* Pursuant to Local Rule 47.5, the court has determine d that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-20398

_______________________

JACK LUCIOUS, JR.,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-94-377)

______________________________________________________________________________ April 29, 1997

Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges. *

EDITH H. JONES, Circuit Judge:

Appellant Jack Lucious appeals from the district court’s denial of his request fo r

habeas relief. He seeks a writ of habeas corpus claiming that at his st at e t rial for robbery, he was2

denied his constitutional right to testify in his own behalf. He also complains that there is insufficient

evidence to support his conviction. For the following reasons, we deny his request for habeas relief.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Lucious’s State Court Trial

On March 5, 1991, Lucious was tried for robbery. The State produced evidence that

on the afternoon of October 23, 1990 in Houston, Texas, Consuela Aguirre was walking from work

to a grocery

store to purchase a money order. As she walked, she was pushed down from behind,

and her purse was forcibly taken from her. The assailant then pushed Aguirre’s head against the

sidewalk, injuring her. Although Aguirre did not see her assailant’s face, she did observe that he was

a black man wearing a dark brown jacket, a cap, and light brown pants. Unsuccessfully, she chased

her assailant on foot as he fled from the scene.

At about the time o f t he assault, Johnny Fisher was outside his house in the

neighborhood in which Aguirre was robbed. He noticed a black man walking down the street

wearing army green fatigue pants, a green t-shirt, and a green camouflage hunting hat. Having

previously seen the man in the neighborhood and feeling that the man looke d suspicious, Fisher

continued to watch until he passed by Fisher’s house. After the man passed his house, Fisher went

back to working on his boat. Moments later, Fisher heard a dog barking. The same man he had just

seen was sprinting down the street with a black object tucked under his arm. The man ran through

a vacant lot, crouched down briefly behind some bushes, and then disappeared behind a house. Fisher

then saw Aguirre pursuing the man and yelling that he had just taken her purse.3 Fisher called the police and an ambulance to assist Aguirre. Within an hour, the police

completed a report and left without apprehending Aguirre’s assailant. The ambulance carried Aguirre

to the hospital for treatment of her injuries.

After the police left, Fisher discovered Aguirr e’s purse in the bushes where he had

earlier seen the assailant crouching. He called the police, and an officer arrived approximately fifteen

minutes later. As Fisher was showing the officer the location of the purse, Fisher noticed the suspect

walking toward them in a pair of flowery beach shorts and a blue t-shirt. Despite the man’s change

of clothing, Fisher identified the man as the one he had seen sprinting down the street after Aguirre’s

attack. Based on this information, the police arrested the suspect: Lucious.

Although it was d isco vered t hat $80 and a bank card were missing from Aguirre’s

recovered purse, the police never recovered the money. Neither did they find clothing matching the

description of the assailant’s clothing. No fingerprints were lifted from the recovered purse.

At trial, Lucious’s appointed trial co u nsel called no defense witnesses. As the trial

court began reading the charge to the jury, Lucious interrupted the proceedings, complaining that all

of his motions to the court had been overruled. After the court fruitlessly inst ructed Lucious to

remain silent and warned him th a t he would be removed from the courtroom if he did not remain

silent, Lucious was escorted from the courtroom by the bailiff. On his way out the door, Lucious told

the bailiff to inform his attorney that he wanted to testify on his own behalf. The bailiff fulfilled t his

request and gave a note to Lucious’s counsel.

Although it is not clear from the record precisely when Lucious was allowed to return,

the court permitted Lucious to be brought back into the courtroom before the court had completed1 In fact, at the hearing on the Motions for New Trial, Gooden expr essly did not adopt

Lucious’s pro se motion for new trial.

4 reading the charge. Lucious repeatedly interrupted the court during the reading of the charge, stating

that he had never seen Aguirre before. The court ordered Lucious gagged. When Lucious stated that

he would rather be removed than be gagged, he was once again escorted from the courtroom

. As

he was being removed this second time, Lucious again stated that he had never seen Aguirre before.

Then he stated, “I want to take the witness stand.” After Lucious left, the court instructed the jury

to disregard any outbreaks that had occurred in the courtroom

. The court proceeded with the reading

of the charge and closing arguments and submitted the case to the jury that same day.

The next day the jury found Lucious guilty of robbery. After a punishment hearing

at which the state presented evidence o f Lucious’s prior convictions, the jury sentenced Lucious,

enhanced pursuant to T EX

. P ENAL C ODE A NN . § 12.42(d), to life imprisonment.

B. Lucious’s Motions for New Trial

On March 26, 1991, Lucious filed a pro se motion for new trial complaining that his

court-appoi nted attorney had “prejudiced the defense” by not allowing Lucious to testify. On April

5, 1991, Lucious’s court-appoi nted trial attorney

, Elijah Gooden, filed another motion for new trial

complaining about the insufficiency of the evidence but not about the denial of Lucious’s right to

testify. 1

The court held a hearing on both motions. At this hearing, Lucious was represented

by his trial counsel, Gooden, as well as by Stanley Kirk, Lucious’s court-appointed counsel for his

appeal. The courtroom deputy testified that, while he was being removed from the courtroom the5

first time, Lucious had requested that the bailiff tell his lawyer that he wanted to testify. The bailiff

relayed this request to Gooden.

Gooden testified that he and Lucious had had numerous discussions

-- both before and

during the trial

-- regarding whether Lucious should testify. Together they had decided, in part

because of Lucious’s prior convictions and the weakness of the State’s circumstantial evidence, that

it would be best if Lucious did not take the stand. Gooden testified that Lucious had told him that

he had been acquitted at a previous felony trial because he had chosen not to testify and he wanted

to employ the same strategy here. Gooden concluded: “It was his decision not to testify. I at all

times relevant thereto left it up to Mr. Jack Lucious to decide for himself whether he wanted to testify

or not.”

Lucious, contradicting Gooden’s testimony, stated that he and Gooden did not reach

a decision regarding whether Lucious would testify. Had Lucious been permitted to take the stand,

he would have testified that (1) at the time of his arrest, he was on his way to his job, (2) he did not

have clothes fitting the description of those worn by Aguirre’s assailant, a nd (3) on the day of his

arrest, a person whom he knew and for whom he was often mistaken was wearing clothing fitting the

description of Aguirre’s assailant.

Immediately following the close of evidence at the hearing and without making any

factual findings, the state trial court denied Lucious’s motion for new trial.

C. Lucious’s Direct Appeal

On direct appeal, Lucious asserted, inter alia

, that the trial court erred in not

permitting him to testify before the argument of counsel was begun in violation of T EX

. C ODE C RIM

.2 T EX

. C ODE C RIM

. P. A NN

. art. 36.02 provides:

The court shall allow testimony to be introduced at any time before the argument of

a cause is concluded, if it appears tha t it is necessary to a due administration of

justice.

6 P. art. 36.02 2 and that his trial counsel was ineffectiv e for not convey ing to the court Lucious’s

request to testify in his own behalf. S ee Lucious v. State, 828 S.W.2d 118, 120 (Tex. App.--Houston

[14th Dist.] 1992], no pet.); see also Lucious’s appellate brief filed in state court at 15.

In affirming the judgment of the trial court, the state appellate court ruled that Lucious

“did not t imely request that the court reopen the case nor did the court have any indication as to the

substance and materiality of appellant’s testimony” at the time that a motion to reopen would have

been appropriate:

In fact, the court did not learn of the nature of appellant’s testimony until the hearing

on the motion for new trial. At that point, the court could only have granted a new

trial, not reopen the case. Appellant does not complain about the denial of his motion

for new trial.

Lucious, 828 S.W.2d at 121. The court further denied Lucious’s ineffectiveness claim, noting that

the evidence was undisputed that the decision regarding whether Lucious would testify was left up

to Lucious:

In discussions with his attorney both before and during trial, appellant decided not to

testify.

. . . It appears from the record that trial counsel’s actions were considered at

length. In light of appellant’s prior criminal record, advice that appellant not testify

was certainly plausible trial strategy.

Id . at 123.

Lucious did not file a petition for discretionary review with the Texas Court of

Criminal Appeals.7 D. Lucious’s Requests for State Habeas Relief

Lucious filed three pro se state applications for writ of habeas corpus challenging his

conviction. The Texas Court o f Criminal Appeals denied his first writ because Lucious’s direct

appeal was pending. S ee Ex parte Lucious, Applicat ion No. 6,031-03, at cover (Sept. 18, 1991).

The two subsequent applications were denied without writt en order. S ee Ex parte Lucious,

Application No. 6,031-04, at cover (Dec. 9, 1992); Ex parte Lucious, Application No. 6,031-05, at

cover (Dec. 15, 1993).

E. Lucious’s Request for Federal Habeas Relief

Lucious then filed this application for writ of habeas corpus pro se in federal district

court on February 4, 1994 complaining t hat (1) t here was insufficient evidence to sustain his

conviction, (2) the state trial court erred in not permitting him to testify before argument of counsel

had begun, (3) he received ineffective assistance of counsel at his trial, (4) the state trial court erred

in denying his pro se motion for new trial, and (5) he rec e ived ineffective assistance of counsel on

direct appeal. The district court ruled against Lucious on all of his claims and denied his petition.

Because Lucious’s complaint regarding the denial of his right to testify was couched in terms of an

improper denial of a request to reopen his case, the district court did not discuss the scope of a

constitutional right to testify. Instead, the district court held that the state trial court had not erred

in not permitting him to testify because the “decision to reopen a case after the close of evidence is

within the discretion of the trial court” and the trial court had not abused its di screti on. In i ts

discussion concerning the alleged ineff e ctiveness of his trial counsel and the fact that Gooden

allegedly disregarded Lucious’s wish to testify, the district court stated:8

The state court of appeals found that before trial, Lucious had decided not to testify,

in accordance with his lawyer’s advice. The lawyer’s advice was based on the fact

that if Lucious did testify, his prior criminal record would have been placed before the

jury during cross-examination. The state court concluded that this decision did not

represent deficient performance. This court has no basis on which to find otherwise.

Regarding the ineffectiveness claim, the court also ruled that Lucious could not satisfy the Strickland

prejudice prong: “Lucious could not show that a different decision by counsel would have altered

the outcome of the trial.”

Lucious t imely filed a Notice of Appeal to this court. This court granted a certificate

of probable case and appointed counsel for Lucious.

F. Current Appeal From Denial of Lucious’s Request for Federal Habeas Relief

Throughout the procedural history of this case, Lucious has raised the issue regarding

his right to testify in terms of either (1) the court’s failure to reopen his case or (2) an ineffectiveness

of counsel claim. In this appellate court, Lucious was allowed by the grant of CPC to recharacterize

his claim as a federal constitutional issue. He now asserts that the lower court erred in denying his

request for habeas relief because (1) the state trial court ignored Lucious’s express request to testify

“thus depriving Lucious of his constitutio nal right to take the stand on his own behalf,” and (2)

Lucious received ineffective assistance of trial counsel who failed to obtain a “knowing, intelligent,

and voluntary decision from Lucious regarding his desire to testify after Lucious expressed a desire

to testify on the record in open court.” The State has waived the exhaustion requirement.

II. DISCUSSION

This court is barred fro m entertaining Lucious’s constitutional claim because it

foundered in the state courts based on independent and adequate state law grounds

-- i.e., Lucious’s9

failure t imely to request that his case be reopened, pursuant to T EX

. C ODE C RIM

. P. art. 36.02, so that

he could testify. It is well-settled that the federa l co urt s may not review on habeas a decision of a

state court that rests on a state law ground that is “independent of the federal question and adequate

to support the judgment.” C oleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553 (1991) ;

Moore v. Roberts, 8 3 F.3d 699, 701 (5th Cir. 1996), cert. denied,

___ U.S.

___, 117 S.Ct. 772

(1997). “The independent and adequate state ground doctrine ‘applies to bar federal habeas when

a state court decline[s] to address a prisoner’s federal claims because the prisoner ha[s] failed to meet

a state procedural requirement.’” Moore, 83 F.3d at 701-02 (quoting Coleman, 501 U.S. at 729-30,

110 S.Ct. at 2554).

When the state court has “clearly and expressly” stated that its judgment rests on a

state procedural bar, a presumption arises that the state court decision rests on independent and

adequate state law grounds. S ee Harris v. Reed, 489 U.S. 255, 263 (1989). The petitioner may rebut

this presumption by establishing that the procedural rule is not strictly or regularly followed by the

state courts. S ee Moore, 83 F.3d at 702 (citing Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)).

However, even upon a finding that the procedural rule is regularly followed by the state courts, the

petitioner may still prevail by demonstrating (1) cause for the procedural default and actual prejudice

as a result of the alleged violation of federal law or (2) that failure to consider his claims will result

in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Moore,

83 F.3d at 702.

In Lucious’s case the Texas courts consistently and expressly ruled that Lucious did

not t imely request to reopen his case so that he could testify. S ee T EX

. C ODE C RIM

. P. art. 36.02.10

The trial transcript reveals that Lucious was being ejected from the courtroom for the second time

during the jury charge when he blurted out a request to testify. Texas law does not require reopening

the evidence after both sides have rested. Instead, the test is whether a judge abused his discretion

in denying a motion to reopen. S ee Yee v. State

, 790 S.W.2d 361, 362 (Tex. App.

-- Houston [14th

Dist.] 1990); L ucious v. State

, 828 S.W.2d at 120-21. The criteria for reopening, including a

description of the proffered testimony, were plainly not met by Lucious’s outburst. As the Supreme

Court has stated, “the right to present relevant testimony [ i.e. the testimony of the accused] is not

without limitation.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711 (1987). This right

may bow to other leg it imat e st ate interests, such as controlling the presentation of evidence in a

criminal trial. S ee i d. at 55 & n.11 (“Numerous state procedural and evidentiary rules control the

presentation of evidence and do not offend the defendant’s right to testify.”).

Perhaps because Lucious was instructed by this court to brief the denial of the

constitutional right to testify, it did not seem necessary to show that this bar on mandatory reopening

is not strictly or regularly followed by the Texas state courts. Such an effort would be futile in any

event: the state courts that reviewed Lucious’s claims consistently applied the procedural rule. It

is not our function to review a state’s interpretation of its own law. S ee Moreno v. Estelle, 717 F.2d

171, 179 (5th Cir. 1983), cert. denied, 466 U.S. 975 (1984). We, therefore, defer to the state courts’

interpretation of this statute.

Lucious likewise cannot demonstrate cause for his procedural def aul t. To demonstrate

cause, Lucious must establish that something that cannot fairly be attributed to him impeded his

efforts to comply with the procedural rule. S ee Coleman, 501 U.S. at 753, 111 S.Ct. at 2566; Moore,3 Lucious cannot demonstrate that his attorney’s inaction constituted ineffective assistance of

counsel. See infra.

4 On dir ect appeal and after reviewing the proceedings that were held in the trial court to

consider this very issue, the state appellate court determined that “[i]t is undisputed that the decision

whether to testify was left up to [Lucious],” not his attorney. See Lucious, 828 S.W.2d at 122.

11 83 F.3d at 704. The fact that Lucious’s trial attorney did not timely request reo pening of the

evidence is not “something that cannot fairly be attributed to” Lucious, unless his attorney’s actions

constituted ineffective assistance of counsel: 3

‘[T]he existence of cause for a procedural default must ordinarily turn on whether the

prisoner can

sho w t hat some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule. . . .

Attorney ignorance or inadvertence is not “cause” because the attorney is the

petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and

the petitioner must “bear the risk of attorney error.” Attorney error that consti tutes

ineffective assistance of counsel is cause, however.

Coleman, 501 U.S. at 753-54, 111 S.Ct. at 2566-67 (quoting Murray v. Carrier, 477 U.S. 478, 488

(1986)) (citations omitted). Lucious never demonstrated that his attorney erred in failing to comply

with T EX

. C ODE C RIM

. P. art. 36.02; if anything, the state courts were persuaded by the attorney’s

testimony that as a matter of trial strategy he and Lucious decided Lucious should not take the stand. 4

Because no “cause” exists for the procedural default, we need not inquire into actual prejudice.

Lucious has not suggested that the failure to consider his claim will result in a

fundamental miscarriage of justice. The class of such cases is “exceedingly narro w, resulting from

‘extraordinary instances when a constitutional violation probably has caused the conviction of one

innocent of the crime.’” R odriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997) (quoting McClesky

v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470 (1991)). After a thorough review of the record,12

we are satisfied that the absence of Lucious’s testimony at his trial did not result in the conviction of

an innocent man.

Because Lucious’s claim was dismissed on an independent and adequate state ground,

“resolution of any independent federal g ro und fo r the decision could not affect the judgment and

would therefore be advisory.” C oleman, 501 U.S. at 729, 111 S.Ct. at 2554. In fact, the procedural

history of this case emphasizes the fundamental wisdom of barring habeas review based on an

independent and adequate state ground of decision. Contrary to Lucious’s assertions, the state courts

never addressed his constitutional complaint of denial of the right to testify because they could not

find that issue preserved at trial. If this court were to reach the constitutional issue, we would be (1)

giving Lucious a hearing beyond that to which he was entit led at st at e law; (2) deciding an issue

which the state courts never had an opportuni ty to consider; and, potentially, (3) consideri ng an

award of relief broader than the Supre me Co urt could have permitted on direct review of the

conviction. S ee generally Coleman, 501 U.S. at 730-32, 111 S.Ct. 2554-55. These presumptuous

actions would ill suit a court bound by feder a lism and comity. For these reasons, federal habeas

review of Lucious’s claimed denial of the right to testify is barred.

Lucious also contends that his attorney was ineffective for not acceding to his belated

request and insist ing to the court that he testify. Lucious’s claim of ineffective assistance of counsel

necessarily fails. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).

In order to establish an ineffective assistance claim, the defendant must establish that (1) his counsel’s

performance was deficient and (2) the deficient performance prejudiced his defense. See id

.13 Each court that has reviewed Lucious’s claim has determined

-- and reasonably so

--

that his attorney’s decision not to call Luc io us as a witness was plausible trial strategy. As Elijah

Gooden, Lucious’s trial counsel, testified at th e hearing on the motion for new trial, in his

professional judgment, the State’s case against Lucious was we ak -- for example, there were no

eyewitnesses to the assault who could identify Lucious as Aguirre’s attacker, Lucious’s fingerprints

were not lifted from the recovered purse, and no clothes matching the description of those worn by

Aguirre’s assailant were ever recovered. In fact, Gooden was of the opinion that the State’s case was

so weak that he chose not to put on any witnesses at all. His specific decision not to put Lucious on

the stand was made after several consultations with Lucious during which Lucious made it clear to

Gooden that he did not want to testify . Moreover, both Gooden and Lucious believed that placing

Lucious on the stand would invit e Lucious’s prior criminal record to be exposed during crossexamination.

After consulting with his attorney and because of his experience of being acquitted

after not t est ifying at an earlier felony trial, Lucious chose not to testify. Then after the close of

evidence

-- and apparently only after it appeared to him that things were not looking favorably to his

case

-- he changed his mind. Lucious’s counsel testified that “he did not present a motion to reopen

the case because throughout the trial [Lucious] expressed a desire not to testify in view of his prior

felony convictions and his belief that the State would not be able to prove its case.” L ucious, 828

S .W.2d at 121. Considering his interactions with Lucious both before and during the t rial, t his

certainl y was reaso nable professional conduct. We agree with the state courts that Lucious’s

representation at his trial was n o t deficient; Lucious’s claim of ineffective assistance of counsel14

necessarily fails. S ee Strickland, 466 U. S. at 687, 104 S.Ct. at 2064 (to establish ineffectiveness

claim, defendant must prove deficient performance of counsel and actual prejudice).

III. CONCLUSION

Because application of the indep endent and adequate state ground doctri ne i s

dispositive of Lucious’s principal claim, we do not reach the applicability of the AEDPA or the merits

of that claim. Lucious also complains that there was insufficient evidence to sustain his conviction.

After a thorough review of the record and for essentially the same reasons cited by the district court

in its opinion, we reject this contention. The judgment of the district court is AFFIRMED

.