UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 93-8499

_______________________

WALTER KEY WILLIAMS,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

(March 7, 1994)

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Walter Williams was convicted of capital

murder in Bexar County, Texas and sentenced to death. The Texas

Court of Criminal Appeals affirmed his conviction. See Williams

v. State, 668 S.W.2d 692 (Tex. Crim. App. 1983), cert. denied,

466 U.S. 954 (1984). In 1986, Williams filed an application for

federal habeas relief. Williams's case was initially referred by

the district court to Magistrate Judge Jamie Boyd. Because of

Boyd's impending retirement from the bench, the case was

subsequently referred to Magistrate Judge Robert O'Connor. 

Magistrate Judge O'Connor recommended denying relief; his
2

recommendations were adopted by order of then-District Judge

Emilio Garza. Williams filed a motion to alter or amend judgment

based upon then-recent decisions by the Supreme Court and the

Fifth Circuit which mandated a re-examination of the district

court's decision. Upon reconsideration, both the magistrate

judge and District Judge Edward Prado adhered to the earlier

decision, and a certificate of probable cause was issued. 

Williams now appeals. 

I. BACKGROUND

On the evening of February 9, 1981, Appellant Walter

Williams and a friend, Theodore Edwards, went to the home of

Williams's parents, where Williams was living at the time. While

there, the two men took a .38 revolver belonging to Williams's

mother and walked to a nearby gas station. Williams stayed in

the parking lot as Edwards proceeded to the store service window,

shot twice at the gas station attendant and killed him, reached

through the window, and took the money. After Edwards and

Williams left the scene, they split the money. At approximately

9:00 p.m. that same evening, the police responded to a call

reporting a robbery in progress. Upon their arrival at the gas

station, the police discovered the body of the clerk.

Later that same night, Williams and Edwards went for a

car ride. While driving around, the two men discussed the fact

that they were both short of cash, so they decided to rob a

nearby Circle K convenience store at which Williams had

previously worked. When they arrived at the Circle K, Williams
3

placed the revolver in the waistband of his trousers and entered

the store with Edwards. Williams knew Danny Liepold, the clerk

who was working that evening, because Williams had worked with

Liepold in that same store before. Williams and Edwards picked

up food items and took positions at opposite sides of the

counter. When Liepold turned his back to Williams in order to

wait on Edwards, Williams fatally shot Liepold in the back. 

After Liepold fell to the floor, Edwards and Williams went behind

the counter to open the two cash registers located in the store. 

Unable to open the register that he was working on, Williams ran

to the car, leaving Edwards inside the store. He yelled at

Edwards from the car that they should leave. At that point,

Williams saw someone drive by. Becoming scared, he left the

scene without Edwards. Williams went home and went to bed. He

had been asleep for a half hour before he was awakened by the

police.

At approximately 2:00 a.m. on February 10, 1981,

Roberto Gutierrez, a friend of Danny Liepold and fellow employee

of the Circle K who worked at a different location, drove to the

store to talk to Danny. After Gutierrez had visited with Danny

at the Circle K, he left to run a quick errand, planning to

return shortly. Upon returning approximately 20 minutes later,

Gutierrez noticed a car suspiciously parked parallel to the front

of the store and two men standing inside the store trying to open

the cash registers. Gutierrez recognized one of the men as

Walter, an employee of the store. Concerned for Danny, whom he
4

did not see, Gutierrez slowly drove by the store once and turned

around to look into the store a second time. Upon driving by the

second time, he noticed that one of the men was in the car

pulling away, leaving behind the other man who was walking toward

the car. Gutierrez followed the car for about 20 minutes and

managed to get a description and take down its license plate

number. 

As Police Officer Thomas Estrada drove toward the

Circle K at approximately 2:30 a.m. to make a routine check, he

noticed a man walking away from the store. Unable to see the

clerk inside the store, Officer Estrada parked his car and

entered the store. He discovered Liepold lying beneath the

counter in a pool of blood. Estrada immediately notified the

dispatcher and described the man he had seen walking away just

moments before. Gutierrez then returned to the store with a

description of the car and its license plate number. Gutierrez

told the police that he saw two men and recognized one of the men

as an attendant named Walter who worked at that store on

weekends. 

Shortly thereafter, Police Officer Heim arrested Ted

Edwards about a mile away. Following his arrest, Officer Estrada

and Gutierrez positively identified Edwards as the man they had

seen earlier at the store. After being advised of his rights,

Edwards denied having had anything to do with the robbery and

shooting. However, when it was discovered that he had a package

of cigarettes which, based on the stamp on the bottom of the
5

package, came from that Circle K, Edwards admitted his

involvement in the shooting and robbery. 

Officer Roy Thomas arrived at the scene at

approximately 3:30 a.m. and read Edwards his rights again. 

Edwards identified Williams as the other person involved in the

shooting and told Officer Thomas where Williams lived. Relying

on Edwards's directions, several officers drove to Williams's

house, where they discovered a car matching the description and

license plate number provided by Gutierrez. Lucian Williams,

Williams's father, answered the door and, after having the

situation explained to him, let the officers in to look for his

son.

As the officers entered Williams's bedroom, they saw

Williams asleep on the bed with a revolver in plain view on the

nightstand. The jury was not informed that the officers also saw

on the nightstand a birthday card given to Williams by Danny

Liepold, the man Williams had just killed. Officer Thomas woke

Williams and read him his rights. Williams was not under the

influence of drugs or alcohol at the time of his arrest. A .38

caliber copper-jacketed bullet recovered from Liepold's body was

positively identified as having been fired from the revolver

recovered from atop Williams's nightstand. An additional .38

caliber bullet was recovered from the car, parked in front of the

house, that matched the vehicle and license plate number that

Gutierrez had described.
6

Upon arrival at the police station, Williams was again

advised of his rights, and he made a written, signed voluntary

statement regarding the robbery. The following morning, Williams

asked that he be allowed to amend the written statement. 

Detective Abel Juarez read him his rights for the third time, and

Williams gave a new statement, again indicating his involvement

in the robbery, but admitting, contrary to his first statement,

that it was he, not Edwards, who had shot the clerk in the Circle

K. Additionally, after being advised of his rights still one

more time, Williams told Officer Michael Akeroyd of his

involvement in the shooting at the gas station the night before. 

Williams was convicted of capital murder for the robbery and

shooting at the Circle K. 

II. DISCUSSION

A. Standard of Review

In reviewing requests for federal habeas corpus relief,

this court reviews the district court's findings of fact for

clear error, but reviews issues of law de novo. See Barnard v.

Collins, 958 F.2d 634, 636 (5th Cir. 1992), cert. denied, ___

U.S. ___, 113 S.Ct. 990 (1993). A finding of fact made by the

district court is clearly erroneous only when the reviewing

court, after reviewing the entire evidence, is left with the

definite and firm conviction that a mistake has been committed. 

See Self v. Collins, 973 F.2d 1198, 1203 n.12 (5th Cir. 1992)

(citing Anderson v. City of Bessemer, 470 U.S. 564, 573, 105
7

S.Ct. 1504, 1511 (1985)), cert. denied, ___ U.S. ___, 113 S.Ct.

1613 (1993). 

Williams complains that the federal district court

incorrectly presumed the state court factual findings to be

correct. Williams improperly relies on a footnote that appeared

in the original opinion of Spriggs v. Collins, 993 F.2d 85 (5th

Cir. 1993), and was deleted prior to publication. However, as it

was not part of the final published opinion, that footnote is of

no significance. Moreover, this court has held, in accordance

with the language of 28 U.S.C. § 2254(d) and Supreme Court

rulings, that a federal court is to accord a presumption of

correctness to findings of state court proceedings unless

particular statutory exceptions to § 2254(d) are implicated. See

Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769 (1981);

Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir. 1990). Williams has

not contended that any of the § 2254(d) exceptions are applicable

to his case, nor have we noticed any defects in the state

procedures. Consequently, the presumption of correctness was

properly invoked here.

B. Ineffective Assistance of Counsel Claim

1. Trial

Williams complains that he received ineffective

assistance of counsel in violation of the sixth amendment because

trial counsel failed (1) to prepare and investigate adequately in

preparation of his case in mitigation at the sentencing phase of

his trial, (2) to object during voir dire examination of
8

potential jurors when three venire members were stricken for

cause from the panel, (3) to request a psychiatric examination,

and (4) to object to the testimony of the victim's mother

regarding the victim's good character.

Under Strickland v. Washington, in order to establish a

sixth amendment ineffectiveness claim, Williams must demonstrate

that his counsel's performance (1) was seriously deficient and

(2) probably affected the outcome of the trial. See Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984);

King v. Puckett, 1 F.3d 280, 284-85 (5th Cir. 1993). Failure to

establish both deficient performance and prejudice defeats an

ineffectiveness claim. See Strickland, 466 U.S. at 700, 104

S.Ct. at 2071; King, 1 F.3d at 285.

This court must bear in mind that we review narrowly

professionally deficient conduct:

Judicial scrutiny of counsel's performance must be

highly deferential. . . . A fair assessment of attorney

performance requires that every effort be made to

eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's

perspective at the time. . . . There are countless ways

to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not

defend a particular client in the same way. 

. . .

Thus, a court deciding an actual ineffectiveness claim

must judge the reasonableness of counsel's challenged

conduct on the facts of the particular case, viewed as

of the time of counsel's conduct. . . . The court must

then determine whether, in light of all the

circumstances, the identified acts or omissions were

outside the wide range of professionally competent

assistance. . . . [T]he court should recognize that

counsel is strongly presumed to have rendered adequate
 

1 The state offered to drop all charges against Williams for the gas

station murder and give Williams a life sentence in exchange for a guilty plea

for the Circle K murder.

9

assistance and made all significant decisions in the

exercise of reasonable professional judgment.

Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66. 

a. Lack of Preparation and

Investigation for Sentencing Phase

Williams asserts that his attorneys did not adequately

investigate and prepare for the sentencing phase of his trial

and, as a result, presented no evidence in mitigation of his

guilt of capital murder. Williams claims that trial counsel

should have put on various witnesses who could have testified to

positive aspects of Williams's character. Additionally, Williams

claims that his trial counsel "never made an independent

examination of the facts and circumstances involved." Williams's

contentions are not supported by the record. 

At trial, Williams was represented by Allan Manka and 

Michael Callahan, both of whom were experienced capital trial

counsel and both of whom testified at the state habeas

proceeding. Manka and Callahan were sensitive to the fact that

the state had an extremely strong case against Williams. 

Consequently, after his indictment, both Manka and Callahan

encouraged Williams to accept the state's plea bargain, which he

refused to do.1 After interviewing Williams and family members

at length, counsel decided not to pursue defenses based upon

alibi, insanity, or self-defense because their investigation

provided no reasonable basis for doing so. They made a strategic
10

decision to direct their attention to the punishment phase of

Williams's case. 

Both Manka and Callahan were aware of the use of

character witnesses to mitigate punishment. However, they were

also aware of Williams's juvenile crime record, drug and alcohol

abuse history, gang association, violence against his family,

and, as they put it, various other problems. They were

legitimately concerned that any mitigating testimony would have

been presented by witnesses whose knowledge would have opened the

door to more damaging evidence under cross-examination.

This court has upheld decisions of counsel not to put

on evidence in mitigation of culpability when the decision

results from a strategic choice. See King, 1 F.3d at 284. In

Williams's case, these decisions by counsel were well thought

through tactical decisions. A court might even disagree with

such a decision, viewing the case in hindsight, and still

determine that the decision was not so seriously inept as to have

been professionally unreasonable. In this case, we do not

gainsay the decision of Williams's attorneys. Their decision to

forego the presentation of mitigation witnesses cannot be said to

be professionally deficient performance. The first prong of the

Strickland analysis is not satisfied.

b. Failure to Object During Voir Dire

Regarding Strikes for Cause

Williams also claims that he received ineffective

assistance of counsel because venire members Salazar, Flores, and

Castillo were improperly excused for cause and counsel did not
 

2 Venire member Trinidad Salazar testified, in relevant part, under

voir dire examination as follows:

[Q. By Mr. Callahan,

defense attorney]: Now, my question to you is could you set aside your

opposition to the death penalty and answer these

questions just based on the evidence as you have

heard, and could you do that, or would you feel --

could you do that, answer those questions based just

on the evidence?

A: Well, I don't know. I don't think I will be able to do it.

The Court: You don't think you could answer yes?

Mrs. Salazar: No, sir.

SOF IX:18.

 

3 Venire member Juanita Flores testified, in relevant part, under

voir dire examination as follows:

The Court: [I]f a defendant is convicted of capital murder, he can be

punished by death or life imprisonment. Those are the two

punishments. Now, bearing that in mind, will that affect you in

your deliberations?

[A]: I don't think I could pass judgment. I would be nervous and

scared.

The Court: Are you conscientiously opposed to the death penalty?

[A]: Yes.

The Court: You are? Okay. Let me ask you this: Could you in a capital

case, capital murder case, could you ever inflict the death

penalty, no matter how cruel, how heinous, how awful, how terrible

the case may be? Could you ever vote to inflict the death

penalty?

[A]: I don't think I could. I don't think I could decide whether to

have a man's life on my hands. 

The Court: Now, let me ask you if you will give me a yes or no answer. Could

you in any case, no matter how heinous, how terrible, how awful

11

object. During voir dire, venire member Salazar stated that she

was opposed to the death penalty and would be unable to set aside

her personal beliefs in order to answer the special issues based

on the evidence presented at Williams's trial.2 Venire member

Flores stated that she would not be able to inflict the death

penalty in any case.3 Similarly, venire member Castillo stated
the case might be, could you in any capital murder case inflict

the death penalty?

[A]: I don't think so, no.

SOF XII: 102-03.

 

4 Venire member Maria Castillo, in relevant part, under voir dire

examination testified as follows:

The Court: In a capital case there are two optional punishments. If the

Defendant is found guilty of capital murder, his punishment will

be life in prison or death. Do you understand that?

[A]: Right.

The Court: Knowing that, is that going to affect your deliberations when you

determine what the facts in the case are? Will that affect you?

[A]: Well, it will because I don't believe in the death penalty.

The Court: You don't believe in the death penalty?

[A]: Right.

The Court: You would not under any -- let me ask you this: would you

consider assessing the penalty of death in any case, no matter how

vicious or how bad it might be?

[A]: It would -- it would have to be very bad. I really don't think

so, no.

The Court: Well, you have answered it two different ways. First you said

that you would if it was bad enough, and then you said it would

depend.

[A]: It would take a lot out of me to do it.

The Court: Well, I want you in your own mind to imagine the worst possible

capital murder, the worst possible type of murder which was a

capital offense, say a murder committed during the course of the

commission of a robbery by the defendant, not this particular

case, but just imagine some terribly brutal, vicious murder. Now,

would you consider assessing a death penalty in the most brutal

type of murder that you can imagine?

[A]: No, I don't feel I could.

The Court: You would not?

[A]: No.

The Court: Not under any circumstances?

12

that she would not be able to impose the death penalty under any

circumstances.4
[A]: No, I don't think so.

SOF IV:125-27.

 

5 Williams claims that Wicker and Witt are not applicable to his

case because they were decided after his conviction. He argues that only

Adams and Witherspoon are applicable. However, Wicker and Witt serve only to

clarify Adams and Witherspoon; they do not create new law. See Riles v.

McCotter, 799 F.2d 947, 950 (5th Cir. 1986). Therefore, they are applicable

and useful in this discussion.

13

A venire member is properly excused for cause in a

capital case when his "views would prevent or substantially

impair the performance of his duties as a juror in accordance

with his instructions and his oath." Wicker v. McCotter, 783

F.2d 487, 493 (5th Cir.) (quotations and footnotes omitted)

(quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,

852 (1985)), cert. denied, 478 U.S. 1010 (1986).5

It is a test to be applied primarily by the trial

court, for determinations of juror bias depend in great

degree on the trial judge's assessment of the potential

juror's demeanor and credibility, and on his

impressions about that venireman's state of mind. The

trial court's determination that a prospective juror

could not perform his statutory function faithfully and

impartially is accorded a presumption of correctness

under 28 U.S.C. § 2254(d).

Id.

It is not for this court to substitute its judgment for that of

the state trial court on this issue. See id. The record

supports the trial judge's decision to remove each of these

venire members for cause. Moreover, the fact that there were no

objections to the removal of these venire members for cause may

very well support the propriety of the court's decisions: 

[N]o one in the courtroom questioned the fact that [the

venire members'] beliefs prevented [them] from sitting. 

The reasons for this, although not crystal clear from
 

6 Williams also claims that his due process and equal protection

rights were violated in the federal evidentiary hearing when the judge did not

permit him to secure the testimony of the state trial judge. Williams sought

to question Judge Butler regarding his reasons for dismissing venire member

Castillo for cause. This claim is without merit. A trial judge is not

required to write out in separate memorandum his specific findings on each

juror excused. See Witt, 469 U.S. at 430, 105 S.Ct. at 855. Neither is he

required to indicate for the record his reasoning for dismissing a venire

member for cause. See id. As discussed supra, the record clearly supports

Judge Butler's decision to remove venire member Castillo for cause. We find

no error.

14

the printed record, may well have been readily apparent

to those viewing [the venire members] as [they]

answered the questions.

Wainwright v. Witt, 496 U.S. 412, 435, 105 S.Ct. 844, 857-58

(1985).

Counsel unsuccessfully attempted to rehabilitate venire

member Salazar and did not attempt to rehabilitate venire members

Flores and Castillo. The record suggests that any attempts at

rehabilitation would have been futile because these venire

members would not have been able to function properly as jurors

in this capital case. Accordingly, counsel's decision not to

rehabilitate these venire members or to object to their removal

for cause cannot be said to be deficient performance. See Bridge

v. Lynaugh, 838 F.2d 770, 776 (5th Cir. 1988); Moore v. Maggio,

740 F.2d 308, 317 (1984), cert. denied, 472 U.S. 1032 (1985). 

Because counsel's performance was not deficient, Williams does

not satisfy the first requirement of Strickland on this issue and

his argument fails.6
15

c. Failure to Request Psychiatric Examination

Williams also complains that he was afforded

ineffective assistance of counsel because Manka and Callahan did

not request a psychiatric examination to aid in the presentation

of "mitigating evidence" of insanity, duress, and emotional

disturbance. Williams does not allege that he had any defense

against a guilty verdict based on these theories. Williams's

only professional "proof" that he lacked a dangerous character is

supplied in the inconclusive affidavit of Dr. Sparks, the Chief

Bexar County Psychiatrist at that time, who never examined

Williams and could only speculate about his condition from

records furnished by habeas counsel.

Counsel made a knowing, strategic decision not to seek

a psychiatric evaluation of Williams because they feared the

state would use rebuttal psychiatric testimony of Williams's

future dangerousness. This was not a frivolous concern. The

state properly criticizes Williams for simply second-guessing

counsel's performance without having any evidence to support

their criticism. The fact that his counsel did not request a

psychiatric examination does not constitute deficient

performance. Williams's Strickland argument fails on this issue.

d. Failure to Object or Limit

the Testimony of the Victim's Mother

Williams next complains that he received ineffective

assistance of counsel because his counsel did not object or try

to limit the testimony of the victim's mother. At trial, Danny

Liepold's mother testified for what amounted to three pages of
16

trial transcript. She identified her son as the victim and

testified emotionally but briefly about his trusting nature.

It is unlikely that counsel's passivity when confronted

with this witness represented a deficient performance because

counsel made a strategic choice not to object, recognizing the

"delicacy" of how to handle testimony of a victim's relative. 

Counsel wanted Mrs. Liepold's testimony to conclude as quickly as

possible and without contentiousness. Moreover, her testimony

was probably admissible anyway for its explanation why Danny

trustingly turned his back on Williams, whom he knew, before

being shot. For all these reasons, the discussion whether to

object was a close call professionally.

But, in any event, Williams has not satisfied the

second prong of Strickland: he cannot establish prejudice. It

is clear from the record that the exclusion of Mrs. Liepold's

brief testimony would not have affected the outcome of Williams's

case. The evidence of guilt was overwhelming, and the testimony

at the punishment phase of his trial, which included evidence of

the gas station murder, was compelling. Williams has not

satisfied the prejudice prong of Strickland because of counsel's

failure to exclude the testimony of Mrs. Liepold.

2. Appeal

Williams also complains that he received ineffective

assistance on his appeal by Allan Manka, one of his trial

attorneys. In his brief to this court, Williams states that his

counsel "failed to raise important issues on appeal, including
17

but not limited to: ineffective assistance of counsel;

introduction of inflammatory and prejudicial evidence such as the

testimony of the victim's mother; introduction of the decedent's

high school yearbook photograph; prejudicial and inflammatory

remarks by the prosecutor during arguments at the punishment

phase of the trial; Witherspoon/Adams challenges [to the venire

members]; voluntariness of the confession; illegal arrest and

failure of the state to prove ownership of the property." 

The due process clause of the fourteenth amendment

guarantees effective assistance of counsel for direct appeals as

of right. See McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.)

(citing Hamilton v. McCotter, 772 F.2d 171, 182 (5th Cir. 1985)),

cert. denied, 479 U.S. 965 (1986). That right to effective

appellate counsel must pass the Strickland standards. See id. 

Williams must demonstrate that (1) his appellate counsel's

performance was so deficient as to fall below objectively

reasonable conduct of appellate counsel and (2) his case was

prejudiced as a result.

As we have already determined that Williams's

ineffective assistance of trial counsel claim, including his

claim regarding the testimony of the victim's mother, is without

merit, Williams could not have prevailed on that issue on appeal. 

Similarly, Williams's claims regarding strikes for cause of

venire members and the voluntariness of his confessions,

discussed infra, are without merit. Accordingly, on these

issues, Williams necessarily cannot satisfy the second prong of
 

7 The jury was required to answer the following special issues at

the sentencing phase of Williams's trial:

(1) whether the conduct of the defendant that caused the death of the

deceased was committed deliberately and with the reasonable

expectation that the death of the deceased or another would

result; and,

(2) whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing

threat to society.

Tex. Code Crim. Proc. Ann. art. 37.071(b).

18

Strickland, namely that he was prejudiced because these issues

were not raised on appeal.

Williams's remaining claims of appellate counsel's

failure are burdened either by lack of factual specificity or by

the inherent legal weakness of the claims of alleged error. 

Appellant has not shown prejudice from the failure to pursue on

appeal any of the remaining issues.

C. Mitigating Instruction for Williams's Youth

Williams complains that the special issues that the

jury was required to answer during the punishment phase7 did not

enable the jury to give adequate mitigating effect to Williams's

youth at the time of the offense. Williams was nineteen years

old when he murdered Liepold. 

The Supreme Court has recently concluded that the Texas

statutory scheme under which Williams was sentenced allows the

jury to give mitigating effect to the defendant's age. See

Johnson v. Texas, ___ U.S. ___, ___, 113 S.Ct. 2658, 2669-70

(1993). A failure to supplement the special issues, as Williams

urges, to give effect to the mitigating effect of age at the
19

punishment phase does not amount to a constitutional defect. 

Moreover, any ruling by this court to the contrary would require

the application on habeas review of a new rule of criminal law in

violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct 1060 (1989)

(plurality). See Graham v. Collins, ___ U.S. ___, 113 S.Ct. 892

(1993). Williams was not entitled to an additional instruction

to the jury regarding the mitigating effect of his age.

D. Questioning During Voir Dire

Regarding Range of Punishment

Venire member Lindley was questioned during voir dire

by the prosecution regarding whether he could make a judgment as

to whether a person would commit acts of violence in the future. 

Lindley testified that he could. Upon examination by Williams's

counsel, Lindley was asked, "[W]hat degree of probability or what

degree of reliability can you attach to, say, in your own

judgment the probability that a person will continue to act a

certain way in the future?" The prosecution objected to this

question, and the objection was sustained. Defense counsel then

asked, "How reliable would your determination be [regarding a

person's continuing to commit criminal acts of violence] in your

own mind?" The prosecution again objected, and the objection was

again sustained. 

Williams now complains that he was denied due process,

equal protection, a fair trial, and effective assistance of

counsel because the trial court refused to allow him to question

this venire member regarding range of punishment, depriving
20

Williams of the opportunity intelligently to exercise his

peremptory strikes. This argument is without merit. 

First, we agree with the district court that,

ordinarily, questioning a venire member regarding the range of

punishment raises only an issue of state criminal procedure that

does not present a federal constitutional claim. See Moreno v.

Estelle, 717 F.2d 171, 179 (5th Cir. 1983), cert. denied, 466

U.S. 975, (1984).

Second, it is difficult to see how the vague, openended questions asked by defense counsel could have elicited any

enlightening response from this venire member. Manka went on to

question Lindley in detail regarding his duties as an educator

and the potential effect of education on future lifestyle. Manka

then accepted Lindley as a juror. Defense counsel's failure to

obtain two specific answers, moreover, given an otherwise

thorough voir dire examination, was not such a critical

deficiency in the trial as to deprive Williams of fundamental

fairness in the exercise of peremptory strikes. This error, if

it was one, is different from the judge's unkept promise on voir

dire in Knox v. Collins, 928 F.2d 657, 661-62 (5th Cir. 1991).

E. Testimony of Trial Jurors

at the Federal Evidentiary Hearing

Williams next complains that the federal district court

abused its discretion by not allowing testimony from trial jurors

at the evidentiary hearing. His counsel requested to have the

state jurors testify as to whether their deliberations would have

been different if they had been presented with the mitigating
 

8 Federal Rule of Evidence 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement occurring during the

course of the jury's deliberations or to the effect of anything upon that or

any other juror's mind or emotions as influencing the juror to assent to or

dissent from the verdict or indictment or concerning the juror's mental

processes in connection therewith, except that a juror may testify on the

question whether extraneous prejudicial information was improperly brought to

the jury's attention or whether any outside influence was improperly brought

to bear upon any juror. Nor may a juror's affidavit or evidence of any

statement by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes.

Fed. R. Evid 606(b).

21

evidence that was allegedly available, but not presented at

trial. This argument is without merit. 

The post-verdict inquiry of jury members, as live

witnesses or by affidavit, is inappropriate and precluded by

Federal Rules of Evidence 606(b).8 See Byrne v. Butler, 845 F.2d

501, 509-10 n.8 (5th Cir.), cert. denied, 487 U.S. 1242 (1988);

McQueen v. Blackburn, 755 F.2d 1174, 1178-79 (5th Cir.), cert.

denied, 474 U.S. 852 (1985). The district court did not abuse

its discretion in disallowing this requested testimony. 

F. Magistrate Judge's Alleged Conflict of Interest

Williams complains that Magistrate Judge Boyd, who

conducted the federal habeas evidentiary hearing, had a conflict of

interest because he went to work for the state district attorney's

office after the evidentiary hearing in January 1988. In March of

1988, Boyd recused himself from Williams's case because of his

impending retirement in June. Williams's case was then taken over

and actually decided by Magistrate Judge Robert O'Connor on two

separate occasions, by then-District Judge Emilio Garza, and by

District Judge Edward Prado.
 

9 This provision now allows for recovery for reasonable expenses. 

See Tex. Code Crim. Proc. Ann. art. 26.05.

22

Williams does not explain the ways in which Magistrate

Judge Boyd was biased against him or how this alleged conflict of

interest prejudiced Williams's case. From the record, there does

not appear to have been an appearance of impropriety which rose to

the level of a fundamental defect. See United States v. Couch, 896

F.2d 78, 81 (5th Cir. 1990). There was no harm to Williams's case

as a result of Magistrate Judge Boyd's participation in these

proceedings.

G. Statutory Maximum for Payment of Investigators

At the time of Williams's trial, the Texas Code of

Criminal Procedure placed a $500 limit for reimbursement for costs

of court-appointed investigators.9 Williams claims that he was

deprived of equal protection, due process, and effective

representation because this provision was unconstitutional on-itsface and as applied to Williams. 

It is well settled that the due process clause does not

require a state to pay for the same assistance that a wealthier

defendant might buy, see Ake v. Oklahoma, 470 U.S. 68, 77, 105

S.Ct. 1087, 1093 (1985), and the equal protection clause does not

require that indigent defendants have precisely the same advantages

as non-indigent defendants, see Ross v. Moffitt, 417 U.S. 600, 611-

12, 94 S.Ct. 2437, 2444-45 (1974). This statute was not

unconstitutional on its face. 
23

Moreover, the investigation in Williams's case exceeded

the $500 limit, as it cost over $900. Additionally, the trial

judge who presided over Williams's case stated in the state habeas

proceeding that in Williams's case, as in all capital cases, it is

his policy to furnish investigators with unlimited funds.

Williams's investigative costs of over $900 were reimbursed.

Williams has made no attempt to show that his defense was adversely

affected by the $500 limit, nor can he point to any specific

evidence that could have been obtained that was not obtained as a

result of this statutory cap. We reject this contention. 

H. Alleged Variance Between

Indictment and Proof at Trial

Williams next complains that there was a fatal variance

between the indictment and the proof at trial. The indictment

charged Williams with causing the death of Danny Liepold "while in

the course of committing and attempting to commit the offense of

robbery upon the complainant." Williams argues that because the

proof at trial unequivocally established that Williams was robbing

the convenience store, not Danny Liepold, this creates a fatal

variance between the indictment and the proof at trial. 

The sufficiency of a state indictment is appropriate for

federal habeas relief only when the indictment is so deficient that

the convicting court was without jurisdiction. See Yohey v.

Collins, 985 F.2d 222, 229 (5th Cir. 1993). State law dictates

whether a state indictment is sufficient to confer a court with

jurisdiction. See id. Texas law provides that it is the preferred

practice for an indictment to allege ownership in a natural person
24

acting for the corporation rather than in the corporation itself.

See Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984).

Williams's indictment did just that. Because the state court had

jurisdiction under the indictment, the federal court had no basis

for granting habeas relief.

I. Applicability of Stone v. Powell

Williams next complains that the federal magistrate judge

erred in finding that Williams's fourth amendment claims were

barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976).

Williams is wrong in his assertion. Powell provides:

where the State has provided an opportunity for full and

fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief

on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his

trial.

Powell, 428 U.S. at 494, 96 S.Ct. at 3052 (footnotes omitted).

[A] federal court need not apply the exclusionary rule on

habeas review of a Fourth Amendment claim absent a

showing that the state prisoner was denied an opportunity

for a full and fair litigation of that claim at trial and

on direct review. 

Id., 428 U.S. at 494 n.37, 96 S.Ct. at 3052-53 n. 37.

Williams does not argue that he was denied a full and

fair opportunity for litigation of his fourth amendment claim,

although he did not pursue it on direct appeal. Moreover, the

record indicates that Williams's motions to suppress were presented

to and addressed by the trial court. This claim is unfounded.
25

J. Voluntariness of the Confessions

Williams's final complaint is that the confessions with

which he provided the police were unconstitutionally obtained. He

complains that he was suffering from diminished capacity at the

time of the confessions and that he was forced into confessing by

coercive behavior exercised by the police. These claims are

without support in the record. 

All of the police officers who spoke with Williams the

morning of his arrest were experienced in detecting drug or alcohol

usage, yet neither they nor Williams's father testified that he

appeared to be impaired in any way. Williams cites only one

instance of police duress, alleging that the arresting officer who

awoke Williams, "got on top of him," got him out of bed, and had

Williams sit on the bed and talk. The officer read Williams his

rights, and at that time, Williams denied any involvement in the

robbery. The record clearly supports the finding that Williams was

advised of his rights before he was permitted to give any of his

three confessions. Additionally, there is plenty of support in the

record for the finding that Williams's confessions were not the

product of duress. For these reasons, we agree with the state and

federal courts that the confessions were not obtained in violation

of Williams's constitutional rights.

III. CONCLUSION

For the foregoing reasons, this court AFFIRMS the denial

of Williams's petition for federal writ of habeas corpus.