*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 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should not be published.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. 95-10263

_____________________

DORSIE LEE JOHNSON BEY,

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

(5:94-CV-0020-C)

_________________________________________________________________

December 27, 1995

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM*:

Dorsie Lee Johnson-Bey, Jr., a Texas prisoner convicted of

capital murder and sentenced to death, appeals from the district

court's judgment dismissing with prejudice his petition for the

writ of habeas corpus. 
2

I. BACKGROUND

Dorsie Lee Johnson-Bey, Jr. ("Johnson-Bey") murdered Jack

Huddleston in Scurry County, Texas, on March 23, 1985. The

factual circumstances of Johnson-Bey's crime, as summarized by

the Texas Court of Criminal Appeals, are as follows:

In the early morning hours of Sunday, March 23, 1986,

[Johnson-Bey] and his accomplice, Amanda Miles, decided

to commit a robbery at the Allsup's convenience store

in Snyder[, Texas]. After planning the crime, deciding

that there should be no witnesses, and waiting for the

store to clear of customers, the pair entered the

store. On the pretext of wanting a particular item,

[Johnson-Bey] lured Huddleston, the clerk, back to the

cooler where [Johnson-Bey told him that] this was a

robbery and to lie face down on the floor. [JohnsonBey] then shot the clerk in the back of the neck with a

.25 caliber pistol, killing him. Amanda Miles emptied

out the cash drawer taking approximately $160.00 (one

hundred sixty dollars.) Two cartons of cigarettes were

also taken.

[Johnson-Bey] was arrested in April for a subsequent

robbery and attempted murder of a store clerk in the

neighboring town of Colorado City. It was in the

course of investigating this latter offense that

[Johnson-Bey] confessed to the capital offense

committed in Snyder.

Johnson v. State, 773 S.W.2d 322, 324 (Tex. Cr. App. 1989). 

Johnson-Bey was indicted for capital murder on May 29, 1986;

he was tried by jury and convicted of capital murder on November

12, 1986, and, following the presentation of evidence related to

punishment, he was sentenced to death on November 14, 1986. On

direct appeal, the Texas Court of Criminal Appeals affirmed

Johnson-Bey's conviction and sentence on June 21, 1989. Johnson

v. State, 773 S.W.2d 322 (Tex. Crim. App. 1989). The United

States Supreme Court granted Johnson-Bey's petition for a writ of
3

certiorari, and affirmed his conviction and sentence. Johnson v.

Texas, 113 S. Ct. 2658 (1993).

On November 9, 1993, Johnson-Bey initiated a state habeas

action pursuant to Tex. Code. Crim. Proc. Ann. art. 11.07 by

filing an application for state habeas relief in the convicting

state district court. The Texas Court of Criminal Appeals denied

habeas relief, on the recommendation of the trial court's

Findings of Fact and Conclusions of Law, on January 24, 1993. 

Johnson-Bey initiated a second state habeas action, raising two

additional grounds, on January 18, 1994. The Court of Criminal

Appeals again denied relief on January 26, 1994.

Also on January 26, Johnson-Bey filed a federal petition for

the writ of habeas corpus in the United States District Court for

the Northern District of Texas, Lubbock Division. The case was

referred to a magistrate judge, who filed Findings of Fact and

Conclusions of Law on December 14, 1994, recommending that habeas

corpus relief be denied. On January 17, 1995, the district court

entered an order adopting the magistrate judge's recommendation,

which dismissed Johnson-Bey's habeas petition with prejudice and

denied all relief. Johnson-Bey filed a motion to alter or amend

the judgment, which the district court denied on February 15,

1995. Johnson-Bey then filed a timely notice of appeal to this

court. The district court granted a certificate of probable

cause.

II. STANDARD OF REVIEW
4

In considering a federal habeas corpus petition presented by

a petitioner in state custody, federal courts must accord a

presumption of correctness to state court factual findings. See

28 U.S.C. § 2254(d); Barnard v. Collins, 958 F.2d 634, 636 (5th

Cir. 1992), cert. denied, 113 S. Ct. 990 (1993). We review the

district court's findings of fact for clear error, but review any

issues of law de novo. Barnard, 958 F.2d at 636.

III. DISCUSSION

Johnson-Bey alleged thirty-seven grounds of error in his

federal petition for the writ of habeas corpus, which were each

addressed in the magistrate judge's findings of fact and

conclusions of law. On appeal, Johnson-Bey raises only five

points of error, namely, that: (1) the district court erred in

denying an evidentiary hearing on Johnson-Bey's claim that Juror

Barbee was biased against him and should have been dismissed for

cause; (2) the district court erred in refusing to grant habeas

relief because the state trial court failed to excuse Jurors

Kiker, Barbee, and Lammert after they declared that they would

not consider youth as a mitigating circumstance; (3) the district

court erred in rejecting the claim that the prosecutor's improper

argument at the sentencing phase deprived Johnson-Bey of his

Eighth and Fourteenth Amendment rights; (4) the district court

erred in failing to address Johnson-Bey's claim that he was

denied the right to counsel at his pre-trial arraignments; and

(5) the denial of counsel at the arraignments violates Johnson-
5

Bey's Sixth Amendment rights. We will address each argument in

turn.

A. Evidentiary Hearing on Juror Bias

Johnson-Bey argues that the district court erred in denying

an evidentiary hearing on his claim that Juror Barbee

intentionally failed to disclose two prior instances of jury

service, indicating bias. The magistrate judge rejected this

claim without an evidentiary hearing, finding that although

Barbee failed to remember accurately the details of his prior

jury service, "nothing in his voir dire examination [] in any way

indicates he was secreting or hiding information."

To receive a federal evidentiary hearing, a habeas corpus

petitioner must allege facts that, if proved, would entitle him

to relief. Wilson v. Butler, 825 F.2d 879, 880 (5th Cir. 1987),

cert. denied, 484 U.S. 1079 (1988). "[T]he remedy for

allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias." Smith v.

Phillips, 455 U.S. 209, 215 (1982). To obtain relief on a claim

that a venire member concealed information, "a party must first

demonstrate that a juror failed to answer honestly a material

question on voir dire and then further show that a correct

response would have provided a valid basis for challenge for

cause." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

548, 556 (1984); United States v. Scott, 854 F.2d 697, 698 (5th

Cir. 1988) (applying the McDonough test in a criminal case). 
6

We conclude that the district court did not err in denying

an evidentiary hearing on this claim because, even if JohnsonBey's allegations are true, Barbee would not have been subject to

a challenge for cause on the basis of the omitted information. 

In his jury questionnaire and upon voir dire, Juror Barbee stated

that he had served as foreman on a criminal jury in an assault

case in 1971, but he also stated on voir dire that he did not

remember all the details about his service. Johnson-Bey alleges

that court records reveal that Barbee had served on a jury in a

murder case, and had served as foreman of a jury in a robbery

case, in 1970 and 1972, respectively. The magistrate judge found

that Barbee had not intentionally concealed the additional jury

service, but merely had forgotten the details of his service, as

he stated in voir dire. This factual finding is not clearly

erroneous. See Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.

1992), cert. denied, 113 S. Ct. 990 (1993). Furthermore, even if

Johnson-Bey could prove at an evidentiary hearing that Barbee

deliberately concealed his service on a murder jury, prior

service on a murder jury and as foreman of a robbery jury would

not have supported a challenge for cause. See Kirkland v. State,

786 S.W.2d 557, 559 (Tex. App.--Austin 1990, no pet.) ("It is

well settled that it is not a ground for disqualification that

prospective jurors have served on a jury in a case against

another defendant charged with an offense of the same

character."); Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon

1989).
 

1 In Morgan, the Court held that the Fourteenth Amendment

requires that a juror who will automatically vote for the death

penalty in every case in which the defendant is found guilty

shall be excused for cause. 504 U.S. 719, 729 (1992). 

7

Johnson-Bey additionally argues that we should presume bias

solely from the alleged fact that Barbee deliberately concealed

material information, relying on, inter alia, United States v.

Scott, 854 F.2d 697 (5th Cir. 1988), and Burton v. Johnson, 948

F.2d 1150 (10th Cir. 1991). We again note that the district

court's factual finding that Barbee simply forgot, rather than

intentionally concealed, his jury service history is not clearly

erroneous. 

Because Johnson-Bey does not allege facts which, if true,

would entitle him to habeas relief, we affirm the district

court's denial of habeas relief on this ground without an

evidentiary hearing.

B. Voir Dire: Youth as a Mitigating Factor

Johnson-Bey argues that the district court erred in denying

habeas relief because the state trial court refused to excuse

Jurors Barbee, Lammert, and Kiker for cause after they declared

during voir dire that they would not consider youth as a

mitigating factor in answering the special issues at the

sentencing phase. Johnson-Bey contends that under the rule

announced in Morgan v. Illinois, 504 U.S. 719 (1992),1

prospective jurors must be willing to consider particular

evidence, such as a defendant's age, as a mitigating factor in
 

2 Section 2254(d) provides:

In any proceeding instituted in a Federal court by

an application 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 competent

jurisdiction in a proceeding 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 . . .

(5) that [the State court failed to appoint

counsel for an indigent applicant] . . .

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court

proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless . . . the Federal court on a

consideration of [the relevant] part of the record as a

whole concludes that such factual determination is not

fairly supported by the record.

28 U.S.C. § 2254(d).

8

sentencing. We need not reach the question posed by Johnson-Bey-

-whether jurors are constitutionally required to consider

particular evidence as mitigating--because the state habeas court

made factual findings that Barbee, Lammert, and Kiker had

indicated in voir dire that they could consider youth as a

mitigating factor. These factual findings are entitled to a

presumption of correctness under 28 U.S.C. § 2254(d).2
9

Wainwright v. Witt, 469 U.S. 412, 426 (1985); Patton v. Yount,

467 U.S. 1025, 1036 (1984). 

Johnson-Bey contends that the § 2254(d) presumption of

correctness should not apply to the state court's findings in

this case for three reasons: (1) because the state habeas court

findings were made seven years after the trial, the state court

was not in a better position to evaluate the credibility and

demeanor of the jurors than is this court; (2) Johnson-Bey was

denied a fair opportunity to challenge these findings; and (3)

the findings are not supported by the record. We reject these

contentions. 

First, Johnson-Bey's argument that the presumption of

correctness is inapplicable because the factual findings were not

contemporaneous with the challenges for cause is incorrect. 

Although one reason state court findings are accorded a

presumption of correctness is that the state trial judge is in a

better position to judge the credibility and demeanor of

witnesses, the § 2254(d) presumption of correctness also embodies

principles of federalism. Sumner v. Mata, 449 U.S. 539, 547

(1981). These principles support the application of the

presumption of correctness to state appellate court findings made

on the basis of the trial court record, as well as state trial

court findings. Id. Furthermore, that the factual findings were

made by the state court during the habeas proceeding rather than

contemporaneous with voir dire does not render the presumption of

correctness inapplicable. See Williams v. Lynaugh, 809 F.2d
10

1063, 1066 (5th Cir. 1987) (according a presumption of

correctness to factual findings that juror was properly excused

for cause made by the Texas Court of Criminal Appeals upon habeas

review), cert. denied, 481 U.S. 1008 (1987). 

Johnson-Bey next contends that the factual findings are not

entitled to a presumption of correctness because he was denied

any fair opportunity to challenge the findings, invoking the

exception of § 2254(d)(6). This contention lacks merit. 

Johnson-Bey had an opportunity to challenge the state court's

findings in the state habeas proceeding, which satisfies the

requirement that the applicant receive a full, fair and adequate

hearing in the state court. 28 U.S.C. § 2254(d)(6); see May v.

Collins, 955 F.2d 299, 310 (5th Cir. 1992) (holding that a state

court affords a full, fair, and adequate hearing so long as the

state and the petitioner are parties to the proceeding and

written findings are made, citing Sumner v. Mata, 449 U.S. 539

(1981)), cert. denied, 504 U.S. 901 (1992).

Finally, Johnson asserts that the state court's findings

that Lammert, Barbee, and Kiker could consider youth as a

mitigating factor were not supported by the record, citing brief

portions of each juror's voir dire. However, section 2254(d)

provides an exception to the presumption of correctness only if

the federal court determines that the state court factual

findings were not supported by the record as a whole. 28 U.S.C.

§ 2254(d)(8). We conclude that the record provides ample support

for the state court's findings. When first asked whether he
11

thought the age of a person charged was a factor to consider in

answering special issue number two, concerning future

dangerousness, Barbee answered "I don't think age would make any

difference." However, upon further questioning, Barbee stated

that people definitely can change, and he agreed that younger

people will sometimes do things that they might not do in the

future. Lammert stated that individuals can change, that people

do things when they are young that they would in the future

consider wrong and never do again, and that he would not now do

some of the things he did as a teenager. Although he also stated

that he did not consider a nineteen-year-old to be a "youth", he

reaffirmed that he believed that "people do change in time." 

Kiker stated that she believed a nineteen-year-old with the

maturity of a twelve-year-old should be treated the same for

punishment purposes as a nineteen-year-old with the maturity of a

twenty-five-year-old. However, she also testified that: "Yes

people can change. What they have been like as a young adult

does not necessarily mean that that's the way they'll be in their

older adult years." Therefore, the record of these three

jurors' voir dire testimony as a whole supports the state court's

factual findings that these jurors could consider youth as a

mitigating factor. We affirm the district court's judgment

denying habeas relief on the ground that Jurors Barbee, Lammert

and Kiker refused to consider youth as a mitigating factor in the

punishment phase.
12

C. Prosecutor's Argument

Johnson-Bey contends that the district court erred in

denying habeas relief on the basis that comments made by the

prosecutor in closing argument during the sentencing phase

violated his Eighth and Fourteenth Amendment Rights. During the

course of the prosecutor's closing argument at sentencing, the

following exchange took place:

MR. ARMSTRONG (the prosecutor): First of all, you will

recall or you should recall, that even if somebody

voluntarily took drugs or voluntarily became

intoxicated, that is not a defense. That does not

excuse nor make or change the fact that he is guilty of

capital murder or lessen the punishment.

MR. CONARD (the defense counsel): Your Honor, I object

to that statement in that it implies to the Jury that

they cannot consider that as a mitigating factor when,

in fact, that is the law.

THE COURT: Of course, what he says is true, but the

Jury may consider that as a mitigating factor if they

wish.

MR. ARMSTRONG: Thank you, Your Honor.

MR. CONARD: Is my objection overruled?

THE COURT: Yes, overruled. 

Johnson-Bey alleges that the prosecutor's argument misstated the

law, that the court endorsed the misstatement of the law, and

that these statements violated his right to due process by

preventing the jury from considering voluntary intoxication as a

mitigating factor.

Improper prosecutorial argument does not present a

constitutional claim cognizable on federal habeas review unless

such argument was "so prejudicial that the petitioner's state
 

3 Johnson-Bey contends that the Boyde v. California, 494

U.S. 370 (1990), standard for reviewing jury instructions should

apply. He argues that this claim is properly reviewable as a

challenge to an objectionable jury instruction because he claims

that the court's comments "endorsed" the prosecution's

misstatement of the law. This contention lacks merit. JohnsonBey does not challenge any part of the court's charge to the

jury. He does not claim that the trial court gave erroneous

instructions or failed to instruct the jury in regard to any

matter. Moreover, in response to defense counsel's objection,

the court stated that the jury may consider voluntary

intoxication as mitigating evidence, if they wish. As found by

the district court, "this claim is one directed solely to the

prosecutor's closing argument at the Sentencing phase." Hence,

we shall apply the standard for reviewing improper prosecutorial

argument. 

13

court trial was rendered fundamentally unfair within the meaning

of the Fourteenth Amendment Due Process Clause."3 Ward v.

Whitley, 21 F.3d 1355, 1364 (5th Cir. 1994), cert. denied, 115 S.

Ct. 1257 (1995); Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.

1986); see Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). 

To establish that a prosecutor's remarks are fundamentally

unfair, "the petitioner must demonstrate either persistent and

pronounced misconduct or that the evidence was so insubstantial

that (in probability) but for the remarks no conviction [or death

sentence] would have occurred." Byrne v. Butler, 845 F.2d 501,

507 (5th Cir. 1988), cert. denied, 487 U.S. 1242 (1988); Felde,

795 F.2d at 403.

 Assuming without deciding that the prosecutor's argument--

that voluntary intoxication could not lessen Johnson-Bey's

punishment--was improper, nevertheless we conclude that this

improper argument did not render Johnson-Bey's trial or

sentencing fundamentally unfair. First, the challenged
14

prosecutorial argument is an isolated statement, not repeated or

persistent misconduct. The ample evidence presented in this case

regarding guilt and punishment was not so insubstantial that but

for this one remark the death sentence would not have been

imposed. See Byrne, 845 F.2d at 508. Second, the prosecutor's

statement did not manipulate or misstate the evidence, nor did it

implicate a specifically guaranteed right of the accused, such as

the privilege against self-incrimination. See Darden v.

Wainwright, 477 U.S. 168, 181 (1986). Additionally, the court

instructed the jury that counsel's argument was not evidence, and

that it should follow the law as presented in the jury charge. 

Finally, the prosecutor's statement did not prevent the jury

from considering voluntary intoxication as a mitigating factor. 

Johnson-Bey was allowed to introduce evidence of voluntary

intoxication. The jury charge instructed the jury to consider

all evidence presented for either aggravating or mitigating

purposes. Immediately after the challenged statement was made,

although the court overruled defense counsel's objection, it

informed the jury that they could consider evidence of voluntary

intoxication as a mitigating factor. 

In sum, the challenged comment did not render Johnson-Bey's

trial or sentencing fundamentally unfair. Therefore, we affirm

the district court's denial of habeas relief on this claim.

D. Denial of Counsel at a Critical Stage
 

4 Johnson-Bey urges this court to distinguish Cadena on

the basis that "death is different." We are not inclined to

believe that death is different with respect to the effects of a

not guilty plea at a Texas pre-trial arraignment. However, even

if we determined that a different rule should apply in capital

15

Finally, Johnson-Bey argues that the district court erred in

failing to address his claim that he was denied his Sixth

Amendment right to counsel at his pre-trial arraignments.

Additionally, he maintains that this court should grant habeas

relief because the state trial court denied his right to counsel

at a critical stage of the proceedings by permitting him to enter

uncounseled "not guilty" pleas at two pre-trial arraignments

without first securing a valid waiver of the right to counsel,

relying on White v. Maryland, 373 U.S. 59 (1963).

We need not decide whether the district court erred in

failing to address Johnson-Bey's White v. Maryland claim, because

Fifth Circuit precedent forecloses this claim on the merits. 

Cadena v. Estelle, 611 F.2d 1385 (5th Cir.), cert. denied, 449

U.S. 848 (1980). In Cadena, we determined that, even if a Texas

arraignment is a critical stage of the proceeding, "a defendant

may question failure to provide counsel only where potential

substantial prejudice inheres." Id. at 1386. The only defense

waived by a not guilty plea at a Texas arraignment is "that the

name on the indictment [is] not appellant's true name--a defense

which [Johnson-Bey] has never suggested he might have asserted." 

Id. at 1385. Therefore, Johnson-Bey cannot challenge the state

trial court's failure to provide counsel because no prejudice

resulted from such failure.4 
cases, such a holding would create a "new rule," which we cannot

do in reviewing a petition for habeas corpus. See Teague v.

Lane, 489 U.S. 288 (1989).

16

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

judgment dismissing Johnson-Bey's petition and denying all habeas

relief.