IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20758

CHARLIE LIVINGSTON,

Petiti oner-Appellant,

versus

GARY JOHNSON, Director, Texas Department

of Criminal Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

February 27, 1997

Before DUHÉ, WIENER, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Charlie Livingston (“Livin gston”), a Texas death-row inmate, appeals the district court’s

dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 and requests a certificate

o f pro bable cause (“CPC”) from this Court to appeal the district court’s decision. We t reat

Livingston’s request for CPC as a request for Certifica t e of Appealability (“COA”). Livingston

insists that his conviction and death sentence are rendered unconstitutional by a list of alleged errors,

including ineffective assistance of counsel, the district court’s refusal to hold an evidentiary hearing,

suggestive pretrial identification procedures, and vario us defects in the jury instructions. After a

careful rev iew o f the applicable law, we conclude that the district court did not err in rejecting

Livingston’s contentions. We therefore refuse to issue a CPC (now COA) and dismiss the appeal.

BACKGROUND2

At approximately 8:00 p.m. on the evening of August 10, 1983, Janet Caldwell left her home

and drove to the Weingarten’s grocery store located at West 43rd Street and Oak Forest Drive in

Houston, Texas. She parked her black Chevrolet pickup truck in the parking lot on the west side of

the store. After she finished shopping, Caldwell left the store carrying two bags of groceries and a

purse, and walked through the parking lot to her truck. She was shot and killed in the parking lot

moments later. Several eyewitnesses testified to events they observed that night.

Ernest Warren saw Caldwell as she was leaving the store between 8:00 and 8:45 p.m. that

night.

Lynne Coleman had pulled into the Weingarten’s parking lot and was parked in front and to

the left of Caldwell’s truck when she observed the arms of two p eople st ruggling and heard a

gunshot.

Joe Cunningham was shopping at Weingarten’s at approximately 8:30 p.m. He shopped for

about thirty minutes, left the store, and was placing his groceries in his car when he heard a woman

screaming. He looked up and saw a struggle between a black male and a white female with light

brown hair. He took a few steps in the direction of the people struggling and then whistled and yelled

at them to try to stop the altercation. Then, Cunningham saw the black male push away from the

female, or shove her back, and then pull out a pistol and shoot the woman. Immediately thereafter,

the black m an spun around, fell forward on one knee, and then took off toward the west of the

parking lot. Cunningham noticed that the man was wearing a white cloth over his face and dark

clothing with white letters on the front of his shirt. The man had a gun and a purse when he ran from

the scene. About ten minutes later, a police car pulled up to the scene with a black male seated in the

back. The man was wearing dark clothes with white lettering on the front of his shirt and was

sweating profusely. At trial, Cunningham identified Livingston as the man who was in the back of

the police car and, based on his appearance and clothing, the man in the police car looked like the

same person who had done the shooting.1 These witnesses were Donald McDaniel, a high school student who worked with Jerry Thompson

3 Raul and Flor Monzon were in a car crossing the intersection of Oak Forest Drive and West

43rd Street when Flor heard a woman scream and a gunshot. Raul pulled the car into a Gulf Service

Stati on across the street from the Weingarten’s parking. They observed a black man running through

the parking lot toward a dumpster. The man was wearing a white mask and was carrying a gun and

a lady’s purse. He was wearing dark clothing with white lettering on the front of his shirt.

Donald Austin was walking toward the entrance of Weingarten’s when he heard a scream.

Austin turned around, saw nothing unusual, and proceeded walking. Then, he heard another scream,

turned around, and ran toward the sound of the scream. As he ran, he heard a gunshot or shots and

saw the flash of a gun as it was fired. He saw a black man wearing dark clothes with lettering on the

back of his shirt. The black man ran around the back of a truck toward Oak Forest Drive, tripped,

appeared to drop something at a dumpster, and then turned north on Oak Forest Drive.

Jerry Thompson was working at the Gulf Stati on on Oak Forest Drive when he heard screams

and a gunshot. Then, he saw a black man back away from a pickup truck, run toward the station,

and hide behind a dumpster. Thompson observed that the man was wearing dark clo thes with

something white over his face. The man was carrying a purse and a gun, which he pointed at

Thompson and his co-worker, Donald McDaniel. The man then crossed the street, went behind the

Gulf Station, and then ran north on Oak Forest Drive into a residential subdivision.

Lavern Morton we nt t o Weingarten’s between 8:00 p.m. and 9:00 p.m. After buying

gro ceries, Morton heard two screams and shots when he was leaving the store. He looked in t he

direction of the screams and saw a struggle between a black man and a white woman. The black man

ran west, turned north on Oak Fo r est Drive, stopped at a dumpster to drop something, and then

turned north on Oak Forest and ran out of sight. At trial, Morton positively identified Livingston as

the man he saw struggling with Caldwell.

Several other eyewitnesses either identified Livingston in court as the shooter or identified

him as the shooter when he was brought to the crime scene on the night of the murder, or both. 1at the Gulf Station; Mary Norton; and Bruce Norton.

4 Houston police officers James Curtis and Margie Curtis were on patrol on West 43rd Street

when they stopped to check with officer David Cook who was conducting a routine traffic stop. An

unkno wn man drove up and informed the officers that a shooting had occurred in the Weingarten

parking lot. The officers left immediately for the scene of the crime. Upon arriving at the scene, the

Curtises noticed a black man in the dimly lit area behind the Weingarten store. When the man saw

the police car, he began walking in the opposite direction. The officers pulled up to the man, got out

of the police car, and approached him. James Curtis asked the man if he knew anything about the

shooting at Weingarten’s. The man denied any knowledge about the shooting and claimed that he

had been shopping inside Weingarten’s. The man was not carrying any groceries; he was sweating

profusely, and his pants were ripped from his knee to his crotch. James Curtis asked t he man for

identification, to which the man replied that he had fo rgo t t en his wallet. At trial, both officers

identified the man as Livingston.

James Curtis asked Livingston if he would accompany the officers to the scen e while they

investigated the shooting. Livingston agreed, and after a quick pat search he was placed in the back

of the police car. The officers drove to the Weingarten parking lot. Upon arriving at t he scene,

Margie Curtis exited the car and approached officer Cook. At that moment, Cook was broadcasting

a description of the suspect over police radio. Margie Curtis informed Cook that they had a man in

the back of the patrol car that matched the description. Several eyewitnesses viewed Livingston in

the back of the patrol car and identified him as the shooter. The officers arrested Livingston and read

him his Miranda rights. A set of car keys was found in Livingston’s pocket and the officers found

his car parked behind the Gulf Service Station.

Officer Troy Blando arrived at the scene and observed the victim lying on the parking lot face

up with a gunshot wound to her throat. He observed a spent 9mm cartridge casing near Caldwell’s

body and a purse flap beneath her body. Blando found the remainder of the victim’s purse near the

dumpster at the west end of t he parking lo t . Blando also found a piece of white cloth covering a2 Mr. Koivula was not called to testify by the State at trial.

5 9mm pistol under a bush. Additional investigation by Blando uncovered four footprints in the soil

leading away from the crime scene near where the police stopped Livingston. A cast was made of one

of the footprints and compared with Livingston’s tennis shoes. At trial, Wesley Sheldon, a fingerprint

examiner, testified that there was a high probability that Livingston’s shoes made the imprint.

The officers took Livingston to the police department and attempted to run a trace metal test

on his hands and chest. Livingston resisted vehemently and had to be physically rest rained from

rubbing his hands together. Officer J.K. Jones conducted the test and observed a purplish black

pattern on Livingston’s right hand. Due to an accident, however, the lights were temporarily turned

off. Livingston took the opportunity to spit on his hands and chest, thereby ruining the trace metal

test.

A lineup was conducted just after midnight. Livingston occupied the center position of five

persons. He was the stockiest of all the participants and was the only one wearing clothes similar to

the ones worn by the assailant. Flor Monzon, Lawrence Morton, and Walter Koivula 2 all positively

identified Livingston at the lineup. All other witnesses identified him tentatively.

Officer R.D. Anderson interviewed Livingston. He claimed to have ripped his pants at work

and denied any involvement in the murder. Later, Livingston confessed to the murder, but neither

side introduced the confession at trial. On August 10, 1983, Livingston was charged with the capital

murder of Janet Caldwell. Counsel for Livingston sought a suppression hearing alleging that the

showup and lineup were unduly suggestive and that, during both, Livingston lacked the presence of

counsel. Following the hearing, the confession was not suppressed, nor were in-court identifications

based on the showup. However, in-court identifications based on the lineup were suppressed because

the state failed to show that Livingston was apprised of his right to counsel before the lineup.

PROCEDURAL HISTORY

Livingston was prosecuted for capital murder in the 180th District Court of Harris County,

Texas. A jury convicted him of capital murder on April 17, 1985, and subsequently returned6

affirmative answers to the special issues of former Tex. Code. Crim. Proc. Art. 37.071. The Texas

C ourt of Criminal Appeals affirmed Livingston’s conviction and sentence on October 21, 1987.

Livingston v. State

, 739 S.W.2d 311 (Tex. Crim. App. 1987). Livingston’s petition to the United

States Supreme Court for a writ of certiorari was denied on June 20, 1988. L ivingston v. Texas

, 487

U.S. 1210, 108 S. Ct. 2858 (1988).

On June 9, 1989, Livingston’s June 13, 1989 execution date was postponed in order to allow

the 180th District Court for Harris County, Texas, to consider Livingston’s state petition for habeas

corpus. On November 15, 1994, Judge Patricia Lykos, the presiding judge at Livingston’s trial,

entered findings of fact and conclusions of law recommending the denial of state habeas relief. On

December 12, 1994, the Court of Criminal Appeals denied the writ application on the basis of those

findings and set Livingston’s date of execution for on or before sunrise, January 26, 1995.

On January 19, 1995 Livingston filed his first federal petition with the United States District

Court for the Southern District of Texas. On January 20, 1995, U.S. District Court Judge, Ewing

Werlein, Jr., granted Livingston’s Stay of Execution and reset the hearing date to respond to t he

motion on the merits. Following the respondent’s answer and motion for summary judgment, on June

13, 1995, the court granted the motion for summary judgment, and denied Livingston’s habeas

petition on the merits. On June 27, 1995, Livingston filed a timely motion pursuant to F.R.C.P. 59(e)

to alter, amend, or in the alter native, to reopen the judgment. The court denied that motion on

August 29, 1995. Thereafter, Livingston timely filed his notice of appeal to this Court.

DISCUSSION

Livingston raises four contentions that merit our consideration. First, Livingston insists that

the district court denied him due process by imprope rly refusing to hold an evidentiary hearing.

Second, Livingston cla ims t hat he was denied a fair trial because he did not receive effective

assist ance of counsel during either the guilt-innocence or punishment phases of his trial. Third,

Livingston claims that his federal constitutional right to due process was violated by suggestive3 Pub. L. No. 104-132, 110 Stat. 1214 (1996).

7 pretrial identification procedures. Fourth, Livingston argues that his constitutional right to due

process was violated by both the trial court’s definition of the mens rea of “intent” in the jury charge

and the trial court’s refusal to instruct the jury on the lesser-included offense of felony murder. We

reject each of these contentions.

I. Standard of Review

“A petitioner must first obtain a Certificate of Probable Cause in order for jurisdiction to vest

with this court.” Baldree v. Johnson

, 99 F.3d 659, 660 (5th Cir. 1996). To obtain a CPC, the

petitioner must make a “substantial showing of the denial of a federal right.” Id. ( citing Barefoot v.

Estelle

, 463 U.S. 880, 882 (1983) (internal quotations and citations omitted). To satisfy this

requirement, petitioner “must demonstrate that the issues are debatable among jurists of reason; that

a court could resolve the issues in a different manner; or that the questions are ‘adequate to deserve

encouragement to proceed further.’” Barefoot , 463 U.S. at 893 n.4.

II. Application of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 3

We first address the question of whether the AEDPA is applicable to Livingston’s contention

that he did not receive a proper hearing to resolve his claim of ineffective assistance of counsel at the

punishment phase of the trial. Livingston filed his application for a CPC prior to April 24, 1996, the

effective date of the AEDPA. The pre-AEDPA standards governing the presumption of correctness

afforded state-court factfinding (subsection (d)) were somewh at less st ringent than the new

subsection (e) of the AEDPA. The AEDPA altered the legal standard for granting habeas relief to

state prisoners based upon violations of their federal constitutional rights. See 28 U.S.C. § 2254 (d).

In Drinkard v. Johnson

, 97 F.3d 751, 756 (5th Cir. 1996), we held that §§ 102 and 104 of the

AEDPA applied to pending habeas cases and that a habeas appellant’s application for a “certificate

of probable cause” (“CPC”), the procedural requirement before th e AEDPA was enacted,

appropriately could be treated as an application for a COA, without violating the retroactivity dictates

of Landgraf v. USI Film Pr oducts , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed2d 229 (1994).8

Noneth eless, because Livingston’s claims are framed in terms of the pre-AEDPA standard and

because we conclude that he is not entitled to habeas relief under either standard, we will review his

claims under our pre-AEDPA precedents.

III. Evidentiary Hearing

Livingston conte n ds that the district court erroneously applied the law regarding the

presumption of correctness accorded to state-court factfindings. Specifically, Livingston claims that

the state court findings are not entitled to a presumption o f co rrect ness because the “factfinding

procedure used by the state court was not adequate to afford him a full and fair hearing” and “he did

not receive a full, fair, and adequate hearing in the state court proceeding.” In fact, Livingston asserts

that he “simply received no hearing at all in state court.” Id.

The pre-AEDPA version of 28 U.S.C. § 2254(d) read as follows:

(d) In any proceeding instituted in a Federal court by an ap p lication for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court

of competen t jurisdiction to which the applicant for the writ and the State or an

officer or agent thereof were parties, evidenced by a written finding, written opinion,

or other reliable and adequate written indicia, shall be presumed to be correct, unless

the applicant shall establish or it shall otherwise appear, or the respondent shall admit-

-

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing ; (3) that the material facts were not adequately developed at the State court

hearing;

(4) that the State court lacked jurisdiction of the subject ma tter or over the

person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his

constitutional right, failed to appoint counsel to represent hi m

i n the State court

proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the

State court proceedi ng ; or (7) that the applicant was otherwise denied due process of la w in the State

court proceeding . . . .

And in an evidentiary hearing in the proceeding in the Federal court

, . . . unless the

existence of one or more of the circumstances respectively set forth i n paragraphs

numbered (1) to (7), . . . t he burden shall rest upon the applicant to establish b y convincing evidence that the factual determination by the State court was erroneous.4 Judge Patricia Lykos presided at Livingston’s trial and the state habeas proceeding. She entered

findings of fact and law, concluding that “there are no controverted, previousl y unresolved facts

material to the legality of the applicant’s confinement which require an evidentiary hearing.” Findings

of Fact and Conclusions of Law and Order, issued November 15, 1994.

9 (Emphasis added.) Livingston relies upon the exceptions in sections 2254(d)(2) and 2254(d)(6),

contending that the state court factfinding procedure was not adequate and he did not receive a full,

fair, and adequate hearing. He contends that although the state habeas judge had also presided at

the trial, she did not have a meaningful way to compare the credibility of the witnesses she had seen

at trial with that of the affiant s for the habeas proceeding. Moreover, since the state court’s fact

determinations turned on the credibility choices where some witnesses “appeared” only on paper, his

“paper hearing” was inadequate to afford him a full and fair hearing within the meaning of 28 U.S.C.

§ 2254(d).

Livingston did receive a hearing during the state habeas proceedings. We have consistently

upheld the validity of “paper hearings.” B aldree

, 99 F.3d at 659; Sawyers v. Co llins

, 986 F.2d 1493,

1504 (5th Cir.), cert. denied

, 113 S. Ct. 2405 (1993); May v. Co llins

, 955 F.2d 299, 310 (5th Cir.),

cert. denied

, 504 U.S. 901 (1992). “Hearing,” as used in § 2254(d), does not require a trial-type

hearing at which live testimony is presented and the accused has the opportunity to cross-examine

witnesses. Amos v. Scott , 61 F.3d 333, 346-48 (5th Cir.), cert. denied , 116 S. Ct. 557 (1995). In

Sawyers

, we expressly rejected the argument that a federal court must hold a hearing if the state court

decided factual issues without the benefit of live testimony. 986 F.2d at 1504. There, we stated that

this court “has ‘dealt on several occasions with factfinding by affidavit at the state trial court level,

and each time [has] found the procedures adequate for the pur pose of 2254(d)—even where the

factual conclusions depended on credibility determinations.’” I d. at 1504 n.19. Moreover, we have

held that the presumption of correctness is accorded to state-court factfindings in the absence of a

live evidentiary hearing even though the sam e judge presides over the habeas proceedings and the

trial. Ellis v. Collins , 956 F.2d 76, 79 (5th Cir. 1992). 410

The factfinding procedure applied by the state court was adequate and Livingston did receive

a full, fair, and adequate hearing. Livingston concedes the validity of “paper hearings” and attempts

to distinguish his case based on the following argument. Since his mother was “the only affiant from

the state habeas proceeding whose li ve t est imony had been presented at trial, . . . the state habeas

judge had no meaningful way to compare the credibility of the witnesses she had seen with the

affiants.” This argument is meritless.

In Sawyers

, we held that the sta t e habeas judge could observe “on the face of Sawyers’

relatives’ affidavits, indicia that those affidavits lacked credibility” even though the judge had never

witnessed the affiants’ live testimony in order to observe their demeanor. There, we pointed out that

the affidavits lacked credibility because they were Sawyers’ relatives’ affidavits, and they “contain[ed]

identical accounts” of the relevant assertions. S awyers

, 986 F.2d at 1505. “Consequent ly, it is

apparent that those affidavits were not prepared by the affiants themselves, and do not represent a

spontaneous, unrehearsed account of the facts.” Id.

Here, as in Sawyers

, the affidavits of the w it nesses — Odessa Livingston, Irma Joseph,

Shirley Livingston, Louise Killings, and Perry Killings

— all contain similar allegations detailing the

alleged abuse that Ernest Stewart, the boyfriend of Livingston’s mother, inflicted upon Livingston

as a child. Yet, the affidavits are wholly at odds not only with Livingston’s trial attorneys’ affidavits,

but also with the information gather ed fro m Livingston and his family in connection with the

certification proceedings and the subsequent pre-sentence investigation report on Livingston’s prior

charges of attempted murd er. Ex parte Livingston , No. 20, 422-01 at 270, 277 278, 672, 702.

Judge Lykos was in the best position to determine the credibility of Livingston’s mother, Livingston’s

two trial at t o rneys’ affidavits, and the affidavits submitted by Livingston’s relatives and friends.

Accordingly, the state court had more than enough reason to conclude that the affidavits submitted

by Livingston were unreliable and lacked indicia of credibility.

Ultimately, Judge Lykos issued the following findings:11

F.166. The court finds that prior to trial, trial counsel made a reasonable attempt to investigate the applicant’s background for mitigating evidence to be presented during

the punishment phase. Specifically, trial counsel engaged in the following:

(1) met with the applicant several times in an unsuccessful attempt to secure names

of potential character witnesses;

(2) interviewed family members and friends whose names were s upplied by the

applicant’s mother to determine who, if any, would be suitable character witnesses;

(3) reviewed the State’s file on the attempted murder case including the Pre-Sentence

Investigation report and the results of a psychological evaluation conducted by Dr.

James Rice in July 1979; and

(4) reviewed the Court’s file on the applicant’s certification to be tried as an adult in

the attempted murder case, including Dr. Robert Sarmiento’s January 1979 report concerning his psychological evaluation of the applicant.

F.183 The Court finds that there are no controverted, previously un resolved facts

material to the legality of the applicant’s confinement which require an evidentiary

hearing.

The district court considered Livingston’s motion for an evident iary hearing in light of the

pres umpt io n of correctness accorded to state habeas court findings of fact and denied his motion

because Livingston “alleged no new facts in his petition or in his Mot io n fo r Evidentiary Hearing,

which, if true, would entitle him to a hearing on whether his trial counsel was ineffective for failing

to investigate his alleged child abuse.”

We conclude that the “paper hearing” Livingston received on his habeas claim was full, fair,

and adequate. Furthermore, the state-court factfindings procedure was adequate to afford Livingston

a full and fair hearing, notwithstanding the state court’s decision not to hold an evidentiary hearing.

Judge Lykos, having heard the testimony at trial, could det ermine the credibility of the affidavits

submitted without holding a hearing concerni ng Livingston’s claims regarding the ineffective

assistance of counsel at the punishment phase. Thus, the federal district court was entitled to give

the presumption of correctness to Judge Lykos’ finding that a live evidentiary hearing was not

required. Finally, absent evidence to indicate that the presumption of correctness afforded to statecourt factfindings should not attach to Judge Lykos’ findings, it is not necessary for a federal court

to hold a live hearing. Baldree , 99 F.3d at 663. Livingston has presented no such evidence.5 At trial, Livingston was represented by Richard Stephanow, lead counsel in the guilt-innocence

phase, and Paul Licata, lead counsel in the punishment phase.

6 F.67. During trial, witness Joe Cunningham testified to the following: On August 10, 1983, he

and his son and nephew went to the Weingarten’s at the intersection of Oak Forest and West 43rd

at approximately 8:30 P.M. and left the store at approximately 9:00 P.M.; after placing the two boys

in his car, he heard some screams from a female and looked up and saw a female struggling with a

black male about 30 paces from where he was standing; he saw the black male step away from the

wo man, pull a pistol out and shoot the woman; the black man then took off down the parking lo t

12 IV. Ineffective Assistance of Counsel

Livingston next claims that his conviction and sentence are unconstitutional because he was

denied effective assistance of counsel. 5 The gravamen of Livingston’s argument is that he was denied

effective counsel by (1) trial couns el’s use of the mistaken identity defense at the guilt-innocence

phase of the tri a l and (2) trial counsel’s failure to investigate and develop a mitigating case at the

penalty phase of the trial. In addition, Livingston attacks the legal standard the district court applied

to his ineffective assistance of counsel claim.

We review ineffe ct ive assistance of counsel claims under the two-prong test announced in

Strickland v. Washington

, 104 S. Ct. 2052 (1984). Under Strickland , Livingston has the burden of

showing that his counsel’s performance was deficient and that the deficient performance prejudiced

his defense such that he was deprived of a “fair tri al, whose result is reliable.” I d. at 2063-64.

Moreover, Livingston must overcome a strong presumption that “counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 2065.

All of Livingston’s “ineffective assistance” contentions involve the application of existing law

to the facts of his case. His arguments were presented fully to the state court during his state habeas

proceeding, and the court entered findings of fact and conclusions of law which denied habeas relief.

Thus, any review of Livingston’s claim must be made in light of the findings of fact and conclusions

of law entered by Judge Lykos in the state court habeas proceedings. Judge Lykos’ relevant findings

of fact and conclusions of law are i ncluded in t he margin, and we quote those findings at length

because they demonstrate the care with which Judge Lykos handled Livingston’s ineffective

assistance claim. 6towards the dumpster; the black man had a white cloth over his face, dark T-shirt with white lettering

on the front; the man was approximately 5'9" or 5'10", 175-180 pounds; the man ran holding a gun

and a purse; approximately 10 minutes later he observed a black man in the patrol car wearing a dark

shirt with white lettering on; the man he saw shoot the woman and the man in the back of the car had

similar builds and similar clothing and the man in the car looked like the same person who had done

the shooting; the man he observed in the police car was [Livingston]; he didn’t get a clear view of the

shooter’s face; he guessed identify the defendant’s face; he could identify his clothing; he based his

identification of the defendant on the clothing and build. (internal citations omitted).

F.77. The Court finds that there is no evidence that the jury in the applicant’s trial disregarded the

instructions found in the Court’s charge that authorized a conviction for capital murder only if the

jury found that the applicant “intentionally cause[d] the death of Janet Caldwell by shooting Janet

Caldwell with a gun . . .”. (citation omitted).

F.151. The Court finds that trial counsel timely filed numerous pre-trial motions, including a motion

to suppress the in-court identification of the applicant which afforded trial counsel the opportunity,

pre-trial, to cross-examine the eyewitnesses while under oath. (See Respondent’s Exhibit B,

affidavit of Richard Stephanow)

.

F.152. Trial counsel reviewed the State’s file in its entirety prior to the applicant’s trial. Such file

included not only documentation concerning the instant offense, but also documentation concerning

the attempted murder case for which [Livingston] was then on probation. ( Se e Respondent’s

Exhibit B, affidavit of Richard Stephanow)

.

F.154 The Court finds that trial counsel exercised reasonable diligence in attempting to secure and

present witnesses to testify at the punishment phase of trial. ( See Respondent’s Exhibit C, affidavit

of Paul Licata)

.

F.155. The Court finds that trial counsel’s decision to fo rego presenting the testimony during the

punishment phase of trial of individuals suggested by the applicant’s mother was a matter of plausible

trial strategy. (See Respondent’s Exhibit C, affidavit of Paul Licata)

.

F.163. The Court finds that in light of the defensive strategy employed of not conceding the issue

of identity, trial counsels’ omission from its guilt/innocence argument, of any reminder to the jury that

it had to find that [Livingston] specifically intended to kill the decedent before it could return a verdict

of capital murder against [Livingston] was a matter of plausible trial strategy to not rely on and argue

inconsistent defensive theories.

F.165. The Court finds that trial co unsels’ decision to not actively attempt to counter the State’s

implication that the circumstances surrounding [Livingston’s] earlier extraneous offense of attempted

murder (in

which he broke into his neighbor’s apartment and brutally and repeatedly knifed his

neighbor and her companion over a $10 debt) constituted a random and unprovoked act of violence,

was a matter of plausible trial strategy based upon careful consideration of the potential consequences

of such a course of action. See Respondent’s Exhibits B and C, affidavits of trial counsel

.

F.166. The Court finds that prior to trial, trial counsel made a reasonable attempt to investigate the

[Livingston’s] background fo r mit igat ing evidence to be presented during the punishment phase.

Specifically, trial counsel engaged in the following:

(1) met with the [Livingston] several times in an unsuccessful attempt to secure names of potential

character witnesses;

13(2) interviewed family members and friends whose names were supplied by the [Livingston’s] mother

to determine who, if any, would be suitable character witnesses;

(3) reviewed the State’s file on the attempted murder case including the Pre-Sentence Investigation

report and the results of a psychological evaluation conducted by Dr. James Rice in July 1979; and

(4) reviewed the Court’s file on the applicant’s certification to be tried as an adult in the attempted

murder case, inclu ding Dr. Robert Sarmiento’s January 1979 report concerning his psychological

evaluation of the applicant.

F.173. The Court finds that trial co unsel made a plausible strategic decision to focus on the first

special issue in his closing argument. Moreover, the Court finds that trial counsel’s plea for mercy on behalf of his client was also a matter of plausible trial strategy.

F.177. The Court finds that Messrs. Stephanow and Licata both enjoyed an excellent reputati on in

the legal community for competency and professionalism; that Mr. Stephanow, during his legal career prior to this appointment, had served as a district court judge in Harris County, Texas, and had prior

capital murder trial experience as both judge and defense attorney.

C.115. Trial counsel afforded [Livingston] reasonably effective assistance during the guilt/innocence

phase of trial.

C.116. Trial counsel affo rded [Livingston] reasonably effective assistance during the punishment

phase of trial.

F.180. The applicant has failed to meet his burden to show his counsel’s conduct so undermined the

proper function of the adversarial process that the trial cannot be relied on as having produced a just

result. Trial co unsel’s errors, if any, do not constitute either independently or cumulatively,

ineffective assistance of counsel. This court finds that [Livingston] did receive effective assistance

of counsel at all phases of his trial.

14 A. Livingston received effective assistance of counsel at the

guilt-innocence phase of trial.

Livingston contends that trial counsel was ineffective at the guilt-innocence phase of trial for

arguing a mistaken identity defense instead of a defense based on an accidental shooting of Caldwell.

We find that the dist rict co urt and the state court correctly concluded that Livingston failed to

demonstrate any deficiency in counsel’s c ho ice o f defense strategies. Trial counsel thoroughly

reviewed the state’s file in its entirety and concluded that none of the witnesses testifying at trial could

identify Livingston’s face. Moreover, although the trial court did not suppress Livingston’s

confession, trial counsel knew the prosecution had made a motion in limine to exclude any mention

of the confession.

Yet, trial counsel knew the accidental shooting theory was impossible once the trial court

overruled its motion to suppress in-c o urt identifications because Joe Cunningham testified at the7 Livingston cites to Max Courtney’s affidavit for the proposition that the defense could have hired

a firearms expert to testify that the shooting “could” have occurred accidentally. Appellant’s Brief

at 20. Because it was never presented during the state habeas proceedings, Courtney’s affidavit is

not properly before this Court. Livingston is not entitled to further factual development of his claims

in these proceedings unless he can show cause for his failure to develop the facts in state court and

actual prejudice resulting from that failure. K eeney v. Tamayo-Reyes

, 504 U.S. 1 (1992). Livingston

has neither alleged nor shown cause or prejudice. Accordingly, it is improper for him now to rely on

an affidavit that the state courts did not have an opportunity to review.

15 pretrial hearing that he saw the altercation between the shooter and the deceased. Cunningham

testified that the man

“broke free or shoved her out of the way and took a step and reached back and

sho t t he lady.” Livingston has failed to demonstrate any way in which Cunningham’s testimony

regarding the sequence of events could have effectively been challenged. 7 Consequently, the use of

a mistaken identity defense was a reasonable, strategic decision based on the facts known to counsel

at the time of trial.

We have held that conscious and informed decisions on trial tactics and strategy cannot merit

habeas relief unless they were so ill-chosen that they permeate the entire trial with obvious unfairness.

Garland v. Maggio

, 717 F.2d 199, 206 (5th Cir. 1983). Furthermore, “[t]here are countless ways to

provide effective assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.” Strickland , 466 U.S. at 689.

We hold that Livingston has failed to demonstrate any deficiency in counsel’s choice of trial

strategies. In light of Cunningham’s testimony regarding the nature of the shooting, any defensive

strategy was inherently risky. Nevertheless, the mistaken identity defense was more plausible than

an accidental shooting defense. Livingston has failed to overcome the presumption that his trial

counsel’s defensive strategy was inside the wide range of reasonable professional assistan ce.

Furthermore, Livingston has failed to show a reasonable probability that, had counsel utilized a

different defensive strategy at trial, the result of the proceedings would have been different.

Strickland , 466 U.S. at 694.

B. Livingston received effective assistance of counsel at the

punishment phase of trial.16

At the punishment phase of trial, the jury affirmat ively answered three special issues submitted

pursuant to Tex. Crim. Proc. Code Ann. art. 37.071(b). The special issues were as follows:

(1) Do you find from the evidence beyond a reasonable doubt that the conduct of the

Defendant, Charlie Livingston, that caused the death of the deceased, Janet Caldwell,

was committed deliberately and with the reasonable expectation that the death of the

deceased or another would result?

(2) Do you find from the evidence be yond a reasonable doubt that there is a

probability the Defendant, Charlie Livingston would commit criminal acts of violence

that would constitute a continuing threat to society?

(3) Do you find from the evidence beyond a reasonable doubt that the conduct of the

defendant, Charlie Livingston, in killing the deceased, Janet Caldwell, was

unreasonable in response to the provocation, if any, by the deceased?

Livingston argues that trial counsel was ineffective for failing to develop evidence that would have

supported a “no” answer to the first special issue by introduction of his written confession. We do

not agree and uphold the district court’s finding that, based on the record, counsel “did adequately

develop and argue the deliberateness issue.”

Given the circumstances, counsel’s choice not to bolster his non-deliberateness argument by

introducing Livingston’s confession was eminently reasonable. If trial counsel had introduced the

confession during the punishment phase of trial, he would have damaged his credibility with the jury

because they would have known that the confession had been available the whole trial despite the fact

that the defense had argued mistaken identity. Moreover, it is unlikely that the jury would have

believed Livingston’s self-serving story about how the shooting was unintentional. Livingston has

failed to demonstrate any deficiency on trial counsel’s part in failing to introduce his confession at

punishment.

Livingston contends that trial counsel could have softened the effect of the state’s evidence

that he had previously attempted to brutally murder two people. As we have noted, during the state

habeas proceedings, the t rial co urt specifically found that counsel thoroughly investigated

Livingston’s prior conviction for attempted murder and that their decision not to affirmat ively attempt17

to counter such evidence was a matter of “plausible trial strategy” based on careful consideration of

the possible consequences.

Stephanow and Licata responded to Livingston’s allegations in affidavits at the state habeas

proceeding. Mr. Stephanow pointed out, initially, that being owed money “is certainly not justifiable

provocati on for committing the violent acts Mr. Livingston did.” Affidavit of Richard Stephanow

at 7. Furthermore, he stated that trying to establish that Livingston’s attempted murder was not a

random and unprovoked act would have been unsound trial strategy because “(1) the jury would have

found it extremely offensive had we attempted to justify Mr. L ivingst on’s actions through a

pro vo cat ion claim, whose genesis was an unpaid debt; and (2) why emphasize to the jury Mr.

Livingston’s abilit

y to plan and execute extreme acts of violence and his willingness to resort to

violence in order to get money. Both traits are present in the instant capital murder case. Why anew

attenti on to that?” Id. Mr. Licata also responded to the allegation as well, pointing out that they

were int imat ely familiar with the circumstances surrounding Livingston’s prior attempted murder.

Affidavit of Paul Licata at 7. He restated that they di d not want to draw any more attenti on than

necessary to Livingston’s careful planning and execution of the brutal attack, and that there was

simply no evidence to mitigate the attack. Id. Accordingly, Livingston’s ineffectiveness claim fails

because he cannot demonstrate any deficiency in counsel’s decision not to draw attenti on to the facts

of his underlying attempted murder conviction.

Livingston’s next argument is tha t t rial counsel was ineffective for failing to introduce

evidence from Livingston’s family and friends that he was “a kind and peaceable person.” The state

and district courts found that counsel met with Livingston several times in an unsuccessful attempt

to secure names of potential character witnesses and interviewed family members and friends whose

names were supplied by Livingston’s mother.

In his affidavit, Licata stated that in the months pr eceding trial, he met with Livingston on

numero us occasions to discuss the case and any possible punishment strategy. Affidavit of Paul

Licata at 2. Livingston was not very helpful and would not give co unsel t he names of persons to8 Livingston further asserts that counsel should have presented mental h ealt h evidence at the

punishment phase of trial, citing an affidavit and report of Dr. Randall Price . Price’s affidavit has

never been presented to the state courts and, therefore, is barred by Keeney

. Nevertheless, during

the state habeas proceedings, the trial court reviewed Dr. Price’s report and found it lacked credibility

in many respects.

18 contact as potential witnesses for punishment. I d. Counsel then spoke to Livingston’s mother, who

supplied several names and arranged some meetings. I d. Trial counsel spoke with every person

Livingston’s mother named. I d. at 3. Counsel nevertheless decided against calling most of these

people as witnesses for at least two reasons. First, “anyone who knew [Livingston] well enough to

testify to his good character would then also know about the incident where he stabbed his next door

neighbor and her boyfriend numerous times and also the numerous incidents in the seventh grade that

led to his expulsion, including grabbing and molesting a female student and pulling a knife on another

student.” I d. Second, trial counsel felt that none of the family members and friends interviewed

would make a good impression on the jury. Id. The most “credible and impressive” of the people

I interviewed was Livingston’s grandfather, whose main concern was whether he could recover

possession of the gun Livingston used in the murder. Id. at 3-4.

The lower courts found that counsel made reasonable efforts in attempting to secure and

present witnesses to testify at the punishment phase and that counsel’s decision to forego presenting

the testimony of individuals suggested by Livingston’s mother was a matter of plausible trial strategy.

We find that these findings and credibility choices are fully supported by the record. Moreover, they

are binding on this Court. S ee M aggio v. Fulford

, 462 U.S. 111, 113 (1983). Therefore, Livingston

has failed to demonstrate deficient performance by counsel in preparing for the punishment phase of

trial or prejudice. 8

C. The district court applied the proper legal standards to

Livingston’s allegations of ineffective assistance of counsel.

Livingston argues that the distric t court applied an incorrect standard of review to the

prejudice prong of his ineffective assistance claims. The district court clearly set forth and applied

the proper standard of review in its memorandum and order denying relief, stating as follows: “To19

demonstrate prejudice with respect to a convicti o n, ‘the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

. . [or regarding the sentencing phase] would have concluded that th e balance of aggravating and

mitigating circumstances did not warrant death.’” (quoting Strickland , 104 S. Ct. at 2069).

Livingston’s argument that the district court refused to consider the combined or cumulative

effect of counsel’s erro rs is simply wrong. In its memorandum and order denying Livingston’s

petition, the district court clearly stated that “[c]ounsel’s overall performance was not ‘outside the

w ide range of professionally competent assistance,’ and any errors, viewed separately and

cumulatively, did not render the result of either the guilt or penalty phase unreliable.” Furthermore,

we have previo usly held that we will not grant federal habeas relief where the cumulative errors

complained of are not of a constitutional dimension. D erden v. McNeel

, 978 F.2d 1453, 1454 (5th

Cir. 1992), cert. denied

, 113 S. Ct. 2928 (1993) (holding that in order to merit federal habeas relief,

cumulative e rro rs must be of constitutional dimension). Livingston has not demonstrated either

deficient performance by his trial counsel or any cumula t ive errors approaching constitutional

dimension. See Yohey v. Collins , 985 F.2d 222, 229 (5th Cir. 1993) (because certain errors were

not of constitutional di mensio n and other claims were meritless, “Yohey has presented nothing to

cumulate”).

As we have said, the state court found that each alleged deficiency raised by Livingston did

not rise to the level of a Stricklan d violation. After reviewing the arguments, the record, and the

applicable law, the district court below concurred with the state court and granted summary

judgment, finding that Livingston’s ineffective assistance of counsel claim was wholly without merit.

We agree. Accordingly, we cannot say that the state court’s judgment was based upon an

unreasonable application of clearly established federal law.

V. Pretrial Identification Procedures20

Livingston argues that the showup identif ications and the lineup he took part in were

impermissibly suggestive and that any reliance on them would lea d to a substantial likelihood of

irreparable misidentification. We disagree.

The question of whether identification evidenc e is constitutionally admissible is a mixed

question of law and fact and is not entitled to a presumption of correctness. U nited States v.

Sanchez

, 988 F.2d 1384, 1389 (5th Cir. 1993). However, t he fact ual findings underlying the

determination of the admissibilit y of identification testimony are entitled to th at presumption. L avernia

v. Lynaugh , 845 F.2d 493, 500 (5th Cir. 1988). “The Fifth Amendment affords accused individuals

due process protection against evidence derived from unreliable identifications which are based on

impermissibly suggestive identification. ” S anchez

, 988 F.2d at 1389. Thus, we review the

constitutionality of pretrial identification p rocedures utilizing a two-prong analysis. We first determine

whether the identification procedure was impermissibly suggestive, and if so, whether there was a

substantial likelihood of irreparable misidentification. Id. ; see also Manson v. Brathwaite , 432 U.S.

98, 113-14 (1977). If the identification procedure is not impermissibly suggestive, the inquiry ends.

Peters v. Whitley , 942 F.2d 937, 939 (5th Cir. 1991).

A. Suggestive Showup Identification

Livingston has not presented sufficient evidence to establish that the showup on the day of

the crime was impermissibly suggestive. The district court analyzed the evidence and determined that

under the exigency of the circumstances, officers James Curtis’ and Margie Curtis’ detainment and

subsequent transport of Livingston back to the crime scene was constitutional. See Frank v.

Blackburn

, 605 F.2d 910, 912 (5th Cir. 1979) (determining that showup i dentification procedures

conducted at the crime scene immediately following the crime not to be unnecessarily suggestive).

Further, there were no facts that suggested that the police officers’ actions caused the situation to

become improperly suggestive thus increasing the likelihood that the identification of Livingston was

unreliable. The officers’ actions did not encourage any identification of Livingston as the murderer.9 Joe Cunningham and Flor Monzon, among others, followed the officers back to their patrol car

after they arrived at the crime scene and identified Livingston who was sitting in the back seat.

10 Livingston said he was grocery shopping at Weingarten’s, but was not carrying any groceries

or any identification.

21 The eyewitnesses to the crime were present when Livingston arrived at the crime scene and some on

their own initiative walked over to the police car where they identified Livingston as the assailant. 9

Livingston himself added to the exigency of the police officers’ need to detain him and return

him to the crime scene. He was seen walking near the Weingarten’s, wearing torn sweat pants (with

fresh dirt on his clothing), sweating profusely, and he co uld no t provide a sensible response when

asked about his whereabouts by the officers. 10 Based on these facts, we are satisfied that the factual

determinations made by the district court regarding the suggestiveness o f the showup are correct;

therefore, we need not scrutinize them any further. The showup was not impermissibly suggestive.

B. Suggestive Lineup Identification

Livingston contends that the lineup in w h ich he was placed was impermissibly suggestive,

thereby resulting in unreliable in-court identifications. The trial court suppressed the in-court

identifications based on the lineup because Livingston was not shown to be apprised of his right to

counsel before participating in the lineup. On habeas review, however, the district court found that

the identifications had an independent basis from the lineup. We agree. We reiterate the presumption

of correctness afforded factual findings underlying the determination of the admiss i bilit y of

identification testimony. See Lavernia

, 845 F.2d at 500. The district court cited to numerous findings

of fact that revealed the independent basis of several witnesses’ identification of Livingston. Based

on these findings, the court determined that the trial test i mony of the witnesses was entitled to a

presumption of correctness. We see no reason to disturb this finding.

Three witnesses in particular—Joe Cunningham, Flor Monzon, and Lavern Morton—have

clear independent bases for their identification of Livingston . Livingston attempts to refute these

witnesses’ identifications by pointing out alleged discrepancies between the witnesses’ testimony at

the suppression hearing and their testimony at trial. We, however, are not p ersuaded by thi s22

argument. We borrow fro m t he district court’s analysis that both Cunningham and Monzon’s

identifications were reliable. Cunningham testified that had he not been to the lineup he would be able

to identify Livingston as the murderer “without a doubt.” Similarly, Monzon testifie d that she

recognized Livin gst on in the courtroom as the man she saw running away from the Weingarten’s

store on the night of the murder. Thus, based on the findings of f act and the tri al

testi m ony , we

conclude that Cunningham’s and Monzon’s in-court identifications of Livingston were of an

independent origin and thus were properly admitted.

Lavern Morton’s in-court identification was reliable. The district court agreed with the Court

of Criminal Appeals that Morton’s identification was “sufficient ly reliable under the facts and

circumstances pr e sented so as to be admissible.” Livingston v. State

, 739 S.W.2d 311, 334 (Tex.

Crim. App. 1987). The district court applied the five-factor test articulated in Neil v. Biggers , 409

U.S. 188 (1972), and concluded that Morton’s testimony was admissible. In B iggers , the Supreme

Court applied a five-factor test to determine whether an identification is reliable: (1) the opportuni ty

of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3)

the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated

by t he witness at the confrontation; and (5) the length of time between the crime and the

confrontation. 409 U.S. at 199-200.

In applying the Biggers factors, the district court found that Morton had sufficient opportuni ty

to view Livingston during and immediately after the commissi on of the crime. Morton was

approximately 70 to 100 feet from the sc ene o f t he struggle, and he described the area as having

“intermediate light.” He testified at the suppression hearing to a struggle between a black man and

a white woman, seeing the man run toward a gas station, slow down, drop something in a dumpster,

and then proceed north on the next street. He testified that he viewed the perpetrator for

approximately three minutes while he was fleeing the scene of the crime, not including the struggle.

Morton’s degree of attenti on was high as the vict im’s screams for help initially attracted his

attention. He then watched the incident and later gave the police a description of the assailant. He23

described the assailant as wearing dark clothes, standing five-foot eight to five-foot ten, stocky build,

and bowlegged.

Morton’s identification of the assailant was certain. Without hesitation, he correctly pointed

out Livingston in the courtroom at trial and described his courtroom attire. At t he suppression

hearing, Morton testified that upon viewing the lineup the night of the murder, he recognized a man

that looked like the man he observed during the shooting and running from the scene.

Although Morton did testify that his identification of Livingston was based on seeing him both

during the commission of the crime and later during the lineup, Morton did testify at trial that his incourt identification was independently based on his observations made at the crime scene and not the

lineup. Specifically, Morton identified Livingston as the man he saw struggling with Janet Caldwell

on August 10, 1983 in the Weingarten’s parking lot. Looking at the totality of the circumstances, the

district court found that Morton’s in-court identification of Livingston had an independent origin from

the lineup. We cannot say that the district court erred in its determination. Accordingly, we hold that

Morton’s in-court identification of Livingston was properly admitted. There was no constitutional

error.

VI. Improper Jury Charge

A. Definition of the Mens Rea of “Intent”

Livingston next contends that the trial court erred by incorr ect ly defining the mens rea of

“intent” in the jury charge that allowed the jury to convict him of capital murder without finding a

specific intent to cause the vict im’s death. We reject this argument for two reasons. First, Livingston,

by failing to make a contemporaneous objection at trial to the mens rea definition, is procedurally

barred from raising the claim on habeas review. Second, as the district court concluded, the totality

of the jury charge correctly instructed the jury that to find Livingston guilty, they must find that he

intentionally caused the death of the victim.

It is well established that we review a district court’s denial of a federal habeas review based

on a state procedural ground de novo

. Amos v. Scott

, 61 F.3d 333, 338 (5th Cir. 1995). However,11 Tex. R. App. P. 52 (a), states in part:

In order to preserve a complaint for appellate review, a party must have presented to

the trial court a timely request, objection or motion, stating the specific grounds for

the ruling he desired the court to make if the specific grounds were not apparent from

the context. . . .

1 2 A federal court may, however, review a denial of habeas because of a procedural default i f the

p risoner “can demonstrate cause for the default and actual prejudice as a result of the all eged

violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarri age of justi ce.” C oleman

, 501 U.S. at 749. Livingston, though, has not shown that a

fundamental miscarriage of justice would occur in the absence of appellate review.

24 a federal court will not review a question of federal law decided by a state court if the decision rests

on a state ground that is independent of the merits of the federal claim and adequate to support that

judgment. Harris v. Reed

, 489 U.S. 255, 260 (1989). “This ‘independent and adequate state law’

doctrine applies to both substantive and procedural grounds and affects federal review of claims that

are raised on either direct or habeas review.” Amos , 61 F.3d at 338 ( citing Coleman v. Thompson

,

501 U.S. 722, 729 (1991)).

The Te xas contemporaneous objection rule has long been recognized in Fifth Circuit

jurisprudence. The essence of the rule is that in order for a party to preserve an issue for appellate

review, that party

must have made a timely objection with specific grounds for the desired

ruling—unless apparent from the context. 11 The Texas Court of Criminal Appeals clearly noted in

its findings of fact and conclusions of law that Livingston was procedurally barred from raising this

claim for failing to make a contemporaneous objection at trial. See Ex parte Livingston, No. 20, 422-

01 at 692-93. 12 Livingston, tho ugh, argues that the Texascontemporaneous objection rule has not

been “strictly and regularly” applie d in Texas, but instead, has been applied in a discretionary and

inconsistent manner.

Federal constitutional law is clear that if a state court’s procedural default rule is not “strictly

and regularly” followed, it cannot be deemed an independent and adequate state ground barring

federal habeas review. Johnson v. Mississippi , 486 U.S. 578, 587 (1988). The district court 1oted,

however, that we have implicit ly held that the contemporaneou s o bjection rule, as it regards to

objections to jury charges, has been regularly followed in Texas. O’Bryan v. Estelle , 714 F.2d 365,1 3 In a general context, we have recently put this issue to rest when we held that the Texas

contemporaneous objection rule is strictly and regularly followed. Amos , 61 F.3d at 343.

25 383-85 (5th Cir. 1983). 13 In the context of objections to jury charges, we have found no cases

indicating that Texas courts do not strictly and regularly apply the contemporaneous objection rule

to unobjected-to error. See generally Nichols v. Scott

, 69 F.3d 1255, 1267 (5th Cir. 1995); Buxton

v. Collins

, 925 F.2d 816, 821-22 (5th Cir. 1991); Lauti v. State , 810 S.W.2d 176, 178 (Tex. Crim.

App. 1989); Johnson v. State

, 629 S.W.2d 731, 735 (Tex. Crim. App. 1981); Williams v. State

, 622

S.W.2d 116, 119-20 (Tex. Crim. App. 1981). We therefore view this as an independent and adequate

ground for denying Livingston’s habeas request. Accordingly, we reject this argument.

Even though we are satisfied that Livingston cannot overcome the procedural default of this

claim, we will nonetheless briefly discuss his argument on the merits. The district court correctly held

that any error that may have occurred with the jury instruction did not “so infect the entire trial that

the resulting conviction violated due process.” See Henderson v. Kibbe , 431 U.S. 145, 154 (1977)

(stating that the relevant question is whether the ailing instruction by itself so infected the entire trial

that the resulting conviction violates due process, not merely whether the instruction is undesirable,

erroneous, or even universally condemned); Kinnamon v. Scott

, 33 F.3d 462, 465-66 (5th Cir. 1994)

(same). The district court found that the application porti on of the charge correctly instructed the jury

that to find Livingston guilty, they must find that he intentionally caused the death of the vict im. We

agree that this was sufficient to ensure the verdict’s reliabilit y. Moreover, wi th the plethora of

eyewitness testimony and the direct and circumstantial evidence the jury was entitled to consider, we

reject Livingston’s argument that the jury instruction deprived him of his constitutional right to due

process of law. Accordingly, we hold that Livingston’s due process argument is both procedurally

barred and, in any event, substantively meritless.

B. Lesser Included Offense26

Livingston contends that the trial court’s refusal to give a requested jury instruction on the

lesser included offense of felony murder violated his Fourteenth Amendment right to due process of

law. We find this argument unpersuasive.

In support of his contention, Livingston cites Beck v. Alabama

, 447 U.S. 625 (1980), for the

proposition that in a capital case, a jury must be permitted to consider a verdict of a lesser included

non-capital offense when the evidence would have supported such a verdict. Beck

, though, is clearly

distinguishable from the facts of this case. In Beck

, the ch allenged Alabama law prohibited giving

lesser inc luded o ffense instructions in capital cases. Essentially, it was an all-or-nothing rule that

provided juries in capital cases with only two options: (1) find the defendant guilty of capital murder

and automatically sentence the defendant to death, or (2) acquit the defendant. See Beck

, 447 U.S.

at 6 4 2-43. This rule, the Court held, provided for possibly unreliable results and was therefore

constitutionally infirm.

Here, the Texas statute does not provide such a rigid rule. Texas uses a bifurcated procedure

in a capital case, wherein the jury must first make a determination of guilt and then impose a sentence

o f life imprisonment or death. In addition, the trial court in this case did provide a lesser included

offense instruction for murder. Livingston argues that this instruction was an irrational opti on for the

jury to consider. Specifically, he argues that because his request for the charge on felony murder was

predicated on his argument that he lacked the specific intent to commit capital murder, the charge on

plain murder did not help him. Livingston does not argue that he did not commit the robbery; instead,

he argues that he lacked the specific intent to commit murder. This is relevant because a capital

murder verdict requires a finding that Livingston intended to rob and to kill Janet Caldwell, while a

felony murder verdict would have requir ed o nly that Livingston have intended to rob Caldwell.

Similarly, the only difference between a capital murder charge and a murder charge is the additional

element in the capital murder charge that the intentional killing takes place during the commission of

a felony—in this case, robbery.27

First, Beck does not stand for the proposition that the jury must be provided with instructions

for a lesser included offense when the capital sentencing scheme does not pose the potential for

unreliable sentencing like that inherent in the Alabama sentencing scheme. This case does not involve

the all-or-nothing scheme that was the basis for Beck ’s holding. Thus, Beck should not be extended

to a sentencing scheme such as the one implicated here. See Schad v. Arizona

, 501 U.S. 624, 646

(1991).

Second, we have recently rejected an argument similar to Livingston’s. In Allridge v. Scott

,

41 F.3d 213 (5th Cir. 1994), the petitioner asserted a due process argument because the jury also had

been instructed on capital murder and murder, but not felony murder. Th is argument was m ade

despite the petitioner’s concession that he was guilty of the arme d ro bbery underlying the capital

murder charge. We held that the jury’s capit al murder verdict did not violate the petitioner’s

Fourteenth Amendment rights, and specifically stated:

We reco gnize that had the jury returned a verdict of murder only, such a verdict

would effectively acquit Allridge of robbery, a charge which he does not challenge.

As illogical as this hypothetical verdict may be, it does not render the trial court’s jury

instructions unconstitutional because, in the final analysis, sufficient evidence existed

for the jury to convict Allridge of murder. Our reading of Beck and Schad instructs

us that the trial court was not constitutionally bound to provide a wider menu of jury

instructions. Instead, because the jury had the viable opti on to choose murder over capital murder , we are sat isfied that the option ensured the reliability of the jury’s

capital murder verdict.

Id. at 220. Livingston does not distinguish Allridge or assert a sufficiency of the evidence argument.

In fact, Livingston has made no showing that the trial court’s refusal to instruct the jury on felony

murder was a denial of any federal or constitutional right. Accordingly, we hold that the trial court

committed no constitutional error in refusing to instruct the jury on the lesser included offense of

felony murder.

CONCLUSION

For the foregoing reasons, the application for Certificate of Probable Cause, treated here as

an application for Certificate of Appealability, is DENIED, and the appeal is DISMISSED.