Chambers v. Cockrell

Full title: RONALD CURTIS CHAMBERS, Petitioner, v. JANIE COCKRELL, Director Texas…

Court: United States District Court, N.D. Texas

Date published: Aug 26, 2003

Civil Action No. 3:99-CV-1283-L (N.D. Tex. Aug. 26, 2003)

Opinion

Civil Action No. 3:99-CV-1283-L

August 26, 2003

MEMORANDUM OPINION AND ORDER

REGINALD LINDSAY, District Judge

Before the court is Petitioner's Application for Writ of Habeas Corpus, filed June 6, 1999, pursuant to 28 U.S.C. § 2254; and Respondent's Answer, Motion for Summary Judgment, filed July 25, 2000. After carefully considering Petitioner's application, Respondent's motion, and the applicable law, the court grants Respondent's Motion for Summary Judgment and denies Petitioner's Application for Writ of Habeas Corpus for the reasons herein stated.

I. Background

Ronald Curtis Chambers ("Petitioner") was convicted of capital murder and sentenced to death after being tried three times for the fatal execution-style shooting and brutal beating of Mike McMahan ("McMahan"), which Petitioner committed while robbing and assaulting McMahan and Deia Sutton, both college students, on or about April 11, 1975. Petitioner's original conviction was vacated by a Texas state court on habeas corpus review in Ex parte Chambers, 688 S.W.2d 483 (Tex.Crim.App. 1985), and his second conviction was reversed on direct appeal in Chambers v. State, 784 S.W.2d 29 (Tex.Crim.App. 1989). After his third and final conviction and sentence were affirmed on direct appeal in Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App. 1995), Petitioner filed an application for state post-conviction relief, which was denied in an unpublished order in Ex parte Chambers, No. 7, 929-03 (Tex.Crim.App. Mar. 24, 1999).

Petitioner brought the present action in federal court on June 6, 1999 and filed his Petition for writ of habeas corpus on October 26, 1999, raising the following forty-one claims for relief: (1) appellate counsel had a conflict of interest and, as a result, Petitioner was denied effective assistance of counsel (claim 1); (2) appellate counsel failed to raise certain issues on appeal thereby denying him effective assistance of counsel (claims 2-4 and 13-16); (3) the trial court's refusal to admit a co-defendant's criminal record constituted cruel and unusual punishment, and counsel's failure to raise the claim amounted to ineffective assistance of counsel (claims 5-6); (4) the federal habeas statute is unconstitutional (claims 7-9); (5) the trial court's use of the wrong sentencing statute violated due process and constituted cruel and unusual punishment (claims 10-12); (6) Texas law unconstitutionally precludes an evidentiary hearing on juror misconduct claims (claims 17-19); (7) the State pursued inconsistent theories at different trials thereby violating his right to due process (claim 20); (8) execution after an inordinate delay in the state appellate process is cruel and unusual punishment (claim 21); (9) the jury instructions, which were confusing, precluded jury consideration of mitigating evidence (claims 22-23); (10) the jury was not properly instructed regarding his parole eligibility (claim 23); (11) Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional as applied to him, because it failed to allow the jury to properly consider mitigating evidence in the punishment phase instructions (claims 24-26); (12) law enforcement's refusal to comply with the Texas Open Records Act in connection with his state post-conviction habeas proceeding resulted in denial of his due process and equal protection rights (claim 27); (13) Article 11.071 of the Texas Code of Criminal Procedure is unconstitutional, because it fails to provide a mechanism for disclosure of the state's investigation, prosecution files, and exculpatory evidence (claims 28-31); (14) the absence of "life without parole" as a sentencing, option violates the Constitution (claim 32); (15) the trial court failed to instruct jurors of the number of years Petitioner would have to serve on a life sentence before he would be eligible for parole (claim 33); (16) Petitioner's appointed counsel during his second trial caused the admission of damaging evidence against him regarding statements he made during a magazine interview after his second conviction constituted ineffective assistance of counsel (claim 34); (17) the trial court failed to instruct the jury that a single "no" vote would result in a life sentence instead of death, despite the statutory requirement often votes for a "no" answer to a punishment special issue (claim 35); (18) the Texas capital punishment scheme unconstitutionally denied meaningful appellate review of the second special issue on sentencing, and no burden of proof is assigned to aggravating and mitigating circumstances (claims 36-37). Petitioner also "raised for the record" miscellaneous issues in claims thirty-eight through forty-one. On July 25, 2000, Gary Johnson ("Respondent"),¹ the Director of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), filed a response, arguing, among other things, that some of Petitioner's claims were barred by procedural default or under the federal non-retroactivity doctrine. The court addresses these claims first. II. Standard of Review

1 Janie Cockrell, the current director of the TDCJ-ID, was substituted for Gary Johnson pursuant to Fed.R.Civ.P. 25(d)(1), which provides that when a public officer is a party to an action in his official capacity and during his pendency ceases to hold office, the officer's successor is automatically substituted as a party.

Federal habeas proceedings are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, which provides, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 a State court proceeding.

28 U.S.C. § 2254(d) (2000).

Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With respect to the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413. Under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts give deference to the state court's findings unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

This statute applies to all federal habeas corpus petitions which, as the instant case, were filed after April 24, 1996 and adjudicated on the merits in state court.² Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).

2 Petitioner contends that the state habeas court did not adjudicate his claims on the merits, because he was not given a full and fair hearing due to the ineffective assistance he received from his attorney. The Fifth Circuit has interpreted the term "adjudicate," as used in § 2254(b), to mean a disposition by the state court on substantive rather than procedural grounds. See Green, 116 F.3d at 1121. This requirement was satisfied when the state habeas court determined that Petitioner's constitutional rights were not violated Even assuming arguendo that Petitioner received ineffective assistance of counsel in connection with the state habeas proceeding, the Fifth Circuit has held that a "full and fair hearing" is not a prerequisite to the deference scheme outlined in the AEDPA. See Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002). Accordingly, the court determines that this case was decided on the merits and, because it was filed after April 24, 1996, the AEDPA applies.

III. Analysis

A. Claims Procedurally Barred

Respondent contends that Petitioner's fourth, fifth, sixth, and thirty-fourth claims are procedurally barred. Federal courts will not consider the merits of a claim resolved by a state court on an independent and adequate state law ground. See Lee v. Kemna, 534 U.S. 362, 375 (2002); Coleman v. Thompson, 501 U.S. 722, 729 (1991). The court therefore addresses this issue first.

To be adequate to bar federal review, a state law ground must be "firmly established and regularly followed" at the time that it was violated, see Ford v. Georgia, 4998 U.S. 411, 423-24 (1991), and the state court's application of the procedural rule must not otherwise be exorbitant. See Lee v. Kemna, 534 U.S. at 375. Petitioner bears the burden of showing that a state procedural rule is not adequate to bar federal review, see Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997), that sufficient cause and prejudice exist to excuse the procedural default, or that imposition of the bar would result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. at 750.

Petitioner's fourth claim relates to claims not presented by appellate counsel in his direct state appeal. Respondent argues that the state habeas court findings demonstrate that Petitioner was already afforded a meaningful state appeal, and under Texas law, he is not entitled to have the merits of claims not presented on direct appeal considered either in a new direct appeal or in a post-conviction application for writ of habeas corpus. (St. Hab F. at 104, 105)³; see Tex. R. App. P. 74(f) (g) (current version at Tex. R. App. P. 38.1). The court agrees. Petitioner has not shown that the state procedural rule is not adequate to bar federal review; nor has he shown that sufficient cause and prejudice exist to excuse the procedural default, or that imposition of the bar would result in a fundamental miscarriage of justice. See Stokes, 123 F.3d at 860; Edwards, 529 U.S. at 451-52. Petitioner's fourth claim is thus barred by procedural default.⁴

3 Throughout this Memorandum Opinion and Order, the court cites to the record and uses the following abbreviations: (1) St. Hab. F. for state habeas court findings; (2) Hab. Pet. for Petitioner's federal habeas petition; (3) St. Hab. Tr. for state habeas transcript of pleadings and documents filed; (4) Trial Tr. for trial transcript of court's charge; and (5) S.F. for statement of facts or transcribed trial proceedings.

4 Even if Petitioner's fourth claim were not barred on this basis, it would have been denied, because it also violates the doctrine of non-retroactivity, which the court addresses in more detail in another section Moreover, each supporting ground for this claim regarding ineffective assistance of appellate counsel lacks merit.

In his fifth claim, Petitioner alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when the trial court refused to admit into evidence the criminal record of his co-defendant, Clarence Ray Williams, Jr., including the disposition of companion cases. In his sixth claim, Petitioner argues that appellate counsel was ineffective for failing to raise this issue on appeal. Respondent counters that Petitioner's trial counsel withdrew the tender of this evidence, and that these claims were denied by the state court on habeas review for violating the doctrine of invited error. (St. Hab. F. at 109). Again, Petitioner has not shown that the state procedural rule is not adequate to bar federal review; nor has he shown that sufficient cause and prejudice exist to excuse the procedural default, or that imposition of the bar would result in a fundamental miscarriage of justice. See Stokes, 123 F.3d at 860; Edwards, 529 U.S. at 451-52. Petitioner's fifth and sixth claims are therefore barred by procedural default.⁵

5 Like Petitioner's fourth claim, even if his fifth and sixth claims were not barred by procedural default, they violate the doctrine of non-retroactivity, which the court addresses in more detail in another section. They also lack merit. Evidence of his co-defendant's criminal record and sentence in a companion case is not relevant to the defendant's own character, prior record, or circumstances of the offense. Cordova v. Johnson, 157 F.3d 380, 383-84 (5th Cir. 1998).

In his thirty-fourth claim, Petitioner contends that he received ineffective assistance of counsel during the pendency of his second appeal. Specifically, he argues that counsel should not have permitted a magazine reporter to interview him. Respondent asserts that the state court denied this claim on state post-conviction habeas review, because Petitioner waived any complaint by failing to present authority for his proposition that habeas relief is available for an ineffective assistance of counsel claim arising out of a conviction which has already been set aside. (St. Hab. F. at 196). The court agrees. Petitioner has not shown that the state procedural rule is inadequate to bar federal review; nor has he shown that sufficient cause and prejudice exist to excuse the procedural default, or that imposition of the bar would result in a fundamental miscarriage of justice. See Stokes, 123 F.3d at 860; Edwards, 529 U.S. at 451-52. Accordingly, Petitioner's thirty-fourth claim is barred by procedural default.⁶

6 Again, even if Petitioner's thirty-fourth claim were not barred by procedural default, it violates the doctrine of non-retroactivity, which the court addresses in the next section.

B. Claims Barred Under Non-Retroactivity Doctrine

Respondent contends that Petitioner's first, fourth, fifth, sixth, twentieth, twenty-first, twenty-third, and twenty-seventh through thirty-fifth claims are barred under the federal non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989).⁷

7 Having already determined that Petitioner's fourth, fifth, sixth, and thirty-fourth claims are barred by procedural default, the court need not address Respondent's remaining contentions regarding these claims. In addition, the court notes that Respondent incorrectly asserted this defense to Petitioner's twenty-third and twenty-fourth claims. The court therefore declines to address Respondent's contentions regarding these claims. Finally, because Petitioner's twenty-seventh through thirty-first claims are not cognizable on federal habeas review, the court addresses these claims in a later section that deals with Petitioner's ineffective assistance of counsel claims.

In Teague, the Supreme Court held that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Id. The rule in Teague `"prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after his conviction and sentence became final.'" Jackson v. Johnson, 217 F.3d 360, 361 (5th Cir. 2000) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994); see United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001). There are two exceptions to the Teague bar, however. Teague, 489 U.S. at 307. The first exception states that "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311. The second exception allows for retroactive application of "watershed rules of criminal procedure," those that "require the observance of those procedures that are implicit in the concept of ordered liberty." Id. This exception is further restricted to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Id. at 313. "[U]nless the Supreme Court has clearly established that the new rule falls within one of the exceptions to the non-retroactivity principle of Teague, . . . that new rule could not be considered with regard to petitions governed by the AEDPA." Cockerham v. Cain, 283 F.3d 657, 660 (5th Cir. 2002) (citations omitted).

The threshold issue in every case is . . . whether the court is obligated to apply the Teague rule to the defendant's claim." See Caspari, 510 U.S. at 389. Courts therefore address this issue before considering the merits of any claim. Id. This circuit applies a three-step test to determine whether a claim is Teague-barred:

(1) we determine when [petitioner's] conviction and sentence became final, (2) we "survey the legal landscape as it then existed to determine whether a state court considering [petitioner]'s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution[,]" and (3) if [petitioner] seeks the benefit of a new rule, we must decide whether the rule falls within one of the narrow exceptions to the non-retroactivity principle.

Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001), cert. denied, 480 U.S. 940 (2002) (quoting

Caspari, 510 U.S. at 390).

In his first claim for relief, Petitioner contends that he was deprived of his Sixth Amendment right to effective assistance of counsel in his direct appeal, because his attorney had a conflict of interest. Instead of making a showing under the two prongs of deficient performance and prejudice set forth in Strickland v. Washington, 466 U.S. 668, 698 (1984), this claim relies upon a presumption that multiple representation alone is sufficient to establish a denial of his right to the effective assistance of counsel. Respondent disagrees and maintains that since such a presumption has yet to be established by the Supreme Court, Petitioner's claim is Teague-barred. The court agrees.

This claim involves successive representation, rather than concurrent representation. In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court declined to extend the exception to Strickland and presume ineffective assistance arising from a conflict of interest in cases of successive representation. Petitioner's first claim for relief is therefore barred under the doctrine of non-retroactivity.⁸

8 Even if it were not barred under Teague, this claim would not qualify for federal habeas corpus relief pursuant to 28 U.S.C. § 2254(d)(1), because the adjudication of the claim did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established federal law.

In his twentieth claim, Petitioner contends that his due process rights were violated when the prosecution pursued a factual theory at trial which was inconsistent with the one pursued in his co-defendant's trial. Petitioner asserts that this as an extension of the doctrine of collateral estoppel announced in Ashe v. Swenson, 397 U.S. 436 (1970). The Supreme Court, however, has yet to announce such an extension, which would effectively constitute a new ground for relief. Moreover, this theory has been expressly rejected by the Fifth Circuit. See United States v. Mollier, 853 F.2d 1169, 1175-76 (5th Cir. 1988). Accordingly, Petitioner's twentieth claim is barred by the non-retroactivity doctrine.

In his thirty-second claim for relief, Petitioner contends that Art. 37.071 of the Texas Code of Criminal Procedure is unconstitutional, because it does not give the jury the option of sentencing a defendant to life without parole. In his thirty-third claim, Petitioner argues that jurors were not informed of the number of years that he would have to serve on a life sentence before he would be eligible for parole. Both of these claims rely upon an extension of Simmons v. South Carolina, 512 U.S. 154, 156-160 (1994), which has been held to violate the non-retroactivity doctrine of Teague. See Woods v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002). The court therefore determines that Petitioner's thirty-second and thirty-third claims are barred by the non-retroactivity doctrine.

In his thirty-fifth claim for relief, Petitioner asserts that the trial court violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by failing to instruct the jury that a single "no" vote would result in a life sentence rather than a death sentence, despite the statutory requirement of ten votes for a "no" answer to a punishment special issue. As noted by Respondent, the Fifth Circuit has held that this precise argument called for the creation of a new rule within the meaning of Teague. See Webb v. Collins, 2 F.3d 93, 95 (5th Cir. 1993). Since the assertion of this new rule does not fall within an exception to Teague, Petitioner's thirty-fifth claim is barred by the non-retroactivity doctrine.

C. Claims Not Cognizable on Federal Habeas Review

Petitioner asserts claims which are not cognizable in this post-conviction federal habeas corpus action brought under 28 U.S.C. § 2254. These include attacks on the federal or state habeas process and questions of state law.

1. Federal and State Habeas Corpus Process

This court may "entertain an application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner clearly states that he is in custody pursuant to a state conviction and sentence of death. This occurred entirely separate from any federal or state post-conviction habeas corpus process. To the extent that Petitioner presents them as independent claims for relief, they constitute attacks on proceedings collateral to the detention and not the detention itself. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987). Such claims are not cognizable in a post-conviction federal habeas corpus action.

In his seventh through ninth claims for relief, Petitioner asserts claims regarding amendments to the federal habeas statute as independent claims for relief. In his eighteenth and nineteenth claims, Petitioner attacks the state habeas process for failing to give effect to his claims regarding jury misconduct during deliberations. In his twenty-seventh claim, Petitioner contends that his due process and equal protection rights under the Fifth and Fourteenth Amendments to the Constitution were violated, because state law enforcement agencies refused to comply with the Texas Open Records Act in connection with his state post-conviction habeas proceeding. In his twenty-eighth through thirty-first claims, Petitioner contends that Article 11.071 of the Texas Code of Criminal Procedure (the state capital habeas statute) is unconstitutional on its face and as applied to him, because it fails to provide a mechanism for disclosure of the state's investigation, prosecution files, and exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). All of these claims constitute attacks against post-conviction habeas corpus proceedings rather than the conviction itself.

Accordingly, Petitioner's seventh, eighth, ninth, eighteenth, nineteenth, twenty-seventh, and twenty-eighth through thirty-first claims are not cognizable as independent grounds for federal habeas corpus relief.

2. Questions of State Law

Federal courts in post-conviction habeas corpus proceedings do not review questions of state law. See Engle v. Isaac, 456 U.S. 107, 119-21 (1982) ("While they attempt to cast their first claim in constitutional terms, we believe that this claim does no more than suggest that the instructions at respondents' trials may have violated state law."); see also Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000) (referring to "the long-standing principle that federal courts do not sit to review questions of state law."); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir.) ("We will not review a state court's interpretation of its own law in a federal habeas corpus proceeding."), cert. denied, 502 U.S. 875(1991).

In his tenth and eleventh claims for relief, Petitioner contends that the trial court applied the wrong sentencing statute. The trial court on habeas review determined that the correct sentencing statute was applied, and this determination was adopted by the Texas Court of Criminal Appeals.

(St. Hab. F. at 114-19, St. Hab. Tr. at 809-11). This matter of state law was determined adversely to Petitioner, and the court declines to review the state court's interpretation of its own laws.

D. Ineffective Assistance of Counsel Claims

In his second claim for relief, Petitioner contends that he was denied effective assistance of counsel on direct appeal, because his appellate counsel failed to raise the following issues: (1) denial of his Batson objections, (2) denial of his objections to the prosecutor's unanimity argument, (3) denial of his objection to the prosecutor's comment on his failure to testify, (4) failure to give effect to mitigating evidence, (5) denial of his objection to victim impact testimony, (6) denial of his motion to dismiss jurors who had read certain news accounts, (7) denial of defense request on the day of trial for a change of venue and continuance, (8) improper excusal of several jurors for cause, (9) denial of his objection to the trial court's admission of four autopsy photographs, (10) denial of his hearsay objections, (11) refusal to release the statement of a convicted co-defendant, (12) denial of his objection to a magazine reporter's testimony regarding an interview with Petitioner, (13) failure to include an anti-parties charge in sentencing, (14) failure to include an application paragraph applying the law of parties to a convicted co-defendant, (15) refusal to excuse several jurors for cause, and (16) denial of a motion for new trial on jury misconduct. In the event the court determines that Petitioner waived the party and anti-party charge issue, he contends in his third claim that the waiver constituted ineffective assistance of counsel at trial.

1. Ineffective Assistance Standard

Ineffective assistance of counsel claims are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984); Briseno v. Cockrell, 274 F.3d 204, 207 (5^th Cir 2001). To prevail, a defendant must show by a preponderance of the evidence that: (1) trial counsel's performance was deficient; and (2) the deficient performance prejudiced the defense to such an extent confidence in the outcome is undermined. Strickland, 466 U.S. at 687. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. Courts may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14(2000).

To establish that counsel's performance was deficient, Petitioner "must show that counsel's performance fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687. This requires a showing that the errors made were so serious that counsel was not functioning as provided by the Sixth Amendment. Id. To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance," id. at 689, and the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691. "The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 97 (1989). Appellate counsel should instead winnow out "weaker arguments on appeal" and focus on "one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (holding that judges should not second-guess reasonable professional judgments and impose a duty on appointed counsel to raise every colorable claim suggested by a client).

To establish prejudice, Petitioner must show that there is a reasonable probability, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. It is not enough for Petitioner to show that the result would have been different if his attorney had taken a different action. He must also show that the result of the proceeding was fundamentally unreliable or unfair. Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (The prejudice component of Strickland "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair."); Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Regarding appellate representation, a habeas petitioner must at least "show a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Briseno, 274 F.3d at 207 (citing Smith, 528 U.S. at 285). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. Mere speculation and conjecture are insufficient to satisfy the prejudice prong of Strickland. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Similarly, conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).

2. Analysis

As a preliminary matter, the court notes that Petitioner does not contend that his lead appellate counsel, a former Texas appeals court judge, was incompetent or suffered from a lack of skill or capacity. In fact, Petitioner acknowledges that his appointed counsel was "an excellent appellate lawyer," (Hab. Pet. at 36), and "a capable, well-regarded appellate lawyer." (Hab. Pet. at 64). Petitioner instead argues that appellate counsel failed to adequately identify and brief certain issues on appeal. (Hab. Pet. at 34). The court disagrees.

Appellate counsel filed a 112-page appellate brief containing 19 points of error, which were stronger than those presented by Petitioner in his habeas petition. For each of the reasons set forth below, the court determines that Petitioner has not demonstrated a denial of his right to the effective assistance of appellate counsel.

a. Batson Issues

Petitioner first contends that appellate counsel was deficient for failing to present certain Batson errors on direct appeal.

i. Applicable Law

The Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). The process for evaluating an objection under Batson requires that (1) a defendant make a prima facie showing that the prosecutor has exercised his peremptory challenges on the basis of race, (2) the prosecutor must then articulate a race-neutral reason for excusing the juror in question, and (3) the trial court determines whether the defendant has carried his burden of proving purposeful discrimination. Id. at 96-98. Federal habeas review of a state conviction requires a reviewing federal court to accord a presumption of correctness to the state court's factual findings, and demands that the presumption be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The trial court should consider all relevant circumstances in determining whether the defendant has established a prima facie case. Batson, 476 U.S. at 96-97. Factors to be considered by the trial court include a "pattern" of strikes against veniremen of the challenged racial group and the prosecutor's questions and statements during voir dire and in exercising challenges. Id. The Supreme Court has expressed confidence in the ability of trial courts to supervise voir dire and determine whether the circumstances create an inference of discrimination. Id.

ii. Analysis

Review of the state record reveals that any appellate challenges to the alleged Batson errors would not have succeeded. One of the jurors who served in Petitioner's trial was Hispanic, and two were African American. (Jury Information Cards at 312-13, 383, 403). The prosecution also accepted three other minority jurors that the defense struck. (S.F. Vol. XXIX at 152; S.F. Vol. XXXXVIII at 87; State's Trial Exhs. D, E, F; St. Hab. F. 11; St. Hab. Tr. at 761). At trial, the defense seems to have relied upon its prima facie showing, arguing that the prosecution had not articulated a race-neutral reason for its strikes. (S.F. Vol. XXXXVIII at 95). The trial court, however, found that the prosecution had provided racially neutral explanations for its challenges and denied defense counsel's objections. (S.F. Vol. XXXXVIII at 95). The court determines that the trial court's findings are supported by the record for the reasons herein stated.

Petitioner first complains about the prosecution's striking venireperson Mendoza. Petitioner acknowledges that Mendoza had a record of passing a bad check, but claims that this race-neutral reason is invalid, because she testified that "she bounced a check but it all got cleared up," after she "mistakenly" had a warrant issued for her arrest. (Hab. Pet. at 70).

Mendoza also testified that when she went to get it cleared up, "they couldn't find me in the file anywhere so I couldn't get it cleared up. And the girl said, `Don't worry about it. You'll get a letter from us.'" (S.F. Vol. V at 112). She was later stopped by the police, who found the outstanding warrant and took her to jail. (S.F. Vol. V at 112). Other reasons given included her recent unemployment, her studies in psychology, her history of alcohol abuse, her brother's alcoholism, her friend that had been to prison, her interest in the Jeffrey McDonald murder case (in which media coverage exposed problems with law enforcement), and her comments about the judicial system being a "bureaucratic system." (S.F. Vol. XXXXVIII at 7-9). These all qualify as facially valid race-neutral reasons for the prosecutor's use of a peremptory challenge.

Petitioner also complains about the prosecution's striking of venireperson Range; however, the prosecutor also offered race-neutral explanations for his peremptory strike of this venireperson. who, during voir dire, expressed reservations about the death penalty, stating that its use was not evenly distributed. (S.F. Vol. XXXXVIII at 43). Unlike the other venirepersons, he testified that if it were up to him, there would be no death penalty in Texas if life without parole was an option. (S.F. Vol. XXXXVIII at 45-6). Range stated he had family members, who had been in trouble with the law because of drugs. (S.F. Vol. XXXXVIII at 46). Range further stated that he would refuse to convict even if he fully believed the one eyewitness to a murder. (S.F. Vol. XXXXVIII at 47). Finally, Range testified that in the punishment phase, he would require the prosecution to prove that the defendant could not be rehabilitated. (S.F. Vol. XXXXVIII at 49). The prosecutor ran out of time to examine this venireperson before resolving her concerns; however, these race-neutral reasons support the prosecutor's exercise of a peremptory challenge. (S.F. Vol. XXXXVIII at 50).

Next, Petitioner complains about the prosecutor's peremptory challenge to venireperson Vega. The prosecutor expressed concerns about the evidence Vega would require to assess the death penalty. Vega testified that the death penalty would be appropriate for premeditated murders where somebody thought about it a long time before, and that in answering the second special issue that it would be important to hear from the defendant's family and friends. (S.F. Vol. XXXXVIII at 63-64). Of particular concern was Vega's need for proof of the defendant's prior bad history that showed an inability to be rehabilitated. In an attempt to counter these concerns and show that Vega "favored the state," Petitioner points to the following exchange:

Prosecutor: Now the, if you can tell me what I'm going — how I'm going to prove that to you, Mr. Vega. What am I going to have to — I have to do it from my side of the table. I can't make him get on the stand and testify. I can't make him talk to a psychiatrist or psychologist to tell you that he's not going to be rehabilitated. What am I going to need to do to convince you?

Vega: I believe you'll have to get individuals to convince me in certain aspects of his personality.

Prosecutor: Like what?

Vega: People to say that he's bad.

Prosecutor: That he's been bad since or before or —

Vega: That they perceive that he will be a threat to society. Individuals, not paperwork. It would have to be individuals.

Prosecutor: Like who?

Vega: Witnesses.

Prosecutor: Okay. How he's been since the offense, or what type of witnesses to tell you? I mean, are you talking about doctors or —

Vega: Could be, could be. Could be character witnesses, individuals that perceive him to be a continuing threat, okay. You would have to — they would have to convince me from their statements that he would be a continuing threat in their eyes and I would look at that as being a mode by which I could make a decision that he would be a continuing threat.

Prosecutor: I guess I'm not real clear. You said doctors could be one, psychiatrists?

Vega: It could be doctors, it could be a brother, it could be a clergyman, it could be a neighbor, it could be a fellow associate in business, that sort of thing. I do need data in order to make a decision.

Prosecutor: Right. But now, are we going back into the previous history, how he was?

Vega: No.

Prosecutor: Or how he lived?

Vega: No. From their perception of what he would be like in the future.

(Hab. Pet. at 79-80; S.F. Vol. XXIII at 62-64). Petitioner argues that "[i]n this passage, Mr. Vega is clearly telling the prosecutor that she does not need to fear losing a death sentence if she were short on criminal history." (Hab. Pet. at 80). The court disagrees.

Vega made clear that he would require the prosecution to prove that the defendant could not be rehabilitated. Moreover, when viewed in the proper context, it is clear that the prosecutor was trying to determine how to satisfy the unique evidentiary requirement for this potential juror, which is evident from the passages immediately before and after the quoted material. For example, the discussion leading up to the quoted material was as follows:

Prosecutor: [W]ould I have to convince you [the defendant] had not been rehabilitated or wasn't capable of being rehabilitated to convince you to answer the question "yes"?

Vega: Yes.

Prosecutor: I'll have to clear that out of your mind, you're going to have to believe there is no way he hasn't been and he's not ever going to be?

Vega: Absolutely.

Prosecutor: Now then, if you can tell me what I'm going — how I'm going to prove that to you. . . .

(S.F. Vol. XXIII at 62). After the material quoted by Petitioner, the discussion continued as follows:

Prosecutor: Okay. And you're going to need people like that to tell you he can't be rehabilitated or —

Vega: I would need something like that, yes, some information like that in order for me to make a decision, because if he's not going to get up on the stand, I can't make a decision from his personal testimony.

* * *

Prosecutor: I guess what I'm asking you is particularly, now, in the area of rehabilitation, can you be convinced in your mind from just the facts alone, with no character testimony that you have been referring to, that he can't be rehabilitated, that he'll be a threat? You see, I know that sounds like — I'm coming around it a different way.

Vega: You are. To answer the question, a continued threat to society, I would have to be convinced that he would be a continuing threat, and it would have to come from an information base relative to either associates or what you have at the time, you know, of the offense — or the alleged offense, I guess, or some other way to convince me that he's going to be a continued threat.

* * *

Prosecutor: We're assuming you found him guilty, so we're assuming that that's what you would have found that he did, all right, so I'm not — we wouldn't even be talking about the questions if you haven't found that. When I say can you be convinced by the facts itself of the offense, it's just that one hour, maybe 10 minutes, in time it took for that offense to happen. Can you be convinced? Is that a big enough, large enough data base for you to ever answer the question "yes"? Or would you have to have a larger data base of information base than just the crime itself?

Vega: I probably would need more information.

Prosecutor: Does that go back primarily to the rehabilitation we were talking about?

Vega: It goes back to rehabilitation, yes. Whether, in fact, the individual could be rehabilitated.

Prosecutor: And you don't think that you could be satisfied or convinced enough in your own mind from just the crime itself?

Vega: Not strictly from the crime.

Prosecutor: So that's when we get into talking about the reputation or character of people, associates or somebody coming in here, giving you their opinion about him?

Vega: Yes.

Prosecutor: Which really would be separate and apart, in your mind, from the facts of the crime itself?

Vega: Exactly.

Prosecutor: Judge, I believe if I have some time I'll reserve it, and I would submit the juror on that particular area.

(S.F. Vol. XXIII at 64-67). From this, the intent of the prosecutor is clear, and it was repeated at the post-trial Batson hearing. (S.F. Vol. XXXXVIII at 67-70). After defense counsel was allowed to rehabilitate this witness, contradictory answers appear in the record. Even so, the prosecutor is entitled to draw her own conclusions from this testimony. The court therefore determines that the record supports the race-neutral basis found by the trial court for the prosecutor's exercise of a peremptory strike against this and each of the venirepersons in question. (St. Hab. F. at 10-11, St. Hab. Tr. at 761). Petitioner has thus failed to present clear and convincing evidence that the factual conclusions of the state court regarding these Batson claims were incorrect.

b. Prosecutor's Unanimity Argument

Petitioner contends that appellate counsel's performance was deficient for failing to raise an issue on appeal that addresses the trial court's improper denial of his objections to the prosecutor's jury argument. Specifically, Petitioner objected to the following argument by the prosecutor, which he contends calls for a guilty verdict unless all of the jurors unanimously agree that he is not guilty. As shown by the prosecutor's remarks, however, this was not the argument made:

Then it says, at the end of this page, that if you have a reasonable doubt thereof, then you next proceed to consider the lesser-included offense of murder. That means all 12 of you, as a body, if all 12 of you have a reasonable doubt that he's guilty of murder, then you proceed to —

* * *

It says you folks. That means all 12 of you. That doesn't mean if three of you say "Well, three of us believe —

* * *

Three of us think murder, nine of us think capital murder, so we're going down to murder. No. All 12 of you have a reasonable doubt as to whether or not he's guilty of capital murder, and that's what it says.

(S.F. Vol. XXXI at 9-10). Defense counsel objected that the prosecutor's argument was a misstatement of the law. ( Id.). In Texas, however,

It is not error for the State to quote or paraphrase the jury charge, even if the charge presents a negative instruction to the panel. Jones v. State, 641 S.W.2d 545 (Tex.Crim.App. 1982). However, it is error for the State to present a statement of the law that is contrary to that presented in the charge to the jury. Burke v. State, 652 S.W.2d 788 (Tex.Crim.App. 1983). . . ."

Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App. 1990) ( en banc).

Here, immediately after the application paragraph for the capital murder charge, the trial court's charge stated, "[u]nless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will acquit the defendant of capital murder, and consider next whether the defendant is guilty of the lesser included offense of murder." (Trial Tr. at 136). The prosecutor's argument that before the jury could consider the lesser offense of murder, it had to first acquit Petitioner of the offense of capital murder is consistent with the jury charge. Similarly, the prosecutor's argument that the jury verdict needs to be unanimous tracks the trial court's charge, which instructed the jury that "your verdict must be unanimous and shall be arrived at by due deliberations and not by majority vote nor by any method of chance." (Trial Tr. at 142). Since the prosecutor's argument is consistent with the trial court's charge, there was nothing for Petitioner's appellate counsel to appeal.

c. Prosecutor's Argument that Defense Failed to Produce Photographs

Petitioner contends that appellate counsel was ineffective, because he failed to argue on appeal that certain arguments by the prosecutor constituted a comment on his failure to testify. For support, he directs the court to the following excerpt from the trial record:

Prosecutor: We know from the testimony of Deia, she sees a photo lineup. It's not in existence anymore. I would like to bring it to you, I can't. It's long gone. We know she saw a photo lineup, seven photographs of black males, all about the same age, same body configurations, same hair type, and she immediately, without hesitation, goes to the photograph of Mr. Chambers.

They say, why don't we have a photograph of Mr. Chambers? I don't have that photo lineup. It's gone. We know he's got a father and family members. They could produce a photo.

Defense: We'll object to calling on the Defendant's failure to testify or produce evidence.

Court: Sustained.

Defense: We ask that the jury be instructed.

Court: Disregard that last statement.

Defense: Further move for a mistrial.

Court: Denied.

Defense: Note our exception.

Court: So noted.

Prosecutor: Photographs of the Defendant exist. They could bring them forth. Both sides have equal subpoena power and both sides have a right to bring photographs that they deem is [sic] appropriate and admissible relevant [sic].

(Hab. Pet. at 88; S.F. Vol. XXXXI at 72-73) (emphasis added). From this exchange, it is clear that defense counsel did not object to the prosecutor's assertion that defendant failed to bring a photograph. As a result, the error, if any, was waived and was not reviewable on appeal.⁹ Accordingly, the state court did not err in concluding that Petitioner was not denied effective assistance of counsel on this ground.

9 Since this statement essentially repeated the same argument, the state habeas court found that by failing to object, the "error, if any, was waived." (St. Hab. F. at 23, St. Hab. Tr. at 766).

Moreover, the prosecutor's argument was not improper. To determine whether a prosecutor's remark violates the United States Constitution, courts consider the following:

(1) whether the prosecutor's manifest intent was to comment on the defendant's silence or (2) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant's silence. If there is an "equally plausible explanation for the remark," the prosecutor's intent is not manifest. The "naturally and necessarily construed" prong is not established if the jury merely possibly or probably viewed the challenged remark as a comment on the defendant's silence.

United States v. Virgen-Moreno, 265 F.3d 276, 291 (5th Cir. 2001), cert. denied, 534 U.S. 1095 (2002) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)) (citations omitted). In Virgen-Moreno, the defense argued that the prosecutor had failed to provide an expert voice analysis of a recorded telephone conversation to prove the identity of the speaker. In response, the prosecutor argued to the jury that either side could have done that, and that the defendant could have even called his family members. Id. at 291-92. The court held that the prosecutor's argument did not impermissibly shift the burden of proof or comment on the defendants' failure to testify, but instead responded to the defense's argument that the government had failed to call certain witnesses. Id. at 292.

In the present case, the prosecutor's argument was made in response to the following argument by defense counsel:

You know, we don't have anybody — we have got all these investigators and all this manpower and everything, but the only picture that she's ever been shown, according to her own testimony, in 17 years, is Mr. Chambers' picture, and it's in a photo lineup that nobody can bring down here and show you. It doesn't exist anymore, which is pretty convenient, I guess. Just doesn't exist anymore.

Why get rid of it? We don't know what Mr. Chambers looked like back in April of `75. Nobody sees fit to come down and show you that. Nobody's seen fit to come down here and show you what he looked like. Nobody's — and they didn't see fit to say, "Hey, could it have been this guy? Could Bickems have been the guy that did it?" No, they didn't show you that.

Did they talk — did they even show her a picture of Williams? No, they didn't do that. We all know that.

(S.F. Vol. XXXXI at 44-45). Because the prosecutor's argument only addressed the way each party examined the victim during her testimony and the fact that either party could have presented the witness with a photograph if they believed it would have helped their case, it does not violate the Constitution.

In addition, the court determines that the prosecutor's argument did not violate Texas law. Texas has enacted a procedural rule that protects a defendant's right to not testify and prohibits comment by the prosecutor on his failure to testify. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979 Supp. 2002). To violate this rule, the prosecutor's comment must be direct and not an indirect reference to the defendant's failure to testify. See Montoya v. State, 744 S.W.2d 15, 31 (Tex.Crim.App. 1987) (en banc); May v. State, 618 S.W.2d 333 (Tex.Crim.App. 1981); Hawkins v. State, 660 S.W.2d 65, 79 (Tex.Crim.App. 1983); Jones v. State, 693 S.W.2d 406 (Tex.Crim.App. 1985). Since the prosecutor did not refer to Petitioner's failure to testify, this statutory prohibition was not violated, and appellate counsel had no valid error to raise on appeal. Petitioner's contention that he was denied ineffective assistance on this ground therefore fails.

d. Incorrect Appellate Standard

Petitioner contends that he was denied effective assistance of counsel, because appellate counsel failed to use the correct appellate standard based on the erroneous belief that the more favorable standard of review had been waived. (Hab. Pet. at 89-91). Specifically, Petitioner contends that when his appellate attorneys challenged the constitutionality of several aspects of the sentencing jury instruction, they erroneously "posed them as fundamental error, believing that objections had been waived. In fact, all of the issues had been preserved." (Hab. Pet. at 89).

The state court, however, determined that these objections had been waived, because they were not presented in accordance with state procedural rules. (St. Hab. F. at 30-32, St. Hab. Tr. at 770-71). Since the state court has authoritatively ruled on this matter of state procedural law, the court is not entitled to re-interpret such state rule differently on federal habeas review. See Gabel v. McCotter, 803 F.2d 814, 815-16 (5th Cir. 1986), cert. denied, 482 U.S. 929 (1987); Rubio v. Estelle, 689 F.2d 533, 536 (5th Cir. 1982); Kemph v. Estelle, 621 F.2d 162, 163 (5th Cir. 1980). The court therefore declines to interpret the state procedural rule in question and concludes that Petitioner's appellate counsel correctly interpreted and applied the state procedural rule. Accordingly, Petitioner has failed to establish that appellate counsel rendered ineffective assistance of counsel.

e. Victim Impact Testimony

Petitioner contends that appellate counsel was deficient for failing to complain about the admission of the victim's background information.

In Texas, victim impact evidence is evidence "regarding the physical or psychological effect of the crime on the victims themselves, their families, or the economic effect, if any, the criminal episode has had on their lives." Lane v. State, 822 S.W.2d 35, 41 (Tex.Crim.App. 1991) (construing Article 56.03(b), regarding victim impact statement). Petitioner argues that Article 37.071 does not permit the admission of victim impact evidence, and the victim impact testimony elicited from the victim's father was inadmissible, because it was not relevant to the issue of whether the murder was deliberate or a determination regarding Petitioner's future dangerousness. The testimony Petitioner complains of includes the following: (1) testimony identifying the victim, his family, a photograph of the victim, his residence; (2) testimony regarding the reason why the victim was in Texas; (3) testimony of when witness last had contact with the victim and how the witness learned of victim's death; (4) testimony regarding the victim's funeral; and (5) testimony about whether the victim's family knew the defendant. (Hab. Pet. at 91-92).

The court determines that appellate counsel was not deficient for failing to complain about the admission of the victim's background information. First, as Petitioner acknowledges, the Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991) determined before Petitioner's trial that victim impact testimony does not violate the Eighth Amendment rights of capital defendants except under extreme circumstances. Second, Petitioner's conviction was handed down in 1992, and the appeal was concluded in 1995, the year before Smith was decided. Accordingly, Petitioner's attorneys cannot be faulted for not using authority that was unavailable at the time of his trial and appeal. Moreover, the Smith prohibition against victim impact testimony is no longer the law in Texas. See Mosley v. State, 983 S.W.2d 249, 261-63 (Tex.Crim.App. 1998) (abrogating Smith). Finally, the state court determined, as a matter of state law, that the type of background information involved in this claim was not victim impact evidence, and its law regarding victim impact evidence was not violated. (St. Hab. F. at 36, St. Hab. Tr. at 773). For all of these reasons stated, appellate counsel had no valid state or federal claim to present on appeal. Petitioner has therefore failed to establish that appellate counsel's performance was deficient.

f. Juror Exposure to Pretrial Publicity

Petitioner argues, without legal authority, that appellate counsel failed to appeal the trial court's refusal to excuse two jurors who had been exposed to pretrial publicity. According to Petitioner, two jurors disclosed at the beginning of the trial that they had inadvertently received news reports about the trial, but that receipt of such reports would not affect their votes.

The Supreme Court in lrvin v. Dowd, 366 U.S. 717 (1961) observed:

[i]t is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard.

It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. at 722-23. Similarly, a potential juror in this circuit is not automatically disqualified when exposed to media coverage of the charged crime. "The issue becomes whether exposure to media publicity will preclude the individual from returning a verdict based solely on the person's application of the law as stated to the evidence presented." United States v. Flores, 63 F.3d 1342, 1357 (5th Cir. 1995), cert. denied, 519 U.S. 825 (1996) (quoting Bell v. Lynaugh, 828 F.2d 1085, 1093 (5th Cir. 1987)). Article 35.16(a)(10) of the Texas Code of Criminal Procedure provides:

if, from exposure to pretrial publicity such as newspaper articles or other media, a prospective juror forms a conclusion as to the guilt or innocence of the defendant that would influence his verdict, he must be discharged. However, where, a prospective juror testifies that he is able to set aside any outside influences and render a fair and impartial verdict based upon the evidence presented, the denial of a challenge for cause will not be error.

Cooks v. State, 844 S.W.2d 697, 710 (Tex.Crim.App. 1992) (citations omitted). The court therefore determines that under both the state or federal standard, there was no basis for excluding these jurors because of their exposure to media coverage. Accordingly, this claim would not have prevailed on direct appeal, and counsel's performance was not deficient for failing to raise it.

g. Change of Venue and Continuance

Petitioner contends that his appellate counsel was ineffective for failing to appeal the trial court's denial of his motions for change of venue and continuance made on the day of trial. The error, if any, was not preserved for appeal. The state trial court on habeas review found that Petitioner's appellate counsel could not appeal this denial, because error had not been preserved in accordance with the state procedural laws. (St. Hab. F. at 46-48, St. Hab. Tr. at 777-78).

Even so, the record indicates that the trial court properly denied the motions. After the trial court denied his challenges for cause of the two jurors, Petitioner's counsel moved "for leave of court to file a motion for change of venue due to the pretrial publicity which ha[d] been generated within the last two days, that is, the Dallas Observer article and an article that appeared in The Dallas Morning News [that] morning." (S.F. Vol. XXXVIII at 32-33). Only one of the jurors was aware of the articles. The juror who saw the article testified that she noticed the headline and the first couple of sentences before she realized that it discussed this case, and she stopped reading it immediately. She further stated that it would not affect her decision in the case. (S.F. Vol. XXXVIII at 19-20). The trial court denied the motion to change venue (S.F. Vol. XXXVIII at 33), agreed to allow Petitioner to substitute his oral motion for continuance with a written motion, and proceeded to trial. (S.F. Vol. XXXVIII at 36-38).

The Texas Constitution and the Texas Code of Criminal Procedure authorize a change of venue in order to protect a defendant from the dangers of unfair publicity. See Fain v. State, 986 S.W.2d 666, 672 (Tex.App.-Austin 1998, pet. ref'd.). Under Texas law, the defendant must demonstrate the existence of prejudice in the community such that the likelihood of obtaining a fair trial is doubtful. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975 (1993). Under federal law, a defendant must prove that "prejudicial, inflammatory publicity about his case so saturated the community from which his jury was drawn as to render it virtually impossible to obtain an impartial jury." United States v. Parker, 877 F.2d 327, 330 (5th Cir.), cert. denied, 493 U.S. 871 (1989). The concern under either standard, therefore, is with the impartiality of the jury.

In this case, the jury had already been selected and properly instructed prior to the start of trial, and any harmful effect from publicity had already been minimized. Only two jurors were exposed to publicity, and these two were shown to remain impartial. The record thus indicates that the defendant had an impartial jury in his trial, regardless of any media publicity. Accordingly, there was no error preserved for appellate counsel to appeal, but even if properly preserved, Petitioner's contentions lack merit and would not have prevailed on appeal. Petitioner has therefore failed to establish that he was denied effective assistance of counsel on this basis.

h. Improper Excuse of Venireperson

Petitioner contends that appellate counsel was ineffective for failing to appeal the issue of whether the trial court erred in excusing for cause jurors that would require more than the facts of the capital case to affirmatively answer the punishment issue regarding future dangerousness. The jurors in question were excused by the court upon the prosecutor's exercise of peremptory challenges, which also forms the basis for Petitioner's Batson claims. (S.F. Vol. LXIII at 50, 69-70; St. Hab. F. at 51-52, St. Hab. Tr. at 779). Having already determined that the potential jurors were properly challenged and excused, the court need not address this contention. Moreover, there is no factual basis or support in the record for this contention.

i. Autopsy Photographs

Petitioner contends that appellate counsel's performance was deficient for failing to appeal the trial court's admission of certain autopsy photographs. This matter of state law was decided adversely to Petitioner and therefore lacks merit. (St. Hab. F. at 56-59, St. Hab. Tr. at 780-82)

The general rule in Texas is "that autopsy photographs are admissible unless they depict mutilation of the victim caused by the autopsy itself." Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997). The only alteration to the body from the autopsy shown in photographs is the shaving of hair on the victim's head to show the wounds to that portion of the body. No gruesome mutilations from the autopsy are evident in the photographs presented to the court. The photographs merely reveal the identity of the victim and the nature of the injuries that caused his death. See Williams v. State, 937 S.W.2d 479, 488 (Tex.Crim.App. 1996); (St. Hab. F. at 56-59; St. Hab. Tr. at 780-82). As such, the photographs are admissible to illustrate and clarify other admissible testimony concerning the victim's injuries. See Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996); Ladner v. State, 868 S.W.2d 417, 426-27 (Tex.App.-Tyler 1993, pet. ref'd). The court therefore determines that the findings of the state trial court on habeas review are supported by the record, and Petitioner's appellate counsel was not ineffective for failing to raise this issue on appeal.

j. Admission of Hearsay Statements

Petitioner contends that appellate counsel was ineffective for failing to appeal the trial court's admission of Larry Bickem's testimony regarding alleged hearsay statements made by co-defendants, Doyce Rogers and Clarence Ray Williams, Jr., on the night of the offense. (Hab. Pet. at 98-100). The statements challenged include the following: (1) Petitioner and Williams "got into the car with this white couple" (Hab. Pet. at 98-99; S.F. XXXIX at 15-16); (2) later Williams "gets [sic] out of the car, rushed over to the side where I was sitting at on the passenger side and handed me a .22 pistol and said to me to go back and make sure that they're dead" (Hab. Pet. at 99; S.F. XXXIX at 25-26); and (3) "I had told Buffalo [Mr. Chambers] it [the pistol] was jammed when I came into the house." (Hab. Pet. at 99-100; S.F. XXXIX at 28-29). Without citing authority, Petitioner argues that these alleged hearsay statements between the co-defendants to this murder, which were made during and shortly after the instant offense, are inadmissible, because the "statements are not against a party opponent," and the "State alleged no conspiracy, so the exceptions pertaining to statement between co-conspirators do not apply." (Hab. Pet. at 100.)

This matter of state law was decided adversely to Petitioner, (St. Hab. F. at 63-67, St. Hab. Tr. at 784-85), and the state court findings are supported by the record. (St. Hab. F. at 63-64, St. Hab. Tr. at 784-85). Specifically, the state habeas court found:

63. The Court finds that Williams and Rogers were both indicted and convicted for their participation in the instant case; therefore, they were co-conspirators. The Court also finds that, although Bickems was never indicted in this case . . . the State presented evidence that Bickems was an accomplice, and this Court submitted the issue to the jury.

64. The Court finds and concludes that the challenged statements were made by co-conspirators during the course and furtherance of the conspiracy, and, therefore, they did not constitute hearsay.

65. The Court finds and concludes that Applicant's appellate counsel were not ineffective for choosing not to assert the apparently frivolous point of error. . . .

(St. Hab. F. at 63-65.) (internal citations omitted). These findings were adopted by the Court of Criminal Appeals.

Moreover, Petitioner's argument is an incorrect statement of Texas law. Tex. R. Crim. Evid. 801(e)(2)(E) provides:

(e) a statement is not hearsay . . . (2) if the statement is offered against a party and is . . . (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. When two or more people take part in the commission of a felony, evidence of a conspiracy is admissible even though the substantive crime is not charged.

Id. at 332. In discussing Tex. R. Crim. Evid. 801(e)(2)(E), the court in Meador v. State, 812 S.W.2d 330 (Tex.Crim.App. 1991) held that two or more people can take participate in the commission of a felony, and evidence of the conspiracy is admissible even though the substantive crime of conspiracy is not charged. Petitioner's argument to the contrary is therefore without merit.

Finally, Petitioner has not otherwise alleged any violation of the Confrontation Clause of the United States Constitution, and there is no other basis presented for disturbing the state court's findings. Accordingly, any alleged failure to present this issue on appeal is insufficient to establish that counsel's performance was deficient.

k. Refusal to Release Statement of Co-defendant

Petitioner contends that appellate counsel's performance was deficient for failing to appeal the refusal of the trial court to release the written statement of Clarence Ray Williams, Jr. ("Williams") to him. Before trial, the prosecution tendered Williams' statement to the trial court in camera. (S.F. Vol. XXXVII at 53-55). After determining that the statement did not contain any mitigating or exculpatory evidence, the trial court ruled that the prosecution was not required to produce the statement to the defense. (S.F. Vol. XXXIX at 221-22). Petitioner contends that this ruling should have been appealed. The court disagrees.

This ruling was rendered moot when the prosecution voluntarily disclosed the statement to defense counsel during the guilt phase of the trial. (S.F. Vol. XXXX at 81-83; State's Exh. 23). Sec United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997), cert. denied, 523 U.S. 1078 (1998) (due process not violated if Brady material disclosed in time to be used effectively at trial, even if the material should have been disclosed earlier). After receiving Williams' statement, the defense made no attempt to call Williams even though he was available, and the court gave the defense the opportunity to do so. Because any mitigating or exculpatory matters in this statement were made available to the defense, and the defense chose not to avail itself of the opportunity, there was no factual or legal basis to appeal the trial court's ruling. Accordingly, appellate counsel's performance was not deficient, and Petitioner has failed to demonstrate that he was denied effective assistance of counsel under the circumstances.

1. Defendant's Statements to Reporter

Petitioner argues that appellate counsel was ineffective for failing to appeal the denial of his objections to the testimony of freelance reporter Mark Donald ("Donald"). Donald testified as a rebuttal witness for the State in the punishment phase of the trial regarding statements Petitioner made during an interview with Donald after his second trial. Specifically, Donald testified that Petitioner told him that by the age of sixteen, he could get girls, guns and drugs, including marijuana, reds, codeine, coke, and smack if he wanted, but that the only drug he used was marijuana because he did not like to lose control. At trial, counsel objected to Donald's testimony on the basis that he could not effectively cross examine Donald, because Donald no longer had his notes from the interview. Petitioner also objected to the trial court's allowing Donald to paraphrase the statements he made during the interview. The state habeas court found and the Court of Criminal Appeals adopted the state habeas court's finding that Petitioner's statement to Donald: (1) was admissible as an admission by a party opponent under Tex. R. Evid. 801(d)(2)(a); (2) was not the product of custodial interrogation; (3) was not inadmissible simply because Donald no longer had his notes from the interview when he testified. The court also concluded that appellate counsel was not in a position to appeal this issue since any error regarding Donald's testimony was waived when similar evidence was introduced at trial without objection. For the reasons herein stated, the court determines that the state court findings and conclusions regarding this claim were not contrary to or an unreasonable application of clearly established federal law.

First, regarding Petitioner's objection to Donald's testimony on the basis that he could not effectively cross examine Donald, because he no longer had his notes from the interview. Although criminal defendants are afforded a type of "constitutionally guaranteed access to evidence," the court has found no case where it has been extended to include a media reporter's interview notes or other such "evidence beyond the government's possession." California v. Trombetta, 467 U.S. 479, 485 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). Here, Donald took the notes for a magazine article published six years before Petitioner's second trial. He was not acting as an agent for law enforcement, and he was not trying to collect evidence for any future trial. (S.F. Vol. XXXXIV at 111-16). Once the article was published, which was published based on his notes, there was no need for Donald to keep the notes. Additionally, his testimony at trial was that his notes were lost, not destroyed, (S.F. Vol. XXXXIV at 168), and there is no evidence that these notes were destroyed in bad faith. Petitioner's argument that he was in some way entitled to these notes for purposes of cross examination and that the trial court erred in allowing the testimony under the circumstances is without merit.

Second, regarding Petitioner's argument that Donald should not have been allowed to paraphrase what he said during the interview, the court notes that Petitioner has presented no authority for the proposition that a direct quote is a prerequisite to the admissibility of an oral statement admitted in a criminal trial against a party opponent. Texas "does not require that a confession be in the exact language of the accused." Bell v. State, 724 S.W.2d 780, 793 (Tex.Crim.

App. 1986). Accordingly, this claim would not have succeeded on appeal, and appellate counsel was not ineffective for failing to raise it.

Finally, the state court found against Petitioner in its habeas corpus review of each of these matters; its findings regarding the admissibility of Donald's testimony was in part based on state law (St. Hab. F. at 71-78, St. Hab. Tr. at 787-90); and its findings are supported by the record. The court therefore determines that appellate counsel was not deficient for failing to present issues concerning the reporter's testimony on direct appeal of which there was little chance of succeeding.

m. Absence of Anti-parties Instruction

Petitioner contends that appellate attorney was ineffective for failing to assert the absence of an anti-parties charge as an error in his direct appeal. For support, Petitioner cites Campbell v. State, 910 S.W.2d 475, 477 (Tex.Crim.App. 1995), Belyeu v. State, 791 S.W.2d 475, 476-78 (Tex.Crim.App. 1989), and Martinez v. State, 899 S.W.2d 655, 656-57 (Tex.Crim.App. 1994). The court disagrees that an anti-parties charge was required under the circumstances, and the cases cited by Petitioner do not persuade the court otherwise.

Under Texas law, an accused is entitled to an anti-parties charge, that is, an instruction that the law of parties may not be considered by the jury in assessing punishment or in answering the special issues in a capital case if the accused requests such an instruction. McCoy v. Lynaugh, 714 F. Supp. 241, 251 (S.D. Tex.), aff'd, 874 F.2d 954 (5th Cir. 1988) (citing Nichols v. State, 754 S.W.2d 185 (Tex.Crim.App. 1988)). Petitioner, however, is only half correct. An accused is entitled to such an instruction upon request; absent a request, there is no obligation upon the court to so charge. Nichols, 754 S.W.2d at 199.

In Campbell, the Texas Court of Criminal Appeals held that "it is error for a trial judge to refer to the law of parties in the abstract portion of the jury charge and not to apply that law or to refer to that law in the application paragraph of the jury charge." Campbell, 910 S.W.2d at 477. This error, nevertheless, was held to be harmless, because the charge requested by the defense would have only operated to "enlarge his criminal liability and decrease the State's burden." Id. at 478. "Because a jury is only authorized to convict based upon the application paragraph, and because that paragraph did not include any reference to conspiratorial liability, the jury was not authorized to convict appellant under a conspiracy theory. . . . Consequently, appellant was not harmed." Id. (citations omitted).

Here, the charge included an instruction to limit the use of accomplice witness testimony and increase the prosecution's burden at the guilt/innocence stage:

You are instructed that an "accomplice," as that term is hereinafter used, means any person connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime, as such parties, by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Mere presence alone, however, [is insufficient].

Now, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness Larry Donnell Bickems was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of the said Larry Donnell Bickems unless you first believe that the testimony of the said Larry Donnell Bickems is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the evidence of the said Larry Donnell Bickems tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

(Trial Tr. at 139-40; Petitioner's Record Excerpts, Vol. 1, Exh. 5). The prosecution, however, did not rely upon party liability for a finding of guilty. The application portion of the charge contained no reference to party liability, but instead permitted a verdict of guilty only upon evidence establishing that Petitioner's own conduct caused the death of the victim in the course of robbery. (Trial Tr. at 184-86; Petitioner's Record Excerpts, Vol. 1, Exh. 5). Accordingly, even if the accomplice witness instruction could be construed as including a "parties" instruction, the court determines that Petitioner was not harmed by the omission in the application paragraph. See Campbell, 910 S.W.2d at 478.

Petitioner also contends that the mention of parties in the accomplice witness instruction required the inclusion of an anti-parties charge in the sentencing phase. The authorities cited by Petitioner, however, are clearly distinguishable from the instant case. In both Martinez, 899 S.W.2d at 656, and Belyeu, 791 S.W.2d at 71, the application portion of the charge at the guilt/innocence stage allowed the jury to find the defendant guilty of capital murder under the law of parties. As observed in Marquez v. State, 725 S.W.2d 217, 225 (Tex.Crim.App. 1987).

. . . in cases where a law of parties charge was given during the guilt/innocence phase of a capital case a prophylactic instruction should be given, if requested, which would instruct the jury to limit its consideration of punishment evidence to conduct shown to have been committed by the defendant.

Id. at 225. Since the jury instruction in this case did not allow the jury to find Petitioner guilty as a party, but instead instructed the jury that a guilty verdict be based only upon Petitioner's own conduct, no "anti-parties" instruction was required in the punishment stage. The state court's findings are therefore supported by the record, (St. Hab. F. at 79-83; St. Hab. Tr. at 41, 792-93), and the court determines that appellate attorney was not ineffective for failing to raise this claim on appeal.

In a related claim, Petitioner argues that appellate counsel failed to challenge the absence of an application paragraph in the guilt/innocence phase instructions applying the law of parties to his co-defendant Williams. Again, the lack of any mention of party liability as a means of finding Petitioner guilty in the application portion of the jury instructions could not have harmed Petitioner; rather, any inclusion of such a theory in the application paragraph would have only operated to "enlarge his criminal liability and decrease the State's burden." Campbell, 910 S.W.2d at 478. This claim therefore fails for the reasons previously stated and is insufficient to establish an ineffective assistance of counsel claim.

In the event the court determines that Petitioner waived the party and anti-party charge issue, Petitioner contends in his third claim for relief that such waiver amounted to a denial of effective assistance of counsel at trial. Having already determined that no such error occurred, this issue is moot, and the court need not address it.

n. Refusal to Excuse Venirepersons for Cause

Petitioner contends that appellate counsel's performance was deficient for failing to appeal the trial court's refusal to excuse several jurors for cause. Specifically, Petitioner argues that the trial court erred in overruling his objections to venirepersons Shepherd, Meziere, and Bumgartner.¹⁰

10 Petitioner also generally contends that "[o]ther jurors were challenged for these and other reasons" as if to invite the court, as he did the state trial court on habeas review, to explore the record to determine whether any of his other challenges had merit. (Hab. Pet. at 109). This pleading fails to provide the specificity required by Rule 2 of the rules governing § 2254 cases, and the court declines to engage in a review of the record to search for new grounds sua sponte.

In Texas, "[t]he denial or grant of a challenge for cause is within the discretion of the trial court, and will not be overturned absent an abuse of that discretion." Banda v. State, 890 S.W.2d 42, 53 (Tex.Crim.App. 1994). Consequently, it is unlikely that these claims would have prevailed on appeal. "This is especially true when this Court is faced with a vacillating or equivocating venireperson." Id. at 53-54; see also Ladd v. State, 3 S.W.3d 547, 559 (Tex.Crim.App. 1999) ("If a venireman vacillated or equivocated with respect to his ability to follow the law, the appellate court must defer to the trial court's judgment.").

Petitioner first complains of appellate counsel's failure to appeal the denial of the challenge for cause of venirepersons Shepherd and Meziere. A review of the record reveals that Sheperd equivocated in answering questions. This is substantiated by defense counsel's objection that the venireperson merely changed his position to give appropriate answers, "and I submit to the Court this man will tell the attorneys or anyone else anything he thinks they want to hear to get on this jury." (S.F. Vol. XVIII at 189-90). Moreover, the record regarding the complaints against Sheperd indicates that he was otherwise qualified to serve on the jury.¹¹ Similarly, the voir dire examination of venireperson Meziere reveals that although he "vacillated" in his answers, (S.F. Vol. XXXIV at 219), the trial court's finding that he was qualified to serve on the jury is supported by the record.¹²

11 After stating that he would automatically answer questions one and two seeing no meaningful difference between the terms "intentionally" and "deliberately" (S.F. Vol. XVIII at 154-56), he eventually recognized a difference and gave an answer that showed himself qualified on that point. (S.F. Vol. XVIII at 160-62, 168-73). Similarly, he eventually stated that he would not automatically answer Question No. 2 "yes" just because he found the defendant guilty and answered Question No. 1 "yes," but instead that he would consider each question separately based upon the evidence presented to him on each matter, and follow the instructions given to him. (S.F. Vol. XVIII at 162-64, 175-79, 183-88). Upon further questioning by the trial court, the venireperson stated that he could follow the law in each matter inquired upon, would keep an open mind and consider the full range of punishment (S.F. Vol. XVIII at 165), would obey the trial court's instruction to not consider parole (S.F.-XVIII 166), and would not require or expect the defendant or his lawyers to prove anything at all, including presenting mitigating evidence. (S.F. Vol. XVIII at 182-88). The record therefore supports the trial court's conclusion that this venireperson was qualified to serve on the jury.

12 After stating that "intentional" and "deliberate" "[f]or the most part, . . . seem the same to me" (S.F. Vol. XXXIV at 199-200), the venireperson later saw the difference between these two terms and stated that he would not automatically answer Question No. 1 "yes" just because he found him guilty of intentionally committing capital murder. (S.F. Vol. XXXIV at 211-16). Also, after initially agreeing with defense counsel that "a probability . . . is some chance that it would happen in the future," the venireperson later clarified that this was not just any chance, but not a 100 percent certainty either. (S.F. Vol. XXXIV at 200).

Petitioner also claims that appellate counsel failed to appeal the trial court's denial of his challenge for cause to venireperson Bumgartner. The record, however, reflects appropriate answers to each of the matters inquired about, even though the Bumgartner struggled with some questions that were confusing.¹³ Accordingly, appellate counsel was not ineffective for failing to appeal this issue.

13 Petitioner claims that this venireperson is "death prone," that is, unconstitutionally inclined to impose the death penalty where not permitted. (Hab. Pet. at 108). The record, however, does not support such an assertion. In fact, the venireperson showed thoughtfulness and some compassion for people who committed murder and hesitation in judging others and imposing the death penalty (S.F. Vol. XXXII at 144, 182), causing the prosecutor concern (S.F. Vol. XXXII at 147-48). Petitioner also claims that this venireperson placed the burden on the defense to prove mitigating evidence, and would not consider the full sentencing range. The court disagrees. The record indicates that she initially answered this question appropriately, (S.F. Vol. XXXII at 171-72, 176), but was confused by the defense counsel's question. (S.F. Vol. XXXII at 174-75). Even so, she later affirmed her commitment to follow the law and apply the burdens of proof to the prosecution and defense as instructed by the trial court. (S.F. Vol. XXXII at 204-05, 210-11). Accordingly, the record does not support Petitioner's assertion that the trial court erred in overruling his challenge for cause of this juror.

Finally, Petitioner contends that the trial court erred in granting a prosecutorial challenge for cause of a juror, who consistently stated "I don't honestly believe I could be convinced to give the death penalty to someone." (S.F. Vol. XIX at 167). After numerous lengthy examinations, the defense attorney acknowledged that the venireperson's answers to the trial court's questions "would seem to, on the record, disqualify him." (S.F. Vol. XIX at 169-70). The trial court was well within its discretion to excuse the juror, since it appeared that the juror could never answer the questions in such a way that a death penalty would result.¹⁴ The state court findings are therefore supported by the record, and Petitioner has failed to demonstrate that appellate counsel's performance was deficient such that he was denied effective assistance of counsel on this basis. (St. Hab. F. at 85; St. Hab. Tr. at 795).

14 ln excusing the juror, the trial court noted to defense counsel.
Obviously, I'm trying to ascertain if he's going to be fair and if he can do the job; and I spoke with him at least three times, the State has spoken with him, and he's saying he can't do it. It's obvious even with his demeanor that he couldn't do it. Even when he talks to you [defense counsel], he's very hesitant in his demeanor and almost sweating, so it's obvious based on his response to me and his demeanor, even when he answers you, he cannot do it. (S.F Vol. XIX at 170).

o. Jury Misconduct

In his thirteenth through sixteenth claims for relief, Petitioner contends that he was denied effective assistance of counsel, because appellate counsel failed to appeal the trial court's denial of his motion for new trial based upon jury misconduct. Specifically, Petitioner argues that jurors Alston and Hayes were coerced by other jurors into voting "yes" to the second special issue in violation of his rights under the Sixth, Eight, and Fourteenth Amendments. Specifically, Petitioner maintains that Patty Alston ("Alston"), the jury foreperson, testified that "she and another juror were coerced into changing her vote on the special issues. She never wished to vote for death." (Hab. Pet. at 109-10). Petitioner also refers to testimony regarding the jurors' discussion of parole and states that "votes were taken without the presence of all jurors." (Hab. Pet. at 110). These claims would not have prevailed on appeal.

In Texas, the standard for reviewing the denial of a motion for new trial is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995) ("Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial"). At the hearing on his motion for a new trial conducted on August 27, 1992, Petitioner called juror Alston to testify and the prosecution called Mike Lawler ("Lawler"). The trial court excluded much of Alston's testimony under Texas Rule of Evidence 606, but allowed Petitioner to make a bill of exception so that Alston's testimony was taken largely in the form of a bill of exception.¹⁵ Petitioner does not challenge the propriety of the testimony excluded, and some of the same evidence elicited in the bill of exception was admitted later in the same hearing and considered by the trial court. Since both parties addressed the merits of Alston's testimony in arguing this point, completely ignoring the fact that such testimony was largely developed in the form of a bill of exception, the court addresses the merits of Petitioner's argument as did the state trial court on habeas corpus review.¹⁶

15 At the hearing on the motion for new trial, Petitioner called Alston, the presiding juror. (S F. Vol. XXXXIX at 3-57). During Petitioner's direct examination of Alston, and Lawler's cross examination, the prosecutor objected to any testimony regarding any matter or statement during the course of the juror's deliberation "to the effect of anything upon his or any other juror's minds or emotions influencing him to dissent in a verdict" (S.F. Vol. XXXXIX at 5-13, 18, 20, 31, 52, 86, 90), and on the basis that the question called for speculation on the part of the juror. (S.F. Vol. XXXXIX at 28-29, 37, 88, 89). The trial court sustained almost all of these objections, and excluded a large portion of her testimony from the evidence considered. (S.F. Vol. XXXXIX at 13-14, 20, 86, 88-90). Petitioner, however, was allowed to make a bill of exception (S.F. Vol. XXXIX at 14-17, 20-27, 28-31, 32-36, 90-96), and the prosecutor was allowed to include the testimony of Lawler in the bill of exception without waiving his objection under Rule 606 of the Rules of Evidence. (S.F. Vol. XXXXIX at 62-75). The trial court made it clear, though, that it was not considering the testimony made part of the bill of exception. (S.F. Vol. XXXXIX at 72)

16 Evidence of a juror's mental processes or deliberations is excludable under Rule 606(b) of the Federal Rules of Evidence and Rule 606(b) of the Texas Rules of Evidence. Neither party, however, raised this issue. Since the court determines that this claim lacks merit, it is unnecessary to apply the exclusion sua sponte.

In its habeas corpus review, the trial court found that it had originally "held a lengthy hearing" on the motion for new trial, that Alston was called by the defense and Lawler by the State, and that "both parties extensively examined, re-examined, and cross-examined each others [SIC] witnesses, and that this Court observed the witnesses and their demeanor at that time." (St. Hab. F. at 90, St. Hab. Tr. at 799). The trial court on habeas review found that "Juror Alston was not a credible witness" and "had simply had a change of heart regarding the jury's verdict of death, and her testimony at the motion for new trial hearing was merely an attempt to get the case reversed." (St. Hab. F. at 91, St. Hab. Tr. at 800). The remaining findings, including the trial court's findings regarding the testimony of Alston and Lawler (St. Hab. F. at 90-99, St. Hab. Tr. at 798-805), support the trial court's exercise of discretion to deny the motion for new trial, and indicate that Petitioner would not have prevailed on his direct appeal of this matter.

In each of the specific matters within Petitioner's second claim for relief, the record indicates either that Petitioner was not prejudiced or appellate counsel's performance was not deficient for failing to assert the claims in question. Instead, appellate counsel's decision to concentrate on stronger points of error on appeal was in all instances reasonable under the circumstances. Ellis, 873 F.2d at 840. Petitioner has therefore failed to establish that he was denied effective assistance of counsel.

D. Punishment Phase

In his twenty-second through twenty-sixth claims, Petitioner attacks the jury instructions in the punishment phase of his trial. Petitioner contends in his twenty-second and twenty-third claims for relief that his right to due process and right to be free from cruel and unusual punishment were violated, because the jury did not understand the trial court's instructions pertaining to mitigation and other terms, such as "deliberately," "criminal acts of violence," "probability," "continuing threat," or "society." (Hab. Pet. at 245-81). In his twenty-fourth through twenty-sixth claims for relief, Petitioner contends that Article 37.071 of the Texas Code of Criminal Procedure, which sets forth the procedure to be followed in capital cases, is unconstitutional as applied to him, because it fails to allow the jury to properly consider mitigating evidence in the punishment phase instructions.¹⁷ (Hab. Pet. at 282-99). For the reasons set forth below, these claims are without merit.

17 Petitioner presents these claims as an alternative to his earlier claim that the trial court misapplied the state statute in question. (Hab. Pet. at 282).

First, with respect to his twenty-second claim, the Supreme Court in Jurek v. Texas, 428 U.S. 262 (1976), upheld the Texas statutory special issues in the punishment phase of capital trials upon the promise that these special issues would be construed broadly enough to include proper mitigation evidence.¹⁸ Id. at 272. Here, a broad construction was applied to the special issues, and in most cases, courts have held that these two special issues alone were sufficient to allow adequate consideration of all but two mitigating factors, In Penry v. Lynaugh, 492 U.S. 302, 322 (1989) (" Penry I"), the Supreme Court held that the two special issues alone were inadequate to give effect to the mitigating evidence of Penry's mental retardation and severe child abuse.

18 In Jurek, the Supreme Court observed that "the Texas statute does not explicitly speak of mitigating circumstances" in the special issues submitted to the jury. The Court further stated:

The Texas Court of Criminal Appeals has yet to define precisely the meanings of such terms as "criminal acts of violence" or "continuing threat to society." In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention to whatever mitigating circumstances he may be able to show.

Precedent in this circuit also forecloses relief on Petitioner's twenty-third claim. The Fifth Circuit has repeatedly upheld the use of the terms "deliberately," "probability," "criminal acts of violence," and "continuing threat to society" in punishment phase instructions without any further definition or clarification. See James v. Collins, 987 F.2d 1116, 1120 (5th Cir.), cert. denied, 509 U.S. 947 (1993); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993), cert denied, 511 U.S. 1026 (1994) ("We have determined that these words have a common meaning and adequately permit the jury to effectuate its collective judgment. Thus, consideration of this point is foreclosed."); Woods v. Johnson, 75 F.3d 1017, 1034 (5th Cir.), cert. denied, 453 U.S. 913 (1996) ("We have likewise frequently rejected challenges to the lack of definition of diverse terms in the first two punishment special issues."); Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir.), cert. denied, 483 U.S. 1035 (1987) ("deliberately" and "reasonable doubt" need not be defined as their "common meaning is sufficiently clear to allow the jury to decide the special issues on punishment").

With respect to his twenty-fourth through twenty-sixth claims, Petitioner submits the affidavit of Alston, the presiding juror in his trial, and the affidavits of six social scientists, who offer opinions regarding the jury instructions in a different Texas capital case.¹⁹ This evidence, however, is insufficient in light of Fifth Circuit's precedent regarding jury instructions. See James v. Collins, 987 F.2d at 1120 ("It is sufficient for the instant decision that the terms used in the Texas special issues are capable of being understood and applied without the aid of additional instructions."); Nethery v. Collins, 993 F.2d at 1162; Woods v. Johnson, 75 F.3d at 1034; Thompson v. Lynaugh, 821 F.2d at 1060; see also Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir. 1984), cert. denied, 471 U.S. 1030(1985) (stating that the terms used in jury instructions "ultimately mean what the jury says by their verdict they mean").

19 In this case, the trial court instructed the jury in accordance with Art. 37.071 of the Texas Code of Criminal Procedure as follows:
Special issue No. 1

Was the conduct of the defendant, Ronald Curtis Chambers, that caused the death of the deceased, Mike McMahan, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

Special issue No. 2.

Is there a probability that the defendant, Ronald Curtis Chambers, would commit criminal acts of violence that would constitute a continuing threat to society? (Trial Tr. at 151-52).

Moreover, Federal Rules of Evidence 606(b) prohibits courts from receiving the affidavit of a juror, who maintains that she did not understand the court's instructions. Even if the court could receive such evidence, here, there is nothing to indicate that the trial court improperly found Alston's testimony "not credible" (St. Hab. F. at 123; St. Hab. Tr. at 815), particularly in light of the other evidence before it, including the controverting affidavits of other jurors. (St. Hab. F. at 124-25, 166; St. Hab. Tr. at 815-16, 842).

Regarding Petitioner's contention that the jury did not understand or was unable to give effect to the mitigating evidence, Respondent points to a supplemental instruction given by the trial court. In order to address the deficiency in the Texas statutory scheme shown by the Supreme Court's holding in Penry I", the trial court inserted into the punishment charge a "nullification" instruction, as follows:

When you deliberate about the questions posed in the Special Issues, you are to consider any mitigating circumstances supported by the evidence presented in both phases of the trial. A mitigating circumstance may be any aspect of the defendant's character and record or circumstances of the crime which you believe makes a sentence of death inappropriate in this case. If you find there are any mitigating circumstances, you must decide how much weight they deserve and give them effect when you answer the Special Issues. If you determine, in consideration of this evidence, that a life sentence, rather than a death sentence, is an appropriate response to the persona] moral culpability of the defendant, you are instructed to answer at least one of the Special Issues under consideration "No."

(Trial Tr. at 148). This form of instruction was expressly disapproved of in Penry v. Johnson, 532 U.S. 782, 798-800 (2001) (" Penry II"); however, for the reasons herein stated, Petitioner was not entitled to a special mitigation instruction. As a result, the inclusion of the supplemental instruction does not entitle him to habeas corpus relief.

This circuit has adopted a two-part test for determining whether a defendant's evidence requires a special mitigation instruction: "We `must determine (1) that the proffered evidence was constitutionally relevant mitigating evidence, and, if so, (2) that the proffered evidence was beyond the `effective reach' of the jurors.'" Smith v. Cockrell, 311 F.3d 661, 680 (5th Cir. 2002), petition for reh'g filed, No. 01-21209 (Dec. 2, 2002) (quoting Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994)). Whether certain evidence qualifies as constitutionally relevant mitigating evidence depends on whether the criminal act was "due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own." Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.) ( en banc), cert. denied, 504 U.S. 972 (1992). "This formulation encompasses four principles found in Penry I: voluntariness, permanence, severity, and attribution. Did the defendant acquire his disability voluntarily or involuntarily? Is the disability transient or permanent? Is the disability trivial or severe? Were the criminal acts a consequence of this disability?" Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir. 2003) (en banc), petition for cert. filed, 71 U.S.L.W. 3760 (U.S. May 30, 2003) (No. 02-1766).

Here, Petitioner's evidence does not rise to the level required. A Penry instruction was therefore not required. See Robertson, 325 F.3d at 257 ("In the absence of Penry-quality mitigating evidence, the presentation of this instruction does not constitute error of any sort"); Smith, 311 F.3d at 681 (" Penry II will not even be considered as a ground for habeas relief until Smith has demonstrated that he presented Penry-type mitigating evidence."). Accordingly, even if the supplemental instruction in Petitioner's trial was deficient, it does not entitle him to habeas relief, because he was not entitled to a Penry instruction.

E. Miscellaneous Claims

Petitioner "raise[s] for the record" claims thirty-eight through forty-one. In his thirty-eighth claim for relief, Petitioner contends prosecutors and defense counsel agreed privately to trade jurors at the extremes of the death penalty spectrum, thereby violating Petitioner's right to a fair jury trial, his right not to be subjected to cruel and unusual punishment, and his right to effective assistance of counsel, as provided by the Sixth, Eighth, and Fourteenth Amendments. (Hab. Pet. at 314-15). In his thirty-ninth claim, Petitioner contends that trial counsel excused or struck venire jurors without his permission and against his wishes, thereby violating his right to a fair jury trial, his right against cruel and unusual punishment, and his right to effective assistance of counsel, as provided by the Sixth, Eighth, and Fourteenth Amendments. ( Id. at 317-18). In his fortieth claim, Petitioner contends that his right to be free from cruel and unusual punishment and his right to due process were violated, because the State introduced victim impact testimony in the sentencing phase without objection. ( Id. at 319-10). Alternatively, in his forty-first claim, Petitioner argues he was denied effective assistance of trial counsel in violation of the Sixth Amendment, because counsel failed to object to the introduction of victim impact evidence and argument. ( Id. at 319-10).

Petitioner concedes that he "no evidence or law," which would entitle him to relief on claims thirty-eight through forty-one. (Hab. Pet. at 313). He also states that "[s]hould favorable law or evidence materialize, the Court should grant relief." ( Id. at 313). Since Petitioner failed to cite any legal authority or evidence in support of these claims, they are without merit, as a matter of law, and must be denied. IV. Conclusion

For all of the reasons herein stated, there is no genuine issue of material fact with respect to any claims raised by Petitioner, and Respondent is entitled to judgment as a matter of law. Accordingly, Respondent's Motion for Summary Judgment is granted, Petitioner's Writ of Habeas Corpus is denied, and this action is dismissed with prejudice.

With respect to costs, Fed.R.Civ.P. 54(d)(1) provides that "costs other than attorney's fees shall be allowed as a matter of course to the prevailing party unless the court otherwise directs." Rule 54(d) creates a strong presumption that the prevailing party will be awarded costs. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985). In this case, however, Petitioner is proceeding in forma pauperis and does not have the means to pay costs. Under these circumstances, the court does not believe that the imposition of costs against Petitioner is warranted. Accordingly, Respondent shall only bear her own costs. In accordance with Fed.R.Civ.P. 58, a judgment will issue by separate document.