*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 95-40095

Summary Calendar

 _____________________

JIM CARROLL MARTIN,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director Texas

Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Eastern District of Texas

(3:93 CV 81)

_______________________________________________________

July 28, 1995

Before REAVLEY, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:*

Jim Carroll Martin was convicted by a Texas state jury of

aggravated sexual assault of his minor stepson and minor

stepdaughter. He appeals the district court's denial of his

petition for federal habeas corpus relief. We affirm.
2

DISCUSSION

A. The Admission of Hearsay Statements

Martin argues that he received ineffective assistance of

counsel in state court, because his counsel did not prevent the

admission of certain hearsay testimony during the trial on his

guilt. Lois Price, an employee of the Texas Department of Human

Services, testified for the prosecution about what the children

told her in an interview that she had with them shortly after the

older child had reported abuse to the children's mother. The

district court allowed this evidence pursuant to a Texas statute

which permits hearsay testimony, in child abuse cases, about the

first statement concerning the offense made by a minor victim to

an adult. Tex. Crim. Proc. Code Ann. § 38.072 (West Supp. 1995). 

Martin argues that his attorney should have objected to Price's

testimony on the grounds that the children did not make their

first statements to Price. He claims that, if his attorney had

properly investigated the case, he would have discovered that the

children first made statements about the offense to officer Benny

Matthews at the Sheriff's Office. He argues that his counsel

should have called Matthews to testify so as to preclude Price

from testifying.

Even if the performance of Martin's counsel was deficient,

Martin cannot show that he suffered any prejudice. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). If Martin's

counsel had found that Matthews first heard the children's story

about their stepfather's abuse, then Matthews would have been the
3

proper witness to testify about the children's statements rather

than Price. But, Martin cannot show that Matthews' testimony

about the children's statements would be any more favorable to

his case than the testimony of Price. The record indicates that

the children saw Matthews and Price on the same day. The record

does not show any difference in the stories about the abuse told

to Matthews and Price. Also, the children themselves testified

at trial about the abuse they suffered, so that Price's testimony

added little in support of the prosecution's case. Price's

testimony was presumably offered by the prosecution to support

the children's testimony by showing that the children told the

same story to an adult soon after the abuse was discovered. 

Matthews' testimony would have served that purpose as well as

Price's testimony.

Martin also argues that Price's testimony should not have

been admitted, because the prosecution did not comply with the

procedural requirements of the Texas statute providing for the

admission of Price's hearsay testimony. See Tex. Crim. Proc.

Code Ann. § 38.072. Martin's counsel objected strenuously to

Price's testimony on the grounds of noncompliance with the

requisite procedure. Although Martin's counsel did not succeed

on this point, he certainly provided "reasonable" assistance. 

See Strickland, 466 U.S. at 689.

Martin also complains that hearsay testimony by the

children's mother was admitted. The record shows that the jury

did not hear any hearsay testimony by the mother about the
 

1 Martin also appears to request habeas relief on the

grounds that the trial judge incorrectly instructed the jury as a

point of error separate from the ineffective counsel claim. 

However, Martin's claim just asserts that the trial court failed

to follow state law by instructing the jury incorrectly on Texas

law regarding parole availability. We do not interfere with a

state court's application of state law. Springer v. Coleman, 998

F.2d 320, 324 (5th Cir. 1993). In a habeas case, we decide only

issues which involve federal constitutional concerns. Smith v.

McCotter, 786 F.2d 697, 700 (5th Cir. 1986). Martin does not

allege a violation of any constitutional right other than the

right to effective assistance of counsel. 

4

children's statements to her relating to the sexual abuse. 

Martin's counsel objected to any such testimony by the mother.

The court agreed that the mother could not testify about

statements made to her by the children relating to the abuse,

because the children did not make their first statements about

the actual offense charged to their mother. Martin's counsel was

successful, not deficient. 

B. Jury Instructions on Punishment

Martin also argues that he received ineffective assistance

of counsel during the punishment stage of the trial. The trial

judge gave the jury an instruction on Martin's future eligibility

for parole which was incorrect under Texas law and which might

have led the jury to believe that Martin would be eligible for

parole sooner than he actually would be. Martin complains that

his counsel was ineffective, because he failed to object to the

instruction.1 The state respondents concede that Martin's

counsel should have objected. However, Martin again has failed

to show prejudice. See Strickland, 466 U.S. at 687. He has not

shown that there exists a probability that, but for counsel's
5

deficiency, his sentence would have been "significantly less

harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). 

In deciding whether Martin suffered prejudice in the

sentencing context, we must consider the actual sentence imposed,

the minimum and maximum sentences possible, the relative

placement of the actual sentence within that range, and any

relevant mitigating and aggravating factors that were considered

by the jury. Id. at 88-89. Martin's sentence of 20 years was at

the lower end of the possible imprisonment range of 5 to 99

years. The jury heard graphic testimony about Martin's repeated

sexual assault of a small boy and girl living in his home and

under his care. Considering the aggravating circumstances of the

case, the jury could easily have imposed a much harsher sentence. 

It is not likely that the jury would have given Martin a lower

sentence if they had more clearly understood the rules of parole.

C. Impartiality of the Jury

Martin finally argues that his constitutional rights were

violated because Cynthia Fox, the alleged secretary of a

physician who examined the children, was allowed to remain on the

jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (accused has

constitutional right to be tried by an impartial jury). Although

it is unclear whether Martin's argument is couched in terms of

ineffective assistance or as a separate point of error, neither

argument is availing. 

Even assuming that Fox was employed by the physician, Martin

has not shown that Fox was unable to serve as an impartial juror. 
6

Nor can Martin argue that her presence on the jury prejudiced his

defense. Martin claims that Fox was predisposed to believe the

testimony of her employer, the physician. However, Martin relied

heavily on the physician's testimony that he found no physical

findings to verify the allegations of sexual abuse made by the

children and could not make a conclusion that abuse had occurred. 

Fox's predisposition to believe this testimony would aid rather

than harm Martin's defense. 

Martin has also failed to show that his counsel's failure to

remove Fox was anything less than a strategic decision. See

Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (strategic

choices are virtually unchallengeable). The jury panel consisted

of many persons either related to, or familiar with, the parties. 

Martin's counsel may have chosen not to challenge Fox's presence

on the jury, because Fox may have had less connection to the case

than other proposed jury members. Also, Martin's counsel may

have wished to keep Fox on the jury, believing that the

physician's testimony was Martin's strongest defense and hoping

that Fox would believe that testimony. 

D. Appointment of Counsel and Evidentiary Hearing

The district court did not err in refusing to hold an

evidentiary hearing so that Martin could present his points of

error. A federal court need not hold an evidentiary hearing on a

habeas petition if the record is adequate to dispose of the

claims. Wiley v. Puckett, 969 F.2d 86, 98 (5th Cir. 1992). As

evidenced from the preceding discussion, Martin's claims are
7

readily disposed of without the necessity of creating further

record in this case. Nor did the district court err in denying

Martin's requests for appointment of counsel. No constitutional

right to counsel exists in habeas corpus actions. Pennsylvania

v. Finley, 481 U.S. 551, 555 (1987). The interests of justice

would not be served by appointing counsel in this case. See

Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

AFFIRMED.