Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about 30-year-old Frederick Patrick McWilliams, who is scheduled to be executed after 6 p.m. Wednesday, November 10, 2004. On September 9, 1997, McWilliams was sentenced to death for the capital murder of Alfonso Rodriguez in Houston on September 28, 1996. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On the night of September 28, 1996, McWilliams and two accomplices drove to a Houston apartment complex where McWilliams and one of the accomplices, Kenneth Adams, talked about stealing a car. After McWilliams found a brown car with a man sleeping inside, both he and Adams, who were carrying guns, approached the vehicle. Adams pulled Alfonso Rodriguez from the car at gunpoint while McWilliams rummaged through the glove compartment. Adams beat Rodriguez with the butt of the gun while Rodriguez was lying on the ground attempting to cover his head. Adams then picked Rodriguez up, and he and McWilliams tried to put Rodriguez in the trunk of his car.

Not wanting to be part of the robbery, the third accomplice jumped into the driver’s seat of Adam’s car and drove away. As he was leaving, he heard a shot. A few minutes later, he saw McWilliams and Adams driving Rodriguez’s car, and they waved at him to pull over. Adams, who was covered in blood, got into the driver’s seat and told Hawkins, “Your cousin wild. He wild. He shot a man.”

On October 3, 1996, Adams and another man were stopped for speeding. A search of the car yielded several firearms, one of which was identified as the gun that killed Rodriguez. During questioning by investigating officers, Adams confessed and implicated McWilliams. After being arrested, McWilliams admitted to shooting Rodriguez.

PROCEDURAL HISTORY

November 15, 1996 -- A Harris County grand jury indicted McWilliams for the capital murder of Alfonso Rodriguez.
September 4, 1997 -- A jury found McWilliams guilty of capital murder.
September 9, 1997 -- Following a separate punishment hearing, McWilliams was sentenced to death.
March 10, 1999 -- The Texas Court of Criminal Appeals affirmed McWilliams’ conviction and sentence.
July 22, 1998 -- McWilliams filed an application for writ of habeas corpus in the state trial court.
April 4, 2001 -- The Texas Court of Criminal Appeals denied McWilliams’ application for writ of habeas corpus.
April 3, 2002 -- McWilliams filed a federal petition for writ of habeas corpus in a Houston U.S. District Court.
December 31, 2002 -- The federal court dismissed habeas petition and denied a certificate of appealibility.
March 28, 2003 -- McWilliams requested permission to appeal from the 5th U.S. Circuit Court of Appeals.
August 15, 2003 -- The 5th Circuit Court of Appeals denied McWilliams’ request to appeal denial of habeas petition.
September 5, 2003 -- McWilliams filed a petition for rehearing on his application for certificate of appealibility.
September 22, 2003 -- The 5th Circuit Court of Appeals denied the petition for rehearing.
December 18, 2003 -- McWilliams petitioned the U.S. Supreme Court for a writ of certiorari.
March 1, 2004 -- McWilliams’ petition for writ of certiorari was denied by the Supreme Court.

PRIOR CRIMINAL HISTORY

McWilliams received probation (deferred adjudication) for an August 1993 aggravated robbery, and he was convicted for evading arrest in a September 1994 incident. McWilliams also participated in the commission of several robberies leading up to and following the capital murder of Alfonso Rodriguez, including the September 9, 1996, robbery of Dan’s Food Market in Brookshire; the September 24, 1996, robbery of Lucy’s Cantina in Houston; and the October 3, 1996, robbery of the Brookshire Brothers Grocery Store in Brookshire.

ProDeathPenalty.com

On the night of September 27, 1996, McWilliams went driving with his cousin, Richard Hawkins and Kenneth Adams in Adams’ red compact car in Houston. Hawkins fell asleep in the back seat and awoke as they turned into the parking lot of an apartment complex. McWilliams and Adams were discussing stealing a car. After their first unsuccessful attempt, McWilliams and Adams found a brown car in the lot and opened the door to find a man asleep inside the vehicle. They returned to Adams’ vehicle, and Adams told McWilliams that he should have gotten the man, and McWilliams decided to return. The two men returned to the car carrying guns.

Adams pulled the victim, Alfonso Rodriguez, from the driver’s side at gun point while McWilliams rummaged through the glove box. Adams beat Rodriguez with the butt of the gun. Rodriguez laid on the ground covering his head to avoid the blows. Adams and McWilliams then attempted to force Rodriguez into the trunk of the car. Not wanting to be a part of the robbery, Hawkins jumped into the front of Adams’ car and drove away. As he left, he heard a gun shot. Shortly thereafter, McWilliams and Adams caught up to Hawkins in Rodriguez’s car and waved Hawkins to the side of the road. Adams, who was covered in blood, got into the driver’s seat and told Hawkins “Your cousin wild. He wild. He shot a man.”

The three met up at a gas station where McWilliams pulled a bag of jewelry from Rodriguez’s car and put it in Adams’ car. The next day, McWilliams admitted to Hawkins that he had shot Rodriguez. The next week, Adams was stopped for speeding. A search of the car yielded several firearms one of which was the weapon used to kill Rodriguez. During questioning by investigators, Adams confessed and implicated McWilliams. After being arrested, McWilliams gave two statements. In his first statement, McWilliams claimed that Adams shot Rodriguez. In his second statement, McWilliams admitted shooting Rodriguez.

A jury convicted McWilliams of capital murder on September 4, 1997 in state court in Harris County, Texas. McWilliams was sentenced to death on September 9, 1997.

October 1996 - The recent arrest of four suspects from Houston - one a ""real smart kid" from Waltrip High School - could solve several robberies of west-side suburban grocery stores, police say. Cases expected to be cleared include two store robberies here last summer and possibly two others in Rosenberg and Waller, Brookshire Police Chief Joe Garcia said this week. Two members of the gang also are accused in the Sept. 28 killing of a man during a carjacking in an apartment parking lot in northwest Houston. Garcia said the car later was used in one of the robberies. Investigation by Garcia, Houston police investigators John Swaim and Phil Waters, and Texas Ranger Bryant Wells resulted in the suspects' arrests over the past three weeks in Katy and Houston.

Jailed in lieu of bail are: Kenneth Edward Adams, 18, of the 8400 block of Hearth, a Waltrip High senior, believed to have led the gang and is charged with capital murder and aggravated robbery. Frederick Patrick McWilliams , 22, of the 3100 block of Jewell, charged with capital murder and aggravated robbery. Keith Price, 20, of the 10900 block of Fondren, charged with aggravated robbery. Richard Hawkins, 19, of the 1400 block of Burma, charged with aggravated robbery. Still being sought is James Patrick Tanner, 30, of the 8600 block of Rockford in Houston, wanted on aggravated robbery charges. Adams is in the Galveston County Jail, Hawkins is in the Waller County Jail, and Price and McWilliams are in the Harris County Jail, Garcia said.

He said the gang was the idea of Adams, whom he described as a good student with a spotless record. Adams, who once worked at a Houston supermarket, organized the forays, he said. Garcia said Adams and McWilliams are suspects in the Sept. 6 evening robbery of Dan's Food Market here and, with Hawkins, also are suspects in the Oct. 3 early morning robbery of B&B Food Store here. Adams and Price are suspects in the Oct. 3 robbery of a grocery in San Leon in Galveston County, Garcia said. Police are looking into possible ties of members of the gang to grocery holdups last spring in Rosenberg and last summer in Waller.

Texas Execution Information Center by David Carson.

Frederick Patrick McWilliams, 30, was executed by lethal injection on 10 November 2004 in Huntsville, Texas for the murder of a 39-year-old man during a robbery.

On 28 September 1996, McWilliams, then 22, his cousin, Richard Hawkins, 19, and Kenneth Adams, 18, drove to a Houston apartment complex, looking for a car to steal. They selected a 1983 Chevrolet and decided to steal it, but then they saw that a man was sleeping in it. They went back to Adams' car, then after some discussion, decided to rob the sleeping man of his car. Adams and McWilliams, both carrying guns, approached the car. Adams pulled Alfonso Rodriguez Jr. from the car while McWilliams rummaged through the glove compartment. Rodriguez resisted, and a struggle ensued between him, Adams, and McWilliams. A shot was fired, and Rodriguez died from a .38-caliber slug at point blank range. Adams and McWilliams then stole the victim's car. Hawkins had already driven off in Adams' car. Five days later, Adams was stopped for speeding. A search of the car yielded several firearms. During questioning, Adams confessed and implicated McWilliams. McWilliams was then arrested, and confessed to shooting Rodriguez. One of the guns found in Adams' car was identified as the murder weapon.

Richard Hawkins testified that he, McWilliams, and Adams were at the apartment complex to steal a car. He said that when McWilliams and Adams started beating Rodriguez, he decided that he did not want to be part of a robbery, so he drove away in Adams' car. As he was leaving, he heard a shot. A few minutes later, he saw the McWilliams and Adams driving Rodriguez's car, and they waved at him to pull over. Adams, who was covered in blood, got into the driver's seat and told Hawkins, "Your cousin wild. He wild. He shot a man."

At age 19, McWilliams was involved in the armed robbery of a pizza delivery man. He was convicted of robbery and received 8 years' probation. In September 1994, he was convicted of evading police detention and spent 10 days in jail. Court testimony showed that McWilliams was involved in at least three more robberies in September and October 1996.

A jury convicted McWilliams of capital murder in September 1997 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in March 1999. All of his subsequent appeals in state and federal court were denied. Kenneth Adams and Richard Hawkins both received felony convictions for their role in the murder. Adams received a life sentence. Hawkins was sentenced to 8 years in prison. Information on their current status was not available for this report.

Despite records and testimony showing a long history of robbery, McWilliams claimed in a death-row interview that the Rodriguez case was a one-time event, a way to raise money to pay his probation fees. He said that Adams and Hawkins were the leaders, and he only joined in. He said that he did not intend to kill Rodriguez. "We were struggling, and the gun went off and took his life. I can't truthfully tell whether he pulled the trigger or I did. My hand was on top of his hand, and his hand was on top of mine. It was a two or three-second dance of death, but it seemed to go on forever ... I'm innocent in the sense I didn't maliciously, knowingly, intentionally cause his death. I never intended to kill anybody."

McWilliams said that his life at that time was out of control. "If none of this happened, I'd have been dead at age 25," he said. "I never enjoyed doing things like that ... I just felt in a helpless situation at the time ... Life was always against me. The forces of life were against me." "My thought, if worse comes to worse, is that my soul will go to a higher plane. I will have a choice of whether to come back to Earth or move up to that higher place," he said. "I don't know what I'll do. It depends on what's in my best interest."

"Well, here we are again, folks, in the catacombs of justice," McWilliams said in his last statement. There are people that will be mad, thinking I try to seek freedom from this, but as long as I see, freedom belongs to me and I'll keep on keeping on. The shackles and chains that just might hold my body can't hold my mind." McWilliams also expressed love to his family and friends. He was pronounced dead at 6:18 p.m.

National Coalition to Abolish the Death Penalty

Frederick McWilliams - TEXAS - November 12, 2004

The state of Texas is scheduled to execute Frederick Patrick McWilliams, a black man, Nov. 10 for the 1996 murder of Alfonso Rodriguez, a Latino man. McWilliams was sentenced to death at 22 in Harris County. The murder was the result of McWilliams’ attempt to rob Mr. Rodriguez and steal his car and pieces of jewelry. His friend Kenneth Adams was with McWilliams at the time of the crime.

McWilliams’ sentencing was based upon references to unproven federal offenses. These allegations were weak and McWilliams’ connections to these crimes tenuous at best. The jury was told of a rape and robbery, for which the sole connection was based upon a red car in which black males were present.

In 2003, the Fifth Circuit court denied an appeal filed on McWilliams’ behalf. The main legal issue raised was the Simmons, a U.S. Supreme Court precedent which requires that jurors not be given misleading information regarding the amount of time a defendant would have to serve in prison if he is not sentenced to death. It should be further noted that the counsel appointed by the Texas Court of Criminal Appeals to prepare the state writ never met with McWilliams, did not investigate the case, and raised only those issues available in the record.

The current problems with the Houston Police Department Crime Lab demonstrate why this death sentence is unworthy of confidence. The HDP Crime Lab’s troubles began in late 2002 when an independent investigation and subsequent audit revealed widespread deficiencies in quality assurance programs, organization, personnel qualifications, evidence and sample control, and several other serious problems. Of 28 applicable subcategories of the audit, the Serology/DNA section of the Lab failed 23 of them.

In response to these findings, the Houston Police Department shut down the DNA division of the crime lab while material from 400 cases was re-examined. This retesting process showed a rate of error over 20 percent. Harris County has also demonstrated unreliable forensic work and faulty ballistics analyses in the firearms section of the HDP Crime Lab in at least four capital cases. Most recently, the Houston Police Department found evidence that involved cases from 1979 through the 1990’s which had previously been lost. Though the evidence has been largely recovered, there is still a great deal of uncertainty as to the contents of the boxes, which cases are affected, and whether any of the boxes include evidence surrounding capital cases.

As a result of the HPD Crime Lab problems, the Chief of Police requested a halt on executions in Harris County and State Senator Rodney Ellis, and State Senator John Whitmire called for a halt to executions as well. Governor Perry has insisted this is not necessary. Less than one-fourth of the state's murders take place in Harris County, but it accounts for 36 percent of all inmates under death sentence in Texas. It is inconceivable that a county with such large-scale problems would continue to execute people especially at such an alarming rate.

Please urge Texas Governor Rick Perry to stop the execution of Frederick Patrick McWilliams until Harris County's Crime Lab matter is cleared. Please further urge Governor Perry to consider the possibility of a life sentence instead of the death penalty for McWilliams and other convicted murderers.

Houston Chronicle

"Killer who's outlived own predictions executed." (Associated Press Nov. 10, 2004, 7:05PM)

HUNTSVILLE -- Condemned killer Frederick McWilliams was executed tonight for the fatal shooting of a man in Houston eight years ago during a car theft.

"Well, here we are again folks in the catacombs of justice," McWilliams said when asked by the warden if he had a final statement. He said there was much he wanted to say but "not a whole to say." "There are people that will be mad thinking I try to seek freedom from this, but as long as I see, freedom belongs to me and I'll keep on keeping on," he said. "The shackles and chains that just might hold my body can't hold my mind, but will kill me otherwise." McWilliams then told his mother, who watched through a window a few feet away, a sister and several friends that he loved them and would never stop. Ten minutes later, at 6:18 p.m. CST, he was pronounced dead.

McWilliams, 30, was the 22nd Texas prisoner executed this year and the second in as many nights. Two more convicts are set for lethal injection next week.

McWilliams, a former warehouse worker whose hopes for a career as an architect were derailed by armed robbery convictions, was on probation when he was arrested for the beating and shooting of Alfonso Rodriguez at a Houston apartment complex.

The U.S. Supreme Court earlier this year refused to review McWilliams' case and his attorney said appeals possibilities were exhausted. A clemency petition and a request for a 180-day reprieve were both rejected by the Texas Board of Pardons and Paroles. At the time of the slaying, McWilliams was on probation for armed robberies and had been linked to other holdups. "I never enjoyed doing things like that," he said recently from a small cage-like cubicle in the visiting area outside death row. "I just felt in a helpless situation at the time."

Court records show McWilliams, a cousin, Richard Hawkins, and a third man, Kenneth Adams, were driving around Houston the night of Sept. 27, 1996, and discussed the prospect of stealing a car. "We were going to use the car as a getaway vehicle for a crime the next day," McWilliams said. "My job was to steal the car."

As Hawkins dozed in the back seat of their car, McWilliams and Adams selected a 1983 Chevrolet in the parking lot of an apartment complex only to find Alfonso Rodriguez sleeping inside. They then returned to their own car. According to testimony, Adams told McWilliams he should have gotten the man and the two decided to go back, this time armed. Rodriguez was pulled from the driver's side at gunpoint and was beaten by Adams as McWilliams rifled through the glove box. According to McWilliams, Adams and Rodriguez were wrestling and Adams dropped his weapon in the struggle. Rodriguez grabbed he gun. "The victim rushed me. He had his hand on the pistol. I had a hand on the pistol," McWilliams said. "I don't know if he pulled the trigger or I pulled the trigger. "The gun went off."

A week later, Adams was stopped for speeding and police found guns in his car, including one tied to the Rodriguez slaying. He told them McWilliams was the gunman, leading to McWilliams' arrest, subsequent trial and death sentence. "I never intended to kill anybody," McWilliams said from prison. Hawkins, now 27, received an eight-year prison term. Adams, now 26, received a life sentence.

"Not a day goes by that I don't wish I could take that whole day back," said McWilliams, whose middle name is Patrick and is known on death row as "Freddie P." Three of his upper front teeth were capped in gold with the initials P, E and E engraved in gothic letters.

It's uncertain why Rodriguez was asleep in his car that night. A half brother, Melchor Hernandez, told the Houston Chronicle that Rodriguez had a daughter, was a truck driver, worked hard, loved rock music and "never got in trouble with the law."

On Tuesday night, Demarco McCullum, 30, received lethal injection for the abduction, robbery, beating and fatal shooting 10 years ago of Michael Burzinski, 29, in Houston. If the two executions scheduled for next week and another in December are carried out, the 25 executions for the year in Texas would be one more than in 2003. A record 40 took place in 2000.

Denton Record-Chronicle

"Convicted killer in Houston car theft executed Wednesday," by Michael Graczyk. (AP 11/11/2004)

Condemned killer Frederick McWilliams was executed Wednesday night for the fatal shooting of a man in Houston eight years ago during a car theft.

"Well, here we are again folks in the catacombs of justice," McWilliams said when asked by the warden if he had a final statement. He said there was much he wanted to say but "not a whole to say." "There are people that will be mad thinking I try to seek freedom from this, but as long as I see, freedom belongs to me and I'll keep on keeping on," he said. "The shackles and chains that just might hold my body can't hold my mind, but will kill me otherwise." McWilliams then told his mother, who watched through a window a few feet away, a sister and several friends that he loved them and would never stop. Ten minutes later, at 6:18 p.m. CST, he was pronounced dead.

McWilliams, 30, was the 22nd Texas prisoner executed this year and the second in as many nights. Two more convicts are set for lethal injection next week.

McWilliams, a former warehouse worker whose hopes for a career as an architect were derailed by armed robbery convictions, was on probation when he was arrested for the beating and shooting of Alfonso Rodriguez at a Houston apartment complex. The U.S. Supreme Court earlier this year refused to review McWilliams' case and his attorney said appeals possibilities were exhausted. A clemency petition and a request for a 180-day reprieve were both rejected by the Texas Board of Pardons and Paroles. "It proves to me that there is justice," Melchor Hernandez, a half-brother of Rodriguez, said after watching McWilliams die. "I'm grateful the state of Texas has the death penalty," Richard Hernandez, another half-brother, added. "I knew this day was going to come. We're just pleased it's done with."

At the time of the slaying, McWilliams was on probation for armed robberies and had been linked to other holdups. "I never enjoyed doing things like that," he said recently from a small cage-like cubicle in the visiting area outside death row. "I just felt in a helpless situation at the time."

Court records show McWilliams, a cousin, Richard Hawkins, and a third man, Kenneth Adams, were driving around Houston the night of Sept. 27, 1996, and discussed the prospect of stealing a car. "We were going to use the car as a getaway vehicle for a crime the next day," McWilliams said. "My job was to steal the car." As Hawkins dozed in the back seat of their car, McWilliams and Adams selected a 1983 Chevrolet in the parking lot of an apartment complex only to find Alfonso Rodriguez sleeping inside. They then returned to their own car. According to testimony, Adams told McWilliams he should have gotten the man and the two decided to go back, this time armed. Rodriguez was pulled from the driver's side at gunpoint and was beaten by Adams as McWilliams rifled through the glove box. According to McWilliams, Adams and Rodriguez were wrestling and Adams dropped his weapon in the struggle. Rodriguez grabbed he gun. "The victim rushed me. He had his hand on the pistol. I had a hand on the pistol," McWilliams said. "I don't know if he pulled the trigger or I pulled the trigger. "The gun went off."

A week later, Adams was stopped for speeding and police found guns in his car, including one tied to the Rodriguez slaying. He told them McWilliams was the gunman, leading to McWilliams' arrest, subsequent trial and death sentence. "I never intended to kill anybody," McWilliams said from prison. Hawkins, now 27, received an eight-year prison term. Adams, now 26, received a life sentence. "Not a day goes by that I don't wish I could take that whole day back," said McWilliams, whose middle name is Patrick and is known on death row as "Freddie P." Three of his upper front teeth were capped in gold with the initials P, E and E engraved in gothic letters.

It's uncertain why Rodriguez was asleep in his car that night. A half brother, Melchor Hernandez, told the Houston Chronicle that Rodriguez had a daughter, was a truck driver, worked hard, loved rock music and "never got in trouble with the law."

On Tuesday night, Demarco McCullum, 30, received lethal injection for the abduction, robbery, beating and fatal shooting 10 years ago of Michael Burzinski, 29, in Houston. If the two executions scheduled for next week and another in December are carried out, the 25 executions for the year in Texas would be one more than in 2003. A record 40 took place in 2000.

Reuters News

"Texas Executes Houston Man for 1996 Murder." (Wed Nov 10, 2004 08:17 PM ET)

HUNTSVILLE, Texas (Reuters) - Texas executed a Houston man by lethal injection on Wednesday night for a 1996 murder during a car theft. Frederick McWilliams, 30, was condemned for the murder of Alfonso Rodriguez Jr., 39, as he tried to steal the car Rodriguez was sleeping in outside a Houston apartment complex on Sept. 27, 1996.

McWilliams was the second man executed this week, the 22nd to die this year and the 335th put to death by Texas since 1982 when the state resumed capital punishment. Texas leads the nation in executions.

McWilliams claimed he and Rodriguez struggled over a gun which fired and killed Rodriguez. Kenneth Adams, an accomplice who identified McWilliams as the killer, received a life sentence. Another accomplice received an eight-year prison sentence.

Strapped to the gurney in the execution chamber on Wednesday night, McWilliams thanked family members and friends for their support and told them he loved them. "I leave my love here," McWilliams said. "I am never going to stop loving you. My love is going to stay here."

For his final meal, McWilliams requested fried chicken breasts, lasagna, egg rolls, shrimp fried rice, chimichangas, turkey with liver and gizzard dressing, dirty rice, cranberry sauce and lemonade.

Texas has three more executions scheduled this year, with two convicts set to die next week.

Canadian Coalition to Abolish the Death Penalty (McWilliams Homepage)

Frederick McWilliams

Words And Poetry From Texas Death Row

Good Day Friends!
Yes it is a good day to live...My name is Frederick Patrick McWilliams and I'm a death row inmate at the Ellis Unit in Huntsville, Texas, USA. I've been incarcerated for 2 years and 9 months (as of July 1999) I would like to meet and greet new friends. My only preference is sanity. I love to read and learn new things. Also, reading takes me away from this awful place of hard brick and steel. I absolutely love to draw and will normally send my friends cards I've crafted, for birthdays and holidays, and other drawings. I like drawing cartoon characters the most. I also love to write poetry and will soon have some available for all my friends to read.

I am a 25 year old black male. I stand at 5'9" tall and weigh 225 lbs. I offer this picture for visual assistance. I have a supportive family but I have few friends. The friends I had seem to have fallen by the wayside. This is why I reach out to you. If anyone would like to write, I have more to share. One love,

Frederick McWilliams # 999242
Polunsky Unit D.R.
12002 FM 350 South
Livingston, Texas 77351 USA

PLEASE HELP !

Dearest friends,
I implore your assistance at these dire times. Assistance and support in areas I cannot help myself. Whatever you can do will suffice. Whether it be financial support, moral support, a word of advice, or organizing fund raisers to aid in my defense. I do not wish to die; like many here, I choose to defeat this corrupted system with every fibre of my being. I'm looking for someone to spearhead my defense fund raiser. Here's my attorney's address, in case you'd like to obtain information concerning legal issues and my comrades address if you'd like to send a donation to my defense fund. For more information about the defense fund, please contact Ms. Giwa. Thank you!

Ms. Daryl G. Weinman, Attorney At Law
812 San Antonio St. Ste 304
Austin, Texas 75701

McWilliams v. Cockrell, 74 Fed.Appx. 345 (5th Cir. 2003). (Habeas)

Defendant convicted of capital murder and sentenced to death petitioned for a writ of habeas corpus. The United States District Court for the Southern District of Texas denied relief. Defendant sought a certificate of appealability (COA). The Court of Appeals, Per Curiam, held that: (1) defendant had no right to inform the jury that, if sentenced to life in prison, he would be ineligible for parole for at least 40 calendar years; (2) any burden of producing mitigating evidence was not cruel and unusual punishment; (3) claim that state habeas court wrongfully denied defendant access to sealed juror cards was not cognizable on federal habeas review; and (4) petitioner failed to show cause for his procedural default in failing to raise claim of ineffective assistance of appellate counsel. Certificate of appealability denied.

Petitioner, Frederick Patrick McWilliams (McWilliams), was convicted of capital murder in Texas and sentenced to death. He now seeks a certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2) from the district court's denial of relief under 28 U.S.C. § 2254 on the following claims: (1) the failure to inform the jury that, if sentenced to life in prison, he would be ineligible for parol for at least forty calendar years under Texas's capital sentencing scheme violated his Sixth Amendment right to effective assistance of counsel and Fourteenth Amendment rights to due process and equal protection; (2) he was denied his Eighth Amendment right to protection from cruel and unusual punishment; (3) the state habeas court wrongfully denied him access to sealed juror cards in violation of the Fourteenth Amendment due process clause; and (4) his appellate counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel. For the reasons that follow, we deny COA on all of McWilliams' claims.

I.

On the night of September 27, 1996, McWilliams went driving with his cousin, Richard Hawkins (Hawkins), and Kenneth Adams (Adams), in Adams' red compact car in Houston. Hawkins fell asleep in the back seat and awoke as they turned into the parking lot of an apartment complex. McWilliams and Adams were discussing stealing a car. After their first unsuccessful attempt, McWilliams and Adams found a brown car in the lot and opened the door to find a man asleep inside the vehicle. They returned to Adams' vehicle, and Adams told McWilliams that he should have gotten the man, and McWilliams decided to return.

The two men returned to the car carrying guns. Adams pulled the victim, Alfonso Rodriguez (Rodriguez), from the driver's side at gun point while McWilliams rummaged through the glove box. Adams beat Rodriguez with the butt of the gun. Rodriguez laid on the ground covering his head to avoid the blows. Adams and McWilliams then attempted to force Rodriguez into the trunk of the car.

Not wanting to be a part of the robbery, Hawkins jumped into the front of Adams' car and drove away. As he left, he heard a gun shot. Shortly thereafter, McWilliams and Adams caught up to Hawkins in Rodriguez's car and waved Hawkins to the side of the road. Adams, who was covered in blood, got into the driver's seat and told Hawkins "Your cousin wild. He wild. He shot a man." The three met up at a gas station where McWilliams pulled a bag of jewelry from Rodriguez's car and put it in Adams' car. The next day, McWilliams admitted to Hawkins that he had shot Rodriguez.

The next week, Adams was stopped for speeding. A search of the car yielded several firearms one of which was the weapon used to kill Rodriguez. During questioning by investigators, Adams confessed and implicated McWilliams. After being arrested, McWilliams gave two statements. In his first statement, McWilliams claimed that Adams shot Rodriguez. In his second statement, McWilliams admitted shooting Rodriguez.

A jury convicted McWilliams of capital murder on September 4, 1997 in state court in Harris County, Texas. McWilliams was sentenced to death on September 9, 1997.

On March 10, 1999, the Texas Court of Criminal Appeals affirmed McWilliams' conviction and sentence on direct appeal. The Texas Court of Criminal Appeals denied his state habeas petition on April 4, 2001. McWilliams timely filed an application for federal post-conviction relief. The federal district court granted the State's motion for summary judgment, denying McWilliams' petition. The district court also denied a COA on McWilliams' claims. McWilliams now seeks a COA from this court

* * * *

For the reasons stated above we deny the petitioner's request for a COA on his claims that: (1) the failure to inform the jury that, if sentenced to life in prison, he would be ineligible for parol for at least forty calendar years under Texas's capital sentencing scheme violated his Sixth Amendment right to effective assistance of counsel and Fourteenth Amendment rights to due process and equal protection; (2) he was denied his Eighth Amendment right to protection from cruel and unusual punishment; (3) the state habeas court wrongfully denied him access to sealed juror cards in violation of the Fourteenth Amendment due process clause; and (4) his appellate counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel COA denied.