IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20445

EUGENE ALVIN BROXTON,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

January 2, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

This is an application for certificate of appealability from

a judgment of a federal district court refusing to set aside a

state conviction of capital murder.

I

Eugene Alvin Broxton in April 1992 was convicted by a Texas

jury in Harris County, Texas, of capital murder and shortly

thereafter sentenced to death. The Texas Court of Criminal Appeals

confirmed the conviction and s entence. B roxton v. State

, 9092

S.W.2d 912 (Tex. Crim. App. 1995). Broxton did not file a petition

for writ of certiorari in the United States Supreme Court.

In 1997, Broxton filed an application for state writ of habeas

corpus, and, after an evidentiary hearing, the state habeas trial

court filed findings of fact and conclusions of law together with

a recommendation that relief be denied. In October, 1999, the

T exas Court of Criminal Appeals adopted those findings an d

conclusions and denied relief. Ex Parte Broxton , Application No.

42,781-01 (Texas Crim. App. October 27, 1999).

In November 1999, the United Stat es District Court for the

Southern District of Texas, granted Broxton’s reques t for

appointment of counsel pursuant to 21 U.S.C. § 848(q), and in March

of 2000 Broxton filed his p etition for writ of habeas corpus in

that court, supplementing that petition in June. Broxton raised

four claims in his petition before the federal trial court: (1)

trial counsel rendered ineffective assistance by fai ling to

preserve error when the trial court limited the cross-examination

of witness Waylon Dockens; (2) appellate counsel rend ered

ineffective assistance by (a) failing to raise on appeal alleged

trial court error in refusing to al low a lesser-included offense

instruction and (b) failing to raise the allegedly improper denial

of a challenge for cause against prospective juror James Smith; (3)

his rights were violated when the trial court failed to instruct

the jurors on the definition of “life sentence;” and (4) the Texas3

death pen alty scheme is administered in violation of the Eighth

Amendment. By his supplement to his petition he asserted that his

sentencing proceedings were tain ted by the State’s expert whose

opinion considered race as a relevant circumstance for the jury’s

sentencing decision.

T he federal district court sustained the claim that

constitutional error tainted the punishment phase of the trial and

vacated the death sentence. At the same time, it rejected all

claims aimed at the guilt finding, declining to upset the verdict

and judgment finding Broxton guilty of capital murder. The

district court ordered the State of Texas to release Broxton from

custody unless within 180 days the State either imposed a sentence

of life imprisonment or conducted a new sentencing hearing. It

further provided that the 180-day time period did not commence

until “the conclusion of any appeal in the portion of this order

that denies federal habeas relief.” Finally, the district court

refused to grant Broxton a certificate of appealability.

II

Broxton seeks to appeal the denial of relief from the finding

of guil t and petitions this court for a certificate of

appealability. The set-aside of the death sentence is not before

us. Broxton argues that his trial counsel rendered ineffective

assistance by not preserving an asserted error of the trial court

in limiting the cross-examination of witness Waylon Dockens and in

not raising on appeal the refusal of the state trial judge to4

i nstruct on the lesser included offense of felony murder.

We are persuaded that these claims la ck sufficient merit to

warrant a certificate of appeala bility, and that application is

denied. We do so for essentially the same reasons recited by the

United States District Court in its order filed March 28, 2001.

III

As the federal district court described in its order, Waylon

and Sheila Dockens were guests at the Magnolia Hotel in 1991.

Broxton pushed his way into their hotel room and proceeded to rob

them, using a .44 magnum pistol belonging to Waylon. He struck

both with the pistol and then shot them. Waylon was shot in the

face and Sheila died of a gunshot wound that entered her upper left

arm, striking vital organs before exiting her body.

-1-

The first claim, the limitation of the cross-examination of

Waylon Do ckens, is meritless. The state trial judge allowed

defense counsel to elicit from Waylon at trial that he was thinking

of filing suit against the hotel, but refused to allow counsel to

pursue the matter further, concluding that it was not relevant.

The state habeas court and the federal district court found that

the ruling was not prejudicial, even if error, because the jury

plainly had before it an even larger interest of Waylon Dockens in

the outcome of the prosecution

– he was beaten and shot by Broxton

and his wife was slain by him. Not allowing the defense to further5

develop facts surrounding a possible lawsuit against the hotel did

not constitutionally curtail the cross-examination of the witness.

-2-

The second contention, attacking the effectiv eness of his

appellate counsel in not raising on appeal the absence of an

instruction on a lesser included of fense, is equally meritless.

Given the circumstances of this crime, the lesser included offense

of felony murder was not in the case, as explained by the courts

below. It follows that the first prong of S trickland was not met.

Strickland v. Washington , 466 U.S. 697 (1984).

IV

The application for certificate of appealability is denied.