Texas Department of Criminal Justice

Inmate: Roach, Tony
Date of Birth: 11/09/1976
TDCJ#: 999323
Date Received: 08/18/1999
Education: 10 years
Occupation: laborer
Date of Offense: 06/08/1998
County of Offense: Potter
Native County: Greenville County, South Carolina
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Brown
Height: 05' 08"
Weight: 169 lb
Co-Defendants: None

Prior Prison Record: South Carolina Department of Corrections on a 6-year sentence for Armed Robbery and Assault and Battery (subject robbed an adult white male of his vehicle, using a .45 caliber pistol to strike the victim causing minor injuries); released on Parole in 1998.

Wednesday, August 29, 2007

Media Advisory: Tony Roach scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Tony Roach, who is scheduled to be executed after 6 p.m. Wednesday, September 5, 2007. Roach was sentenced to die for the burglary-related murder of Ronnie Dawn Hewitt in Amarillo.

FACTS OF THE CRIME

On June 8, 1998, Amarillo firefighters responded to an apartment fire. After putting out the fire, firefighters found the body of Ronnie Dawn Hewitt on the living room floor of her apartment. She was burned and had a belt wrapped around her neck. An investigation determined that the fire was intentionally set and that Hewitt had been strangled.

About ten days later, Amarillo police received a phone call from police in Guymon, Oklahoma, who said they were holding Roach in connection with some stolen property. While in custody, Roach told the Guymon police that he had killed a woman in Amarillo.

After Amarillo officers traveled to Guymon, Roach told officers he broke into Hewitt’s apartment through a window and hid in the bathroom. When Hewitt walked past the bathroom door, Roach said, he came out, put his hand over her mouth and told her he would not harm her. She said, “Don’t hurt me, don’t hurt me,” and told him that she had a husband and a daughter.

Roach then pushed her into the living room, where she started kicking and scratching. He strangled her using his arm and a belt. After she was dead, Roach said, he raped her. From the residence, he took some rings, a knife, beer, and money, then started a fire with hair spray and a cigarette lighter; and left.

PROCEDURAL HISTORY

• Aug. 26, 1998 – A Pottery County grand jury indicted Tony Roach for capital murder.

• May 14, 1999 – A jury found Roach guilty of capital murder.

• May 20, 1999 – After a separate punishment hearing, the court sentenced Roach to death. (Judgment entered June 9, 1999)

• Dec. 14, 2000 – Roach filed a state application for writ of habeas corpus in the trial court.

• Nov. 7, 2001 – The Texas Court of Criminal Appeals affirmed Roach’s conviction and sentence on appeal.

• Jan. 9, 2002 – The Texas Court of Criminal Appeals denied Roach’s application for habeas corpus relief.

• July 19, 2002 – Roach filed a petition for writ of habeas corpus in an Amarillo federal district court.

• Sept. 27, 2005 – The federal district court denied relief.

• Oct. 27, 2005 – Roach filed notice of appeal in the federal district court.

• Feb. 26, 2007 – The 5th U.S. Circuit Court of Appeals denied Roach’s request for a certificate of appealability.

Nothing in the record shows that Roach has appealed to the U.S. Supreme Court the Fifth Circuit Court's denial of his application for certificate of appealability.

EVIDENCE RELATED TO PUNISHMENT

In the punishment phase of his trial, the State introduced evidence that about three days before killing Hewitt, Roach robbed and beat a 71-year-old one-legged man, Carroll Doshier, who died of a heart attack after the beating.

As a juvenile in Greenville, South Carolina, Roach was accused in a string of burglaries and thefts running from December 1989 to February 1990 and was committed to juvenile facilities five times.

And in November and December 1993, Roach committed a car theft and two armed robberies in Greenville. After one of the robberies, when Roach’s then-girlfriend refused to accompany him to Florida, he pulled a gun on her and threatened to blow her brains out. After he was arrested, Roach pleaded guilty to the theft and robberies and was sentenced to five years in prison.

In the days leading up to the murder of Hewitt, on May 7, 1998, Roach left Greenville after stealing from his boss some cash, a video camera, and a minivan. He went to Jacksonville, Florida, where he worked for a while and then stole money from a motel. He took the bus to Amarillo where in addition to killing Hewitt and beating Doshier, he stole food from a K-Mart, snatched a purse, stole a radio from a car, and burglarized a home, from which he took blank checks that he cashed.

After leaving Amarillo, he went to Guymon, where he stole a bike from a yard, broke into a Girl Scout office and stole money, postage, and some knives, and broke into a convenience store, where he stole about twenty to twenty-five cartons of cigarettes, which he later sold.

Amarillo woman's killer to die

By Dan Packard - Amarillo Globe News

September 5, 2007

Tony Roach is scheduled to die Wednesday for the brutal 1998 killing of Amarillo resident Ronnie Dawn Hewitt. Roach strangled her with a belt, raped her after she died, then set fire to her apartment.

She was 37. Her friends called her Kitten. Dureama Mincher is one of those friends. "We were very close," Mincher said.

Mincher said she and others close to Hewitt were devastated and shocked when they heard the news of her death, which occurred on June 8, 1998. "That was horrible. Kitten was a very little person, and she went through a lot. She didn't deserve that," Mincher said.

Roach, however, will get what he deserves, Mincher said. "Normally I'm against the death penalty, but that was just too much," she said.

If certain circumstances work out, Mincher said, she plans to attend the execution by lethal injection in Huntsville to personally observe the end of a long ordeal. "It's just a good thing that it's coming to an end," she said. "She deserves some justice."

Laila Book said she knew Hewitt for about 20 years. She still keeps a photo of the victim in her living room, she said. "She was one of the best people I've ever met," Book said. "When this happened she was happier than she'd ever been and was getting ready to get married." Book said she and Roach exchanged three letters while he was in prison. "I finally broke down and wrote to him because I just had to know what went through someone's mind to do what he did," she said.

She said she never got a satisfactory answer. "I think he just snapped," Book said. "It was horrible what he did, but I've forgiven him for what he's done because you have to forgive." Hewitt left a daughter, Nakita, who was 9 at the time of her mother's death. She moved in with her grandparents in Amarillo, Mincher said.

Authorities captured Roach in Guymon, Okla., where he confessed the killing to police while being questioned about a bicycle theft.

Roach, 22 at the time, told Amarillo police he broke into Hewitt's apartment at 1216 W. 11th Ave. through a window and waited about 15 minutes before the victim walked into the apartment.

Rebecca King, 47th District attorney at the time, read Roach's confession in court. According to the confession: ** The victim pleaded for Roach not to hurt her. ** Roach told Hewitt he wouldn't hurt her, but a struggle ensued and he strangled her with a multicolored belt. Roach said he knotted the belt to kill Hewitt and later raped her after she was dead. ** Roach said he removed two rings from the victim's hand and started a fire in the apartment before he left.

Testimony showed Roach pawned the rings and other items at pawn shops in Amarillo and Guymon. Roach arrived in Amarillo by bus from South Carolina, where he stayed in constant trouble with the law, reports show.

Amarillo attorney C.J. McElroy served as a court-appointed attorney on Roach's defense team during the trial. "It was almost like he wanted to be caught," McElroy said. "There wasn't anything at that point in time to connect him to the crime. It was his confession that allowed police to backtrack."

She said the trial was difficult from a defense perspective because prosecutors had DNA evidence from a sexual assault, pawned items from the scene - and the confession. "Plus, his name didn't help," McElroy said.

A statement to police that he wanted to be executed made it hard to avoid any other outcome for the defense, she said. McElroy said Roach reacted differently than most people she defends. "Tony was really remorseful about what had happened," she said. "I'm saddened by the fact that we'll be executing somebody," she said. "The Legislature finally in the last session gave us the option of life without parole, but we didn't have that option when Tony's trial was going on."

Walt Weaver, another court-appointed attorney for Roach, called the execution "a tragedy." "Would we rather spend a million bucks feeding children, or would we rather spend a million bucks executing Tony?" he said.

South Carolina parolee executed for Texas slaying

By Michael Graczyk - Houston Chronicle

Associated Press - Sept. 5, 2007

HUNTSVILLE, Texas — A repentant South Carolina drifter was executed Wednesday evening for strangling, robbing and raping an Amarillo woman a few months after he had been paroled from prison.

Tony Roach spoke for several minutes, his voice cracking at times and a tear at the corner of his eye. He repeatedly sought forgiveness from the fiance and the daughter of his victim, who stood a few feet away looking through a window. "So much hurt I've caused you all," Roach said. "I can only imagine how you feel. I pray the Lord Jesus Christ touches your heart the way he's touched mine."

Saying that he was to blame for the killing, Roach said he knew the victim was "in a good place." "I can't agree with this justice the state is carrying out but I accept it and I'm sorry," he said. "I have no ill will toward anyone carrying out this so-called justice. I leave y'all in God's care." He was pronounced dead at 6:22 p.m., nine minutes after the lethal flow of drugs began.

Roach, 30, was the 24th condemned inmate put to death this year in the nation's most active capital punishment state. The total equals the number of executions carried out in Texas all of last year. Four other inmates are set to die this month.

Roach confessed to and was convicted of the June 1998 slaying of Ronnie Dawn Hewitt, 37. He'd been released from a South Carolina prison in February 1998 after serving five years of a six-year term for armed robbery and assault. By the time he was arrested in Oklahoma two weeks after Hewitt's death, he left a trail of offenses from South Carolina to Florida, then Texas to Oklahoma.

"I just remember him being very quiet, never repentant, never anything, just very cold," said Rebecca King, who prosecuted the case. "We only go for the death penalty when there's no other choice. "That was not a hard one to know we had to go for the death penalty."

The 5th U.S. Circuit Court of Appeals earlier this year denied Roach permission to move forward with other appeals. His appeals lawyer, Joe Marr Wilson, said he didn't believe he had anything left to pursue in the courts to try to stop the punishment.

Firefighters responding to a blaze at Hewitt's apartment found her body. She had been strangled with a belt. Then she was raped after she already was dead. Roach was picked up by police about 120 miles to the north in Guymon, Okla., for stealing some cigarettes and reselling them. During questioning, he volunteered to officers they should ask him about the murder of a woman in Amarillo.

"This really wasn't a guilt-innocence case," Walt Weaver, who defended Roach at his capital murder trial, said. "He did it. He confessed." Roach declined to speak with reporters in the weeks preceding his scheduled punishment.

Weaver said Roach had been locked up as a juvenile and had difficulty on the outside once he would be released. "He wrote me a letter," Weaver said. "He said he met his peace. He forgave me. He knows he did it. "It just saddens me."

Hewitt, known as "Kitten" to her friends, was killed after Roach climbed through a bedroom window of her apartment, hid there while she took a shower and spoke on the telephone, then attacked her. Evidence showed after he killed her he raped her, ate food from her refrigerator, then set her place on fire.

Authorities determined that three days before Hewitt's death, Roach robbed and beat a 71-year-old one-legged man in Amarillo. The man died of a heart attack after the beating. Roach had an extensive record for burglary and theft as a teenager and had five stints in juvenile lockups, records showed. He pleaded guilty to the theft and robbery charges that got him the six-year prison term in South Carolina.

He found a job in Greenville, S.C., but then fled to Jacksonville, Fla., after stealing from his boss. In Florida, he stole money from a motel, then took a bus to Amarillo. Besides the two deaths there, records showed him responsible for a theft from a Kmart store, a purse snatching, a theft from a car, burglary of a house and writing checks from a stolen checkbook.

In Guymon, authorities said he also stole a bicycle, broke into a Girl Scout office where he took money, postage and some knives, and broke into a convenience store where he stole cigarettes he was accused of selling.

Scheduled to die next is Joseph Lave, 42, facing execution Sept. 13. Lave was condemned for a 1992 robbery at a sporting goods store in the Dallas suburb of Richardson where two employees, Frederick Banzhaf and Justin Marquart, both 18, were beaten with a hammer and had their throats slit.

Texas executes man for 1998 murder

Reuters News

September 5, 2007

DALLAS (Reuters) - Texas executed a convicted killer by lethal injection on Wednesday for the 1998 murder of a woman whose body he sexually molested after he strangled her to death. The execution of Tony Roach, 30, was the first of five scheduled for this month in America's most prolific death penalty state.

Roach was condemned to die for the brutal murder of Ronnie Dawn Hewitt in June 1998 while he was breaking into her apartment in Amarillo, Texas. He admitted to strangling Hewitt with a belt then having sex with her body. He also stole some items and set the apartment on fire.

In Roach's last statement he said: "I cannot agree with this injustice. The Bible says that you shall not kill, but it also says to obey the government. I am sorry, forgive me."

Roach was the 24th inmate executed in Texas so far this year, which equals the state's tally for all of 2006.

Since Texas resumed executions in 1982, 403 people including Roach have been put to death in the state. Virginia trails Texas with 98 executions.

Txexecutions.org

Tony Roach, 30, was executed by lethal injection on 5 September 2007 in Huntsville, Texas for murdering a woman while burglarizing her home.

On 8 June 1998, Roach, then 21, knocked on the door of Ronnie "Kitten" Hewitt's Amarillo apartment. Receiving no answer, he pried open a window and crawled inside. Roach then saw Hewitt, 29, sitting in the living room, but she did not see or hear him. Roach hid from Hewitt for about fifteen minutes while she took a shower and spoke on the telephone. Then, when she was walking down the hallway, Roach came out of hiding and grabbed her, putting his hand over her mouth. He told her he would not hurt her, and she pleaded with him not to. Roach then pushed her into the living room. They struggled. Roach then placed a belt around Hewitt's neck and strangled her. He then had vaginal and anal intercourse with her body.

After taking some rings, a knife, money, and beer, and helping himself to some food from the refrigerator, Roach set fire to the victim's apartment using hair spray and a cigarette lighter, then left. The victim's body was discovered by firefighters.

About ten days later, Roach was arrested in Guymon, Oklahoma, for stealing some cigarettes and reselling them. While being questioned, he confessed to killing a woman in Amarillo named Kitten. According to his confession, he promised not to hurt Hewitt, but then after he pushed her into the living room, she began kicking and scratching him, so he strangled her.

In addition to Roach's confession, the prosecution presented DNA evidence from the victim's body and evidence showing that Roach pawned the victim's rings in Amarillo and Oklahoma. He also made a statement to police that he wanted to be executed.

Roach had a criminal history in four states, going back to his days as a youth in South Carolina, where he was committed to juvenile facilities five times for burglary and theft. In 1993, he committed a car theft and two armed robberies and assaulted his girlfriend by pointing a gun to her head and threatening to blow her brains out if she did not accompany him to Florida. He was sentenced to six years in prison and was paroled in 1998 after serving five years of his sentence.

In May 1988, Roach stole a vehicle, a video camera, and some cash from his boss in Greenville and drove to Jacksonville. He got a job there, but then he stole money from a motel and fled by bus to Amarillo. About three days before Hewitt's murder, he robbed and beat Carroll Doshier. The victim, who was 71 and had only one leg, died of a heart attack after the beating. Roach also shoplifted from a store, snatched a purse, stole a radio from a car, burglarized a home, and cashed stolen checks.

In Guymon, Oklahoma, after the murder, Roach stole a bicycle, burglarized an office building, and burglarized a convenience store.

A jury convicted Roach of capital murder in May 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2001. All of his subsequent appeals in state and federal court were denied.

Roach declined to speak to reporters in the weeks preceding his execution. Amarillo attorney C.J. McElroy, who defended him at his trial, said that Roach was very remorseful about what happened.

Roach was emotional at his execution. During his last statement, he repeatedly asked the victim's fiancee and daughter, who watched from a viewing room, for forgiveness. "So much hurt I've caused you all," he said, his voice cracking, and his eyes full of tears. "I can only imagine how you feel. I pray the Lord Jesus Christ touches your heart the way He's touched mine."

"I can't agree with this justice the state is carrying out, but I accept it and I'm sorry," Roach continued. "I have no ill will toward anyone carrying out this so-called justice. I leave y'all in God's care." When his last statement was finished, the lethal injection was started. He was pronounced dead at 6:22 p.m.

ProDeathPenalty.com

In June 1998 firefighters found the body of Ronnie “Kitten” Hewitt inside her burning apartment in Amarillo, Texas. Though the fire burned her body, it was determined that she died from asphyxiation from being choked by a belt found tightened around her neck; she likely had been sexually assaulted; and someone set fire to her house using aerosol hair spray.

Later that month, police officers in Oklahoma questioned Roach about an unrelated crime, and during the questioning Roach confessed to killing a woman named Kitten in Amarillo.

He signed a written confession in which he stated that he entered Hewitt’s apartment through a window, confronted her, and choked her with his arm and then with a belt until she died. Then, he raped her vaginally and anally and took money, a knife, a beer, and some rings. Finally, he described using hair spray to set the apartment on fire. A knife identified as Kitten’s and two of her rings were retrieved from pawn shops in Amarillo and in Guymon, Oklahoma, along with pawn slips signed by Roach.

Semen was present in vaginal and anal swabs. Roach was excluded as the contributor of the vaginal swab, but the DNA profile of the contributor of the semen found in the anal swab matched his DNA in ten different areas; such a profile would occur in only one in six billion Caucasians, Blacks, or Hispanics. A jury convicted Roach of capital murder, and he was sentenced to death.

UPDATE: Tony Roach was executed after apologizing to the family members of his victim who had come to watch him die. Roach repeatedly asked for forgiveness from the fiancé and the daughter of his victim, who stood a few feet away looking through a window. "So much hurt I've caused you all," Roach said. "I can only imagine how you feel. I pray the Lord Jesus Christ touches your heart the way he's touched mine." Saying that he was to blame for the killing, Roach said he knew the victim was "in a good place. I can't agree with this justice the state is carrying out, but I accept it and I'm sorry," he said. "I have no ill will toward anyone carrying out this so-called justice. I leave y'all in God's care."

Roach v. Quarterman, 220 Fed.Appx. 270 (5th Cir. 2007) (Habeas).

Background: Federal habeas petitioner sought certificate of appealability (COA) to review judgment of the United States District Court for the Northern District of Texas denying him relief from state capital murder conviction and death sentence.

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that:
(1) jury considered petitioner's character and circumstances of offense prior to imposition of death sentence;
(2) state clemency procedures were not arbitrary nor otherwise defective;
(3) International Covenant on Civil and Political Rights (ICCPR) was not binding law under which petitioner could challenge state clemency process;
(4) legal and factual sufficiency of jury's findings relating to mitigation special issue relative to death penalty was not subject to independent appellate review;
(5) jury instruction to consider all evidence submitted in both phases of trial and mitigating evidence did not preclude jury from considering petitioner's character;
(6) that bill's sponsor had made religious arguments in advancing legislation did not demonstrate that capital murder and death penalty statutes violated Establishment Clause; and
(7) defense counsel's purported refusal to allow petitioner to testify in mitigation of his punishment at sentencing was not ineffective assistance. COA denied.

JERRY E. SMITH, Circuit Judge: FN*

FN* 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.

Tony Roach was convicted of capital murder and sentenced to death. The district*273 court denied habeas corpus relief and declined to issue a certificate of appealability (“COA”). Roach petitions this court for a COA on ten issues. We deny a COA.

I.

In June 1998 firefighters found the body of Ronnie “Kitten” Hewitt inside her burning apartment in Amarillo, Texas. Though the fire burned her body, it was determined that she died from asphyxiation from being choked by a belt found tightened around her neck; she likely had been sexually assaulted; and someone set fire to her house using aerosol hair spray.

Later that month, police officers in Oklahoma questioned Roach about an unrelated crime, and during the questioning Roach confessed to killing a woman named Kitten in Amarillo. He signed a written confession in which he stated that he entered Hewitt's apartment through a window, confronted her, and choked her with his arm and then with a belt until she died. Then, he raped her vaginally and anally and took money, a knife, a beer, and some rings. Finally, he described using hair spray to set the apartment on fire.

A knife identified as Hewitt's and two of her rings were retrieved from pawn shops in Amarillo and in Guymon, Oklahoma, along with pawn slips signed by Roach. Semen was present in vaginal and anal swabs. Roach was excluded as the contributor of the vaginal swab, but the DNA profile of the contributor of the semen found in the anal swab matched his DNA in ten different areas; such a profile would occur in only one in six billion Caucasians, Blacks, or Hispanics.

A jury convicted Roach of capital murder, and he was sentenced to death. The Texas Court of Criminal Appeals affirmed. In response to a state application for writ of habeas corpus, a state trial court entered findings of fact and conclusions of law, recommending denial of relief; the Court of Criminal Appeals denied relief based on the trial court's findings and its own review.

II.

Roach's application for COA was filed pursuant to 28 U.S.C. § 2253 (1996), which “permits the issuance of a COA only where a petitioner has made a substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). For that requisite showing, a petitioner must show 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. (quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

We conduct only a threshold inquiry into the merits of Roach's claims, not a full consideration of the factual and legal basis of those claims. Id. Because Roach was sentenced to death, “any doubts as to whether a COA should issue must be resolved in [his] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

The federal district court is required to defer to the state court's adjudication of questions of law and mixed questions of law and fact unless the court's decision “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)(1). A decision is contrary to clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Also, the district court must defer to the state court's factual findings unless they “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)(2). In the district court, “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.” 28 U.S.C. § 2254(e)(1).

Roach requests a COA on ten issues. We address each in turn.

A.

Roach contends that his execution would constitute punishment on the basis of the nature of the offense alone with no consideration of his character, in violation of Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In Woodson the Court struck down a statute that mandated an automatic death sentence for those convicted of first-degree murder, because the statute failed to require a consideration of the defendant's character and record and the circumstances of the offense. Id. at 303-04, 96 S.Ct. 2978.

The district court noted that Texas's death penalty laws differ from those in Woodson. The jury was required to consider all the evidence presented at Roach's trial, including the evidence on the issues Woodson mentions-the circumstances of the offense and the defendant's background and character. Moreover, the jury was required to consider the probability Roach would commit future acts of violence.

No reasonable jurists could debate the district court's conclusion that the jurors in Roach's case considered the evidence required by Woodson. Texas does not have an automatic sentencing provision like the provision in Woodson, and jurors were required to consider the evidence Woodson requires.

B.

Roach posits that his execution under Texas's capital clemency procedures would violate his Eighth and Fourteenth Amendment rights. The procedure is deficient, he asserts, because the Texas Governor and Board of Pardons and Paroles seriously consider only actual innocence for commutation of a death sentence.

Roach argues, citing Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), that the Supreme Court has held that minimal due process safeguards apply to clemency proceedings. Woodard suggests, he points out, that judicial intervention might be “warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Id. at 289, 118 S.Ct. 1244 (O'Connor, J., concurring).

Texas's clemency procedure is defective, Roach contends, because only actual innocence is seriously considered, so inmates do not have meaningful clemency review. Texas has granted clemency only based on judicial expediency and never based on an inmate's request.

The district court deferred to the state court's conclusion that Texas's clemency procedures do not violate the Eighth or Fourteenth Amendments, holding that Roach merely pointed out aspects of the clemency process with which he disagreed-he did not provide evidence that he would be denied access to the process or evidence that the decision will be made arbitrarily. Further, the district court pointed out, we have held that Texas's clemency procedures do not violate due process.FN1 The Texas clemency procedures, the Faulder court concluded, do not resemble flipping a coin. Id. at 344.

FN1. Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343, 344-45 (5th Cir.1999) (stating that due process challenges to Texas's procedure were “meritless”).

Given Woodard's description of the characteristics of the sort of arbitrary clemency procedure that would require judicial intervention, and in light of Faulder, no reasonable jurist could debate whether the district court erred in deferring to the state court.

C.

Roach urges that Texas's clemency process violates the International Covenant on Civil and Political Rights (“ICCPR”), which the United States ratified in 1992. He contends that Texas lacks a meaningful clemency process as required by the sixth article of the ICCPR. Also, he suggests execution without a meaningful clemency process violates customary international law.

The district court found that when the Senate ratified the ICCPR, it stated that articles one through twenty-seven were not self-executing, so Congress must incorporate those provisions into domestic law to make the covenant effective. Because Congress has not done so, the ICCPR is not binding law, and Roach's appeal to its provisions fails.

Along with the First and Sixth Circuits, we have previously concluded that ICCPR was not U.S. law because it is not self-executing and because and Congress has not incorporated it into domestic law. Beazley v. Johnson, 242 F.3d 248, 267 (5th Cir.2001).FN2 Reasonable jurists could not debate the district court's conclusion that Roach has failed to establish that Texas's clemency process violates the ICCPR.

FN2. See also Buell v. Mitchell, 274 F.3d 337, 371-72 (6th Cir.2001); Igartua De La Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st Cir.1994) (per curiam).

Because we have already established that reasonable jurists would not find Texas's clemency review defective, Roach's claim that execution without meaningful clemency/commutation review violates customary international law also fails for this same reason.

D.

Roach also argues that Texas's unstructured sentencing scheme is unconstitutional because it does not permit meaningful appellate review. Roach claims he has a right for appellate review of the legal and factual sufficiency of the jury's findings relating to Texas's mitigation special issue.

In response, the district court deferred to the state habeas court's determination that the Eight and Fourteenth Amendments do not require an appellate court to reweigh punishment evidence. Reasonable jurists could not debate this conclusion. As the district court pointed out, the Supreme Court has not stated that review of mitigation evidence is constitutionally required.

In contrast, the Court has stated that juries may evaluate mitigation evidence FN3 and that appellate review of the proportionality of a death sentence is not required where a statute properly channels a sentencer's discretion.FN4

Moreover, we have rejected challenges to Texas's appellate review of the special mitigation issue, holding it does not violate the Fourth or Eight Amendments FN5 and that it does not violate due process.FN6 In light of these precedents, no reasonable jurist could debate the district court's decision.

FN3. Tuilaepa v. California, 512 U.S. 967, 974, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (“[T]he States may adopt capital sentencing processes that rely upon the jury, in its sound discretion, to exercise wide discretion.”); Penry v. Lynaugh, 492 U.S. 302, 326-27, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (stating “there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigation evidence introduced by a defendant”).

FN4. McCleskey v. Kemp, 481 U.S. 279, 306-07, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). FN5. Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.1999). FN6. Woods v. Cockrell, 307 F.3d 353, 359-60 (5th Cir.2002); Moore v. Johnson, 225 F.3d 495, 505-06 (5th Cir.2000).

E.

Roach avers that Texas's special issue relating to the future dangerousness of the defendant is unconstitutional because it requires only proof of a probability of future dangerousness and not proof beyond a reasonable doubt of future dangerousness, puts the burden of proof on the defendant, chilled Roach's ability to present relevant mitigating evidence, and insufficiently guides the jury in making its determination. First, contrary to Roach's contention, Texas's special issue does require proof beyond a reasonable doubt. FN7

Roach's argument confuses proving the elements of an offense beyond a reasonable doubt, which is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), with the contents of the elements themselves. Because Texas's issue regarding future dangerousness must be proven beyond a reasonable doubt, reasonable jurists could not debate the district court's opinion.

FN7. Tex.Code Crim. Proc. art. 37.071 § (c) (“The state must prove each issue submitted under Subsection (b) of this article beyond a reasonable doubt....”).

We have already held that the burden of proof is not shifted to the defendant in Texas's special issue, see Hughes v. Johnson, 191 F.3d 607, 625-26 (5th Cir.1999), so reasonable jurists would not debate Roach's objection on this ground. Similarly, we have held that a defendant's argument that Texas's special issue chilled the defendant's ability to present relevant mitigating evidence is meritless. See Woods v. Johnson, 75 F.3d 1017, 1033 (5th Cir.1996).

Finally, the district court recited the long line of our cases holding that the terms included in the punishment special issue are constitutionally sufficient.FN8 None of Roach's objections to Texas's special issue would cause reasonable jurists to debate the district court's decision.

FN8. See, e.g., id. at 1033-34 (listing cases holding that the terms in Texas's special issue do not need to be defined by jury instructions).

F.

Roach asserts that Texas law violates the Eighth and Fourteenth Amendments because it prevents jurors from knowing that Roach would be sentenced to life if even one juror causes a deadlocked jury. The district court pointed out that we have previously rejected this argument as meritless. See Alexander v. Johnson, 211 F.3d 895, 897, n. 5 (5th Cir.2000). In Alexander we explained as follows:

In addition to be being barred by Teague, Alexander's substantive argument is meritless. The Supreme Court recently rejected the theory that a district court's failure to instruct the jury as to the consequences of deadlock gives rise to an Eighth Amendment violation. See Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

Furthermore, the Fifth Circuit has expressly rejected the contention that Texas's 10-12 Rule prevents jurors from considering mitigating circumstances. See Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994). Id. at 897 n. 5. Because we have previously rejected Roach's contention, no reasonable jurist could debate the district court's conclusion.

G.

Roach claims that his right to have a jury consider all evidence relevant to mitigation of the death sentence was violated because the definition of mitigating circumstances limited the jury's consideration to evidence that might reduce Roach's culpability of the crime, excluding the potential for rehabilitation.

The district court, citing to the trial transcript, noted that jurors were instructed to consider all evidence submitted to them in both phases of the trial and were told to consider mitigating evidence “to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.”

This definition encompasses “ ‘virtually any mitigating evidence.’ ” Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.2001) (quoting Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). This 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. (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)).

Roach's potential for rehabilitation falls within the evidence this jury instruction permits the jury to consider based on our caselaw; no reasonable jurists could debate the district court's decision to rely on this precedent.

H.

Roach alleges that Texas's capital murder and death penalty statutes violate the Establishment Clause of the First Amendment because the statutes did not have a secular purpose, and the preeminent purpose of the statutes is religious. As evidence, he points to the primary sponsor's purely religious arguments in favor of the bill and the inability of the sponsors to articulate a reasonable secular purpose.

The district court, however, noted that the primary sponsor of the bill asserted religious arguments only in response to an opponent's religious arguments about the bill. The district court further noted that Roach presented evidence about the purpose of the bill only from the closing arguments for the bill. These few arguments, the district court reasoned, do not demonstrate the actual purpose of the bill.

No reasonable jurist could debate the conclusion that Roach has failed to show that Texas's death penalty statutes violate the First Amendment. Roach presents only evidence from a small part of the legislative process, and the evidence merely demonstrates the sponsor used a religious argument to refute an opponent's religious argument, not to state the purpose of the statute.

Moreover, as Roach's brief highlights, the primary sponsor invited prosecutors to testify about the effect of the death penalty on deterrence and incapacitation. That testimony stated secular purposes for the death penalty.

“While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards v. Aguillard, 482 U.S. 578, 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Here, where secular reasons for the statute were provided and no evidence demonstrates a religious purpose, no reasonable jurists could debate the district court's conclusion that Texas's death penalty statutes do not offend the First Amendment.

I.

Roach claims he was unconstitutionally deprived of his right to testify in mitigation of his punishment. He informed his attorney he wanted to testify, Roach alleges, but his attorney told him he would not be called to testify.

The district court rejected this claim for two reasons. First, the state habeas court determined that Roach did not ever express a desire to testify and that his attorney informed him of his right to testify. Without evidence contradicting these fact findings, the district court deferred to the state court's finding.

The state court had Roach's affidavit, asserting he informed his attorney of his desire to testify, as well as his attorney's affidavit, stating she informed him of his right to testify and that he never told her he wanted to do so. From this evidence, the state court made its factual finding.

Second, the district court reasoned that Roach has not demonstrated that his attorney's failure to allow him to testify constituted ineffective assistance of counsel, because Roach failed to prove he was prejudiced as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We have previously held that a defendant failed to meet Washington's prejudice standard, despite the fact his attorney prevented him from testifying against his wishes, because there was no reasonable probability that the defendant would not have received the death penalty if he had testified. See United States v. Mullins, 315 F.3d 449, 456 (5th Cir.2002).

Because of the defendant's extensive criminal history and drug use, about which the government could cross-examine him, there was no reasonable probability that the jury would believe the defendant's testimony instead of the arresting officers'. Id. Here, the district court reasoned, that there was no reasonable probability that Roach's testimony would alter the outcome because of Roach's criminal history, which included a prior murder and the brutal nature of this crime.

No reasonable jurists could debate that the district court erred in deferring to the state habeas court's finding-Roach presented no evidence that the state court's determination was unreasonable. Also, even if the district court accepted Roach's account, no reasonable jurist could debate the conclusion that Roach's testimony would have altered the outcome, given our analogous reasoning in Mullins and Roach's criminal history and particular crime in this case.

J.

Roach argues that because of a conflict of interest, he received ineffective assistance of counsel, violating his Sixth and Fourteenth Amendment rights. He states that his attorney accepted employment with the prosecutor's office that was prosecuting Roach while she was still representing Roach on direct appeal.

Roach's attorney accepted employment with the prosecutor's office beginning January 1, 2000, but she filed a brief on Roach's behalf on February 2, 2000. In an affidavit to the state habeas court, she explained that she completed Roach's brief before going to work at the prosecutor's office but merely filed the brief after starting work there.FN9

The affidavit also explained that the lawyer did not perform any work in the prosecutor's office related to Roach and did not communicate any confidential material to the prosecutor's office. Another attorney began representing Roach and filed a supplemental brief on his behalf with the Court of Criminal Appeals in May 2000, raising three additional points of error.

FN9. The certificate of service on the brief states the brief was completed December 31, 1999.

The district court found that the state habeas court's conclusions-that no actual conflict of interest existed FN10 and that Roach did not prove he suffered harm-not to be an unreasonable application of federal law. We do not address whether an actual conflict existed, because reasonable jurists could not debate the conclusion that Roach failed to prove harm.FN11

FN10. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) requires proof of an actual conflict of interest, not merely a potential conflict.

FN11. Cases in which “it is alleged that the attorney's representation was affected by his own self-interest are evaluated under the more relaxed Strickland [v. Washington] standard,” not the Cuyler standard that the district court applied here. Moreland v. Scott, 175 F.3d 347, 349 (5th Cir.1999) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Beets v. Scott, 65 F.3d 1258, 1271-72 (5th Cir.1995) (en banc)).

Though the district court analyzed the harm of Roach's attorney's conflict under Cuyler's requirement that the conflict adversely affected his lawyer's performance, Washington's requirement that the conflict prejudiced Roach's defense is more onerous than Cuyler's requirement. Because Roach failed under Cuyler's standard, he also fails under Washington's more exacting standard. Thus, though the district court erred in applying Cuyler instead of Washington, Roach's argument is unavailing.

Roach fails to point to any adverse effects of the alleged conflict, such as points of error that should have been argued or additional arguments that were omitted from the points of error raised. He contends his attorney devoted less time to his brief than she could otherwise have devoted, but he fails to suggest any harm from this lack of time. We require a petitioner to show “some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest.” FN12

Without any showing of harm, reasonable jurists could not debate the district court's conclusion that Roach has failed to establish this ineffective assistance of counsel claim. FN12. Hernandez v. Johnson, 108 F.3d 554, 560 (5th Cir.1997) (quoting Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir.1996)).

The request for COA is DENIED.