit you in the stomach and you get the breath knocked out of you" and realized it was Dwyer being stabbed some two dozen times. She ran to a nearby house and police were called. Their car was found at an apartment complex where McCoskey once lived. Residents identified McCoskey as the man police were describing. He was on mandatory supervision, a form of probation, at the time.

His mother testified he'd been abused as a child and had been in a number of juvenile facilities to deal with behavioral problems. Prosecutors presented psychologist testimony that McCoskey had an antisocial personality disorder but did know right from wrong.

At least seven other Texas prisoners are set to die in the coming months, including one next month.

Huntsville Item

"Texas executes man for 1991 Harris County slaying," by Cody Stark. (November 12, 2013)

HUNTSVILLE — A Dallas-area man stopped short of apologizing to the family of the man he stabbed to death 22 years ago before being executed Tuesday night. Jamie Bruce McCoskey, 49, however, did say that there was one thing he would change about the night of Nov. 13, 1991 when he abducted and murdered 21-year-old Michael Keith Dwyer and raped Dwyer’s 19-year-old pregnant fiancé in Harris County. “If I had it to do again I would change Dwyer’s parents’ suffering because I know they are,” McCoskey said. “I know that is not going to eliminate the pain because I have a child.”

After thanking people who supported him during “the best time” of his life while on death row because he had “been touched by an angel’s wings,” McCoskey told the warden he was “ready to go.” Before the lethal dose of pentobarbital kicked in, McCoskey had one final thing to say. “There better not be a mix up here. I don’t want no stay,” he said with a laugh. As the drug began flowing through his veins, McCoskey was struggling to breath and made snoring sounds. He was pronounced dead at 6:44 p.m., 25 minutes after the lethal dose was administered.

McCoskey is the 15th condemned inmate to be put to death in Texas this year. The U.S. Supreme Court earlier this year refused to review his case, and his attorneys filed no last-day appeals in the courts.

Evidence showed the couple had left the door of their apartment open while they were bringing home groceries and were confronted by the knife-wielding McCoskey exactly 22 years ago Wednesday. He ordered them to their car, handcuffed Dwyer, drove around Houston and stopped at an abandoned ramshackle house where he raped the woman. She fled to a nearby home to seek help when she realized sounds she was hearing were of Dwyer being stabbed repeatedly. Their car was found at an apartment complex where McCoskey once lived.

Based on a description of the attacker, residents there identified McCoskey, whose 6-foot-7-inch height and square facial features had earned him the nickname “Lurch,” after the hulking Frankenstein-like servant to the fictional “Addams Family” television comedy of the 1960s.

His mother testified at his trial that McCoskey had an abusive childhood that led to behavioral problems. After stints in juvenile facilities, his offenses escalated as he reached adulthood. Before reaching death row, he had a kidnapping conviction in Austin, assaults while in prison, marijuana possession busts and a jail term where records show he used a chisel to crack the skull of a fellow Harris County inmate. He also was remembered for walking into the Houston courtroom the day after his capital murder conviction in 1992, grabbing a heavy oak chair and heaving it about 10 feet. It hit one prosecutor in the arm and grazed another before crashing into the jury box rail.

ProDeathPenalty.Com

Jamie Bruce McCoskey dropped out of school in the 9th grade and worked as a landscaper before his final arrest. He was in and out of trouble with the law for several years. He was arrested for kidnapping in Travis County, Texas in January of 1983, and given a 10-year sentence serving six months before being released. He was arrested again in October of 1984, for violating his parole and served almost three years before being released. A year after his release, he was arrested again for parole violation in October of 1988. In 1991, he was released under mandatory supervision.

Between approximately 6:00 and 6:30 pm on November 13, 1991, an engaged couple, Michael Keith Dwyer and Laurie Collins, returned to their apartment complex from a shopping trip. They went to their apartment, leaving the keys in the door while they brought groceries inside. As Dwyer went to remove the keys, he encountered McCoskey standing in the doorway. McCoskey unzipped his jacket to reveal a hunting knife. When asked what he wanted, McCoskey replied that he wanted a ride and that the couple were going to take him where he wanted to go.

Dwyer agreed to take McCoskey on the condition that Collins stay behind, but McCoskey insisted that she come along. They started out with the couple in the front seat and McCoskey in back, but McCoskey eventually switched places with Collins so that he could exit quickly if a police officer pulled them over. McCoskey directed Dwyer to get onto a freeway. During the drive, McCoskey made several contradictory statements, including threatening to kill the couple, and telling them that he just needed a ride, that he knew how to kill people using martial arts techniques, and that he was doing this for someone else who wanted him to steal the car. Eventually, McCoskey told Dwyer to exit the freeway and directed him to an embankment in the middle of an empty field. After the car was parked, McCoskey took the keys and walked over to an SUV parked nearby to tell its occupants that they were on private property and had to leave.

McCoskey returned to the car, grabbed Dwyer around the neck, and put the knife to his throat. He then ordered Collins to handcuff Dwyer's hands behind him. McCoskey then put Dwyer in the trunk. He returned to the car, got in the driver's seat, and tried to figure out how to drive the manual transmission. He ordered Collins to remove her shorts because he did not want her to jump out of the car and run. McCoskey left the embankment, but could not find his way out of the surrounding neighborhood. He eventually got back onto the freeway. At some point while driving, he began fondling Collins's genitals. When she started crying, he turned up the radio so "she would not get embarrassed and so her boyfriend could not hear." McCoskey then unzipped his pants and tried to force her to engage in oral sex, but stopped when she started gagging.

As McCoskey drove in the direction of the couple's apartment, Dwyer tried to tell him that Collins was pregnant and asked him not to hurt her. McCoskey responded that Dwyer better shut up and not make him mad. McCoskey then told the couple that he was going to leave Dwyer with some friends, drop Collins at the apartment, and then call his friends to release Dwyer. He thought this would ensure that they would be too scared to call the police. As they neared the apartment, however, McCoskey turned away and drove to an empty house near the freeway. He took Collins into the house at knife point and raped her.

He then returned to the car and took Dwyer into the house. The next sound Collins heard was a noise like "if somebody hit you in the stomach and you get the breath knocked out of you." She recognized the sound as coming from Dwyer. Collins then jumped from the car and fled to a nearby house. The occupant of the house would not let her in until McCoskey showed up brandishing his knife. The occupant then let her in and locked the door. She then called 911. McCoskey fled in the couple's car.

When the police arrived, they found Dwyer's body in the empty house. He had been stabbed approximately two dozen times. When the police arrested McCoskey, they noticed knife scabbards strapped to his belt and his right leg. The knife used to stab Dwyer was on the floor a few feet away. Based on this evidence, the jury found McCoskey guilty of capital murder for murdering Dwyer during the course of kidnapping.

The State presented testimony by mental health professionals diagnosing McCoskey with antisocial personality disorder. The State also presented evidence of McCoskey's prior criminal record, prison disciplinary record, and that McCoskey, after the guilty verdict but out of the jury's presence, picked up a chair and threw it at the prosecutors. The jury answered in the affirmative the statutory special issue asking whether McCoskey posed a future danger to society, and answered in the negative the special issue asking whether the mitigating evidence was sufficient to warrant a life sentence. Accordingly, the trial court sentenced McCoskey to death.

McCoskey v. Thaler, 478 Fed. Appx. 143 (5th Cir. Tex. 2012). (Federal Habeas)

PROCEDURAL POSTURE: Petitioner filed for federal habeas relief. The United States District Court for the Southern District of Texas denied habeas relief, but granted a certificate of appealability (COA) pursuant to 28 U.S.C.S. § 2253 for two of his claims regarding the jury instructions delivered during the punishment phase of his trial. Petitioner sought habeas relief on these two claims, as well as an additional COA.

OVERVIEW: The state court did not unreasonably apply U.S. Supreme Court precedent in finding that petitioner's jury instructions did not prevent the jury from considering and giving effect to the mitigating evidence he presented. The jurors were directly asked whether mitigation evidence, broadly defined, warranted a life sentence rather than death. Petitioner's lack of success on his Penry claim precluded his ability to show prejudice for Strickland purposes, and that claim failed as well. Also, petitioner was not entitled to a COA. Reasonable jurists could not have debated whether the jury's response to the special issues indicated that they followed the erroneous instructions and sought to deliver a life sentence because there was a "straightforward" reading of the jury's responses (it ignored the instructions and elected to sentence petitioner to death). Petitioner's claim that the district court erred by inquiring into the "logic" or "consistency" of the jury's verdict was never presented to the district court, and could not be considered for the first time on appeal from the denial of habeas relief.

OUTCOME: The court affirmed the district court's judgment denying his request for habeas relief and denied his request for a COA.

PER CURIAM: 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.

Jamie Bruce McCoskey was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal, and McCoskey unsuccessfully sought state post-conviction relief. McCoskey then filed for federal habeas relief. The district court denied habeas relief, but granted a certificate of appealability pursuant to 28 U.S.C. § 2253 for two of his claims regarding the jury instructions delivered during the punishment [**2] [*146] phase of his trial. McCoskey now seeks habeas relief on these two claims, as well as an additional certificate of appealability to challenge the district court's denial of habeas relief on several other claims regarding the jury instructions. For the reasons stated below, we AFFIRM the district court's judgment denying his request for habeas relief and DENY his request for a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November of 1992, Jamie Bruce McCoskey was convicted of capital murder. At the penalty phase of his trial, the state trial court gave written instructions to the jury. McCoskey v. Thaler, No. H-10-0123, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *4 (S.D. Tex. May 31, 2011). The relevant portion of the instructions stated: You are instructed that when you deliberate on the questions posed in the special issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, record, emotional instability, intelligence or circumstances of the [**3] crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and thereafter, give effect and consideration to them in assessing the defendant's personal moral culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a [sic] affirmative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal moral culpability of the defendant, a [sic] affirmative finding should be given to that special issue under consideration. Id. (emphasis added). The trial court then delivered the following two statutory special issues to the jury:

SPECIAL ISSUE NO. 1 - Is there a probability that the defendant, Jamie Bruce McCoskey, would commit criminal acts of violence that would constitute a continuing threat to society?

SPECIAL ISSUE NO. 2 - 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 [**4] defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

You are instructed that the term "mitigating evidence" or "mitigating" circumstances means evidence that a juror might regard as reducing the defendant's moral blameworthiness. The jury answered Special Issue No. 1 in the affirmative, and Special Issue No. 2 in the negative. The trial court sentenced McCoskey to death. 1 McCoskey attempted to rebut the State's evidence regarding his future dangerousness with evidence that McCoskey suffered from mental illness that could be successfully treated in prison. See McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *5. McCoskey contends that this evidence showed that he would not pose a future danger, even if it did not reduce his culpability for the murder.

On direct appeal, McCoskey raised, inter alia, a challenge against the punishment-phase jury instructions under Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (Penry I), claiming that they prevented the jury from giving effect to evidence that McCoskey would not be a future danger to society. The Texas Court of Criminal Appeals [**5] ("TCCA") found the instructions to be erroneous, but rejected McCoskey's argument. McCoskey v. State, No. 71,629 (Tex. Crim. App. May 22, 1996), at 29-30. The TCCA first observed that McCoskey's trial counsel had failed to object to this error during the trial itself, meaning that under Article 36.14 of Texas Criminal Code, the error must have been "so egregious and have created such harm that appellant was denied a fair and impartial trial." Id. at 30 (citations omitted). The court then reasoned that whatever error existed was harmless: [H]ad the jury completely disregarded the instruction, then no harm would have resulted because the jury would have been ignoring exactly what the appellant says caused him harm. On the other hand, had the jury followed the court's instruction to the letter . . . , then two possibilities could have occurred. Had the jury wanted to recommend a life sentence as opposed to death, it would have responded in the affirmative to both of the special issues, thus yielding appellant's desired result of a life sentence. But, if the jury had expressly wanted to recommend a death sentence, then under the court's instruction, it would have answered both of the questions [**6] "no," thus also resulting to appellant's benefit, albeit contrary to the jury's intention, in a life sentence. Hence, appellant would have suffered no harm. Id. at 31 (emphases in original).

McCoskey proceeded to file for state post-conviction relief, raising among other claims, an ineffective assistance of counsel claim. See Ex parte McCoskey, No. WR-56,820-02, 2009 Tex. Crim. App. Unpub. LEXIS 168 (Tex. Crim. App. Mar. 11, 2009). McCoskey argued that the failure of his trial counsel to object to the erroneous jury instructions constituted grounds for setting aside his death sentence under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The state habeas court found that the TCCA had "essentially . . . rejected" this argument on direct appeal when it found the instructions to be harmless and, in the alternative, that the harmlessness of the instructions precluded the necessary showing of prejudice to establish ineffective assistance of counsel. On appeal, the TCCA also rejected McCoskey's arguments, adopting the reasoning of the state post-conviction court.

McCoskey then filed for federal habeas relief on several grounds, challenging the punishment-phase instructions and asserting ineffective assistance of his trial counsel. [**7] McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *4-8, *12. Relevant for this appeal, McCoskey challenged the punishment-phase jury instructions under Penry I. He claimed that the instructions prevented the jury from giving effect to evidence that McCoskey would not be a future danger to society by telling the jury to weigh mitigating evidence "in assessing the defendant's personal moral culpability." McCoskey posited that this instruction might have led the jury to disregard mitigating evidence regarding his future dangerousness that did not also go towards his moral culpability. The district court rejected this argument, pointing to the instructions' broad definition of mitigating evidence. 2011 U.S. Dist. LEXIS 58588, [WL] at *6. The district court, however, noted that reasonable jurists might disagree as to "whether the instruction was confusing in a way that might have led the jury to believe it could [*148] only consider mitigating evidence that reduced McCoskey's moral culpability, regardless of whether it tended to show that he would not pose a future danger." Id. It thus granted a certificate of appealability ("COA") on this claim. 2

2 McCoskey also made an argument similar to that he made before the TCCA—namely, that his death sentence [**8] violated the due process requirements of the Eighth and Fourteenth Amendments because the jury had answered the special instructions in a way that required imposition of a life sentence. The district court found the TCCA's determination that any error in the instructions was harmless to be a reasonable one under the deferential review established by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254. McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *4-5.

The district court also granted McCoskey a COA on his ineffectiveness claim, itself an extension of his Penry claim. McCoskey argued that his trial counsel's failure to object to the flawed instructions fell below an objective standard of reasonableness and resulted in a reasonable probability that but for counsel's failure to object, McCoskey might not have received the death penalty. 2011 U.S. Dist. LEXIS 58588, [WL] at *11 (citing Strickland, 466 U.S. at 687). Emphasizing the Antiterrorism and Effective Death Penalty Act's ("AEDPA") deferential standard, the district court reiterated its conclusion that the TCCA's finding—that the instructions, while flawed, nonetheless did not prevent the jury from considering and giving effect to McCoskey's mitigating evidence—was [**9] reasonable. 2011 U.S. Dist. LEXIS 58588, [WL] at *12. However, the district court again granted a COA, positing that reasonable jurists could disagree about its conclusion. Id. The district court rejected the remainder of McCoskey's claims for habeas relief and granted no further COAs. 2011 U.S. Dist. LEXIS 58588, [WL] at *16. McCoskey now appeals the district court's denial of habeas relief on his Penry and ineffective assistance of counsel claims, and also seeks a certificate of appealability on four other issues related to the punishment-phase instructions. We first analyze the merits of McCoskey's interrelated Penry and ineffective assistance claims. We then turn to whether a COA should issue for any of the other claims he raises.

II. HABEAS CLAIMS
A. Standard of Review

"In an appeal of the district court's denial of habeas relief, 'this court reviews the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standard of review that the district court applied to the state court decision.'" Austin v. Cain, 660 F.3d 880, 884 (5th Cir. 2011) (quoting Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010)). McCoskey's appeal is governed by AEDPA, 28 U.S.C. § 2254. Under § 2254(d), a federal court may grant [**10] habeas corpus relief only if the state court's adjudication of his claim on the merits "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." 28 U.S.C. § 2254(d). To be clear, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (emphasis added). "A state court's decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases . . . or if the state court decide[s] a case differently than the United States Supreme Court previously decided [*149] a case on a set of nearly identical facts." Jones, 600 F.3d at 535 (citations and internal quotation marks omitted). Similarly, "[a] state court's decision involves an unreasonable application of clearly established federal law if the state court 'correctly identifies the governing legal [**11] rule but applies it unreasonably to the facts of a particular prisoner's case.'" Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009) (quoting Williams, 529 U.S. at 407-08).

B. The Penry Issue

McCoskey's first argues that habeas relief is warranted because the jury instructions made "it . . . impossible for the jury to give any 'meaningful effect' to any evidence supporting a finding that Mr. McCoskey was a future danger." McCoskey Br. at 10-11. In other words, McCoskey contends that because "the charge provided the jury with no vehicle for expressing its 'reasoned moral response' to substantial evidence having significance only to Mr. McCoskey's propensity to commit crimes, the denial of habeas relief should be reversed." Id. at 14.

McCoskey's claim is governed by Penry I and its progeny. In Penry I, the Supreme Court held that habeas relief was appropriate because a juror presented with the Texas special issues could not have given effect to the full scope of the mitigating evidence regarding mental retardation and childhood abuse that had been presented by the petitioner at his sentencing phase. Penry I, 492 U.S. at 340. The Penry I Court held that "it is not enough simply to allow [**12] the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence." Penry I, 492 U.S. at 319 (emphasis added). Only then would "'the sentence imposed at the penalty stage . . . reflect a reasoned moral response to the defendant's background, character, and crime.'" Id. (quoting California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987) (O'Connor, J., concurring)).

In Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) (Penry II), the Court had occasion to apply the principles of Penry I to a situation similar to the present case. In that case, the jury had "had to determine whether Penry acted deliberately when he killed [the victim]; whether there was a probability that Penry would be dangerous in the future; and whether Penry acted unreasonably in response to provocation." Id. at 789. The Court rejected a supplemental instruction 3 which created "'a reasonable likelihood that the jury . . . applied [*150] the challenged instruction in a way that prevent[ed] the consideration' of Penry's [mitigating evidence]." Id. at 800 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)). In arriving at this holding, the Court emphasized that"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.'" Penry II, 532 U.S. at 797 (quoting Penry I, 492 U.S. at 319) (alteration in original). Put differently, the special issues must be "broad enough to provide a vehicle t[o] allow[] the jury to express its reasoned moral response to the full mitigating impact of all the evidence." Nelson v. Quarterman, 472 F.3d 287, 300 (5th Cir. 2006) (en banc). Thus, the Court concluded, the TCCA's acceptance of these instructions was an unreasonable application of Penry I. Penry II, 532 U.S. at 803-04. But the Court observed that "[a] clearly drafted catchall instruction on mitigating evidence . . . might . . . compl[y] with Penry I." Id. at 803. The Court noted that even Penry's counsel "would have [had] a tough time" arguing that the amended Texas capital statute—under which McCoskey was sentenced—did not comply with Penry I. Id.

3 The instruction stated: You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, [**14] whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues. Id. at 789-90 (emphasis added).

In the wake of Penry I and II, we have understood the proper inquiry to be "whether there is a reasonable likelihood that the special issues precluded the jury from giving full consideration and full effect to the defendant's mitigating evidence, including evidence that has mitigating relevance outside [**15] the scope of the special issues because it speaks to a defendant's moral culpability." Nelson, 472 F.3d at 303. The capacious definition of "mitigating evidence" employed in the Texas statute can "encompass[] 'virtually any mitigating evidence.'" Roach v. Quarterman, 220 F. App'x 270, 277 (5th Cir. 2007). This is because "[t]his jury instruction '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.'" Id. at 277 (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)) (alterations in original).

McCoskey urges that his case is materially indistinguishable from Penry II because the erroneous instructions in his situation created "internal contradictions" between the instructions and the special issues that "imped[ed] a reasoned response to substantial evidence mitigating future dangerousness." McCoskey Reply Br. at 1-2 (citing Penry II, 532 U.S. at 797-800). However, McCoskey misapprehends the Court's holding in Penry II. The Court rejected the supplemental instructions in that case "[b]ecause [**16] Penry's mitigating evidence did not fit within the scope of the special issues, [so that] answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction." Penry II, 532 U.S. at 799. Given that the Penry II special issues covered only the deliberateness of the killing, future dangerousness, and whether Penry had acted unreasonably in response to provocation, id. at 789, the Court's concerns about contradiction and limitation were self-evident.

McCoskey's case is different. Here, there is no indication that the TCCA unreasonably applied Penry II to McCoskey's case. Williams, 529 U.S. at 411. The instructions made clear that mitigating evidence could "include, but is not limited to, any aspect of the defendant's character, background, record, [*151] emotional instability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case." Likewise, Special Issue No. 2 instructed jurors to consider "all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant," in determining [**17] whether to assess the death penalty. Moreover, the instructions as a whole encompassed such a wide breadth of evidence as to encompass mitigating evidence dealing with moral blameworthiness, as well as mitigating evidence going towards future dangerousness. Cf. United States v. Conner, 537 F.3d 480, 486 (5th Cir. 2008) (reviewing jury instructions as a whole for error). In sum, the jurors in McCoskey's case were directly asked whether mitigation evidence, broadly defined, warranted a life sentence rather than death. Consequently, there is no indication that it was unreasonable for the TCCA to conclude that the jury was not prevented from considering and giving effect to the defendant's mitigating evidence. See Penry II, 532 U.S. at 797.

The deferential standard of review, as well as the recognized breadth of Texas's jury instructions, indicate that the district court was correct in determining that the TCCA did not unreasonably apply Supreme Court precedent in finding that McCoskey's jury instructions did not prevent the jury from considering and giving effect to the mitigating evidence he presented. We therefore affirm the district court's denial of McCoskey's request for habeas relief [**18] on this ground.

C. The Strickland Issue

McCoskey also raises an ineffective assistance of counsel challenge based on his trial counsel's failure to object to the erroneous jury instructions. McCoskey's argument on this issue is essentially the same as in the previous issue. The State effectively concedes that trial counsel committed error, instead arguing that this claim is procedurally defaulted or, in the alternative, McCoskey cannot show that he was prejudiced by counsel's error. Under AEDPA, there is no need to reach procedural default if McCoskey cannot prevail on the merits of his ineffective assistance claim. See 28 U.S.C. § 2254(b)(2). Accordingly, we first examine the substance of his Strickland claim.

Ineffective assistance of counsel claims are governed by the standard laid out in Strickland v. Washington: First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687. The district court agreed with McCoskey that trial counsel's [**19] failure to object to the flawed jury instructions was deficient. McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *12. Our question, then, is whether the prejudice prong is met. "When a defendant challenges a death sentence . . . , the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. In this context, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Put differently, "[i]n assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have [*152] been established if counsel acted differently. . . . Instead, Strickland asks whether it is 'reasonably likely' the result would have been different." Harrington v. Richter, 131 S. Ct. 770, 791-92, 178 L. Ed. 2d 624 (2011) (citations and internal quotation marks omitted). Thus, Strickland demands that likelihood of a different result "must be substantial, not just conceivable." Id. at 792.

McCoskey's lack of success on his [**20] Penry claim precludes his ability to show prejudice for Strickland purposes. Given the high bar established by the intersection of Strickland and § 2254(d), the TCCA's conclusion that the jury was able to consider and give effect to the mitigating evidence that McCoskey presented was reasonable. Under the above standard, McCoskey would have to show that "there is [no] reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S. Ct. at 787. McCoskey cannot do this. Even assuming that trial counsel's performance was deficient, McCoskey's inability to make out a viable Penry claim defeats his ability to show a "reasonable probability that . . . but for counsel's unprofessional errors, the result of the proceeding would have been different. . . .[,] sufficient[ly] to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Consequently, we deny McCoskey's request for habeas relief on this point and affirm the district court's decision. There is no need to reach the issue of procedural default.

D. Conclusion

McCoskey has failed to show that the TCCA unreasonably applied federal law in adjudicating his Penry and Strickland claims. The district court correctly denied his request for habeas relief.

III. CERTIFICATE OF APPEALABILITY
A. Standard of Review

In order to pursue any other habeas claims, McCoskey must first obtain a COA, which is a jurisdictional prerequisite to the panel's ability to review the district court's dismissal of a habeas petition and denial of relief. See 28 U.S.C. § 2254(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). This adds a further layer of review to the analysis of McCoskey's claims. See 28 U.S.C. § 2253. The panel may grant a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "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). This does not require that McCoskey demonstrate success on the merits of his claims, as "a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has [**22] received full consideration, that petitioner will not prevail." Miller-El, 537 U.S. at 338. When the district court rejects a habeas claim on procedural grounds, a COA should issue if the petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 478.

In assessing whether to grant a COA, the panel is restricted "to a threshold inquiry into the underlying merit of [McCoskey's] claims." Miller-El, 537 U.S. at 327. Put differently, the panel is constrained to conducting "an overview of the claims in [McCoskey's] habeas petition and a general assessment of their merits." Id. at 336. The panel should make "the determination of whether a COA should issue . . . by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). In capital cases, doubts as to whether a COA should issue should be resolved in the petitioner's favor. Foster v. Quarterman, 466 F.3d 359, 364-65 (5th Cir. 2006).

B. McCoskey's Four COA Requests
1. The Jury and the Instructions

McCoskey first seeks to persuade us that reasonable jurists might debate whether the jury's response to the special issues indicates that they followed the erroneous instructions and sought to deliver a life sentence to McCoskey. He argues, citing Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), that jurors are presumed to follow the instructions given to them by courts. McCoskey is right that there is a presumption that "'jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.'" United States v. Olano, 507 U.S. 725, 740, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (quoting Francis, 471 U.S. at 324 n. 9). However, "[t]he rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). Where there is good reason to believe [**24] that the presumption is unwarranted by the facts of a particular case, it does not apply. Id. The district court, drawing on the TCCA's reasoning, found McCoskey's situation to be such a case: In this case it is obvious that the jury did not follow the instruction. If it had, then the answers to the two special issues would have been the same—"yes" if the jury wished to impose a life sentence, or "no" if it did not. The fact that the jury answered one special issue "yes" and the other "no" makes it clear that the jury did not follow the instruction, and that it answered the special issues in a direct and straightforward manner, i.e., it found that McCoskey posed a future danger to society and that the mitigating evidence did not warrant a life sentence. McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *5. This reasoning is clearer and more persuasive than what McCoskey offers. Given that at the COA stage, we ask only whether "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," this is sufficient to meet that threshold. Miller-El, 537 U.S. at 336 [**25] (citation and internal quotation marks omitted). Consequently, we reject McCoskey's request for a COA on this issue.

2. The Principle of Lenity

McCoskey next tries to reframe his previous argument in light of the principle of lenity. McCoskey draws on [*154] Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988), to posit that a death sentence must be vacated if a reviewing court "cannot conclude, with any degree of certainty, that the jury did not adopt petitioner's interpretation of the jury instruction." Id. at 377. McCoskey then reiterates his view that "the nullification instruction treated the special issues independently and allowed the jury to express a preference for a life sentence by answering either one of the special issues affirmatively."

The general principle for which Mills stands can be found just above the section McCoskey quotes: With respect to findings of guilt on criminal charges, the Court consistently has followed the rule that the jury's verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict. . . . In reviewing death sentences, the Court has [**26] demanded even greater certainty that the jury's conclusions rested on proper grounds. . . . Unless we can rule out the substantial possibility that the jury may have rested its verdict on the "improper" ground, we must remand for resentencing. Id. at 376-77 (citations omitted). The Court announced this proposition in the context of a capital case involving a jury instruction form that left "a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Id. at 384. Similar to the present case, the Court lacked "extrinsic evidence of what the jury in th[e] case actually thought," but concluded that there was a "substantial risk that the jury was misinformed." Id. at 381.

It is difficult to see a similar "substantial risk" of misinformation in McCoskey's case. As the district court observed, and the TCCA before it, there is a "straightforward" reading of the jury's responses: It ignored the instructions and elected to sentence McCoskey to death. McCoskey, 2011 U.S. Dist. LEXIS 58588, 2011 WL 2162176, at *5. Moreover, McCoskey's preferred interpretation—that the jurors understood the instructions to mean that affirmative answer to either special issue would result in a life sentence for him—leaves open the question of why the jurors answered the future dangerousness special issue in the affirmative, but the life imprisonment special issue in the negative. Given the limited nature of the COA inquiry and the absence of any compelling arguments from McCoskey, there is no reason to allow this claim to proceed further. We deny McCoskey's request for a COA on this issue.

3. Logical Consistency

McCoskey's third claim for a COA is that the district court erred by inquiring into the "logic" or "consistency" of the jury's verdict. McCoskey's claim appears to be that the district court demanded that the jury's verdict be logically consistent in contravention of Supreme Court precedent to the contrary. This claim, however, was not properly presented to the district court. McCoskey made no mention of this claim in his amended habeas petition. His first reference to this argument arose in his reply to the State's answer to his amended habeas petition. [**28] Indeed, the district court did not consider this claim in its opinion, perhaps because it did not appear in McCoskey's petition. Moreover, McCoskey did not seek, pursuant to Federal Rule of Civil Procedure 15, to amend his petition to include this argument as a new claim nor does he currently argue that the district court has somehow abused it discretion by failing to consider it. See Fed. R. Civ. P. 15(a)(2); United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998). A contention not raised by a habeas petitioner in the district court cannot be considered for the first time on appeal from that court's denial of habeas relief. See Goodrum v. Quarterman, 547 F.3d 249, 259 n.49 (5th Cir. 2008); see also United States v. Sangs, 31 Fed. Appx. 152, 2001 WL 1747884, at *1 (5th Cir. Dec. 11, 2001) (affirming, in § 2255 context, district court's refusal to consider issue raised for the first time in reply to government's answer to habeas petition). 4 Given the above analysis, we reject McCoskey's request as his claim was never presented to the district court.

4 To circumvent these problems, McCoskey contends that this argument is not actually a novel habeas claim, but instead merely shows that the district court's and the TCCA's rejection of his due process claim were debatable by reasonable jurists; that he is not making a new and unpresented claim, but fleshing out a preexisting one. McCoskey's opening brief, however, never seeks to connect this claim back to any due process arguments he offered before the district court. This belies his contention that this is a new twist on an old claim.

4. The Harmless Error Analysis

Lastly, McCoskey appears to contest the district court's agreement with the TCCA that any jury instruction error was harmless. McCoskey argues that this conclusion "rests on the mistaken belief that the jury following the instruction could only answer the special issues in one of two ways, either both, Yes, or both, No. Since that is false, the harm analysis is false as well." McCoskey's argument misstates the position of both the district court and the TCCA. McCoskey's position is that the jury instructions were flawed and this caused him harm in the form of his death sentence. However, if the jury simply disregarded the erroneous instructions, then there was no harm to McCoskey because the instructions played no role in sentencing. In contrast, if [**30] the jury did properly follow the erroneous instructions, as McCoskey argues, then even if it had intended to sentence McCoskey to death, it would have responded "no" to both special issues since the error in the instructions was to conflate both special issues and state that the jury should answer both in the affirmative to choose a life sentence for McCoskey. Accordingly, no harm resulted from the instructions to McCoskey. Since McCoskey has offered no rebuttal to this position, it is clear that reasonable jurists could not debate this conclusion.

C. Conclusion

McCoskey cannot meet the standard required for the issuance of a COA. Either reasonable jurists could not debate the general merits of the district court's conclusions or his claims were not properly preserved for appellate review. We deny his request for a COA on these other issues.

IV. CONCLUSION