504 F.3d 492 (2007)
Ricardo ORTIZ, Petitioner-Appellant,
v.
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 06-70020.
United States Court of Appeals, Fifth Circuit.
October 10, 2007.
*493 *494 Robin Norris, Hart & Norris, El Paso, TX, for Ortiz.
Ellen Stewart-Klein, Austin, TX, for Quarterman.
Before SMITH, GARZA and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Texas death row inmate Ricardo Ortiz ("Ortiz") appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition in which he claimed that the Texas retaliation statute was an unconstitutional ex post facto law when applied to him. He also moves for a certificate of appealability ("COA") to appeal two additional issues, arguing that reasonable jurists would find debatable whether the trial court improperly excluded a veniremember from jury service because of her views regarding the death penalty and whether the trial court improperly instructed the jury on the requisite *495 burden of proof for imposition of the death penalty.

I
On August 6, 1997, Ortiz was arrested in El Paso, Texas, for violating the terms of his parole. He told arresting officers that, in exchange for his release from custody, he would give them information about a series of unsolved bank robberies. The officers contacted the F.B.I., who had been investigating the bank robberies and already had suspected Gerardo Garcia ("Garcia") to be the main bank robber. The F.B.I. did not yet know the identity of the get-away driver, but after hearing that Ortiz had special information about the robberies, they suspected Ortiz might be the man for whom they were looking. By the time the F.B.I. arranged to speak with him, however, Ortiz had changed his mind and refused to talk. In light of Ortiz's refusal, the F.B.I. scheduled an interview with Garcia, who was already in the custody of El Paso police, hoping that Garcia would name Ortiz as the get-away driver.
When Garcia, too, refused to talk, the F.B.I. concocted a plan that it hoped would convince Ortiz to implicate Garcia, and vice versa, in the bank robberies. Agents scheduled a second interview with Garcia and arranged for Ortiz to be brought past the interrogation room so that the two men could see each other and make eye contact. The F.B.I. hoped that each would assume his accomplice was cooperating with investigators and would do the same. When neither suspect was forthcoming with incriminating information, however, agents drafted a federal arrest warrant for Garcia on bank robbery charges and attached a probable cause statement that falsely mentioned Ortiz as one of the individuals implicating him. The F.B.I. showed Ortiz the probable cause statement and warned Ortiz that Garcia would be shown the warrant and would learn that Ortiz had "snitched him off," implying that Garcia might then retaliate by implicating Ortiz.
When neither suspect would talk about the robberies, Ortiz and Garcia were placed in the same tank in the El Paso Detention Center. This unit was reserved for members of the Texas Syndicate, an aggressive and violent gang notorious for its rigid hierarchy and ruthless intolerance of disloyalty. Ortiz was a high-ranking officer of the Texas Syndicate and "tank boss" of this unit.
On August 19, 1997, Garcia was found dead in the bed of his jail cell. An autopsy revealed that Garcia died of a heroin overdose, one so high that it was three times greater than the amount sufficient to cause death. There were fresh needle marks and bruises on his left arm, but no needle track marks, indicating that Garcia probably was not a heroin addict. Prison witnesses revealed that Ortiz had obtained heroin the evening before Garcia was found dead and, that night, had injected Garcia with the syringe. Ortiz's cellmate revealed that Ortiz had told him that Garcia "must die" for implicating him in the bank robberies that he and Garcia had committed together.
Ortiz was indicted by a Texas grand jury with "intentionally caus[ing] the death of an individual, namely, Gerardo Garcia, by injecting Gerardo Garcia with heroin . . . then and there in the course of committing and attempting to commit the offense of retaliation against Gerardo Garcia." The retaliation component elevated Garcia's murder to a capital offense. See TEX. PENAL CODE § 19.03(a)(2) (Vernon 1997).[1]
*496 On June 16, 1999, the jury found Ortiz guilty of capital murder. During the punishment phase, Ortiz did not present any mitigating evidence. Ortiz was sentenced to death, and his conviction and sentence were affirmed on direct appeal. Ortiz v. State, 93 S.W.3d 79 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003).
Ortiz timely filed a state petition for a writ of habeas corpus. Deciding that a hearing was unnecessary, the state habeas court entered findings of fact and conclusions of law recommending that all relief be denied. The Texas Court of Criminal Appeals ("TCCA") denied relief in an unpublished order based on those findings and conclusions and its own review of the record. Ex parte Ortiz, No. 54,488-01 (Tex.Crim.App.2003) (per curiam) (unpublished order). Ortiz filed a federal habeas petition asserting seven claims for relief, including the three presented in the instant appeal and application for COA. The district court denied Ortiz's claims but granted a COA for us to decide whether the Texas retaliation statute is an unconstitutional ex post facto law as applied to Ortiz. Ortiz v. Livingston, 420 F.Supp.2d 670, 673 (W.D.Tex.2006). Ortiz now appeals that decision and also petitions this Court for a COA to appeal two additional issues.

II
We first address Ortiz's ex post facto claim. We review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). We review questions of constitutional law, including the constitutionality of a State statute, de novo. United States v. Guidry, 456 F.3d 493, 506 (5th Cir.2006). Under AEDPA, Ortiz is not entitled to federal habeas relief unless the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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).
Whether Texas's retaliation statute violates the Ex Post Facto Clause, U.S. CONST. art. I, § 10 ("No State shall . . . pass any . . . ex post facto Law . . ."), when applied to Ortiz is a question of law and, accordingly, is governed by section 2254(d)(1). See Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts." (Terry) Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.
*497 Ortiz's ex post facto claim concerns the change in the crime of "retaliation" between the time of Garcia's murder and the time Ortiz was tried. On the day of Garcia's murder, August 19, 1997, Texas defined the crime of "retaliation" as "intentionally or knowingly harm[ing] or threaten[ing] to harm another by an unlawful act: in retaliation for or on account of the service of another as a public servant, witness, prospective witness, informant, or a person who has reported or who the actor knows intends to report the occurrence of a crime." TEX. PENAL CODE § 36.06(a)(1) (effective Sept. 1, 1994 through Sept. 1, 1997) (emphasis added). Texas amended its retaliation statute to take effect on September 1, 1997, only a few days after Garcia's alleged murder. In contrast to the pre-amendment statute which specified only "service," the amended statute criminalizes harming or threatening to harm another for his "service or status" as one of those named persons. Id. § 36.06(a)(1) (effective Sept. 1, 1997) (emphasis added).[2] The indictment did not include a particular version of the retaliation statute; the document simply charged Ortiz with murder in the course of retaliation. The trial judge, though, instructed the jury with the amended definition of retaliation rather than the definition in effect at the time of the offense.[3]
Although he did not object to the charge during trial, Ortiz challenged the jury instruction on direct appeal, arguing that jury instructions that included the amended version of the statute violated the Ex Post Facto Clause. The TCCA rejected Ortiz's claim on two grounds. First, the TCCA concluded that the Ex Post Facto Clause "is directed at the Legislature, not the courts," and, as a result, "an ex post facto problem does not arise from a trial court's erroneous retroactive application of a statute, but only if the statute itself has retroactive effect." Ortiz, 93 S.W.3d at 91 (citing Rogers v. Tennessee, 532 U.S. 451, 457-62, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001); Johnson v. United States, 529 U.S. 694, 701-02, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000)). Therefore, the court held that "in order to prevail on his ex post facto claim, Ortiz would have to show that § 36.06 itself operates retroactively, rather than [merely showing] that the trial court retroactively applied it. He does not do so." Id. Second, the TCCA held that, although the jury instruction did not violate the Ex Post Facto Clause, "the trial court's charge to the jury was erroneous because it relied on the wrong version of the statute." Id. However, because Ortiz failed to object to the jury instruction, the TCCA reviewed the trial court's error for only "egregious harm," id. at 91-92, and *498 held that Ortiz was not sufficiently harmed to warrant reversal of his conviction. The TCCA explained:
The evidence supports a conclusion that Ortiz murdered Garcia due to either his status or his service as a prospective witness. . . . With the other options in the statute  public servant, witness, and informant  there is a clear difference between that person's status versus his service. But with a "prospective witness," the line is blurred, since the word "prospective" denotes a future event. There is little difference between a prospective witness' status and his service. As a result, we cannot conclude that Ortiz was egregiously harmed by the erroneous charge.
Id. at 92.
On one occasion, in a case cited by neither party, the Supreme Court was presented with a question of whether jury instructions violated the Ex Post Facto Clause.[4]See Splawn v. California, 431 U.S. 595, 97 S.Ct. 1987, 52 L.Ed.2d 606 (1977). The defendant-petitioner in Splawn was convicted under California law of selling obscene materials. Id. at 596, 97 S.Ct. 1987. Pursuant to a statute that the California legislature enacted after the petitioner's unlawful conduct but before trial, the trial judge instructed the jury to consider "the circumstances of sale and distribution, and particularly whether such circumstances indicate that the matter was being commercially exploited by the defendants for the sake of its prurient appeal." Id. at 597, 97 S.Ct. 1987. Accordingly, the Supreme Court observed that the newly-enacted statute did "not create any new substantive offense, but merely declare[d] what type of evidence may be received and considered." Id. at 600, 97 S.Ct. 1987. Thus, the petitioner's challenge was limited to whether "a change in procedural rules governing his trial amount[ed] to the enactment of an ex post facto law." Id. Relying on a decision of the California Court of Appeal, the Supreme Court found that such evidence had been admissible prior to the enactment of the statute and thus found "it unnecessary to determine whether if [the statute] had permitted the introduction of evidence which would have been previously excluded under California law, the petitioner would have had a tenable claim under the Ex Post Facto Clause of the United States Constitution." Id. at 600-01, 97 S.Ct. 1987. In the absence of a Supreme Court decision determining whether jury instructions violated the Ex Post Facto Clause, we cannot hold that the TCCA's rejection of Ortiz's ex post facto claim was contrary to or an unreasonable application of clearly established Supreme Court precedent.[5]
*499 Even if we were to entertain Ortiz's ex post facto challenge, we still would conclude that he is not entitled to habeas relief. Under the Ex Post Facto Clause, Ortiz must prove that the law, retroactively applied to him, caused him some disadvantage. See Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ("[F]or a criminal or penal law to be ex post facto [,] it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it."). Ortiz cannot make this showing. As far as Ortiz is concerned, the law as explained in the jury instructions was no different from the law that existed at the time of Garcia's murder because the amendment had no effect on Ortiz. See, e.g., Dobbert v. Florida, 432 U.S. 282, 300, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (explaining that the change in law must have also had a specific "effect on the defendant in the proceedings of which he complains").
The pre-amendment version of the statute criminalized harming another on account of his service as a public servant, witness, prospective witness, informant, or a person who has reported or who the actor knows intends to report the occurrence of a crime. The amended statute criminalizes harming another on account of his service or status as one of these named persons. Ortiz was charged only with retaliating against "a prospective witness" or a "person who has reported or who the actor knows intends to report the occurrence of a crime." He was not charged with committing retaliation against those other named persons  "public servant," "witness," or "informant."
Ortiz argues that rendering "service" requires a prospective witness to take steps toward testifying and that Garcia never performed any "service" because he never provided information to the authorities. Any distinction, however, does not turn on the definitions of "status" and "service," but rather on the definition of "prospective witness." As the TCCA explained:
With the other options in the statute  public servant, witness, and informant  there is a clear difference between that person's status versus his service. But with a "prospective witness," the line is blurred, since the word "prospective" denotes a future event.
Ortiz, 93 S.W.3d at 92. At the time of Garcia's murder, Texas law clearly did not require a person to take steps toward testifying to be considered a "prospective witness;" one "serve[d]" as a prospective witness by acquiring knowledge of the criminal activity. Morrow v. State, 862 S.W.2d 612, 614-15 & n. 3 (Tex.Crim.App. 1993) (holding that prospective witnesses include "every conceivable category of persons with information regarding criminal activity"). Thus, a person with the "status" of a prospective witness already "serves" as a prospective witnesses by acquiring knowledge of criminal activity. Id. At the time of his murder, Garcia allegedly possessed knowledge of Ortiz's criminal activity, and law enforcement had placed him in a position to acquire further knowledge of such criminal activity. Therefore, as the district court concluded, *500 "[t]he amended version of the retaliation statute did not criminalize previously innocent conduct, because murdering Garcia in retaliation for his perceived or expected cooperation with authorities would have been an offense under either version of the statute." Ortiz, 420 F.Supp.2d at 726.
In sum, the Supreme Court has never held jury instructions to be unconstitutional under the Ex Post Facto Clause. Even if there were such a decision, Ortiz's ex post facto claim cannot prevail because the amended version of Texas's retaliation statute did not change the definition of retaliation as applied to Ortiz. Accordingly, it was not unreasonable for the TCCA to deny Ortiz's claim.

III
We next address Ortiz's petition for a COA. We grant a COA only when the petitioner has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires Ortiz to demonstrate that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In considering a COA, we do not give full consideration to the factual or legal bases in support of the petitioner's claims. Id. at 336, 123 S.Ct. 1029. Rather, we conduct an overview of the issues presented and a general assessment of their merits under the deferential standard of 28 U.S.C. § 2254(d). Id.; accord Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) ("The petitioner's arguments ultimately must be assessed under the deferential standard required by 28 U.S.C. § 2254 . . . ").

A
First, Ortiz petitions for a COA to appeal the district court's denial of his claim that the trial court erred in granting the State's challenge for cause to Anna Doporto ("Doporto"), a member of the venire, because she voiced opposition to the death penalty.[6] Ortiz argues that Doporto's exclusion from the jury violated his Sixth and Fourteenth Amendment rights as set out by the Witherspoon-Witt rule. See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 521-22, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Under this line of cases, a veniremember may not be excluded from sitting on a capital jury simply because she voices general objection to the death penalty or expresses conscientious or religious scruples against its infliction. See Witherspoon, 391 U.S. at 521-22, 88 S.Ct. 1770. However, a veniremember may be excluded for cause when her views on the death penalty would "prevent or substantially impair the performance of h[er] duties as a juror in accordance with h[er] instructions and *501 h[er] oath." Witt, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). Whether a juror is excludable under the Witherspoon-Witt standard is a question of fact. See Witt, 469 U.S. at 423-24, 105 S.Ct. 844 (citing Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). Accordingly, the TCCA's determination of this claim "shall be presumed to be correct," 28 U.S.C. § 2254(e)(1), and Ortiz "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Witt, 469 U.S. at 412-13, 105 S.Ct. 844. We thus examine the context surrounding Doporto's exclusion to determine whether the trial court's determination that Doporto's beliefs would "substantially impair the performance of her duties as a juror" is belied by "clear and convincing evidence."
During voir dire, but prior to individual questioning on this point, the trial court spoke to the entire venire, including Doporto, saying:
I am now going to ask you some questions about your convictions regarding the death penalty. Be assured that I am not now assuming that you will find the defendant guilty of capital murder or of any other crime in this case. Nevertheless, it is necessary to learn your state of mind about capital punishment in general, to determine whether you have an open mind as regards [to] what might be a just and proper sentence in a capital case if the defendant in that case is found guilty as charged.
So I am asking about your state of mind regarding capital murder in general. I am not asking in this next question what you think would be a just penalty in this or any particular case. I'm not at this time even asking you about your opinion as regards the death penalty in a retaliation capital murder case. And I am most especially not asking what you might think would be a just verdict in this case  in this particular case. I am asking, rather, whether for religious or philosophical or any other reason you believe that the death penalty should never be inflicted in any case, regardless of what the evidence might be.
In answering this next question, keep in mind that the circumstances and motives for the commission of crimes, including capital murder, are unlimited. Place a check mark by your answer, yes or no. Do you have conscientious scruples in regard to the infliction of death for a person convicted of capital murder? Yes or no?
If you answered the proceeding [sic] question yes, come up to the bench now.
Doporto was one of several veniremembers who identified themselves as having significant conscientious scruples against the death penalty. She approached the bench, and the following exchange ensued:
Ms. Doporto: Number 88, Anna Doporto. I have seen other murder cases and have agreed with the death penalty, but I don't feel I could bring a death penalty for somebody, to put that pressure on me.
The Court: Ma'am it's not a question right now of how you feel about your serving as a juror. Right now, are you opposed to the death penalty in all cases?
Ms. Doporto: No, sir.
The Court: Could you ever, sitting as a juror, no matter  no matter what the evidence showed, vote to inflict the death penalty?
Ms. Doporto: No, sir.
The Court: Anybody want to ask a further question[?]
*502 Neither the State nor the defense accepted the trial court's invitation to ask additional questions. The State then moved to exclude Doporto for cause, the judge granted the State's motion, Ortiz's counsel objected, and the judge overruled the objection.
On direct appeal, the TCCA rejected Ortiz's claim that Doporto had been improperly excluded for cause because of her views on capital punishment. Applying the Witherspoon-Witt standard, the TCCA concluded:
The trial court's question to Deporto [sic], asking whether she could vote to inflict the death penalty, was not clearly worded, and any answer to that question, in isolation, would be inconclusive on the question of whether a prospective juror is challengeable under Witt. However, the trial court had earlier phrased the issue clearly and correctly . . ., and the question directed specifically at Deporto [sic] was asked in the context of a juror who had already expressed doubt about her ability to personally assess the death penalty. A prospective juror is challengeable for cause under Witt if she could never personally impose the death penalty, regardless of the facts of the case, even though she might support imposition of the death penalty in the abstract or if someone else imposed it. Although the trial court's question to Deporto [sic] was ambiguous, the record in this case was sufficient for the trial court to believe that Deporto [sic] could never personally vote in such a manner that the death penalty would be assessed. The trial court did not abuse its discretion in granting the State's challenge for cause.
Ortiz, 93 S.W.3d at 90.
On federal habeas review, the district court also denied relief out of deference to the state trial court's determination that Doporto was unwilling to impose the death penalty even when the law or facts called for it. The court explained: "whether a particular member of the jury pool is or is not biased and therefore properly seated on the jury is a question of fact based on the trial judge's on-the-spot assessment of credibility and demeanor," and the TCCA's "decision did not represent an unreasonable determination of the facts in light of the evidence before it." Ortiz, 420 F.Supp.2d at 699, 700.
On this record, we do not find the district court's conclusion to be debatable or wrong. The TCCA identified and applied the correct Witherspoon-Witt rule and deferred to the trial court's assessment of Doporto's inability to apply the law of capital punishment. The TCCA's decision to defer to the trial court is not an unreasonable application of law, as the Supreme Court has explicitly held that "[s]uch determinations [are] entitled to deference even on direct review; `the respect paid such findings in a habeas proceeding certainly should be no less.'" Witt, 469 U.S. at 428, 105 S.Ct. 844 (internal quotations and citations omitted).
Ortiz's argument that the colloquy between the trial judge and Doporto was too ambiguous to support the trial court's decision is unavailing. Doporto was asked if she could "ever, sitting as a juror, no matter  no matter what the evidence showed, vote to inflict the death penalty," and she replied "No, sir." Her answer supports the trial court's finding of "substantial impairment" under Witt. Even though Doporto gave conflicting signals of her ability to serve on the jury given her opposition to capital punishment  she seemed to both "agree[] with the death penalty" in some cases but did not "feel" that she could impose it herself  ambiguity alone does not undermine the trial court's decision to exclude her. Rather, "the trial court, aided as it undoubtedly [is] *503 by its assessment of [the veniremember's] demeanor, [is] entitled to resolve [ambiguity] in favor of the State." Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2223, 167 L.Ed.2d 1014 (2007) (quoting Witt, 469 U.S. at 434, 105 S.Ct. 844); see also Darden v. Wainwright, 477 U.S. 168, 178, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ("[Even when t]he precise wording of the question asked of [the veniremember], and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty," the need to defer to the trial court remains because so much may turn on a potential juror's demeanor.); Ruiz v. Quarterman, 460 F.3d 638, 646 (5th Cir.2006) (observing that the trial judge sees the juror's demeanor, which is oftentimes more indicative of the real character of the [juror's] opinion, but demeanor "cannot always be spread upon the record.").[7]
We also reject Ortiz's contention that the wording of the questions asked Doporto during voir dire did not correctly state the relevant legal standard under Witt. Ortiz takes issue with the fact that the trial court, at one point, asked the entire venire: "do you have conscientious scruples in regard to the death penalty?" Under Witherspoon, this is an impermissible reason for excluding veniremembers from the jury. 391 U.S. at 520-21, 88 S.Ct. 1770. He also asserts that the trial court erred by not expressly asking Doporto whether her views would prevent or disable her from answering the statutory mitigation questions regarding the death penalty honestly.
Clearly established law, however, does not mandate precise voir dire questions, as "determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." Witt, 469 U.S. at 424, 105 S.Ct. 844. Contrary to Ortiz's contentions, the Supreme Court previously has held that a line of questioning virtually identical to the questioning in this case was an acceptable means to determine whether a veniremember should be excluded under the Witherspoon-Witt standard. In Darden v. Wainwright, a juror was excluded properly for his affirmative answer to "Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?" 477 U.S. at 178, 106 S.Ct. 2464. This colloquy is hardly different from Doporto's affirmative answer to "Could you ever, sitting as a juror, no matter  no matter what the evidence showed, vote to inflict the death penalty?" Moreover, the circumstances surrounding Doporto's questioning show that she understood that she was to answer whether she would be able to follow the law in spite of her views on the death penalty.[8]See id. During voir *504 dire, prior to the questioning specific to the death penalty, the trial judge instructed the venire on how they were to answer questions on their role in applying the law:
There are certain rules of law that the Court  that means the Judge  instructs every juror to obey in every criminal case. To be qualified to serve as a juror, a person must be able to obey those instructions. Now, a person may not be able to obey the instruction because he has such a deep-seated disagreement with the law or for any other reason. [But] the jury has to be able to accept the law and say, All right, I don't like it, but I can rule according to it, judge the case according to it. Or you can say, I don't like it so much there's no way I can follow that law.
The trial court also explained the eight circumstances under which murder becomes capital murder in Texas, and detailed the "special issues" questions that would be asked during sentencing if the jury were to find the defendant guilty. It was in this context  after being instructed on the importance of separating one's personal beliefs from applying the law and after being told the mitigation facts that must be found during capital sentencing  that Doporto was asked whether she could ever vote for the death penalty. Like the veniremember in Darden, Doporto "was present throughout an entire series of questions that made the purpose and meaning of the Witt inquiry absolutely clear," 477 U.S. at 178, 106 S.Ct. 2464, and we thus defer to the trial judge's determination of Doporto's capabilities under that standard.[9] Accordingly, reasonable jurists would not debate the district court's decision.

B
Second, Ortiz petitions for a COA to appeal the district court's denial of his claim that the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), render the Texas death penalty sentencing scheme unconstitutional because the scheme does not require the State to prove beyond a reasonable doubt the absence of those mitigating factors that would warrant life imprisonment rather than a death sentence. Ortiz did not present any mitigating evidence during sentencing, but he challenges the mitigation "special issue" that was asked of the jury:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.
See TEX.CODE CRIM. PROC. ANN. art. 37.071 § 2(e) (Vernon 1999). Texas law does not assign a burden of proof to the mitigation question, and Ortiz asserts that the lack of a beyond-a-reasonable-doubt instruction is constitutional error.
The TCCA rejected Ortiz's claim based on Williams v. State, 937 S.W.2d 479 (Tex. Crim.App.1996), which held that "[b]ecause Texas law imposes the burden of proof *505 upon the State to prove certain prescribed aggravating elements, a burden of proof need not be prescribed for aggravating circumstances that might be considered in conjunction with Texas' open-ended mitigation issue." Id. at 491. The district court concluded that the TCCA's decision was not unreasonable when neither Apprendi, nor Ring, nor any other Supreme Court case requires a burden of proof for the absence of mitigating factors presented during sentencing. Ortiz v. Livingston, 420 F.Supp.2d at 728.
We decided this question in Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007). The Texas death penalty scheme does not violate Apprendi or Ring by failing to require the State to prove beyond a reasonable doubt the absence of mitigating circumstances. Id.; see also Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006).

IV
For the foregoing reasons, we AFFIRM the judgment of the district court DENYING habeas relief, and we DENY the application for a COA.
NOTES
[1]  Texas Penal Code § 19.03(a)(2) defined capital murder as murder and "intentionally commit[ting] the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat. . . ."
[2]  The amended statute in full reads: "intentionally or knowingly harm[ing] or threaten[ing] to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of another as a (A) public servant, witness, prospective witness, or informant; or (B) person who has reported or who the actor knows intends to report the occurrence of a crime. . . ." TEX. PENAL CODE § 36.06(a)(1) (effective Sept. 1, 1997) (emphasis added).
[3]  At trial, the jury was instructed:

As to the law of capital murder and murder, our law provides that a person commits murder when he intentionally or knowingly causes the death of an individual. A person commits capital murder when such person intentionally commits the murder the course of committing or attempting to commit the offense of retaliation.
As to the law of retaliation, our law provides that a person commits an offense if he intentionally or knowingly threatens to harm another by an unlawful act in retaliation for, or on account of, the service or status of another, A, as a prospective witness; or B, a person who has reported or who the actor knows intends to report the occurrence of a crime. (emphasis added).
[4]  We note that challenges to the accuracy of jury instructions generally are raised as due process violations. See e.g., Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004). We do not address due process, however, because the parties have not raised it.
[5]  We reach no conclusion as to whether the TCCA erred in holding that "an ex post facto problem does not arise from a trial court's erroneous retroactive application of a statute, but [rather] only if the statute itself has retroactive effect." We note, however, that the Supreme Court has entertained Ex Post Facto Clause challenges premised on a trial court's retroactive application of a statute to acts completed before the statute's effective date. See Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ("[I]t is the effect, not the form, of the law that determines whether it is ex post facto," and a statute may violate the Ex Post Facto Clause when applied to a defendant, even if "on its face, it applies only after its effective date."); Carmell v. Texas, 529 U.S. 513, 530-33, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (concluding that the trial judge's application of an amendment to a statute, which authorized conviction of certain sexual offenses on the victim's testimony alone, to offenses committed before the statute's effective date was unconstitutional in violation of the Ex Post Facto Clause); Collins v. Youngblood, 497 U.S. 37, 39, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (entertaining an ex post facto challenge when the court denied the defendant's habeas petition based on a Texas statute passed after the respondent's crime); Miller v. Florida, 482 U.S. 423, 435-36, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (holding that the trial court's ruling that revised sentencing guidelines applied to the petitioner, whose crimes occurred before their effective date, violated the Ex Post Facto Clause). None of these challenges, however, concerned jury instructions.
[6]  In the district court, Ortiz claimed that the trial court erred in excluding eighteen other veniremembers for cause. The district court found that this claim was procedurally defaulted in state court for failure to object to each veniremember's exclusion. See Ortiz v. Livingston, 420 F.Supp.2d at 688-91; see also Ortiz v. State, 93 S.W.3d at 88 ("A party must object to the granting of a challenge for cause before he can complain of that action on appeal. Because Ortiz failed to object, his complaints were not preserved with respect to all the challenges except for the complaint raised [regarding Doporto].") (footnotes omitted). To the extent Ortiz suggests that these eighteen veniremembers improperly were excluded, we reject his argument for failure to brief the district court's conclusion that these claims were procedurally defaulted. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.1999).
[7]  We note, however, that "[t]he need to defer to the trial court's ability to perceive jurors' demeanor does not foreclose the possibility that a reviewing court may reverse the trial court's decision where the record discloses no basis for a finding of substantial impairment." Uttecht, 127 S.Ct. at 2230 (emphasis added). We deny a COA on this claim because there was a basis in the record for finding substantial impairment.
[8]  Ortiz contends that Doporto reasonably could have understood the trial judge's question to have meant whether she would be willing to vote for the death penalty "no matter what the evidence showed" or, in other words, whether she would always vote for the death penalty. Not only is this interpretation far-fetched, but as explained below, the entire colloquy, viewed as a whole, reveals that a juror must have understood the opposite  whether Doporto would have been unwilling to vote for the death penalty, even if it were mandated by the facts.
[9]  Also probative is Ortiz's counsel's decision not to question Doporto, which deprived reviewing courts of additional factual findings that may have further explained the trial court's decision or indicated that Doporto was not substantially impaired. Uttecht, 127 S.Ct. at 2229.


                                                                                Opinions of the United
2005 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

6-27-2005

Pardue v. Gray
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2784

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Recommended Citation
"Pardue v. Gray" (2005). 2005 Decisions. Paper 958.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/958

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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 04-2784
                                      __________

                        JANE ELLEN PARDUE, Appellant
                                     v.
                       JAMES GRAY, LYNNE SYMONS;
                          THE BOROUGH OF DALTON
                                     v.
                    LACKAWANNA TRAIL SCHOOL DISTRICT
                                 Third Party
                                   Jane Ellen Pardue,
                                         Appellant

                                      __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3:CV-01-0843)

           United States Magistrate Judge: The Honorable Thomas M. Blewitt
                                       _________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2005
                                    _________

                    Before: SLOVITER and FISHER, Circuit Judges.
                             and POLLAK,* District Judge.

                                 (Filed   June 27, 2005)

      *
       Honorable Louis H. Pollak, District Judge for the United States District Court of
the Eastern District of Pennsylvania, sitting by designation.

                                            1
                                            ________

                                            OPINION

                                            ________

POLLAK, District Judge:

          This is an appeal from an order of the United States District Court for the Middle

District of Pennsylvania granting summary judgment for defendants James Gray, Lynne

Symons, and the Borough of Dalton. Appellant Jane Ellen Pardue initiated the present

action in the District Court on May 11, 2001, alleging malicious prosecution and

conspiracy to violate her civil rights pursuant to § 1983 as well as Pennsylvania common

law claims of malicious prosecution and conspiracy. For the reasons stated below, we will

affirm.

                                                I.

          Since we write primarily for the parties, we will limit our discussion to the

procedural history and pertinent facts. Pardue was employed as a school teacher for the

Lackawanna Trail School District from 1973 through 1997. Defendant Symons worked

as a secretary for the school district and, over the years, the two women developed a close

friendship. Eventually, Pardue learned that Symons and James Evans, the principal of the

school where Pardue taught, were involved in an extra-marital affair. After initially

overlooking the affair, on March 8, 1997, Pardue informed Symons and Evans that she

would no longer conceal their relationship.

                                                2
       On March 24, 1997, Symons met with Chief of Police James Gray at his home and

informed him that she was being stalked and harassed by Pardue. Symons told Gray that

since the beginning of that month, Pardue had repeatedly driven up and down the street in

front of her house, had followed her in her car, and had photographed her with Evans.2

At that meeting, Symons also provided Gray with a set of notes she had taken which

documented Pardue’s behavior since the beginning of March. See App. at 428. Symons

was subsequently interviewed by Detective James Reilly of the Lackawanna County

District Attorney’s Office.

       On the basis of these interviews, Gray and Reilly filed and signed an Affidavit of

Probable Cause. The resultant criminal complaint was also signed by both men and

approved by the District Attorney’s Office. On April 1, 1997, Gray arrested Pardue on

charges of harassing Symons and stalking her. Neither Gray nor Reilly interviewed

Pardue prior to arresting her. At a preliminary hearing, a state magistrate found that the

prosecution had established a prima facie case and bound the charges over for trial in the

Lackawanna County Court of Common Pleas. Following a three-day jury trial in May

1999, Pardue was acquitted of both charges. When arrested and charged, Pardue was

suspended without pay from her teaching position at Lackawanna Trail School.

Following acquittal, she was reinstated but has not received back pay.

       2
        After photographing the two of them, Pardue drove to Evans’s house and
disclosed the affair to his wife.

                                             3
       In the present action, Pardue alleges that Symons filed stalking and harassment

charges to intimidate her and keep her from revealing the affair and that Gray pursued the

charges even though he knew they were false. On May 27, 2004, Magistrate Judge

Thomas M. Blewitt, who was assigned to handle the case in its entirety, granted summary

judgment for the defendants. Pardue now appeals from that order, contending that the

Magistrate Judge erred in finding that no genuine issue of material fact existed regarding

(1) whether Gray had probable cause to arrest her; and (2) whether Gray and Symons

formed a conspiracy to violate her civil rights.

                                             II.

       The District Court had jurisdiction over Pardue’s federal law claims pursuant to 28

U.S.C. §§ 1331 and 1343(a) and over her state law claims pursuant to 28 U.S.C. §

1367(a). This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review

of a grant of summary judgment is plenary. Fogleman v. Mercy Hosp., Inc., 283 F.3d

561, 566 (3d. Cir. 2002). Summary judgment is proper if there is no genuine issue of

material fact and if, viewing the facts in the light most favorable to the non-moving party,

the moving party is entitled to judgment as a matter of law. See F.R.C.P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317 (1986).

                                             III.

A. Probable Cause to Arrest Pardue

       In order to prevail on a §1983 malicious prosecution claim, the plaintiff must show

                                              4
an absence of probable cause for initiating the criminal proceedings. In general, “the

question of probable cause in a section 1983 damage suit is one for the jury.”

Montgomery v. De Simone, 159 F.3d 120, 124 (3d. Cir. 1998). However, a district court

may conclude that probable cause exists as a matter of law, and hence grant summary

judgment, if the evidence, when viewed in the light most favorable to the plaintiff,

reasonably would not support a contrary factual finding. Sherwood v. Mulvihill, 113 F.3d

396, 401 (3d.Cir. 1997).

       On appeal, Pardue challenges, on two principal grounds, the Magistrate Judge’s

determination that “a reasonable jury could not find that the arrest of the Plaintiff lacked

probable cause.” First, Pardue argues that the Magistrate Judge improperly relied on a

series of common law presumptions regarding the existence of probable cause which, in

plaintiff’s view, have no bearing on a § 1983 malicious prosecution claim. Second,

Pardue contends that Gray did not conduct an independent investigation into Symons’

allegations, including interviewing Pardue, prior to preparing the affidavit and arresting

her.

       Probable cause is assessed by examining the “totality of the circumstances” and

adopting a “common sense” approach. Illinois v. Gates, 462 U.S. 213 (1983). It is well

established that probable cause exists where “facts and circumstances [are] sufficient to

warrant a prudent man in believing that the [suspect] had committed or was committing

an offense.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d. Cir. 1997). In concluding that

                                              5
probable cause existed as a matter of law, the Magistrate Judge noted that: (1) “Detective

Reilly of the District Attorney’s Office co-investigated the charges which were filed

against the Plaintiff [and] co-signed [both] the affidavit of probable cause and the

criminal complaint;” (2) the District Attorney’s Office approved the criminal complaint;3

and (3) at a preliminary hearing, a magistrate found a prima facie case existed to bind

over the charges for trial.

       In Montgomery v. De Simone, 159 F.3d 120 (3d. Cir. 1998),4 this court held that

the Torts Restatement rule that a conviction “by a magistrate or trial court,” even if

overturned, “conclusively establishes the existence of probable cause” does not apply to a

§ 1983 malicious prosecution action. Restatement (Second) of Torts § 667(1). Further, in

Merkle v. Upper Dublin Sch. Dist., we held that “the common law presumption raised by

a magistrate’s prior finding that probable cause exists does not apply to section 1983

actions.” 211 F.3d 782, 789 (3d. Cir. 2000). Pardue argues that, in light of Montgomery

and Merkle, the District Attorney’s approval of the charges and the magistrate’s decision

       3
         The Magistrate Judge cited Williams v. Fedor, 69 F. Supp. 2d 649, 670 (M.D. Pa.
1999), for the proposition that, “Under Pennsylvania law, . . . ‘criminal proceedings
initiated upon advice of counsel are conclusively presumed to be supported by probable
cause when the advice of counsel was sought in good faith and the advice was given after
full disclosure of the facts to the attorney.’” (quoting Kelley v. General Teamsters,
Chauffeurs & Helpers, Local Union 249, 544 A.2d 940, 942 (1988)).
       4
       In Montgomery, a municipal court judge had found the plaintiff guilty of
speeding, drunk driving, and refusing to take a breathalyser test. Montgomery appealed
her conviction to the Superior Court of New Jersey. Following a trial de novo, the
Superior Court reversed her convictions.

                                              6
to bind the charges over for trial are irrelevant to deciding whether Gray had probable

cause to arrest her. Montgomery and Merkle stand for the proposition that the common

law presumptions may not be relied on as “conclusive” evidence of probable cause that

would “necessarily negate” a contrary finding. Montgomery, 159 F.3d at 122. In the case

at bar, however, the Magistrate Judge did not rely on the presumptions in this way. Judge

Blewitt cited the independent findings of the District Attorney and magistrate as evidence

that supported, rather than compelled, a finding of probable cause.

       Even without reference to the common law presumptions, Gray had probable cause

to arrest Pardue. “Probable cause to arrest exists when the facts and circumstances within

the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable

person to believe that an offense has been committed by the person to be arrested.”

Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d. Cir. 1995). At the time he

arrested Pardue, Gray had received a report from Symons, a known and credible witness,

that Pardue had engaged in the alleged behavior; Symons was visibly upset recounting

Pardue’s conduct (see Dist. Ct. Op. at 24); Symons presented Gray with contemporaneous

notes documenting the conduct (see App. at 428); and, as Gray testified, Gray knew

Pardue had a history of similar behavior. See Dist. Ct. Op. at 24; App. at 315-17. See also

Merkle, 211 F.3d at 790, n. 8 (finding that police officer “had every reason to believe a

credible report from a school principal who witnessed the alleged crime. This report

alone sufficiently established probable cause. [The police officer] was not required to

                                             7
undertake an exhaustive investigation in order to validate the probable cause that, in his

mind, already existed.”). Even accepting, as the Magistrate Judge did, that “Gray did not

fully investigate the facts underlying the charges against the Plaintiff,” (Dist. Ct. Op. at

22) it is apparent that, as the Magistrate Judge determined, Gray had, as a matter of law,

probable cause to arrest Pardue.

B. Conspiracy to Violate Pardue’s Civil Rights

       Pardue next claims that the Magistrate Judge erred in holding that, as a matter of

law, Symons and Gray did not conspire to deprive her of her civil rights. This portion of

the appeal also lacks merit. A cause of action for civil conspiracy requires a separate

underlying tort as a predicate for liability. “Thus, one cannot sue a group of defendants

for conspiring to engage in conduct that would not be actionable against an individual

defendant.” In re Orthopedic Bone Screw Products Liability Lit., 193 F.3d 781, 789 (3d.

Cir. 1999). Because we agree with the Magistrate Judge’s determination that defendant

Gray had probable cause to arrest and charge Pardue, and is not, therefore, liable for the

underlying tort of malicious prosecution, the conspiracy claim cannot be sustained.

Furthermore, to establish the existence of a conspiracy under § 1983 a plaintiff must show

that two or more conspirators reached an agreement to deprive her of a constitutional

right under color of state law, Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685,

700 (3d. Cir. 1993), abrogated on other grounds, United Artists Theatre Circuit, Inc. v.

Township of Warrington, 316 F.3d 392 (3d Cir. 2003), and this Pardue failed to do. The

                                               8
Magistrate Judge found that there was “insufficient evidence, either direct or

circumstantial, to show an agreement existed between Symons and Gray to violate any of

the Plaintiff’s constitutional rights.” Dist. Ct. Op. at 11. We agree. Pardue presented no

evidence that Gray and Symons agreed to file false charges. There is no evidence that

Symons provided false information to Gray or that he, in turn, knowingly used such

information to support the charges. Although the affidavit of probable cause did contain

inaccuracies, there is no evidence that Symons knew of those inaccuracies at the time the

affidavit was filed.5 Furthermore, Gray did not act unilaterally. Detective Reilly

participated in interviewing Symons, drafting the affidavit, and filing the charges, and the

Lackawanna County District Attorney’s Office approved the charges, presented the case

at a preliminary hearing, and prosecuted Pardue. However, Pardue does not allege that

Reilly, or any others in the District Attorney’s Office, participated in the conspiracy.

Viewing the evidence in the light most favorable to Pardue, she failed to present

sufficient evidence of an agreement between Symons and Gray for a reasonable jury to

find that they had conspired to violate her civil rights.

                                              IV.

       Accordingly, the judgment of the District Court will be affirmed.

       5
        In fact, at the preliminary hearing, Symons testified that she disagreed with
portions of the affidavit.

                                               9


88 B.R. 588 (1988)
In re MARINE POLLUTION SERVICE, INC., t/a Certified Concrete Co., Debtor.
In re TRANSIT MIX CONCRETE CORP., Debtor.
David M. BRODSKY, as Trustee for Marine Pollution Service, Inc., t/a Certified Concrete Co., and Transit Mix Concrete Corp., Plaintiff,
v.
LOCAL 282, INTERNATIONAL BROTHERHOOD of TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS of AMERICA; Certified Concrete Co. Drivers Committee of Local 282; Transit Mix Concrete Corp. Drivers Committee of Local 282; William Michael Meyers; and Thomas A. Knowlton, Esq., Defendants.
Bankruptcy Nos. 87-B-11548 (CB), 87-B-11642 (CB), 88 Civ. 640 (MBM).
United States District Court, S.D. New York.
July 14, 1988.
*589 *590 Matthew J. Gold, Daniel R. Goodman, Schulte Roth & Zabel, New York City, for plaintiff David Brodsky.
Jerold Jacobson, Summit Rovins & Feldesman, New York City, Special Labor Counsel to the Trustee.
Walter M. Meginniss, Jr., Gladstein Reif Meginniss, Brooklyn, N.Y., for debtor Transit Mix.
Stephen Fine, Cohn Glickstein & Lurie, New York City, for defendant Certified Concrete Co.
MUKASEY, District Judge.
This is an appeal pursuant to 28 U.S.C. § 158(a) of a decision by the Bankruptcy Court in this District vacating an arbitration award that would have the effect of permitting drivers for Transit Mix Concrete Corporation ("Transit Mix") to work on projects being supplied by Certified Concrete Company ("Certified"), by combining the seniority lists of drivers for these two debtors. For the reasons set forth below, the decision of the Bankruptcy Court is reversed and the arbitration award is reinstated.
I. FACTS
A. The Parties
Marine Pollution Service, Inc., transacting business as Certified and Transit Mix produce and distribute ready mix concrete in the New York City area. A major stockholder of both was Edward J. Halloran, convicted in May, 1988 of violating the mail fraud statute, 18 U.S.C. § 1341 and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., in a prosecution in this Court styled United States v. Salerno, 86 Cr. 245 (MJL). Halloran owned 90% of Certified through nonvoting stock, and 76% of the company that owned Transit Mix. Each company is a party to an industry-wide collective bargaining agreement with Local 282 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
In August 1987 both companies filed in the Bankruptcy Court for this District separate petitions for reorganization under Chapter 11 of the Bankruptcy Code. Those petitions were later consolidated for administrative purposes only, and on September 9, 1987 David M. Brodsky, Esq. was appointed trustee to administer the estates of both debtors. Neither company has sought to reject its collective bargaining agreement with Local 282.
Concurrent with these events, Certified fared substantially better than Transit Mix, which suspended operations prior to the filing of the petition and has not resumed operations to date. The Transit Mix drivers complained to Local 282 that they had a right under the industry-wide contract to be integrated into the Certified work force and to share the work with the Certified drivers. Local 282 took no position in the dispute between two groups of its members, but instead designated committees of Transit Mix and Certified drivers to advance the interests of each group. Defendant William Michael Meyers is a member of the Transit Mix drivers committee.
B. The Collective Bargaining Agreement and the Request to Arbitrate
The Transit Mix drivers based their asserted rights on section 28 and section 9 of the contract, which provide in relevant part, respectively, that if "the entire operation [of an employer covered by the contract] is sold, leased, transferred or taken over by sale, transfer, lease, assignment, receivership or bankruptcy proceedings ... the Employees of the Employer affected shall be employed by the successor ...," and that when "the Company is a `buy-out' the men go to the bottom of the [seniority] list. In a `merger', the men are to be slotted."
On August 28, 1987, Franklin K. Moss, Esq., counsel to Local 282, wrote to Certified's counsel asking that the dispute be *591 submitted to an arbitrator under the contract. Hearings were held before the arbitrator, defendant Thomas A. Knowlton, Esq., on September 18 and 30 and October 1, 1987. The trustee appeared through counsel at those hearings, and testified himself to certain factual matters.
The arbitrator's powers under the contract are coextensive with those of a labormanagement disputes panel also created under the contract, and are exceptionally broad. Those powers extend to "[a]ny and all complaints, grievances, controversies or disputes between the Union and the Employer in connection with or in relation to this Agreement or concerning the interpretation, application, performance or alleged breach thereof by either of the parties hereto, or by any other party signatory to this industry-wide collective bargaining Agreement or with respect to any term or condition of employment hereunder, which the parties are unable to settle between them, [which] may ... be submitted for arbitration and final determination ...." The arbitrator is empowered to grant relief by way of injunction, damages, or such other relief as he deems appropriate.
C. The Arbitrator's Decision
On October 23, 1987 the arbitrator issued his opinion and award, finding that there had been neither a buy-out nor a merger but directing that the seniority lists of the two companies be merged by alternating the most senior Certified driver with the most senior Transit Mix driver such that an equal number of Certified and Transit Mix drivers would be employed even though strict seniority might dictate employing more drivers from one company than from the other. He stressed that his award should be regarded as temporary, to be revised as the changing fortunes of the companies might require.
The arbitrator's reasoning to reach that result has been attacked in both the Bankruptcy Court and here as without basis in the contract and the product solely of his personal sense of equity. Therefore, it is necessary to review his opinion in some detail.
The arbitrator first reviewed the history of common ownership of the companies, and noted that the trustee had appointed the same person to run both. He then reviewed the contractual language in sections 9 and 28 referred to above, and cited two arbitration decisions involving those provisions before concluding "that there is no language in either the contract or in an arbitrator's decision which explicitly states the proper solution of the present controversy." (emphasis in original)
Thereafter, the arbitrator described the positions of the two sides, and then framed the question before him as follows:
The question is whether the property rights, which are implicit in the contractual recognition of seniority, are to be abolished, at least for a measurable period, for even the most senior of the Transit-Mix employees or are to be shared in some proper manner which can only occur by a reduction in the similar rights of the Certified drivers for the same period of time.
He went on to find that the situation before him constituted "neither a `buy-out' nor a `merger,'" and that there was "therefore no contractual precedent as a guide," a statement that I read as simply a reiteration of his previously expressed view that the contract contained no language "which explicitly states the proper solution of the present controversy." (emphasis added) He then continued to analyze the contract's seniority provisions and found that, "the contractual recognition of `seniority' creates a very substantial value to the individual bargaining unit members. In this case that value amounts to a complete acceptance of the property rights gained by length of service."
After making that finding the arbitrator proceeded to consider the appropriate remedy, and reasoned that, "Since I believe that I have carte blanche in determining the award in this case, I am very reluctant to create any final resolution in what is certainly a fluid situation." He then stated his belief "that there should be some measure of job sharing. I do not consider this in terms of a `merger' of lists as much as it *592 is a sharing based on my concern for equity." His award decreed a combined list of drivers from the two companies "commencing with the most senior Certified driver who will be followed by the most senior Transit-Mix driver and continuing to alternate in this fashion until a complete list results therefrom." The award provided no relief other than to establish the order of the drivers on Certified's seniority list. It did not require Certified to employ any particular number of drivers. It also specifically barred claims for back pay.
D. The Bankruptcy Court Decision
The arbitrator's award was to become effective November 16, 1987. On November 13 the trustee secured from the Bankruptcy Court a stay of the award, and on November 16 he filed an adversary proceeding in that court to vacate the award. The two drivers' committees then filed cross-petitions in the same court, the Certified drivers seeking to vacate the award and the Transit Mix drivers seeking to confirm it.
Following a hearing on November 17, the bankruptcy judge granted a preliminary injunction staying the award, but expressed no views on the merits of the dispute other than to say he had serious reservations as to whether the arbitrator "did or did not step outside of the bounds of his powers." He did not make explicit findings with respect to irreparable injury or rule with respect to likelihood of success on the merits. Rather, he reasoned that if he did not grant the preliminary injunction and let the arbitrator's award take effect, but later found the award to have been improper, "that means there will be disruption in the company twice." On the other hand, if he did grant the injunction blocking the award, even if he later upheld the award, "there will only be disruption once." Accordingly, he granted the preliminary injunction.
On December 1, 1987 the bankruptcy judge ruled orally from the bench and granted the trustee's request for a permanent injunction. He held first that the case engaged matters concerning the administration of the debtors' estates and confirmation of a plan of reorganization and thus was a "core proceeding" within 28 U.S.C. § 157(b)(2)(A) and (L).[1]
He then ruled that the arbitrator's decision could not have drawn its essence from the contract for at least three reasons. First, he noted that the August 28, 1987 letter from union counsel to counsel for Certified, which requested the arbitration, invoked the provisions of the contract between Certified and Local 282, notwithstanding that there was no dispute between the Certified drivers and the Company. Therefore, there should have been nothing to arbitrate. Next, he held that if the case had been arbitrated under what he conceived to be the relevant contract  the one between Local 282 and Transit Mix  the arbitrator would simply have stopped and decided nothing further once he determined that there was neither a merger nor a buy-out, apparently because, in the bankruptcy judge's view, the August 28, 1987 letter invoking arbitration seemed to define only a dispute between the Certified drivers and the Transit Mix drivers as to whether "there has been a `merger' within the meaning of Section 9 of the contract, entitling [the Transit Mix drivers] to be `slotted' into the Certified seniority list." Finally, he found that the Transit Mix drivers could not be considered third party beneficiaries of the Local 282 contract with Certified because there had been no showing of an intent to make them such. Accordingly, the bankruptcy judge described the arbitrator's award as "a remedy in search of a grievance."
In fashioning such a remedy, the bankruptcy judge continued, the arbitrator not only exceeded his authority but also "invaded the territory intended for the Bankruptcy Court...." He cited four statutes *593 as marking the boundaries of the invaded territory: 28 U.S.C. § 1334 (relating to abstention by federal courts in certain Chapter 11 cases but retaining the full reach of the automatic stay provided in 11 U.S.C. § 362); 28 U.S.C. § 157 (granting to bankruptcy courts jurisdiction to decide core proceedings); 11 U.S.C. § 1113 (restricting debtors' rights to reject labor contracts) and 11 U.S.C. § 1123 (specifying the contents of a reorganization plan including, inter alia, "consolidation of the debtor with one or more persons").
He added that when Congress enacted 28 U.S.C. § 157 it "intended that all administration of a case could be done by a Bankruptcy Judge," and that the arbitrator had frustrated that intent by taking "the first step towards procedural consolidation." He perceived two administrative difficulties in the bankruptcy arising from the arbitrator's award. First, when the debtors had to reject or assume the collective bargaining agreements under 11 U.S.C. § 1113, "there will be a problem as to which contract the Trustee may reject or assume. Will it be the separate contracts of the two distinct entities? Or would it be the hybrid that Mr. [Knowlton] has developed ...?" Second, the arbitrator's reservation of the right to amend his award to suit future changes in circumstance upon renewed application by the parties, "affects the smooth administration of this case." The nature of this administrative difficulty was not further spelled out.
II. DISCUSSION
A. The Arbitrator's Decision and the Collective Bargaining Agreement
It is well and long established that federal courts should give substantial deference to arbitral decisions rendered pursuant to collective bargaining agreements. That policy, established in what has come to be known as the Steelworkers Trilogy,[2] was summarized and reiterated by the Supreme Court only last term as follows:
The courts are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract. `The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.' Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). As long as the arbitrator's award `draws its essence from the collective bargaining agreement,' and is not merely `his own brand of industrial justice,' the award is legitimate. Id., at 597, 80 S.Ct., at 1361.
United Paperworkers Int'l Union v. Misco, Inc., ___ U.S. ___, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987).
By that standard, the Bankruptcy Court's conclusion that the arbitrator's decision failed to draw its essence from the Certified-Local 282 agreement cannot stand.
The arbitrator did not formulate his award until he had first examined the "Seniority" (section 9) and "Successors" (section 28) clauses of the contract and found that they created property rights in seniority of employees not in Certified's employ. The arbitrator concluded, apparently based in part on prior common ownership of Certified and Transit Mix and a current common operating supervisor under the trusteeship, that Transit Mix employees were among those who had such rights. These were not unreasonable conclusions, particularly when one considers that the collective bargaining agreement was between Certified and Local 282, which represents the drivers employed by both companies, not between Certified and only those union members who were its drivers.
*594 It was only after the arbitrator had decided based on the contract that such rights existed, and that the Transit Mix employees could assert them, that he formulated the question of whether those rights, "implicit in the contractual recognition of seniority, are to be abolished, at least for a measurable period, for even the most senior of the Transit-Mix employees or are to be shared in some proper manner...." That question, however, involved only the remedy to be imposed, as to which the arbitrator concluded he had "carte blanche," a phrase seized on by both appellees and the Bankruptcy Court to suggest that the arbitrator's decision did not draw its essence from the contract but instead represented his own brand of industrial justice. I disagree. That description of his powers is amply supported by the contract itself, which contains a broad arbitration clause empowering the arbitrator to hear "[a]ny and all ... disputes between the Union and the Employer in connection with or in relation to this Agreement or concerning the interpretation, [or] application ... thereof ... or with respect to any term or condition of employment hereunder," and permits him to "grant mandatory and injunctive relief, damages, and such other relief as ... [the arbitrator] deems appropriate." That clause was sufficiently broad to permit him to deal with the dispute here in the manner he did. See Transit Mix Concrete Corp. v. Local Union No. 282, 809 F.2d 963, 968 (2d Cir.1987).
Nor was the arbitrator limited by the contract or otherwise to determining whether there was a "buy-out" or a "merger" and then imposing the result prescribed for one or the other. The plain sense of the August 28, 1987 letter from Local 282's counsel invoking arbitration was that the underlying dispute would be submitted for "a determination by an impartial arbitrator with respect to this matter," that is, a determination of the entire matter. I do not think it reasonable to read that letter to suggest that the arbitrator would be limited to deciding whether or not the contention of the Transit Mix drivers  that there had been a "merger" and that they were therefore entitled to be "slotted"  was accurate. Even if that narrow reading were reasonable, I would be bound to resolve any doubts about the scope of the submission to the arbitrator in favor of coverage. Kurt Orban Co. v. Angeles Metal Systems, 573 F.2d 739 (2d Cir.1978).
Nor is it accurate to suggest that such a submission to the arbitrator violated the automatic stay provisions of 11 U.S.C. § 362. The claim in question arose after commencement of the Chapter 11 proceedings and involved no attempt either to obtain any of the debtor's property or to create or enforce any lien against the debtor's property. There is no dispute that under the collective bargaining agreement all drivers are paid at the same rate. Thus the arbitrator's award could not result in any increased wage burden on the estate inasmuch as it does not require that any particular number of drivers be employed. Again, the award has nothing to do with how much will be paid in wages, only with who will receive those wages. Therefore, no interest protected by 11 U.S.C. § 362(a)(1), (2) or (3) has been threatened.
The Second Circuit's holding in Truck Drivers Local Union No. 807 v. Bohack Corp., 541 F.2d 312, 320 (2d Cir. 1976), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978), that after the filing of a Chapter 11 petition "the party seeking to arbitrate under a collective bargaining agreement must seek and receive authorization of the bankruptcy court," on which appellees rely, is not applicable here. As appellants cogently argue, that holding and others of similar import do not survive the enactment in 1984 of 11 U.S.C. § 1113, which prescribes the procedure a Chapter 11 trustee must follow if he wishes to reject a collective bargaining agreement, including an attempt to negotiate with the union and a hearing on available alternatives. That section was drafted to undo the Supreme Court's holding in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 532, 104 S.Ct. 1188, 1199, 79 L.Ed.2d 482 (1984), that after the filing of a bankruptcy petition "the collective-bargaining agreement is not an enforceable contract within the meaning *595 of NLRA § 8(d)." In re Century Brass Products, Inc., 795 F.2d 265, 266-67, 271-73 (2d Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 433, 93 L.Ed.2d 383 (1986). It would be anomalous to find that Congress enacted a mandatory procedure for rejecting a collective bargaining agreement without which the agreement stays in full force and effect, and then to hold that a previously enacted section of the same statute  11 U.S.C. § 362, providing for a stay of claims against a debtor's estate  automatically invalidates the arbitration clause of a collective bargaining agreement, particularly when, as noted above, we are not dealing with an arbitration that runs afoul of any provision of 11 U.S.C. § 362 even without considering the enactment of § 1113.
B. The Arbitrator's Decision and the Bankruptcy Court's Jurisdiction
The Bankruptcy Court cited four statutes in determining that the arbitrator had "invaded the territory intended for the Bankruptcy Court." One was 28 U.S.C. § 1334, which deals with abstention by federal courts in certain Chapter 11 cases, but preserves intact the automatic stay provisions of 11 U.S.C. § 362. Inasmuch as I have already determined that the award did not implicate any interest protected by the automatic stay provisions, it follows that there can have been no invasion in that respect.
Another was 11 U.S.C. § 1113, which specifies the procedure to be used by a trustee who wishes to reject a collective bargaining agreement. Here it was suggested that the arbitrator had "raised complex issues for the future when this Debtor, that's the Certified Debtor or the Transit Mix Debtor at some time in the future will have to address [11 U.S.C. §] 1113, and there will be a problem as to which contract the Trustee may reject or assume." Yet there is simply no such problem. The arbitrator never found that Certified was bound by any except its own contract with Local 282, which the trustee is as free to reject after the arbitration as he was before  provided he complies with the procedures prescribed in the statute. He is equally free to reject the Transit Mix-Local 282 agreement, with the same proviso.
The Bankruptcy Court cited also 11 U.S.C. § 1123, which prescribes the content of reorganization plans, including possible "merger or consolidation of the debtor with one or more persons." 11 U.S.C. § 1123(a)(5)(C). Yet there is nothing in the arbitrator's award that accomplishes or promotes such a substantive consolidation. 5 Collier on Bankruptcy ¶ 1100.06 (15th ed. 1986). Again, as noted above, the award has no impact on the assets or liabilities of either debtor because it deals only with who will receive wages that will be paid in any event, not with how much will be paid.[3]
Finally, the Bankruptcy Court suggested also that there had been an infringement of its power in violation of 28 U.S.C. § 157, specifically paragraphs (b)(2)(A) and (L) of that section, which permit bankruptcy courts to hear and determine "core proceedings" including "matters concerning the administration of the estate," and "confirmations of plans." Here the Bankruptcy Court appears to be suggesting not simply that its review of the award is a core proceeding, of which more later, but that the award itself had an impact on the Bankruptcy Court's right or ability to conduct such a proceeding. I perceive no such impact, nor has any been suggested by the appellees. Neither do I see how the arbitrator's award affects the Bankruptcy Court's authority to confirm a plan of reorganization.
C. The Core Status of the Bankruptcy Court Proceeding
As I hope the above discussion makes clear, I have found incorrect as a matter of law the Bankruptcy Court's holding that the arbitrator's decision did not derive its essence from the collective bargaining *596 agreement, that it exceeded his jurisdiction, that it violated the automatic stay provisions of the Bankruptcy Code, and that it invaded the jurisdiction of that Court. Because the Bankruptcy Court's legal conclusions are subject to plenary review here, Truck Drivers Local 807 v. Carey Transp., Inc., 816 F.2d 82, 88 (2d Cir.1987), that finding suffices to warrant reversal. Thus there would seem to be no reason to examine whether the Bankruptcy Court proceeding was a "core proceeding" within the meaning of 28 U.S.C. § 157, which the Bankruptcy Court was empowered by that section to "hear and determine," or whether it was merely a proceeding "related to a case under title 11," in which event the Bankruptcy Court was empowered only to hear it and submit to this Court proposed findings of fact and conclusions of law. Id. at (c)(1).
However, should the trustee or another appellee seek appellate review of this decision and should it be determined in the course of that review that the Bankruptcy Court's decision rested upon a factual determination, whether or not this was a core proceeding could become relevant.
The statutory concept of a "core proceeding" originated in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 93 L.Ed.2d 598 (1982), where the Supreme Court held unconstitutional the Bankruptcy Reform Act of 1978 insofar as it granted to bankruptcy courts established by Congress under its Article I powers the jurisdiction to decide cases, including the contract dispute there at issue, calling for the exercise of Article III judicial power. The plurality opinion made it plain, however, that the Court was not challenging the authority of bankruptcy courts to deal with "the restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power...." Id. at 71, 102 S.Ct. at 2871.
In response, Congress enacted 28 U.S.C. § 157 to replace the unconstitutional grant of jurisdiction. In that section it empowered bankruptcy courts to decide actions under title 11 and all core proceedings "arising under title 11, or arising in a case under title 11." Such cases must either "involve a cause of action created or determined by a statutory provision of title 11," Matter of Wood, 825 F.2d 90, 96 (5th Cir. 1987), or must refer to administrative matters "that arise only in bankruptcy cases." Id. at 97 (emphasis in original). It is by that standard that one must read the broad language of § 157(b)(2)(A), "matters concerning the administration of the estate," and the language of § 157(b)(2)(L), "confirmations of plans," cited by the Bankruptcy Court. If one were to read that language to include as a "core proceeding" any proceeding that could have any speculative or tangential effect on either the administration of the bankruptcy proceeding or the confirmation of a reorganization plan, such as by requiring the trustee to devote his attention to some aspect of the proceeding and thereby divert him from his attention to administration or confirmation of a plan, that would sweep within the jurisdiction of bankruptcy courts precisely the cases the Supreme Court held in Marathon Pipe Line could be decided only by Article III courts.
Rather, than speculative or tangential effect, the touchstone would seem to be whether the case has a "life of its own in either state or federal common law or statute independent of the federal bankruptcy laws." In re Kaiser, 722 F.2d 1574, 1582 (2d Cir.1983) (discussing the Emergency Bankruptcy Rules adopted after Marathon Pipe Line to fill the gap until the enactment of 28 U.S.C. § 157). If it does, it is not a "core proceeding"; if it does not, it is.
The proceeding before the Bankruptcy Court was simply one to confirm or vacate a labor arbitration. Such an action may be brought routinely by a labor organization or by an employer under 29 U.S.C. § 185; it has a very active "life of its own" outside the federal bankruptcy laws. Therefore, it was not a "core proceeding" within 28 U.S.C. § 157.
III. CONCLUSION
The decision of the Bankruptcy Court is reversed and the award of the arbitrator is reinstated.
SO ORDERED.
NOTES
[1]  28 U.S.C. § 157(b)(1) permits a bankruptcy judge to "hear and determine ... all core proceedings ... arising in a case under title 11...." Paragraph (b)(2)(A) of the same section defines core proceedings to include "matters concerning the administration of the estate," paragraph (b)(2)(L) includes "confirmation of plans."
[2]  Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
[3]  To the extent the Bankruptcy Court expressed concern that the arbitrator "basically took the first step towards procedural consolidation," that concern seems misplaced for at least two reasons: First, the award has no impact on how the bankruptcy proceeding will be administered. Second, that step, governed by Bankruptcy Rule 1015(b) and involving simply the joint administration of related debtors, had already been taken by the Bankruptcy Court itself.