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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70024                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DEXTER JOHNSON,                                                              July 2, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2466


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Dexter Darnell Johnson (Johnson), a Texas death row prisoner, appeals
the district court’s denial of federal habeas relief on his Fifth Amendment
claim, arguing that his statements made during a second custodial
interrogation were admitted despite the invocation of his right to have an



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 14-70024
attorney present during the first custodial interrogation. He also seeks a
certificate of appealability (COA) to determine whether: 1) the district court
erred by denying his motion for leave to amend his federal habeas petition with
new claims; 2) the Constitution prohibits the execution of the mentally ill; 3)
the district court erred in rejecting his allegation of incompetency to waive his
right to counsel and to remain silent; and 4) the district court erred in rejecting
his argument that changes in Texas decisional law warrant a new trial. For
the reasons stated herein, we AFFIRM the district court’s denial of habeas
relief on Johnson’s Fifth Amendment claim, and we DENY his application for
a COA.
                              I.   BACKGROUND
   A. Facts of the Crime
      During the early morning hours of June 18, 2006, Johnson and four
friends were driving around the neighborhood looking for someone to rob.
Johnson’s companions were: (1) Keithron Fields, whom Johnson considered a
brother; (2) Timothy Randle, who was driving that night; (3) Ashley Ervin, the
owner of the car; and (4) Louis Ervin, Ashley’s fifteen-year-old brother. Louis
Ervin testified to the events that took place that night.
      The group eventually came upon Maria Aparece and her boyfriend, Huy
Ngo, talking while sitting inside Aparece’s blue Toyota Matrix.           Johnson
ordered Randle to turn the car around and park alongside the curb because he
wanted to “jack the people that was in the car.” He asked Fields if he was
ready and placed a black bandana over his mouth while Fields pulled the hood
of his jacket over his head. Brandishing a shotgun, Johnson ran up to the
driver’s side and threatened to bust through the window if Aparece did not
open the car door. Fields was pointing a medium-sized black gun toward the
passenger side. Although she refused at first, Aparece eventually complied
and opened the door. Johnson pulled Aparece from the car by her hair and
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                                No. 14-70024
forced her into the backseat of the Matrix while Fields shoved Ngo into the
backseat as well. Johnson ordered Louis Ervin into the backseat with the
victims while he and Fields climbed into the front. Johnson then drove the
group around for close to ten minutes demanding money from Aparece and
Ngo, but they did not have any. Angered, Johnson drove around for another
twenty minutes or so searching for a wooded area while Aparece cried and
begged for her freedom. They eventually found a park with a wooded area, and
Johnson parked the Matrix in the woods. Randle and Ashley Ervin, who had
been following closely in her car, parked nearby. Fields forced Ngo out of the
Matrix and onto his knees while Johnson climbed into the backseat and raped
Aparece at gunpoint. Fields held a gun to Ngo’s head and taunted him as he
was crying, saying things like “My brother in there having sex with your
girlfriend. What you going to do about it?” Afterward, Johnson told the couple
that “it was the end right here” and that he was going to “off them.” Although
they both continued to cry and Aparece begged for her life, Johnson and Fields
marched the couple into the woods and shot them both once in the head.
      Immediately after the murders, Johnson and Fields, driving Aparece’s
blue Matrix, caught up with the rest of their companions at a stoplight.
Johnson and Fields were laughing and playing loud music. Before ordering
them to follow him to a gas station, Johnson boasted, “Man, I had to go ahead
and off them people.” At the gas station—where police obtained surveillance
video of the Matrix—Louis Ervin asked Johnson why he killed the couple, to
which Johnson replied that Johnson had said the name “Louis” to the victims
during the robbery and that “they didn’t want to give him no money.” Johnson
also stated that “killing people is what he do.” Later, Johnson took the group
on a shopping spree at two separate Walmarts where police later obtained
surveillance video showing Johnson, Fields, and Randle using Aparece’s credit


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card. Johnson was arrested three days later for possession of marijuana and
was quickly linked to the disappearance of Aparece and Ngo.
   B. Johnson’s Custodial Statements to the Police
         1. The First Recorded Statement
      On the afternoon of June 21, 2006, upon learning that Johnson had been
taken into custody that morning on drug charges, two detectives from the Fort
Bend County Sheriff’s Department—Detectives Everett Hargrave and Bruce
Campbell—went to interview Johnson about Aparece’s stolen car and her
status at the time as a missing person. After reading Johnson his Miranda
warnings, which Johnson acknowledged both orally and in writing he
understood, the detectives questioned him for over four hours. At trial, the
State presented the first hour and twenty-eight minutes of this recorded
statement. During this admitted portion of the statement, Johnson denied
having robbed anybody, and denied all knowledge of the stolen vehicle or
Aparece. However, Johnson did eventually admit that he might have picked
up Aparece’s credit card and made purchases without permission after two
unknown black men dropped the card on the ground. After the first hour and
twenty-eight minutes, Johnson told Detective Hargrave that he wanted to
return to his cell because “it seem[ed] like [the officers were] . . . trying to pin
this stuff on [him].” Detective Hargrave disputed the contention that they were
trying to charge him with credit card abuse, and Johnson continued to speak
with the detectives for approximately two and a half more hours.
      During that time Johnson admitted that he, Fields, Randle, and the
Ervins robbed Aparece of her car, but maintained that they left her and Ngo
standing on the street unharmed. He also described several other extraneous
robberies that were committed around that same time. After several hours,
Detective Hargrave expressed his intention to end the interview, but indicated
that he still did not believe Johnson had told him everything. He explained
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                                 No. 14-70024
that the police could not make any deals for Johnson, but if Johnson desired
any leniency from the District Attorney’s Office, he needed to come forward
with “complete disclosure.” The following exchange then occurred:
Johnson: [interrupting] I’m trying, I’m trying, I’m trying to
         be right, I’m trying to be right here to tell you all I
         know. That’s all I know right now. I don’t even
         want to talk no more until I get me a lawyer or
         something. Because I, I, I keep on telling ya’ll, I
         done told ya’ll everything. I wouldn’t have given
         you all them names if I didn’t know everything I
         knew. I’m not, I’m not no rat, no little snitch like
         that. I done told y’all everything I knew though.
         That’s everything right there. I’m not going to,
         come on now.
Campbell: What do you mean by that?
Johnson: [interrupting] that’s a snitch though.
         [Campbell and Johnson both inaudible because they are
         talking simultaneously]
Johnson: [beginning inaudible] I gave up my brother. I told
         ‘em what he did and I know he didn’t kill her. He
         was in the car with me. Louis [was] in the car with
         me. We drove out.
Hargrave: Yeah.
Johnson: I told you everything that I know, sir.
Hargrave: Yes, but you also told us that you didn’t take
          anyone away from the situation. You did. So
          someone -
Johnson: [inaudible because he interrupted Hargrave] So
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                                 No. 14-70024
         you say I took someone away?
Hargrave: Huh?
Johnson: So you saying I took someone away?
Hargrave: You and your crew.
Johnson: I didn’t take nobody away.
      Following a few more questions about the inconsistencies of his
statement, Detective Hargrave stopped talking to Johnson. A police officer
from Humble, Texas, then entered and asked Johnson questions related to
offenses committed in Humble. A few minutes later the interview ended.
         2. The Second Recorded Statement
      After officers from the Houston Police Department (HPD) arrested
Timothy Randle and another friend named Alvie Butler on June 23, 2006,
Randle led police to the bodies of Aparece and Ngo. In addition to Randle, HPD
homicide investigators spoke with Louis Ervin, Ashley Ervin, and another
friend named Tanaisha Samuel that same day. Later in the evening, Johnson
was brought from jail to be interviewed about his version of the events.
Although detectives had a copy of Johnson’s previous statement to Fort Bend
County detectives, HPD homicide detective Clement Abbondondalo recorded
another interview with Johnson in which he gave more details about the events
of June 18th and 19th. Before he questioned Johnson, Abbondondalo read
Johnson the required warnings, and Johnson indicated he understood the
warnings when he agreed to speak with the detective.
      In the statement, Johnson blamed Timothy Randle for getting him and
Keithron Fields involved in the case. He admitted to initially ordering Aparece
and Ngo out of the car with a shotgun and to driving Aparece’s blue Matrix to
a wooded area, but claimed Randle was the one who directed them to the crime
scene. Johnson also admitted to raping Aparece and to wiping down the car
with Fields in order to destroy any fingerprints, but denied killing the couple.
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                                No. 14-70024
He claimed that he fired a pistol near Ngo “just to scare them” and doubted the
shot hit anyone, but admitted if he “shot somebody it might would have been
the boy.” After they had been talking for about twenty-five minutes, Detective
Abbondondalo stepped out of the room. When he returned, Johnson chose to
terminate the interview.
         3. Pre-trial Hearings on Johnson’s Motions to Suppress
      Prior to trial, counsel for Johnson filed motions to suppress both of his
statements made to police, and the trial court conducted a separate hearing for
each statement. At the first hearing, several witnesses were called to testify
about the facts and circumstances surrounding the recording of the first
statement, including Detective Hargrave. At the conclusion of the hearing,
defense counsel objected that the statement was the fruit of an illegal arrest,
that Johnson was not timely magistrated and read his warning on the
misdemeanor marijuana possession charge, and that his right to silence was
violated after the detectives continued to interrogate him once he invoked his
right to counsel around the one-hour, twenty-eight minute mark of the first
interview. The court denied the motion to suppress the first hour and twenty-
eight minutes of the statement, but did not address counsel’s objections to the
remainder of the statement because the State did not intend to offer it.
      The following day the court held a hearing concerning Johnson’s second
statement. HPD Detective Abbondondalo testified that Johnson understood
the warnings read to him and agreed to speak to detectives, that Johnson was
not threatened or coerced, and that Johnson neither expressed reluctance to
talk about the offense nor requested an attorney at any point.             At the
conclusion of the hearing, defense counsel contended the statement should be
suppressed because Johnson unambiguously invoked his Fifth Amendment
right to counsel during his first recorded statement, thereby tainting the
second   statement.     Although    agreeing   with   counsel   that   Johnson
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                                       No. 14-70024
unambiguously invoked his right to silence and to counsel, the court held that
Johnson subsequently waived those rights when he continued to discuss the
crime after this invocation.
   C. Convictions and Post-Conviction Proceedings
       Johnson was subsequently indicted, convicted, and sentenced to death
for the robbery, kidnapping, and murder of Maria Aparece. His conviction and
sentence were affirmed on direct appeal. Johnson v. State, No. 75, 749 (Tex.
Crim. App. Jan. 27, 2010) (unpublished), cert. denied, 130 S. Ct. 3515 (2010).
While his appeal was still pending, Johnson also filed a state application for
writ of habeas corpus, which the Texas Court of Criminal Appeals
subsequently denied. Ex parte Johnson, No. 73, 600-01 (Tex. Crim. App. June
30, 2010).
       A year later, Johnson filed a federal petition for habeas corpus relief in
the district court below raising a total of eleven points of error, including a
claim for relief under Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)
(intimating the standards for invoking and waiving the right to have counsel
present during custodial interrogation). Following the Director’s answer, the
district court denied relief on all but Johnson’s Edwards allegation, on which
the court ordered the parties to provide additional briefing. 1 After taking into
consideration the supplemental briefing of both parties, the district court
denied relief on Johnson’s Edwards claim, concluding that Johnson had not
shown that the state courts were unreasonable in finding that the admission
of his second police statement did not violate his constitutional rights.
However, the court determined that Johnson’s arguments on the Edwards



       1   Specifically, the Court ordered briefing on: (1) whether Johnson made an
unambiguous invocation of the right to counsel during his first statement; (2) whether the
police tried to clarify his request; (3) whether Johnson reinitiated communication with police;
and (4) whether any error in the admission of the second statement harmed the defense.
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                                    No. 14-70024
claim deserve “encouragement to proceed further,” and certified the claim for
appeal, citing to Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      On December 1, 2014, Johnson filed his merits brief on the
Edwards/Fifth Amendment claim and separately requested a certificate of
appealability (COA) on four other issues raised in his federal habeas petition.
In particular, Johnson seeks a certificate of appealability on the following
issues: 1) whether his motion to abate in order to amend his petition was
erroneously denied; 2) whether the Constitution should prohibit the execution
of a severely mentally ill inmate; 3) whether Johnson was mentally competent
to waive his right to counsel and to remain silent during the custodial interview
with the police; and 4) whether a change in Texas decisional law should require
retrial of Johnson’s guilt.
                              II.    DISCUSSION
   A. Johnson Waived His Fifth Amendment Right to Counsel
      In a federal habeas appeal, the district court’s findings of fact are
reviewed for clear error while conclusions of law are reviewed de novo, and we
“[apply] the same standards to the state court’s decision as did the district
court.” Woodfox v. Cain, 772 F.3d 358, 367 (5th Cir. 2014) (citing Lewis v.
Thaler, 701 F.3d 783, 787 (5th Cir. 2012)). Because Johnson’s claim was
adjudicated on the merits in state court, however, he may not obtain federal
habeas relief under the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) unless the state court adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law[]; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter,
562 U.S. 86, 98 (2011).       Section 2254(d)(2) also “commands substantial
deference to the factual determinations made by state courts.” Blue v. Thaler,
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665 F.3d 647, 654 (5th Cir. 2011). As such, “a petitioner must show that the
decision was objectively unreasonable, a substantially higher threshold
requiring the petitioner to show that a reasonable factfinder must conclude
that the state court's determination of the facts was unreasonable.” Batchelor
v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation
marks omitted); see Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Rice v.
Collins, 546 U.S. 333, 341 (2006); 28 U.S.C. § 2254(e)(1) (“[A] determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”); Blue, 665 F.3d at 654–55 (“[A] state-court
factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.”).
       In Miranda v. Arizona, the Supreme Court held that, “[i]f the individual
[under interrogation] states that he wants an attorney, the interrogation must
cease until an attorney is present.” 384 U.S. 436, 474 (1966). As a corollary to
the prophylactic rule adopted in Miranda, the Court held in Edwards, that,
once the accused asserts his Fifth Amendment right to counsel, all further
interrogation by the authorities must cease “until counsel has been made
available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.” 451 U.S. at 484–85. “If the police
do subsequently initiate an encounter in the absence of counsel (assuming
there has been no break in custody), the suspect’s statements are presumed
involuntary and therefore inadmissible as substantive evidence at trial, even
where the suspect executes a waiver and his statements would be considered
voluntary under traditional standards.” McNeil v. Wisconsin, 501 U.S. 171,
177 (1991).
      However, in order to fully invoke his rights under Miranda, a defendant
must make an unambiguous statement “that can reasonably be construed to
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                                     No. 14-70024
be an expression of a desire for the assistance of an attorney.” Soffar v.
Cockrell, 300 F.3d 588, 595 (5th Cir. 2002) (citing Davis v. United States, 512
U.S. 452, 459 (1994)). Although he need not “speak with the discrimination of
an Oxford don,” a defendant must “clearly articulate his desire to have an
attorney present.” Id. at 595 (internal quotation marks and citation omitted);
see Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (“If an accused makes a
statement concerning the right to counsel that is ambiguous or equivocal or
makes no statement, the police are not required to end the interrogation [] or
ask questions to clarify whether the accused wants to invoke his or her
Miranda rights.” (internal parentheses and citation omitted)).
      Assuming, arguendo, that Johnson did properly invoke his right to
counsel in the first interrogation, 2 he subsequently reinitiated communications
with the police and thus waived any rights he may have previously invoked.
The district court asked both parties for additional briefing to discuss
Johnson’s intent as he continued talking, but Johnson failed to elaborate on
the meaning of the words spoken after asserting his rights. Johnson also failed
to point to any Supreme Court precedent which clearly indicates that an
individual who continues to speak with police (about the criminal conduct in
question) after invoking his right to counsel or to remain silent has not waived
those rights. Our research has similarly not revealed any such case law.
Likewise, he failed to show that the state courts were unreasonable in holding
that he reinitiated contact by, without interruption, referring to what he had
already told police officers about the relevant criminal conduct. Thus, given
Johnson’s failure to stop talking after saying he did not “want to talk no more,”



      2  Both the state trial and appellate courts held that Johnson unequivocally invoked
his right to counsel. See Johnson v. State, 2010 WL 359018, at *5 (Tex. Crim. App. Jan. 27,
2010) (unpublished). However, we do not put forth an opinion on this issue, and instead,
assume, arguendo, that his rights were invoked and begin our analysis there.
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the state courts could reasonably conclude that the State did not violate
Johnson’s constitutional rights by putting the substance of his second police
statement before the jury.
      In sum, Johnson has failed to rebut the state courts’ factual
determination that, even if he did invoke his right to counsel, he subsequently
reinitiated communication with police, thus waiving any invocation of his
rights. See 28 U.S.C. § 2254(e)(1). He has also failed to show that the state
court’s factual findings were objectively unreasonable in light of the evidence.
See Schriro, 550 U.S. at 473. Thus, we AFFIRM the district court’s denial of
federal habeas relief on this claim.
   B. Reasonable Jurists Would Not Debate The District Court’s Denial Of
      Johnson’s Motion For Leave To Amend

      Johnson also seeks a COA on several claims. First, he seeks a COA to
determine whether the district court abused its discretion in denying his
motion for leave to amend his federal habeas petition with two new claims.
      A petitioner must obtain a COA before he may appeal the district court’s
denial of federal habeas relief. Haynes v. Quarterman, 526 F.3d 189, 192 (5th
Cir. 2008); see 28 U.S.C. § 2253(c). Under AEDPA, a COA may not issue unless
“the applicant has made a substantial showing of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28 U.S.C. §
2253(c)).   According to the Supreme Court, this requirement includes a
showing that “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.” Id. at 484.
      Because this habeas claim was denied on procedural grounds, a COA will
only issue if Johnson shows that jurists of reason would find it debatable
“whether the petition states a valid claim of the denial of a constitutional right
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                                 No. 14-70024
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
      A motion to amend is reviewed for abuse of discretion. Jacobsen v.
Osborne, 133 F.3d 315, 318 (5th Cir. 1998).        “A district court abuses its
discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on
erroneous conclusions of law; or (3) misapplies the law to the facts.” In re
Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2009) (internal quotation
marks and citation omitted) (en banc).
      It is within the sound discretion of the district court to grant a motion to
amend, but that discretion is limited by Rule 15(a), “which states that leave
shall be given when justice so requires.” Jacobsen, 133 F.3d at 318 (internal
quotation marks and citation omitted). However, it is also within the district
court’s discretion to deny leave to amend if there is “a substantial reason” to
do so. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). One
such substantial reason is if the district court determines that amendment
would be futile, in which case leave to amend should be denied. See In re
Southmark Corp., 88 F.3d 311, 314–15 (5th Cir. 1996); see also DeLoach v.
Woodley, 405 F.2d 496, 497 (5th Cir. 1968) (per curiam). Further, AEDPA’s
one-year statute of limitations begins to run on “the date on which the
judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
      In the district court, Johnson requested either a stay of his proceedings
so he could return to state court or for the court to allow amendment of his
petition with two new ineffective assistance of counsel (IAC) claims not
previously raised. Johnson’s first new claim alleged that his trial counsel was
ineffective for not presenting any evidence of his psychological and biological
mental impairments during the guilt/innocence phase of trial even though such
evidence was available. His second new claim alleged that his direct appeal
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counsel was ineffective for not challenging trial counsel’s representation on
that ground. The district court denied Johnson’s request to amend his petition
with these new claims because any amendment would be futile. Specifically,
the court found that any new claims would be barred by AEDPA’s statute of
limitations and subject to dismissal as unexhausted and procedurally barred. 3
       We agree that Johnson’s two new claims are time-barred, as they were
not filed within AEDPA’s one-year statute of limitations. Johnson’s one-year
period began to run on June 28, 2010, the date the Supreme Court denied
certiorari review of his direct appeal.            However, due to statutory tolling,
Johnson had until June 30, 2011, to file his original petition for federal habeas
relief. 4 He timely filed his original petition for federal habeas relief on June
28, 2011. However, over a year and a half later, Johnson sought to amend his
petition to add the two new IAC claims challenging his original conviction.
Because extraordinary circumstances do not exist that would warrant
equitable tolling under AEDPA, these new claims are time-barred. 5 The new
IAC claims he now asserts rely on the same evidence of mental illness that was
available and that he relied upon in his original federal habeas petition, in
which he claimed that he was incompetent to waive his right to counsel and



       3  The district court also found that Johnson provided “scant information about the
claims he wishes to advance” and has shown no evidence of a mental disease that would
“directly rebut the particular mens rea necessary for capital murder.”
        4 Because “[t]he time during which a properly filed application for State post-

conviction or other collateral review . . . is pending shall not count toward any period of
limitation,” Johnson’s state habeas petition tolled the limitations period another two days
until June 30, 2011, or one year after the state habeas petition was denied by the state habeas
court. 28 U.S.C. § 2244(d)(2); Ex parte Johnson, No. 73,600-01 (Tex. Crim. App. June 30,
2010) (unpublished order).
        5 AEDPA is not a jurisdictional bar, and the statute of limitations can be equitably

tolled in certain extraordinary circumstances. See Holland v. Florida, 560 U.S. 631, 648
(2010); see also Davis v. Johnson, 158 F.3d 806, 810–11 (5th Cir. 1998). A habeas petitioner
is entitled to equitable tolling only if he shows: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance existed and prevented timely filing.
Holland, 560 U.S. at 648 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
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should be considered ineligible for the death penalty due to his serious mental
illness. We see no reason why he could not have raised these claims in his
original federal habeas petition.
       Further, these claims are also precluded because they are unexhausted,
as they were not presented to the state court for review. “Before a federal court
can find merit in alleged errors by state courts, a petitioner must have first
provided the state’s highest court with a fair opportunity to [review] . . . a state
prisoner’s conviction or sentence.” Ruiz v. Quarterman, 460 F.3d 638, 642 (5th
Cir. 2006). Here, the state court had no opportunity to review the new claims
prior to Johnson’s filing of his federal petition, even though the “evidence” was
available at that time.
       Johnson argues that the district court was unreasonable in finding fault
for his failure to bring these claims at an earlier date because the IAC claims
are premised on the Supreme Court’s holdings in Martinez v. Ryan, 132 S. Ct.
1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). In Martinez, the
Court carved out an exception to the rule established in Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991), 6 which “allow[ed] a federal habeas court to find
‘cause,’ thereby excusing a defendant’s procedural default, where [] the claim
of ‘ineffective assistance of trial counsel’ was a ‘substantial’ claim.” Trevino,
133 S. Ct. at 1918 (emphasis added) (citing Martinez, 132 S. Ct. at 1318–19).




       6  In Coleman, the Court stated that “[i]n habeas, if the decision of the last state court
to which the petitioner presented his federal claims fairly appeared to rest primarily on
resolution of those claims, or to be interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state ground, a federal court may address the
petition.” 501 U.S. at 735. However, the Court then qualified that holding by stating that
“[t]his rule does not apply if the petitioner failed to exhaust state remedies and the court to
which the petitioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred. In such a case there is a
procedural default for purposes of federal habeas regardless of the decision of the last state
court to which the petitioner actually presented his claims.” Id. at 735 n.1.
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                                  No. 14-70024
A claim is substantial if “the prisoner [] demonstrate[s] that the claim has some
merit.” Martinez, 132 S. Ct. at 1318.
      However, his reliance on these cases is misplaced. Johnson’s ineffective
assistance of counsel claim has no merit, as his mental illness would likely not
have affected his death penalty sentence. See ShisInday v. Quarterman, 511
F.3d 514, 521 (5th Cir. 2007) (per curiam) (holding that Fifth Circuit precedent
does not exempt a mentally ill petitioner, who is not insane or incompetent,
from execution). Thus, the Martinez exception does not apply to Johnson’s IAC
claims, and Trevino does not apply for the same reason. See Trevino, 133 S.
Ct. at 1918. Therefore, because Johnson’s new IAC claims are time-barred and
procedurally exhausted, reasonable jurists would not debate that the district
court did not abuse its discretion in denying Johnson leave to amend his
petition for federal habeas relief.
   C. Reasonable Jurists Would Not Debate That The Constitution Does Not
      Prohibit The Execution Of Mentally Ill Persons Who Are Not
      Incompetent

      Because this claim was dismissed on the merits, a COA will only issue if
the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. Slack, 529
U.S. at 484.
      Johnson argues that he is “borderline retarded” and that his mental
illness is similar to the mentally retarded persons and children protected from
execution by Atkins v. Virginia, 536 U.S. 304, 320–21 (2002) and Roper v.
Simmons, 543 U.S. 551, 568–69 (2005). Although the Constitution prohibits
the execution of children and persons whose mental illness render them insane
or incompetent, it does not prohibit the execution of petitioners like Johnson.
See Roper, 543 U.S. at 568–69; Atkins, 536 U.S. at 320–21; Ford v. Wainwright,
477 U.S. 399, 410 (1986); see also Barnard v. Collins, 13 F.3d 871, 876 (5th Cir.

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                                 No. 14-70024
1994) (holding that Ford prevents the execution of an inmate who is unable to
“understand the fact of his impending execution and the reason for it.”).
Further, neither the Supreme Court nor this circuit has extended the
Atkins/Roper protections to the mentally ill whose illness does not reach that
of incompetency or insanity. See Ripkowski v. Thaler, 438 F. App’x 296, 303
(5th Cir. 2011) (per curiam); see also ShisInday, 511 F.3d at 521; In re Neville,
440 F.3d 220, 221 (5th Cir. 2006) (per curiam); In re Woods, 155 F. App’x 132,
136 (5th Cir. 2005) (per curiam). Even so, incompetency-to-be-executed claims
do not become justiciable until an execution becomes imminent, and no
execution date has yet been set for Johnson. See Panetti v. Quarterman, 551
U.S. 930, 947 (2007); Stewart v. Martinez-Villareal, 523 U.S. 637, 644–45
(1998). Thus, reasonable jurists could not debate that the district court was
correct in rejecting Johnson’s argument that mental illness should prohibit his
execution.
   D. Reasonable Jurists Would Not Debate The District Court’s Rejection of
      Johnson’s Allegation of Incompetency To Waive His Rights During The
      Police Interrogations

      Because the district court dismissed this claim on procedural grounds, a
COA will only issue if Johnson 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 484.
In the alternative, the district court dismissed this claim on the merits.
Therefore, a COA should issue if the petitioner demonstrates that reasonable
jurists would find the district court's assessment of the constitutional claims
debatable or wrong. Id.
      Johnson argues that although his claims could have been brought on
direct appeal, they were not required to be. We disagree. The state habeas

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                                 No. 14-70024
court held that Johnson’s claims were procedurally defaulted because they
could have been but were not raised on direct appeal in state court and so may
not now be raised in this post-conviction writ. Because Johnson failed to bring
these claims in state court, he may only bring these claims to the federal
habeas court if he shows the claims meet the standard set out in Strickland v.
Washington, 466 U.S. 668, 687 (1984). However, he has not shown, nor
presented any evidence, that his claims meet the Strickland deficient
performance and prejudice test. See id. He only argues that “this issue could
have been brought on direct appeal but it is not mandatory that it be so,” and
that an exception to the direct appeal rule has been applied in “cases where
the trial record did not include enough information to resolve the issue.” He
presents no argument or evidence that his claims fall into the exception, nor
could he, as the evidence he now advances regarding his mental illness was
available at the time he sought state habeas relief. Thus, pursuant to Texas
law, these claims should have been brought on direct appeal. See Rojas v.
State, 981 S.W.2d 690, 691 (Tex. Crim. App. 1998). As such, reasonable jurists
would not debate that Johnson’s claims are procedurally defaulted.
   E. Reasonable Jurists Would Not Debate The District Court’s Rejection of
      Johnson’s Argument That Changes In Texas Decisional Law Warrant A
      New Trial

      Because this claim was dismissed on its merits, a COA will only issue if
the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. Slack, 529
U.S. at 484.
      When a federal court reviews a petition for habeas relief from a state
prisoner, its inquiry is restricted to “whether the petitioner is in custody in
violation of the Constitution or laws or treaties of the United States.” Coleman,
501 U.S. at 730 (internal quotation marks and citation omitted). It is not “the

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                                  No. 14-70024
province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie
for errors of state law.”); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“We have repeatedly held that a state court’s interpretation of state law . . .
binds a federal court sitting in habeas corpus.”).
      Johnson argues that the change in Texas state law in Ruffin v. State, 270
S.W.3d 592 (Tex. Crim. App. 2008), recognizes the right of a criminal defendant
to present evidence of mental illness to rebut his capacity to knowingly kill.
He further argues that jurists of reason could disagree with the district court’s
designation of this argument as one of state law and should have, instead,
characterized it as a question of “constitutional magnitude.” We disagree.
      Firstly, Ruffin is not a change in Texas decisional law; it is merely a
restatement of Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005).
See Ruffin, 270 S.W.2d at 596 (“We repeat and affirm our holding in Jackson
that ‘relevant evidence may be presented . . . to negate the mens rea element.”)
(internal citation omitted).   However, even if it were a change in Texas
decisional law, it would not be a ground warranting a new trial, as this court
cannot disturb a state court’s interpretation of its own law. See Bradshaw, 546
U.S. at 76. The state habeas court made a determination on the admissibility
of evidence regarding Johnson’s mental state, which is a purely state-law
concern. See Estelle, 502 U.S. at 67–68; see also Phillips v. Cockrell, No. 4:02-
CV-1036-A, 2003 WL 21730650, at *4 (N.D. Tex. July 21, 2003) (stating that
criminal intent is a matter of state law).
      Secondly, Johnson’s argument that the 2008 Ruffin decision opened the
door for the presentation of evidence to rebut his mens rea is in error. Prior to
Ruffin, in 2005, the Texas Court of Criminal Appeals held that testimony of
mental disease or defect may be introduced to rebut the mens rea for the
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                                  No. 14-70024
charged offense. See Jackson, 160 S.W.3d at 573–74. Jackson was decided
over two years prior to Johnson’s trial, and nothing hindered him from
introducing the evidence of mental impairment he now claims he should be
allowed to present. As such, the district court did not err in rejecting this
claim, and reasonable jurists would not debate this rejection.
                           III.    CONCLUSION
      For the reasons stated herein, we AFFIRM the denial of Johnson’s
federal habeas relief on his Fifth Amendment claim and DENY his application
for a COA.




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