UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10576

BERNARD EUGENE AMOS,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, 

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas 

(August 7, 1995)

Before KING, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Petitioner-Appellant Bernard Eugene Amos, a Texas death row

inmate, appeals the district court's grant of summary judgment in

favor of Respondent-Appellant Wayne Scott, Director of the Texas

Department of Criminal Justice (the State), denying and dismissing

with prejudice Amos' petition for a writ of habeas corpus. For the

reasons set forth below, we affirm the judgment of the district
 

1Amos v. States, 819 S.W.2d 156 (Tex. Crim. App. 1991) (en

banc), cert. denied, 504 U.S. 917 (1992).

2

court.

I

FACTUAL HISTORY 

The full factual history for this appeal is detailed in the

opinion of the Texas Court of Criminal Appeals (TCCA) affirming

Amos' conviction and sentence.1 Summarized briefly, that history

is as follows. On January 14, 1988, Amos and his cousin, Gary Von

Bennett, drove to a Dallas apartment complex looking for something

to steal or an apartment to burglarize. After the two men

burglarized one apartment and returned to their car to cache the

stolen goods, they were approached by James Joe, an off-duty Dallas

police officer and part-time apartment complex security guard. 

Joe, who was wearing a Dallas Police Department sweatshirt and

police badge, identified himself and proceeded to question Amos and

Bennett. Amos became upset during the exchange with Joe, and at

some point "flinched," turned, drew a pistol, and shot Joe in the

chest at point blank range. Bennett eventually testified that he

immediately ran toward one of the apartment buildings, ducked down,

heard three or four more shots, and then nothing. When Bennett

returned to the car, he saw both Amos and Joe lying on the ground.

Bennett was told by Amos that he had been shot and needed

help. Bennett helped Amos into the car and drove to a neighboring

apartment complex. When the police arrived at that apartment

complex, Bennett ran and hid. Amos, who was unable to run, got out
 

2Id. 

 

3Amos v. Texas, 504 U.S. 917 (1992).

3

of the car and tried to hide under a parked truck. The police

found Amos, arrested him, and transported him to a hospital for

treatment. 

 II

PROCEDURAL HISTORY

Amos was indicted for the capital murder of James Joe in the

course of committing and attempting to commit burglary. Amos

entered a plea of "not guilty" to the offense and a trial followed.

Bennett, as the State's key witness, testified to the foregoing

facts at the guilt-innocence phase of Amos' trial. Amos also

testified in his own defense, admitting in the course thereof to

seven prior felony convictions, one misdemeanor conviction, and

four incarcerations in the Texas Department of Corrections. The

jury returned a verdict of guilty as charged in the indictment.

After a separate hearing on punishment, the jury, in response to

the Texas special issues submitted to it, sentenced Amos to death

by lethal injection. Amos' motion for a new trial was denied

following a hearing on that motion. 

Amos' conviction and sentence were automatically appealed to

the TCCA, the state's highest appellate court for criminal appeals.

In an en banc decision, that court affirmed Amos' conviction and

sentence.2 The United States Supreme Court denied Amos' petition

for writ of certiorari.3 

Amos filed his first petition for writs of habeas corpus
 

4Amos sought habeas relief on eleven grounds. The State

contended that six of the eleven grounds were procedurally barred

(arguing also that two of those six were precluded from review

because they required the application of a new federal

constitutional rule). In his habeas petition, Amos addressed

specifically only four of the procedurally defaulted claims. The

district court first concluded that the two unaddressed claims were

barred, then, after considering whether Amos had shown cause and

prejudice for his procedural default, a fundamental miscarriage of

justice, or some other right to an evidentiary hearing, held that

the remaining four claims were procedurally barred.

4

simultaneously in the TCCA and the Criminal District Court of

Dallas County (state habeas court or trial court, depending on

context). The state habeas court denied Amos' petition in an order

adopting the State's proposed findings of fact and conclusions of

law and adding the court's own supplemental findings of fact and

conclusions of law. The TCCA also denied Amos' petition, holding

that the findings entered by the trial court were supported by the

record. 

Amos filed a petition for federal writ of habeas corpus and

stay of execution in the district court, which granted the stay

pending its examination of Amos' habeas petition. In response to

Amos' petition, the State filed an answer and a motion for summary

judgment. Following oral argument, the district court granted

summary judgment in favor of the State, dismissing Amos' petition

and vacating the stay of execution. In rejecting Amos' petition,

the district court held that (1) six of Amos' eleven grounds for

relief were procedurally barred under state law;4 (2) Amos' claim

that the State failed to disclose material impeachment evidence and

to correct perjured testimony was meritless; (3) Amos did not

satisfy the standard necessary to establish his claim of
 

5Amos' claim stems from what he characterizes as the

conspicuous presence of numerous uniformed police officers in the

courtroom during the closing arguments of the punishment phase of

his trial and the prosecutor's remarks directing the jury's

attention to those officers. 

5

ineffective assistance of counsel on the grounds that counsel

failed to a) conduct a reasonable punishment phase investigation,

b) adequately voir dire the jury panel, and c) present evidence

that Amos did not knowingly waive his Fifth Amendment rights; and

(4) Amos showed no basis for relief on his claim challenging the

Texas special issues, as interpreted and applied in his case.

Amos' motion to alter or amend the district court's judgment was

denied. 

Amos timely filed notice of appeal to this court but the

district court denied a certificate of probable cause (CPC) to

appeal. Amos filed a second notice of appeal as well as another

motion for CPC. Again, the district court denied Amos' motion for

CPC. Amos then filed a request for CPC with this court, which was

carried with this appeal. We grant Amos' request for a CPC, and

proceed to the merits of his appeal. 

III

ANALYSIS

Amos asserts on appeal that the district court erred in (1)

relying on the Texas contemporaneous objection rule as an

"independent and adequate state-law ground" barring federal court

review of his claim that the totality of circumstances surrounding

his trial violated his Sixth Amendment right to a fair trial;5 (2)

denying him an evidentiary hearing on his claim that the State
 

628 U.S.C. § 2254(d) (1992); Sumner v. Mata, 455 U.S. 591,

591-92 (1982). 

 

7Boyd v. Scott, 45 F.3d 876, 879 (5th Cir. 1994), cert.

denied, 115 S.Ct. 1964 (1995); Williams v. Collins, 16 F.3d 626,

630 (5th Cir.), cert. denied, 115 S.Ct. 42 (1994); Baty v. Balkcom,

661 F.2d 391, 394 n.7 (5th Cir. 1981), cert. denied, 456 U.S. 1011

(1982).

 

8Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("'[W]e have

consistently held the question of when and how defaults in

compliance with state procedural rules can preclude our

consideration of a federal question is itself a federal

question.'") (quoting Henry v. Mississippi, 379 U.S. 443, 447

(1965)).

6

failed to disclose material impeachment evidence and knowingly

presented false testimony; and (3) denying him an evidentiary

hearing on his claim that his counsels' failure to investigate and

present mitigating evidence during the punishment phase of his

trial constitutes ineffective assistance of counsel. Amos did not

re-urge on appeal his challenge to the Texas special issues. 

A. STANDARD OF REVIEW

In reviewing the habeas proceedings of petitioners in state

custody, we must accord a presumption of correctness to state court

findings of facts.6 We review the district court's findings of

fact for clear error and decide any issues of law de novo.

7 A

district court's denial of federal habeas review based on a state

procedural ground presents a legal question that we review de

novo.

8

B. TEXAS' CONTEMPORANEOUS OBJECTION RULE - INDEPENDENT AND ADEQUATE?

Amos contends that the district court erroneously relied on

the Texas contemporaneous objection rule as an independent and

adequate state-law ground on which to deny review of many of his
 

9See TEX. R. APP. PRO. 52(a) (1994) (to preserve complaint for

appellate review, party must have presented to trial court timely

request, objection, or motion, stating specific grounds for ruling

desired if specific grounds were not apparent from context). 

 

10Harris v. Reed, 489 U.S. 255, 260, 262 (1989).

 

11Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris, 489

U.S. at 261. 

 

12Id. 263 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327

(1985); Coleman, 501 U.S. at 735; Young v. Herring, 938 F.2d 543,

553-54 (5th Cir. 1991) (key to determining whether state court

7

federal habeas claims.9 Amos insists vigorously that the state

procedural rule is not an adequate state-law ground, advancing two

fundamental reasons: (1) the rule and its exceptions are not

strictly or regularly followed by the TCCA, and (2) the rule is an

inherently discretionary rule of procedure and therefore is per se

inadequate. 

1. Strictly or Regularly Followed? 

A federal court will not review a question of federal law

decided by a state court if the decision of that state court rests

on a state ground that is both independent of the merits of the

federal claim and adequate to support that judgment.10 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.11

Procedural default does not bar federal court review of a

federal claim raised in a habeas petition unless the last state

court rendering a judgment in the case has "clearly and expressly"

indicated that its judgment is independent of federal law, e.g.,

rests on a state procedural bar.12 Relevant to this appeal in this
opinion rests on independent and adequate state ground "is not the

clarity of the state court's language, or even whether the state

court addressed the merits of the federal claim, but whether the

state court may have based its decision on its understanding of

federal law."), cert. denied, 503 U.S. 940 (1992).

 

13504 U.S. 527 (1992).

 

14Id. at 534.

 

15Id. at 534 n. *. See Harris v. Reed, 489 U.S. 255, 264 n.10

(1989) (noting that state court need not fear reaching merits of

federal claim in alternative holding as long as state court

explicitly invokes state procedural bar as a separate basis for

decision).

 

16Johnson v. Mississippi, 486 U.S. 578, 587 (1988); Barr v.

City of Columbia, 378 U.S. 146, 149 (1964); Wilcher v. Hargett, 978

F.2d 872, 879 (5th Cir. 1992), cert. denied, 114 S.Ct. 96 (1993).

Although the test for determining the adequacy of a state-law

ground is disjunctive (strictly or regularly), we have not

discovered any cases in which the Supreme Court has divided the

test into a separate standard for each term. The Court appears to

8

regard is a recent Supreme Court case, Sochor v. Florida,

13 in which

the Court held that a state court opinion expressing that "none of

the complained-of jury instructions were objected to at trial, and

thus, . . . are not preserved for appeal," indicates with

"requisite clarity" the rejection of a federal claim based on an

alternative state-law ground.14 We note in particular that the

Court reached this conclusion even though the state court opinion

also expressed that, "[i]n any event, [the] claims . . . have no

merit."15

In addition to being independent of federal law, a state

procedural rule barring federal habeas review of a federal claim

must be adequate. In general, the test for the adequacy of such a

rule is that it is strictly or regularly followed by the cognizant

state court.16 The Supreme Court has further defined this concept
treat synonymously the terms of the standard, and on at least one

occasion has interchanged the word "regularly" with the word

"consistent." For the purposes of this opinion, therefore, we

discern no significant distinction between the words "strictly" and

"regularly" as those terms are used in determining whether a state

procedural rule is adequate, and we use the terms according to

their common meaning. See BLACK'S LAW DICTIONARY 1286, 1422 (6th ed.

1990) (defining "strictly" as "a strict manner; closely, precisely,

rigorously; stringently; positively;" and "regularly" as "at fixed

and certain intervals, regular in point of time. In accordance

with some consistent or periodical rule or practice."). 

 

17See Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989) (concluding

that state court "faithfully applied" its procedural rule to vast

majority of cases raising same type of constitutional claim

(Caldwell claim)); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)

("State courts may not avoid deciding federal issues by invoking

procedural rules that they do not apply evenhandedly to all similar

claims.").

 

18Coleman v. Thompson, 501 U.S. 722, 735 (1991) (quoting

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). 

9

of adequacy, however, to include a state procedural ground that is

strictly or regularly applied evenhandedly to the vast majority of

similar claims.

17

Federal courts will presume that there is no independent and

adequate state ground for a state court decision when that decision

"'fairly appears to rest primarily on federal law, or to be

interwoven with the federal law, and when the adequacy and

independence of any possible state law ground is not clear from the

face of the opinion.'"18 Nevertheless, a judgment resting on an

independent and adequate state rule of procedural default will bar

federal habeas review of a federal claim if the habeas petitioner

cannot show "cause" for the default and "prejudice attributed

thereto," or demonstrate that the federal court's failure to review

the defaulted claim will result in a "fundamental miscarriage of
 

19Harris v. Reed, 489 U.S. 255, 262 (1989); Engle v. Issac, 456

U.S. 107, 129 (1982).

 

20See, e.g., Duran v. State, 844 S.W.2d 745, 746 n.1 (Tex.

Crim. App. 1992, no writ) (noting that "Although appellant failed

to preserve error by not objecting, the Court of Appeals addressed

the merits of appellant's claim in the interest of justice.");

Green v. State, 840 S.W.2d 394, 403, 403 n.6 (Tex. Crim. App. 1992)

(finding procedural default ("appellant has waived error"); noting

in footnote that "in the interest of justice" court reviewed merits

of the defaulted claim), cert. denied, 113 S.Ct. 1819 (1993);

Ransom v. State, 789 S.W.2d 572, 585 (Tex. Crim. App. 1989)

(concluding that, as no objection was raised at trial, nothing was

before court on review; followed by discussion on merits), cert.

denied, 497 U.S. 1010 (1990); Stoker v. State, 788 S.W.2d 1, 16

n.19 (Tex. Crim. App. 1989) ("Appellants complaint is not properly

preserved for review. However, in the interest of justice and due

to severity of the attending punishment we addressed appellant's

claim."), cert. denied, 498 U.S. 951 (1990); Huffman v. State, 746

S.W.2d 212, 222-23 (Tex. Crim. App. 1988, no writ) ("nothing is

presented for review;" "Nevertheless, we find . . ."); May v.

State, 738 S.W.2d 261, 269 (Tex. Crim. App.) ("failure to object

waives any alleged error," "However, we have examined the record .

. ."), cert. denied, 484 U.S. 872 (1987); Wilkerson v. State, 736

S.W.2d 656, 663-64 (Tex. Crim. App. 1987, no writ) (no objection to

testimony was made at trial, thus nothing preserved for review;

"even if it could be said . . ."); Barnard v. State, 730 S.W.2d

703, 716 (Tex. Crim. App. 1987) (noting that defendant's general

objection presented no error for review; "Nevertheless, we will

examine the merits . . ."), cert. denied, 485 U.S. 929 (1988);

Hogue v. State, 711 S.W.2d 9, 28 (Tex. Crim. App.) (concluding

10

justice."19

a. The Texas Rule 

Amos contends that the Texas contemporaneous objection rule is

not an adequate state procedural ground on which to base a denial

of federal habeas review of his claims because the rule is neither

strictly nor regularly followed. To support his contention, Amos

lists a number of cases in which, he asserts, the TCCA has

expressly--and inconsistently--excused a criminal defendant's noncompliance with the procedural rule and proceeded to reach the

merits of the otherwise defaulted claim20 Amos essentially argues
that, as appellant's objection at trial did not comport with

argument raised on appeal, court not mandated to consider argument;

"Nevertheless, we will address the merits . . ."), cert. denied,

479 U.S. 922 (1986); Phillips v. State, 701 S.W.2d 875, 881-82

(Tex. Crim. App. 1985) (no error preserved; "even if . . .advanced

. . . no merit."), cert. denied, 477 U.S. 909 (1986); Barney v.

State, 698 S.W.2d 114, 123 (Tex. Crim. App. 1985, no writ)

("nothing is preserved for review. . .;" "We nevertheless proceed

to its review in the interest of justice."); Guzmon v. State, 697

S.W.2d 404, 409-10 (Tex. Crim. App. 1985) (holding that "nothing is

presented for review;" followed with discussion on merits), cert.

denied, 475 U.S. 1090 (1986); Green v. State, 682 S.W.2d 271, 275

(Tex. Crim. App. 1984) (no objection, failure to object waives

error; followed by comment on the merits of the claim), cert.

denied, 470 U.S. 1034 (1985). 

 

21See, e.g., Heath v. Jones, 941 F.2d 1126, 1137 (11th Cir.

1991) (holding that state court's use of term "nevertheless" in

addressing the merits of claim waived previously mentioned

procedural default), cert. denied, 502 U.S. 1077 (1992).

11

that the TCCA fails to follow strictly or regularly the

contemporaneous objection rule whenever it first notes a

defendant's failure to comply with the rule, then "nevertheless" or

"in the interest of justice" goes on to excuse the procedural

default and consider the substantive merits of the claim. Amos

insists that the fact that the state court prefaces its discussion

of the merits with such transitional terms as "nevertheless" or

"however" demonstrates the court's clear intent to excuse the

procedural error and deny relief solely on the merits.21 Amos

deduces, therefore, that the state court's "unambiguous intent to

excuse" the defendant's failure to observe the contemporaneous

objection rule constitutes that court's failure to follow strictly

or regularly the rule.

At the outset we note that, in challenging the adequacy of the

Texas contemporaneous objection rule, Amos attacks the rule in its
 

22Amos' reliance on Powell v. State, 897 S.W.2d 307 (Tex. Crim.

App., 1994), cert. filed, (May 1995), is misplaced. Amos asserts

that the TCCA in Powell excused the defendant's failure to comply

with the contemporaneous rule and discussed the merits of an

identical and unobjected-to Sixth Amendment claim alleging a

"lynch-mob atmosphere." We disagree. 

First, we do not consider as dispositive of our review of the

application of the contemporaneous objection rule in 1992, a case

that applied (or allegedly excused) the rule in 1994. Second, even

if Powell were "timely," we would disagree with Amos'

characterization of the court's treatment of the claim. In Powell,

the TCCA first sustained one of the defendant's points of error

stemming from his sentencing trial, holding that the verdict

sentencing the defendant was incomplete and the sentence of death

was tainted. The court next dismissed as moot the defendant's

remaining claims, including his claims alleging a "lynch-mob

atmosphere" at his sentencing trial. Although the court expressed

in a footnote its concern that some of the unaddressed points of

error were troubling, (e.g., the "lynch-mob atmosphere"), noting

specifically "the pattern of escalating disregard for

constitutional order on the part of the trial court and the State,"

the court did not rule on the merits of the claim. As the TCCA had

already ruled that the claim was moot, its dicta commenting on what

it perceived to be the practice of the trial court and State cannot

be viewed as an occasion in which the court excused the procedural

default to rule on the merits of the claim. 

 

23Other than Powell, Amos has not directed us specifically to

any TCCA cases raising identical or similar claims. And our

research reveals only those instances in which similar claims were

addressed by the intermediate appellate courts of Texas. As Amos

12

entirety, as it has been applied to myriad claims in capital and

non-capital cases from 1972 to the present. What Amos fails to do

in his zealous attempt to discredit the rule, however, is to direct

us to cases in which the rule has been applied--either evenhandedly

or unevenhandedly--to claims identical or similar to his own Sixth

Amendment claim of an unfair trial.22 Unfortunately for Amos, our

research on this precise Sixth Amendment claim--and presumably his

as well--reveals that, on the limited occasions in which a Texas

appellate court has applied Texas Rule 52(a) to a similar claim,

the court has applied the rule evenhandedly.23 Because Amos has not
raises his "hostile trial environment" Sixth Amendment claim as a

distinct claim (raising a separate Sixth Amendment claim alleging

ineffective assistance of counsel), we note only those cases

reviewing claims of an unfair trial due to circumstances other than

ineffective assistance of counsel. See, e.g., Mayfield v. State,

803 S.W.2d 859, 862-65 (Tex. Ct. App. - Corpus Christi 1991, no

writ) (reviewing defendant's sixteen points of error alleging

denial of due process and unfair trial, rejecting as barred those

errors to which defendant failed to object pursuant to Rule 52(a)).

Cf. O'Rarden v. State, 777 S.W.2d 455, 460 (Tex. Ct. App - Dallas

1989, writ ref'd) (holding that defendant's oral motion requesting

continuance was sufficient to preserve error for review pursuant to

Rule 52(a) when it was clear that both trial judge and prosecutor

were aware of substance of complaint).

 

24If we were to follow Amos' contention to its (il)logical

conclusion, we would be telling the states within this circuit

that, unless you use the magic word "alternative" when following a

procedural default holding with a merits holding, we will deem your

application of your rule not to be strict or regular, and thus not

independent and adequate. We are unwilling to set such an

13

demonstrated that the TCCA does not strictly or regularly apply the

contemporaneous objection rule to claims identical or similar to

his Sixth Amendment claim, we are convinced that the rule is an

adequate state-law ground, regardless of whether that court may be

less than strict or regular in applying the rule to dissimilar

claims.

Even if we were to look outside Amos' particular context, we

would find that Texas courts apply the contemporaneous objection

rule strictly and regularly. The vast majority of cases on which

Amos relies do not reflect instances in which the TCCA has failed

to follow strictly or regularly the contemporaneous objection rule;

quite the opposite, the substantial majority reflect instances in

which the state court first held that a defendant's claims were

procedurally barred and then addressed the merits of the defaulted

claim in an alternative holding.24 Given the Supreme Court's
arbitrarily Draconian trap for the unwary. 

 

25501 U.S. 722 (1991).

 

26Id. at 739 (emphasis added) (declining to expand the Harris

presumption to apply in all habeas cases presented to a state court

in which the state court did not "clearly and expressly" state that

its judgment rests on state law; reiterating that presumption

applies only when it fairly appears that state court rested

decision primarily on federal law).

14

conclusion in Sochor that the state court opinion in that case

indicated with requisite clarity that the defendant's federal claim

was rejected on alternative grounds--state procedural default and

federal merits--it follows that here, when the TCCA uses similar

language for the same purpose, such language must be viewed as

signaling an alternative holding independent of federal law, not as

an indication that the state court is excusing the procedural

default. 

The fact that from time to time the state court uses any one

of an infinite variety of particularized transitional phrases to

signal alternative holdings--language that Amos' characterizes as

demonstrating the court's unambiguous intent to excuse the

procedural default--is irrelevant in this instance. Harking to the

Supreme Court's dicta in Coleman v. Thompson,

25 we remind ourselves-

-and Amos--that "we have no power to tell state courts how they

must write their opinions. We encourage state courts to express

plainly . . . the grounds upon which their judgments rests, but we

will not impose on state courts the responsibility for using

particular language in every case in which a state prisoner

presents a federal claim. . . ."26
 

27See, e.g., Young v. State, 826 S.W.2d 141 (Tex. Crim. App.

1991) (holding that defendant not required to request trial judge

to make finding on Batson motion in order to have same evidence

15

We decline today to impose on the TCCA the need to pronounce

some shibboleth or incant some magic words guaranteeing safe

passage from a holding based on a state procedural bar to an

alternative holding on the merits without infecting the opinion

with "excuse" and thus dooming it to inadequacy. We likewise

decline Amos' invitation to hold that a court's particular choice

of words or phrases to reflect the shifting of its focus from a

holding grounded on independent state law to an alternative holding

based on federal law is dispositive when determining whether that

state-law ground is adequate. We remain satisfied instead that

when the TCCA holds that a criminal defendant's federal claim is

procedurally barred, then proceeds to address the merits of the

defaulted claim and voice a second holding, the opinion is properly

viewed as stating alternative holdings. Only if the TCCA should

clearly and unequivocally excuse the procedural default will we

view the opinion as one decided on the merits only.

As we discern that all but a de minimis few of the cases cited

by Amos reflect occasions in which the Texas state court has

rendered alternative holdings rather than excused the procedural

default, it follows that the TCCA strictly or regularly enforces

the contemporaneous objection rule. The handful of cases upon

which Amos relies as typifying the TCCA's disregard of the

contemporaneous objection rule are either insufficient to undercut

the adequacy of the Texas rule or inapplicable.27 We acknowledge
considered on direct appeal), ref'd on remand petition for

discretionary review, 856 S.W.2d 175 (Tex. Crim. App. 1993); Yee v.

State, 815 S.W.2d 691, 692 (Tex. Crim. App. 1991, no writ (reh. on

petition for discretionary review denied)) (White, J. dissenting)

(complaining that majority excuses defendant's failure to perfect

bill of exception under Rule 52(b)); Harris v. State, 790 S.W.2d

568, 582-83 (Tex. Crim. App. 1989, no writ) (reviewing under

harmless error rule, merits of defendant's unobjected-to claim that

the state trial court failed to comply with the mandates of the

Code of Criminal Procedure); Valcarcel v. State, 765 S.W.2d 412

(Tex. Crim. App. 1989, no writ) (McCormick, J. dissenting)

(criticizing majority for not discussing whether defendant's

failure to object to "bolstering" testimony at trial failed to

preserve error); East v. State, 702 S.W.2d 606, 615 (Tex. Crim.

App.) (observing that defendant raised his claim of an indictment

error for first time on appeal; NOTE: in 1985 a claim based on

indictment error fell within the exceptions to the contemporaneous

objection rule; since 1985, changes to the Texas constitution and

Code of Criminal Procedure require that such error be preserved,

see Studer v. State, 799 S.W.2d 263, 271-73 (Tex. Crim. App. 1990,

no writ)), cert. denied, 474 U.S. 1000 (1985). 

 

28See, e.g., Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989)

(concluding that "the few cases that respondent and the dissent

cite as ignoring procedural defaults do not convince us that the

[state supreme court] fails to apply its procedural rule regularly

and consistently"); Andrews v. Deland, 943 F.2d 1162, 1190 (10th

Cir. 1991) ("[a]n allegedly uneven application of a state

procedural default rule in general does not necessarily establish

that the application of a procedural default rule in a particular

case is not adequate.") (citing Dugger, 489 U.S. at 410)), cert.

denied, 502 U.S. 1110 (1992). See also Klein v. Neal, 45 F.3d 1395,

1398 (10th Cir. 1995) (interpreting Andrews for premise that state

procedural rule is adequate as long as applied regularly and

evenhandedly in vast majority of cases).

 

29705 F.2d 121 (5th Cir.), cert. denied, 464 U.S. 865 (1983).

16

with approval the principle that an occasional act of grace by a

state court in excusing or disregarding a state procedural rule

does not render the rule inadequate;28 after all, "regularly" is not

synonymous with "always" and "strictly" is not synonymous with

"unanimously." In Bass v. Estelle,

29 we determined that

. . . we do not regard an occasional act of grace by the

Texas court in entertaining the merits of a claim that

might have been viewed as waived by procedural default to
 

30Id. at 122-23.

 

31378 U.S. 146 (1964).

 

32Bass, 705 F.2d at 123. See Henry v. Wainwright, 686 F.2d

311, 314 n.4 (5th Cir. 1982) (addressing appellant's contention

that court circumvented precedent in finding that claim was not

barred from federal review because state court excused procedural

bar in unrelated case; expressing that we did not intend to suggest

that the past excuse of a default in another case allows a federal

17

constitute such a failure to strictly or regularly follow

the state's contemporaneous objection rule as permits us

to disregard that rule generally or where the state court

has not done so.30

In Bass, we distinguished the appellant's contention that the

contemporaneous objection rule was not strictly or regularly

followed from a challenge of the same ilk that had proved

successful in Barr v. Columbia.

31 The Supreme Court in Barr refused

to accept the state "generality of exceptions" rule as an

independent and adequate state law barring federal habeas review

after the Court's review of the state jurisprudence identified four

separate decisions rendered by the same state court--just weeks

before the petitioner's appeal--in which the state court had held

that identical "general" exceptions were sufficient. In

distinguishing --and rejecting--the issue raised in Barr from the

"adequacy issue" posed in Bass, we essentially determined that the

petitioner in Bass had not presented the same type of clearly

identifiable disregard of the state rule as had the petitioner in

Barr. We noted that "[u]ntil such constructional legerdemain as

occurred in Barr is drawn before us," we would have no occasion to

re-examine our prior holding that "we will not excuse a procedural

default in a case where state courts have not done so."32
court to excuse a default in a case where the state courts have

not), vacated on other grounds, 463 U.S. 1223 (1983).

 

33See Dugger, supra n. 17, 28.

 

34See, e.g., Hill v. Black, 887 F.2d 513, 516 (5th Cir. 1989)

(noting that Mississippi court's regular and consistent application

of plain error exception to state contemporaneous objection rule

prevents application of rule being deemed haphazard or arbitrary),

cert. granted and judgment vacated, 498 U.S. 801 (1990), opinion

reinstated, 920 F.2d 251 (5th Cir. 1990).

18

We are satisfied that, despite his strenuous efforts to

marshall cases in which the TCCA has failed to apply the

contemporaneous objection rule, Amos has not presented to us a

situation in which we should conclude that the contemporaneous

objection rule--as applied by the TCCA to Amos' specific claims as

well as to essentially identical claims in other cases--is not

strictly or regularly followed. We find to the contrary, then,

that it is thus followed. 

b. The Exceptions 

In a variation of his theme composed to "undercut the

adequacy"33 of the contemporaneous objection rule, Amos argues that

a state court's failure to apply, consistently and rationally,

recognized exceptions to a procedural default rule will render the

larger procedural rule an inadequate state law ground in all

cases.34 Specifically, Amos contends that the TCCA does not

strictly or regularly apply its two recognized exceptions--the

"right not recognized" exception and the "fundamental error"

exception--to the contemporaneous objection rule, as a result of

which the rule as a whole is not an adequate state-law ground. 

i. Right Not Recognized Exception
 

35492 U.S. 302 (1989). 

 

36451 U.S. 454 (1981) (holding that psychiatrist's testimony

at penalty stage of trial regarding court-ordered pretrial

competency examination of accused, who was in custody at the time

of examination and had neither been informed of his rights nor had

waived such rights, violates Fifth Amendment privilege against

self-incrimination and Sixth Amendment right to counsel).

 

37One of these cases, Selvage v. Lynaugh, 842 F.2d 89, 93

(1988), was reconsidered after the Supreme Court issued its opinion

in Penry. The subsequent opinion is considered the landmark case

in which the TCCA recognized that Penry claims could be raised

retroactively on appeal despite a procedural bar. See Selvage v.

Collins, 816 S.W.2d 390 (Tex. Crim. App. 1991).

In Fierro v. Lynaugh, 879 F.2d 1276, 1281 (5th Cir. 1989),

cert. denied, 494 U.S. 1060 (1990) we determined that the

defendant's failure to object to or request jury instructions on

mitigating evidence was barred from review under the Texas

contemporaneous objection rule. Even though this may have been

error on our part in light of the fact that we reviewed the claim

after Penry had been decided, the TCCA applied the contemporaneous

objection rule to the claim in 1986 (antedating Penry). Similarly,

although in Mayo v. Lynaugh, 893 F.2d 683 (5th Cir. 1990) (petition

for rehearing) we reversed and remanded our previous decision

holding that the defendant's Penry claim had been procedurally

defaulted, there is nothing in the state court opinion that

suggests that the state court even addressed the issue, again,

because the right on which the subsequent claim to this court was

19

Amos cites several cases in which he asserts the TCCA has not

consistently applied the "right not recognized" exception to the

contemporaneous objection rule to claims based on Penry v.

Lynaugh,

35 and Estelle v. Smith.36 As we cannot read the cases on

which Amos relies to support this contention, however, we remain

convinced that, in the vast majority of cases, the TCCA strictly

and regularly applies both the contemporaneous objection rule and

its "right-not-recognized" exception. First, we reject out of hand

as wholly inapposite those cases in which the TCCA barred Penry

claims before that court even recognized that such claims could be

raised as a right not recognized.37 Amos asserts nevertheless that
based was not yet recognized. See Mayo v. State, 708 S.W.2d 854

(Tex. Crim. App. 1986, no writ). Moreover, as the State in Mayo had

waived its right to seek exhaustion in state court, it was the

district court that initially held that the defendant's Penry claim

was procedurally defaulted. See, e.g., Mayo v. Lynaugh, 883 F.2d

358, 359 (5th Cir. 1989). 

 

38986 F.2d 1493 (5th Cir.), cert. denied, 113 S.Ct. 2405

(1993).

 

39In Sawyers we reviewed for error the district court's holding

that Sawyers' Penry claim was procedurally barred from federal

review. We observed that the state trial court had denied Sawyers'

Penry claim, alternatively, on state procedural grounds and on the

merits. The TCCA too had denied Sawyers' claim, stating only that

the trial court's findings and conclusions were supported by the

record. We noted that the TCCA had decided Selvage v. Collins, 816

S.W.2d 390 (Tex. Crim. App. 1991), one week before denying Sawyers'

petition, and [we] determined that, if the TCCA had denied Sawyers'

petition on the basis of procedural default, that decision would

have been in direct conflict with Selvage. Relying on the Selvage

opinion, we concluded that there was strong evidence that the TCCA

had denied Sawyers' Penry claim on the merits rather than on

grounds of procedural bar. Accordingly, we held that the district

court had erred in holding that Sawyers' claim was procedurally

barred. Sawyers 986 F.2d at 1500. See, Ylst v. Nunnemaker, 501

U.S. 797, 805 (1991) (strong evidence can refute presumption that

where there has been one reasoned state judgment rejecting a

federal claim, later unexplained orders upholding that judgment or

rejecting same claim rest on same grounds articulated in prior

opinion).

20

even after the TCCA recognized Penry claims as a right not

recognized, that court disregarded the exception and held that such

claims were procedurally barred. 

Amos relies on Sawyers v. Collins,

38 yet that case offers no

support to his argument.39 As we determined in Sawyers that the

TCCA did not deny Sawyers' Penry claim on the basis of procedural

default, but rather on the merits, it does not follow--as Amos

urges--that Sawyers presents an occasion in which the state court

failed to apply strictly the right not recognized exception to a

Penry claim. 
 

40See Ex Parte Hawkins, Writ. No. 7,369-08 (state court opinion

dated February 17, 1995).

 

41See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993), rev'd on other grounds, 891 S.W.2d 267 (Tex. Crim. App.

1994). 

21

Amos cites but a single case in support of his contention that

the TCCA does not consistently and rationally apply the right not

recognized exception to Estelle v. Smith claims.40 Amos' reliance

on this one case is misplaced, however, as the relevant opinion was

rendered in 1995. We do not consider as dispositive of our review

of the application of the contemporaneous objection rule in 1992,

a case that applied (or allegedly excused) the rule in 1995.

ii. Fundamental Error Exception

Amos next contends that, even though the TCCA has not

developed a defined, consistently-applied fundamental error

exception to the contemporaneous objection rule, that court

inconsistently and indiscriminately applies such an exception to

various fundamental error claims. Amos rejects the State's

response that the fundamental error exception is limited to

unobjected-to jury charge error, and notes that the TCCA has held

recently in Marin v. State,

41 that numerous types of statutory and

constitutional claims are not subject to the contemporaneous

objection rule. Further, Amos suggests that in "the rare

instances" when a fundamental error exception has been applied to

non-jury charge error, the Texas courts have done so

inconsistently. Again, we are not persuaded. 

Contrary to the argument that Amos tries to make in regard to
 

42In Marin, the TCCA divided the rules defining Texas'

adjudicatory system into three categories of rights and

requirements. In so doing, the court noted that Texas Rule 52(a)

applies only to that category of rights that must be implemented

upon request, but not to the other two categories which encompass

absolute rights and requirement and rights that must be implemented

unless expressly waived. Id. at 278-79.

 

43Amos contends that even though the Texas state courts have

held that double jeopardy and collateral estoppel claims are so

fundamental that they may be raised for the first time on appeal,

those same courts have on occasion held that such claims are

procedurally defaulted unless preserved by objections made at

trial. 

 

44See, e.g., Simmons v. State, 745 S.W.2d 348, 351-52 (Tex.

Crim. App. 1987, no writ) (observing that double jeopardy claims

could be--and were--raised for first time in state appellate

court); Ex Parte Myers, 618 S.W.2d 365, 368-69 (Tex. Crim. App.)

(holding that Supreme Court decision in which Court held that

defendant's right to have trial completed by particular tribunal is

within constitutional guarantee against double jeopardy is

retroactively applicable to convictions that became final prior to

such decision (see, Crist v. Bretz, 437 U.S. 28 (1978)), cert.

denied, 454 U.S. 1091 (1981); Jones v. State, 586 S.W.2d 542, 544

(Tex. Crim. App. 1979, no writ) (noting that double jeopardy claim

may be raised for first time on appeal; noting also that defendant

had filed motion regarding double jeopardy claim in trial court

before entering guilty plea).

22

Marin, our review of that case convinces us that Texas'

adjudicatory system limits the types of rights that fall within the

scope of its Rule 52(a), thus, the rule itself cannot be deemed as

inadequate merely because particular types of fundamental claims

must be treated as exceptions to the rule.42 Similarly, we find

meritless Amos' contention that the TCCA inconsistently applies the

fundamental error exception to errors other than jury-charge

error.43 In rejecting this argument, we note that Amos compares

cases in which the TCCA has acknowledged that a claim of double

jeopardy--a fundamental constitutional guarantee--may be raised for

the first time on appeal,44 to one case in which that court denied
 

45See Disheroon v. State, 687 S.W.2d 332, 335 (Tex. Crim. App.

1985, no writ) (procedurally barring from review claim based on

doctrine of collateral estoppel).

 

46See, e.g., Elwell v. State, 872 S.W.2d 797, 799 (Tex. Ct.

App.-Dallas, 1994) (conviction for driving while intoxicated;

noting that defendant waived "collateral estoppel/double jeopardy"

claim by failing to object; discussing and rejecting claim on

merits), denial of habeas corpus aff'd, 1995 WL 376762 (Tex. App.-

Dallas, 1995); Casey v. State, 828 S.W.2d 214, 215-17 & n. 2 (Tex.

Ct. App. - Amarillo 1992, no writ) (opining in dicta that statement

that double jeopardy claims may be raised for first time in

criminal appellate court is inconsistent with large body of caselaw

holding that double jeopardy may not be raised on appeal (citing

one case to support contention regarding large body of caselaw)).

 

47See Williams v. Georgia, 349 U.S. 375 (1955) (holding that

court may not in its discretion allow questions to be raised at

late stages of a trial when as a matter of discretion court

declines to entertain constitutional claim while passing on kindred

issues on other occasions). 

23

review of a claim grounded in the doctrine of collateral estoppel,45

and to cases in which a different state appellate court has

reviewed or discussed the same.46

2. Per Se Inadequate?

Neither do we find persuasive Amos' assertion that the Texas

contemporaneous objection rule is inherently discretionary and is

therefore per se an inadequate state-law ground.47 As just

discussed, Rule 52(a) is not inherently or universally

discretionary: The TCCA limits the application of the rule to a

specific category of rights, and that same court defines and limits

the occasions in which the rule itself must be excused. We are

satisfied that when these standards, which govern the application

of the rule, are viewed in conjunction with the state court's

practice of regularly and strictly applying the rule and its

exceptions, they demonstrate that the Texas contemporaneous
 

48Although Amos does not raise the district court's treatment

of his "cause and prejudice" argument on appeal, we affirm the

district court's conclusion that Amos failed to establish that he

was entitled to relief, notwithstanding the procedural default of

his claim, on the ground that there was cause for and actual

prejudice stemming from his lawyers' failure to object to the

pretrial publicity and hostile atmosphere surrounding his trial. 

24

objection rule is not an inherently discretionary--and therefore

inadequate--state procedural rule.

In sum, we conclude that the TCCA strictly and regularly

applies its contemporaneous objection rule and the recognized

exceptions thereto in the vast majority of cases (and particularly

in cases raising identical or similar Sixth Amendment claims), that

come before it. We also conclude that the relatively few occasions

cited by Amos in which it might be said that the TCCA has

disregarded the rule and its exceptions are not sufficient to

undercut the overall regularity and consistency of their

application and thus the adequacy of the state procedural bar. We

hold, therefore, that the Texas contemporaneous objection rule, as

applied by the TCCA to Amos' petition for writ of habeas corpus, is

an independent and adequate state-law procedural ground sufficient

to bar federal court habeas review of federal claims. Accordingly,

we hold that here the district court did not err in categorizing

that rule as an independent and adequate state procedural rule and

relying on it as grounds for refusing to review Amos' claim that

the totality of circumstances surrounding his trial violated his

right to a fair trial.48 

C. EVIDENTIARY HEARING
 

49See Giglio v. United States, 405 U.S. 150, 154 (1972)

(failure to disclose to defendant promise made to key witness that

he would not be prosecuted if he testified violates due process);

Brady v. Maryland, 373 U.S. 83, 86 (1963) (failure to disclose

material exculpatory evidence violates due process); Napue v.

Illinois, 360 U.S. 264, 269 (1959) (failure to correct false

evidence violates due process). 

 

50East v. Scott, 55 F.3d 996, 1000 (5th Cir. 1995) (citing

Townsend v. Sain, 372 U.S. 293 (1963)); Ward v. Whitley, 21 F.3d

1355, 1367 (5th Cir. 1994), cert. denied, 115 S.Ct. 1257 (1995). 

 

51United States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994)

(quoting Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989), cert.

denied, 493 U.S. 970 (1989)).

25

Amos asserts on appeal that the district court erred in

denying him an evidentiary hearing on his claim that the State

failed to disclose material impeachment evidence and to correct

false testimony (Giglio/Napue claim)49 and his claim of ineffective

assistance of counsel. 

1. Giglio/Napue Claim

An evidentiary hearing in a federal habeas corpus proceeding

is mandatory only when (1) there is a factual dispute which, if

resolved in the petitioner's favor, would entitle the petitioner to

relief, and (2) the petitioner did not receive a full and fair

evidentiary hearing in state court.50 The burden is on the habeas

petitioner to allege facts which, if proved, would entitle him to

relief.51 

Amos requested a federal evidentiary hearing to prove the

factual basis of his Giglio/Napue claim, in which he alleged that

the State failed to disclose that it had reached an agreement with

Bennett in exchange for his testimony and failed to correct false

testimony elicited from Bennett. Bennett testified at Amos' trial
 

52See 28 U.S.C. § 2254(d) (1992); See also Sumner v. Mata, 455

U.S. 591, 591-92 (1982); Armstead v. Scott, 37 F.3d 202, 206 (5th

Cir. 1994), cert. denied, 115 S.Ct. 1709 (1995); DeVille v.

Whitley, 21 F.3d 654, 656 (5th Cir.), cert. denied, 115 S.Ct. 436

(1994). 

 

5328 U.S.C. § 2254(d) (1992).

 

54See 28 U.S.C. § 2254(d)(2) (1992). 

26

that he had not received any "deal" from the State in exchange for

taking the stand. Later, however, Bennett averred in an affidavit

that before he testified he was certain that "there was a deal" and

that it would be "okay" for him to cooperate with the State.

The district court concluded that a federal evidentiary

hearing on this issue was not necessary because there was no

factual dispute whether the State had entered into an agreement

with Bennett. The district court noted that the state habeas

court's factual findings are presumed to be correct if supported by

the record, and held that the record supported the state habeas

court's finding that no deal was made between the State and Bennett

in exchange for Bennett's testimony.52 We agree.

Pursuant to 28 U.S.C. § 2254(d), in any federal habeas

proceeding, a presumption of correctness must be accorded the

findings of fact made by a state habeas court if those findings are

supported by the record.53 This presumption does not apply,

however, to situations in which the factfinding procedure employed

by the state habeas court is not adequate to afford the petitioner

a full and fair hearing.54 Amos argues that, as the state habeas

court based its factual findings on a "paper hearing," he was not

afforded a full and fair hearing on his claims, and that therefore,
 

55Ellis v. Collins, 956 F.2d 76, 79 (5th Cir.), cert. denied,

503 U.S. 915 (1992).

 

56May v. Collins, 955 F.2d 299, 312 (5th Cir.), cert. denied,

504 U.S. 901 (1992).

 

57See, e.g., Armstead, 37 F.3d at 208 (presuming correctness

of factual findings derived from affidavits when same judge who

made findings was same judge who presided over petitioner's guilty

plea); May, 955 F.2d at 314-15 (concluding that findings of fact

based on paper hearing were entitled to presumption of correctness

in subsequent federal habeas proceeding when state court habeas

judge presided at petitioner's trial; observing that concerns about

inadequacy of "trial by affidavit" is diminished in context where

issue is before same judge and factual dispute stems from affidavit

in which trial witness alleges false testimony).

27

the district court erred in applying the § 2254(d) presumption of

correctness to the state court's findings. 

Factual findings based solely on a paper hearing are not

automatically entitled to a § 2254(d) presumption of correctness.55

"[I]t is necessary to examine in each case whether a paper hearing

is appropriate to the resolution of the factual dispute underlying

the petitioner's claim."56 Nevertheless, a factfinding procedure

that involves credibility determinations and is based on a "paper

hearing" affords the habeas petitioner a full and fair hearing when

the state court judge who presided over the petitioner's trial

conducts the habeas proceeding.57 Whenever such a judicial identity

exists, the presumption of correctness applies, and a federal

habeas court must accord the presumption to the factual findings.

In the instant case, the disputed facts stem from state habeas

credibility assessments that were made by the same state court

judge who had presided over Amos' trial. We are satisfied,

therefore, that the factfinding procedure followed by that judge
28

afforded Amos a full and fair hearing. Accordingly, the district

court did not err in presuming that the factual findings of the

state court were correct. And, as we determine that the factual

findings of the state court are supported by the record, we are

convinced that the district court did not err in concluding, as had

the state court judge, that the State had not entered into an

agreement with Bennett, granting him a "deal" in exchange for his

testimony. 

As there was no "deal" between the State and Bennett, it

follows that Amos' claim that the State failed to disclose material

impeachment evidence and to correct Bennett's false testimony, in

violation of the Eighth and Fourteenth Amendments, has no merit.

Albeit on paper, Amos was afforded a full and adequate hearing on

his state habeas petition. And, because he did not establish a

factual dispute which, if resolved, would entitle him to relief, he

was not entitled to a federal evidentiary hearing. We hold,

therefore, that the district court did not err in denying Amos'

request for an evidentiary hearing on his Giglio/Napue claim. 

2. Ineffective Assistance of Counsel

In both his state and federal habeas petitions, Amos alleged

that his counsels' failure to investigate and prepare mitigating

evidence about his background and mental health constituted

ineffective assistance of counsel in violation of the Sixth and

Fourteenth Amendments. In his appeal to this court, Amos contends

that the state habeas court's findings on this issue are not

entitled to the presumption of correctness because the factfinding
 

58Strickland v. Washington, 466 U.S. 668, 687 (1984).

 

59Id. at 687-88.

 

60Id. at 689.

 

61Id. at 694. "A reasonable probability is a probability

sufficient to undermine the confidence in the outcome." Id.

29

procedure employed by that court improperly elevated Amos' burden

of merely alleging facts to one requiring him to prove his factual

allegations. Additionally, Amos asserts--as he did on his

Giglio/Napue claim--that the district court erred in relying on the

findings of the state court and in denying him an evidentiary

hearing to prove his ineffective assistance claim. 

To obtain habeas relief based on a claim of ineffective

assistance of counsel, a petitioner must demonstrate both that his

counsel's performance was deficient (cause prong) and that the

deficient performance of counsel prejudiced the defendant

(prejudice prong).58 To satisfy the cause prong of the Strickland

standard, a defendant must show that counsel's representation fell

below an objective standard of reasonableness.59 This objective

standard is "highly deferential" and includes a "strong presumption

that counsel's conduct falls within the wide range of reasonable

professional assistance."60 To satisfy the prejudice prong of

Strickland, a defendant must show that "there is a reasonable

probability that, but for counsel's unprofessional error, the

result of the proceeding would have been different."61 In deciding

ineffective assistance claims, a court need not address both prongs

of the conjunctive Strickland standard, but may dispose of such a
 

62Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert.

denied, 115 S.Ct. 418 (1994).

 

63Clark v. Collins, 19 F.3d 959, 964 (5th Cir.) (citing 

Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. 1987)), cert. denied,

115 S.Ct. 432 (1994).

 

64Clark, 19 F.3d at 964 (citing Joseph v. Butler, 838 F.2d 786

(5th Cir. 1988)).

 

65As we determined above that the factfinding procedures

employed by the state habeas court in this instance afforded Amos

a full and fair hearing, the presumption of correctness applies

equally to the factfindings of the state habeas court regarding

ineffective assistance of counsel.

 

66Motley, 18 F.3d at 1226 (citing Strickland v. Washington, 466

U.S. 668, 698 (1984)).

 

67Black v. Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied,

504 U.S. 992 (1992).

30

claim based solely on a petitioner's failure to meet either prong

of the test.62 

A district court need not conduct an evidentiary hearing to

resolve an ineffective assistance of counsel claim when a

petitioner fails to allege facts which, if proved, would entitle

the petitioner to relief,63 or when the state court record supports

that court's disposition of the claim.64 A state habeas court's

findings of fact made in the course of deciding such a claim are

entitled to the § 2254(d) presumption of correctness,65 but the

cause and prejudice components of the Strickland test present a

mixed question of law and fact that must be reviewed accordingly.66

A state habeas court's ultimate conclusion that counsel did not

render ineffective assistance, therefore, is not a factual finding

to which the presumption of correctness applies, but is a legal

question that must be reviewed de novo.

67
 

68The court rejected in a footnote Amos' claim that his counsel

was constitutionally inadequate due to their failure to call

witnesses during the punishment phase of his trial. The court

later rejected Amos' contention that his counsel was ineffective

for failing to ascertain his underlying mental condition and

obtaining appropriate expert evaluation and testimony. 

31

In his federal habeas petition, Amos argues inter alia that

his lawyers' failure to conduct a reasonable investigation into

Amos' background and character constitutes ineffective assistance

of counsel because a reasonable investigation would have led to

substantial, mitigating information that could then have been

introduced during the punishment phase of his trial. In rejecting

this claim, the district court first noted the state habeas court's

factual finding that Amos strongly opposed having any witnesses

testify on his behalf during the punishment phase of his trial.

The district court determined in light of this fact that counsels'

failure to investigate what witnesses might have said on Amos'

behalf at the punishment phase of his trial could not have

prejudiced Amos: He would not have permitted those witnesses to

testify anyway, so what they might have said is academic. Thus,

concluded the court, Amos could not establish with reasonable

probability that, but for his attorneys' failure to interview Amos'

family and friends, the outcome of his punishment phase would have

been different; ergo no prejudice; ergo no merit to his claim of

ineffective assistance of counsel. Albeit unnecessary, the

district court also concluded that Amos failed to establish that

his counsels' performance was deficient; ergo no cause; ergo no

merit to is ineffective assistance claim.68 We agree on both
32

scores.

Amos nevertheless asserts that the district court's factual

finding that he wanted no witnesses called misapprehends the

significance of the state habeas court's finding that Amos did not

want family members to testify. Amos contends that just because he

did not want family members to testify, it does not follow that no

prejudice could result from counsels' failure to interview them.

Amos insists that, had his lawyers interviewed his family and

friends, those lawyers would have discovered that Amos had been

victimized and abused by his father, which in turn would have

required them to employ a mental health professional to examine

Amos before trial to elicit both guilt-innocence and penalty phase

evidence. 

Amos' argument fails for two reasons. First, contrary to

Amos' assertion, the district court was correct in finding that

Amos wanted no witnesses--not just no family members--to testify at

his punishment phase. According to the findings of fact and

conclusions of law contained in the State's response to Amos' state

habeas petition, which the state habeas court adopted, Amos

personally decided to present no punishment phase evidence.

Moreover, in a colloquy with the trial court, Amos (1) confirmed

that he had signed a statement in which he expressed his desire to

call no further witnesses at the punishment phase of his trial, (2)

testified that he did not want to call members of his family to

testify, (3) acknowledged that he understood the consequences of

resting his case at that time (last chance to present testimony),
 

69The district court noted that Amos did not request leave to

file counteraffidavits.

 

70Counsel averred that in the course of these interviews no one

mentioned any childhood abuse inflicted on Amos by his father. 

33

and (4) confirmed that he had talked with his attorney and approved

the strategy developed for his case. Clearly, this supports both

the state court's finding that Amos did not want to present any

punishment phase testimony and the propriety of the district

court's reliance on that finding. 

Second, in its substantive review of Amos' claim, the

district court considered the affidavit of one of Amos' attorneys,

which was filed with leave of the court.69 In that affidavit, Amos'

attorney stated that he made a strategic decision not to call a

mental health expert to testify in Amos' behalf because it would

have been of little value in light of Amos' coherent testimony at

the guilt-innocence phase of his trial. In addition, Amos'

attorney averred that he did interview members of Amos' family and

others whom Amos had mentioned might testify for him at the

punishment phase of his trial.70 Although counsel had determined

that Amos' friends--most of whom were convicted criminals--would

not make credible witnesses, he planned to call as witnesses some

of Amos' family members and a former state corrections employee.

Before any of these witnesses could testify, however, Amos notified

counsel that he did not want to present any punishment phase

testimony. Amos signed a statement to that effect and reiterated

his decision in his testimony before the court. 
 

7119 F.3d 959 (5th Cir.), cert. denied, 115 S.Ct. 432 (1994).

 

72Id. at 964-65. Cf. Barnard v. Collins, 958 F.2d 634, 642

(5th Cir. 1992) (when counsel had no reason to believe at time of

offense or trial that petitioner suffered from mental defect,

failure of counsel to investigate psychological, medical or

physical origins of petitioner's mental condition was not

ineffective assistance of counsel), cert. denied, 113 S.Ct. 990

(1993).

34

In Clark v. Collins,

71 we considered whether a district court

erred in rejecting, without an evidentiary hearing, a habeas

petitioner's claim that his counsel's failure to seek an

independent psychiatric evaluation or interview family members in

support of a possible insanity defense constituted ineffective

assistance of counsel. We accepted the state court's factual

findings that supported counsel's tactical decision not to request

additional psychiatric evaluation, as well as that court's finding

that the petitioner had explicitly requested that counsel refrain

from involving his family in his case. We concluded that the

petitioner's counsel did not perform deficiently in failing to seek

additional medical opinions or in failing to interview family

members regarding the petitioner's sanity. Consequently, we held

that the district court did not err in rejecting the petitioner's

ineffective assistance of counsel claims without conducting an

evidentiary hearing.72 Reinforced by our holding in Clark, we are

comfortable in concluding in this instance that the district court

did not err in rejecting Amos' ineffective assistance of counsel

claim without conducting an evidentiary hearing. 

We also reject Amos' other argument, that the district court

erroneously relied on the state habeas court's legal conclusion
35

that Amos failed to prove mental impairment. In fact, in our

review of the district court's opinion, we fail to discern just

where it is that Amos finds the district court to have relied on

such a conclusion. We do see where the district court (1) recited

the state court's findings, including that court's finding that

"Amos had failed to produce any proof of reduced mental abilities

and there was no evidence of 'reduced mental abilities,'" and (2)

used the state court's finding that there was "no evidence of

reduced mental abilities" to corroborate the district court's de

novo review and subsequent denial of Amos' claim. But if, in

denying Amos' claim, the district court relied on any of the state

habeas court's factual findings at all, it was at most the fact

that Amos wanted no witnesses to testify and the fact that there

was no evidence indicating that Amos was mentally impaired. 

Finding that Amos has not alleged any fact which, if proved,

would entitle him to an evidentiary hearing, we hold that the

district court did not err in rejecting Amos' ineffective

assistance of counsel claim without conducting an evidentiary

hearing. 

IV

CONCLUSION

We grant Amos' request for CPC, and for the foregoing reasons

affirm the judgment of the district court. The stay of execution

ordered by this court on January 6, 1995 is vacated. 

AFFIRMED
36