1 Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-10955

FRANK BASIL McFARLAND

Petitioner-Appellant

VERSUS

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

(4:96-CV-241-A)

February 13, 1998

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge. 1

Frank Basil McFarland, a Texas death row inmate, seeks a

certificate of probable cause or, in the alternative, a certificate

of appealabilit y permitting him to appeal the district court’s

denial of his request for a writ of habeas corpus and its lifting2

of its stay of exec ution. The district court granted leave to

proceed in forma pauperis on appeal but declined to issue a

certificate of probable cause (“CPC”).

McFarland filed his habeas petition in the district court on

April 3, 1996. In L indh v. Murphy

, 117 S.Ct. 2059, 2068 (1997),

the Supreme Court held that the amendments to 28 U.S. C. § 2254

contained in the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), do not

apply to cases pending on the April 24, 1996, effective date of the

Act. S ee also Nobles v. Johnson

, 127 F.3d 409, 412-13 (5 th Cir.

1997); Williams v. Cain

, 125 F.3d 269, 274 (5th Cir. 1997).

Because McFar land filed his habeas petition before the effective

date of the AEDPA, we review his petition under the pre-AEDPA

version of § 2254. S ee 28 U.S.C. § 2254 (West 1994); cf

. 28 U.S.C.

§ 2254 (West Supp. 1997).

Under the pre-AEDPA standards, we review a state court’s

determination of mixed questions of law and fact de novo

. G ochicoa

v. Johnson

, 118 F.3d 440, 445 (5th Cir. 1997). State court factual

findings are entitled to a presumption of correctness, unless

certain enumerated deficiencies in the state court proc eedings

become apparent. S ee 28 U.S.C. § 2254(d)(West 1994); see also

Livingston v. Johnson

, 107 F.3d 297, 302-303 (5th Cir.), cert.

denied , 118 S.Ct. 204 (1997).

Based on these standards, we find that McFarland has failed to3

make a “substantial showing of a denial of [a] federal right.”

Barefoot v. Estelle , 463 U.S. 880, 893 (1983)(internal quotes and

citation omitted); Green v. Johnson

, 116 F.3d 1115, 1120 (5th Cir.

1997). We therefore deny his request for a CPC.

FACTS AND PROCEDURAL HISTORY

McFarland was c onvicted of capital murder and sentenced to

death in accord with the findings of a Texas jury that he stabbed

Terry Hokanson to death with a knifelike object while committing or

attempting to commit aggravated sexual assault. We do not here

recite the details of his crime, for they may be found in the

opinion of the Texas Court of Criminal Appeals. M cFarland v.

State

, 845 S.W.2d 824, 828-30 (Tex. Crim. App 1992) (en banc) cert.

denied

, 508 U.S. 963 (1993). We give only the following brief

summary to put the issues raised by this application into factual

context.

On February 1, 1988, McFarland and his friend Wilson went to

Centerfolds topless bar where the vic tim, Hokanson, worked. The

two men sent a drink over to her, and a waitress, Joann Alexander,

l ater introduced them. McFarland, Wilson, the victim, and

Alexander planned to go to Manhattan’s bar later in the evening,

but Alexander changed her plans. Several employees at Manhattan’s

remembered seeing a woman who fit Ho kanson’s description arrive

alone and leave with two men. Her car was found in the parking lot

of the bar the next morning.4

Two or three hours after the victim left Manhattan’s bar with

the two men, three teenaged boys, Mires, Rich, and Warren, heard a

scream coming froma public park. One of them saw a car driving

away. They continued to walk and noticed someone stumbling in a

“drunk manner.” The person was Hokanson with blood on her face and

in need of help. Warren ran for help, and Hokanson told Rich and

Mires that she had been sexually assaulted and stabbed.

Police Officer Rainey happened upon the scene, and the two

boys told him that the victim had been sexually assaulted and

stabbed. Officer Rainey saw blood on her face and jacket and a

deep cut on her hand. The victim told Officer Rainey that two

white men, whom she had met at the club where she worked, had raped

and stabbed her. Officer Rainey later remembered the full name of

the club when he was placed under hypnosis.

Police searched the area and found Hokanson’s purse, shoes,

watch, an d one earring in a pool of blood. There was a five

hundred foot long trail of blood leading from her belongings to the

spot where she was discovered.

Rachael Revill was Wilson’s girlfriend. On the night of

Hokanson’s death, Wilson and McFarland left her apartment together

in McFarland’s car and later returned together. Upon their return,

Revill noticed what appeared to be blood on Wilson’s pants and an

apparent gash on McFarland’s hand. Wilson gathered his bloodstained clothes and left with McFarland to burn them. Wilson later

tol d Revill that he and McFarland “had to get rid of a girl”5

because she knew too much about their drug business. He insisted

to her that McFarland had actually killed the victim.

Wilson contacted Mark Noblett, an acquaintance of his and

McFarland, and told Noblett about the crime and that he was afraid

of McFarl and. Noblett agreed to meet Wilson the next day, but

Wilson did not keep the appointment. Wilson was later found dead.

After exhausting state remedies, McFarland sought habeas and

r elated relief in the district court, which granted leave to

proceed in forma pauperis

, appointed counsel, allowed the filing of

an amended application for habeas, and granted a stay of execution.

The district court concluded that each claim raised had been

adjudicated o n the merits either on McFarland’s direct appeal or

during his state application for habeas relief.

ANALYSIS

I. Ineffective Assistance of Counsel

McFarland contends that trial counsel was ineffective in that

he failed: to call Rich and Mires as defense witnesses to testify

that they saw a white car, not a blue car, at the crime scene; to

object to inadmissible hearsay testimony that non-testifying

parties saw a blue car at the crime scene; to offer exculpatory

evidence that McFarland’s girlfriend owned a rabbit-hair jacket; to

object to evidence of McFarland’s bad character and prior

misconduct; to present evidence t hat Hokanson knew McFarland and

may have used illicit drugs with him before the murder; to object6

to the prosecutor’s comments on McFarland’s post-arrest silence; to

investigate and call Larry York and Jennie Noblett as witnesses to

impeach Mar k Noblett’s testimony; to investigate and present

evidence of Mark Noblett’s criminal history, his status as a police

informant, and his motive to give false testimony at trial; and to

present evidence of Joann Alexander’s criminal history to impeach

her credibility.

To support his ineffecti ve assistance claim, McFarland must

establish the two well-known co mponents of S trickland v.

Washington , 466 U.S. 668, 687 (1984): that counsel’s performance

was deficient and that the deficient performance prejudiced the

defense. Our scrutiny of counsel’s performance is deferential, i d

.

at 689, and there is a strong presumption that assistance was

adequate and that all significant dec isions were made in the

exercise of reasonable professional judgment. Id . at 690.

A. Failure to call witnesses

McFarland contends his counsel was ineffective in failing to

call numerous witnesses. At the close of the state’s case,

McFarland testified concerning the decision to rest without

present ing evidence. McFarland agreed that he had discussed his

options with counsel on that day and that they had jointly decided

not to present any evidence. The trial judge questioned McFarland

about his decision, and McFarland indicated that he understood his

decision and did not wish to change his mind an d call witnesses.7

The state habeas court found that McFarland “agreed with his trial

counsel, on the record at the close of the defense’s case in chief,

not to call any witnesses for th e defense.” McFarland makes no

showing, therefore, that the failure to call the witnesses was the

result of deficient performance by counsel.

Despite the foregoing, we have examined in detail each claim

of ineffectiveness for failure to call witnesses and find no merit

to any. Petitioner has not shown that Rick, Mires, Warren, Weber,

Bergeron, Jennie Noblett, or York, the witnesses not called, were

available to testify and, h ad they been called, would have

testified in his behalf. McCoy v. Cabana , 794 F.2d 177, 183 (5th

Cir. 1986). Counsel’s lengthy argument in brief is based on

surmise and conjecture and is not evidence of what testimony the

witnesses would have given had they been called.

B. Failure to preserve evidentiary error concerning a blue car

McFarland claims that the testimon y of five police officers

and a police dispatcher concerning the oral statement of the boys

who f ound the victim that they had seen a blue or dark colored

vehicle near the crime scene was inadmissible hearsay. We need not

analyze the trial court’s rulings and counsel’s specific objections

in any detail because, even assuming that counsel’s failure to make

objections was deficient performance, McFarland has not

demonstrated prejudice, as required by Strickland

. It was of no

importance to the outcome of the trial whether the boys saw a blue8

car in the vicinity of the crime or not. There was testimony that

ther e was a red and white car, and the warrants to search

McFarland’s car and to search and arrest McFarland were based upon

information obtained from i nterviews from several sources, not

simply the statement of th e boys. McFarland therefore cannot

demonstrate prejudice from counsel’s alleged errors; consequently,

his claim must fail.

C. Failure to object

McFarland next posits that counsel failed to raise a proper

objection during the guilt/innocenc e phase of the trial to Joann

Alexander’s testimony that he threaten ed to rape her. He

acknowledges that counsel successfully objected on the grounds that

this testimony was “highly prejudicial and totally irrelevant” but

complains that counsel did not object to the state’s closing

argument that the victim did not receive “the warning that Joann

got” from McFarland. The prosecutor was referring to Alexander’s

testimony, to which def ense counsel had successfully objected,

that, at one point, McFarland had threatened to rape Alexander if

she got into his car with him. The court had sustained counsel’s

objection and directed the jury to disregard this evidence.

Assuming without deciding that counsel should have objected to the

prosecutor ’s statement, there has been no showing of prejudice;

that is, no showing that, on the record as a whole, the error was

“so serious as to deprive McFarland of a fair trial, a trial whose9

result is reliable.” S ee Strickland

, 466 U.S. at 687. The

prosecutor was discussing evidence found in McFarland’s car, which

had not bee n connected to the victim, and opined that it was

perhaps from some other woman who entered his car, and with whom

McFarland had had a sexual relationship. McFarland cannot

demonstrate that the prosecutor’s offhand, but arguably improper,

reference to Alexander’s testimony deprived him of a fair t rial;

absent a showing of such prejudice, this claim must also fail.

D. Butler’s Testimony

During the guilt/innocence phase of the trial, Melvin Butler

testified that, sometime after the murder, he spoke with McFarland

at the bar where the victim had worked and that McFarland told him

that he had killed before. On cross examination Butler admitted

that both were drinking heavily and that he thought McFarland was

simply bragging to impress Butler. Defense counsel chose to crossexamine Butler rather than to object to the direct testimony. The

cross examination was effective and was a reasonable trial

strategy.

E. Prosecutor’s Comments

Durin g closing argument at the punishment phase, the

prosecutor commented about McFarland’s involvement in drug dealing

and patronage of topless clubs. McFarland claims that his counsel

should have objected to the argument and to the admissibility of10

evidence that he dealt in drugs. Counsel did object to the drug

evidence in a pretrial motion and was overruled. Failure to object

again when the evidence was introduced is not error. Clark v.

Collins

, 19 F.3d 959, 966 (5th Cir. 1994). The prosecutor’s

comments were based on the admitted evidence and were thus not

subject to objection.

F. Comments on Silence

McFarland argues that the prosecutor’s remarks concerning

McFarland’s and Wilson’s failure to cooperate with the police

before McFarland’s arrest was inadequate performance that resulted

in prejudice. Arguably, counsel should have objected because it

was possible that the comments could have been interpreted to refer

to post-arr est silence and not simply pre-arrest failure to

cooperate. See Doyle v. Ohio , 426 U.S. 610, 617-18 (1976). But,

put into context of the entire trial, this alleged error could not

have undermined the reliability of the trial’s outcome. Earlier,

the prosecutor had carefully limited his discus sion to the prearrest period. The most reasonable interpretation of the

questio nable comments, then, is that they referred to instances

before arrest. Thus, McFarland has not demonstrated that, but for

counsel’s failure to object, t here was a reasonable probability

that the result of the guilt-in nocence phase would have been

different. See Strickland , 466 U.S. at 694.11

G. Criminal Histories for Impeachment

McFarland contends that counsel shoul d have impeached State

witnesses Noblett a nd Alexander with their criminal histories to

demonstrate that they had motives for testifying for the State

other than the reasons they gave. The record demonstrates that

McFarland suffered no prejudice fro m counsel’s asserted errors.

The criminal histories of both witnesses were brought out in their

testimony in such detail as to permit the jury to fairly evaluate

their credibility. Further cross-examination on the subject would

have only been cumulative.

II. Brady Claim

McFarland alleges several due process violations for failure

to comply with Brady v. Maryland

, 373 U.S. 83 (1963). First, he

asserts that the State suppressed the statements of Mires, Rich and

Warren and that these statements contain exculpatory evidence

concerning the identity of the victim’s assailant. The state court

ruled tha t the defense was aware before trial that the three had

given statements; the allegedly critical language from the

statements was quoted verbatim in an affidavit supporting a search

warrant that the defense had; and counsel had the names, addresses,

and phone numbers of the witnesses and was able to make effective

use of the information during trial. McFarland has pointed to no

irregularity in the state court proceedings that would impugn these

fac tual findings. Furthermore, our own review of the record12

c onvinces us that the allegedly suppressed evidence is not

exculpatory at all. S ee 28 U.S.C. § 2254(d)(West 1994);

Livingston , 107 F.3d at 302-03.

Next McFarland complains that the State suppressed evidence of

t hree outstanding warrants for the State’s witness Noblett.

McFarland argues that these warrants showed bias of the witness and

that the charges were all dismissed after the witness testi fied.

The state court found that the State ha d made no agreement to

provide leniency to Noblett in exchan ge for his testimony.

McFarland makes no showing that w ould call this finding into

question. The finding was the result of a hearing conducted on

McFarland’s motion for a new trial based on the same allegations.

Finally, McFarland alle ges that the State violated B rady by

failing to disclose an agreement to give leniency to Alexander in

exchange for he r testimony. His proof of the agreement is the

affidavit of a Florida prosecutor that, at the request of federal

and state prosecutors in Texas, he dismissed Alexander’s probation

and recalled a warrant for her arrest; and that the request was

made as a result of Alexander’s cooperation in a murder case.

The state habeas court found that the State was unaware at

trial of an outstanding warrant for Alexander in Florida and that

the State had made no offer to or agreement with her regarding her

testimony. The record fully supports this finding. The prosecutor

did, after the trial, learn that Alexander had been incarcerated in

Texas on a warrant, and did, at the request of Alexander’s husband,13

attempt to obtain her release on Thanksgiving day. He was

unsuccessful. McFarland presents no convincing argument that the

state court’s factual findings are not entitled to their statutory

presumption of correctness. See 28 U.S.C. § 2254(d)(West 1994).

For the foregoing reasons, we find that McFarland has failed

to establish that the state suppressed exculpatory ev idence in

violation of Brady

.

III. Other Due Process Violations

There was testimony from th e investigating officers at the

scene and from the police dispatcher that one or more of the three

boys who discovered the victim said that they had seen a blue car

near the scene. McFarland claims that the boys said they saw a

white car. Our review of the record shows that the police

testimony was not perjured, although it may have been mistaken.

Regardless, the testimony was not material to anything.

Mark Noblett returned from the Bahamas where he was living and

testified for the state against McFarland. His reason for doing

so, he said, was that his mother had sent him a newspaper clipping

about the murder, and he recalled the information he had received

from Wi lson, McFarland’s accomplice. McFarland claims that this

testimony was perjured; that Noblett’s real reaso n for returning

was to obtain leniency from the state for his own problems with the

law, and because he was a “snitch” for the state. On this record,

we find that Noblett’s motive for returning to testify was not14

material (his legal problems were made known to the jury) and that

his testimony concerning his motives was not perjured.

As his final effort to find perjured testimony, McFar land

claims that Alexander’s testimony that she introduced the victim to

McFarland on the date of the murder was false. He claims that

Alexander admi tted to an investigator that she made the

introduction two days before the murder. However, McFarland offers

no proof of any kind of this admission.

Fo r his final claim of due process violation, McFarland

contends that his rights were violated by the admission of certain

evidence concerning the death of Wilson, his accomplice in this

crime, and by the prosecutor’s closing argument concerning Wilson’s

death. He argues that the State violated his due process rights by

introducing evidence that Revill and Wilson w ere afraid of

McFarland; that Wilson wanted Noblett to assist in informing the

police about McFarland’s role in the death and rape of Hokanson;

and that Wilson was the victim of a homicide.

“[E]ven the erroneous admission of prejudicial testimony does

not justify habeas relief unless it is material in the sense of a

crucial, critical, highly significant factor.” S killern v.

Estelle

, 720 F.2d 839, 852 (5th Cir. 1983) (internal quotes and

citations omitted). Petitioner must demonstrate that the error

made the trial fundamentally unfair. B agley v. Collins

, 1 F.3d

378, 380 n. 2 (5th Cir. 1993). Our review of the record convinces

us that McFarland has not carried this burden. Revill testified15

that Wilson cautioned her not to let McFarland know that she knew

about the rape and murder because McFarland would hu rt her. On

cross-examination, defense counsel brought out that Revill did not

tell the police of this on her initial contact with them. On

redirect Revill stated that when she heard that Wilson had been

killed she thought she would be next. There was no objection. She

was then asked if she learned McFarland’s whereabouts at the same

time she learned of Wilson’s death. There was no objection.

While this t estimony may have been important, its admission

was not error. Wilson confessed to his involvement in the crimes

against Hokanson and was dead. There was no fundamental unfairness

in permitting Revill to testify to her reasons for coming forward

with the information.

In his summation of the evidence, the prosecutor made

reference to this testimony. It was not error to do so since the

evidence was properly admitted. Even if the evidence had not been

prop erly admitted, we must view the prosecutor’s remarks in the

context of the entire trial to determine if they were a “crucial,

critical, highly significant factor in the jury’s determination of

guilt.” O rtega v. McCotter

, 808 F.2d 406, 410-11 (5th Cir. 1987).

The district court ruled that the prosecutor’s remarks did not rise

to this level of importance, and our independent review of the

record convinces us that it was correct.

IV. Hypnotically-enhanced Testimony16

Over objection, the State introduced the hypnotically-enhanced

testimony of Officer Rainey concerning hi s conversation with the

victim at the scene shortly before her death. McFarland contends

that his rig hts under the Due Process and Confrontation Clauses

were infringed by admission of this testimony. He claims that:

the examiner’s independence was questionable because he was trained

by and worked for the State and spoke with two of the investigating

officers before the interview; the examiner fai led to keep

appropriate records; and the examiner allowed other officers to

participate in the interview. The record does not support these

claims. The evidentiary hearing conducted by the trial court out

of the jury’s presence in response to McFarland’s objection

establishes fully the propriety of the conduct of the interview and

the competence of the interviewer.

Without hypnosis, Officer Rainey recalled that the victim said

the name of her place of employment. He remembered that the first

part of the name was “Center”, but could not recall the last part.

Under hypnosis he recalled that it was “Centerfold”. He also

recalled that the victim said that she had first met her attackers

that night.

McFarland did not demonstrate to the trial court, and has not

dem onstrated to us, that this testimony was in any way

untrustworthy. As noted, the record clearly shows that the

interviewer was qualified and had no investigative responsibility

in the case, no outside influence was exercised in the interview17

and it was conducted in accord with all applicable principles.

V. Confrontation Clause

Mark Noblett and Rachel Revill gave hearsay testimony

concerning Wilson’s statements that implicated McFarlan d in the

crime. He claims that this violated his rights under the

Confrontation Clause and that the Court of Criminal Appeals erred

when it rejected this claim. He argues that Wilson’s statements

were not against Wilson’s penal interest as the court found, but

were self-serving because Wilson was seeking Noblett’s he lp with

the police in connection with his own problems.

The Sixth Amendment right to confrontation does not preclude

admission of all hearsay testimony. C upit v. Whitley

, 28 F.3d 532,

536 (5th Cir. 1994). Hearsay is admissible if it bears adequate

indicia of reliability, and contains “particularized guarantees of

trustworthiness.” S herman v. Scott

, 62 F.3d 136, 140 (5th Cir.

1995), cert. denied

, 116 S.Ct. 816 (1996). “[T]hese ‘particularized

guarantees of trustwort hiness required for admission under the

Confrontation Clause must...be drawn fr om the totality of

circumstances that surround t he making of the statement and that

render the declarant particularly worthy of belief.’” Id

. (quoting

Idaho v. Wright

, 497 U.S. 805, 820 (1990)). “Finally, ‘[if] the

declara nt’s truthfulness is so clear from the surrounding

circumstances tha t the test of cross-examination would be of

marginal utility, the n the hearsay rule [and the Confrontation18

Clause] do []not bar admission of the statement at trial.’” Id

.

Revill’s and Noblett’s testimony was significant evidence

against McFarland. They testified that Wilson told them that he

and McFarland had to get rid of the victim, and that Wilson was now

dead. Revill testified that Wilson returned to Revill’s apartment

immediately after the crime, changed clothes, burned the clothes he

had been wearing, and later told her what happened to the victim.

Revill was Wilson’s girlfriend, and it is reasonable that he would

confide in her under the circumstances. Even though Revill was

afraid of McFarlan d, she did not agree to speak with the police

until she knew Wilson was dead and McFarland had gone to the east

coast after she moved from Texas to Maryland.

Noblett testified that he knew Wilson and McFarland from

frequenting the club where the victim worked. He said that,

shortly after the murder, Wilson called and set up a meeting with

him. At the meeting Wilson was terrified, very nervous, and

apprehensive. Wilson told Noblett that he and McFarland had left

the club with the victim and that a rape and murder had occurred.

Wilson wanted to turn himself in to police and sought Noblett’s

help in doing this.

The totality of the circumstances under which Wilson made the

statements to Revill and Noblett render him particularly worthy of

belief, and the admission of the hearsay thus did not violate the

Confrontation Clause.19

VI. Cumulative Effect

McFarland seeks a new trial because of the claimed cumulative

effect of the alleged errors.

As we have shown, McFarland has not: demonstrated error,

shown that the State offered perjured testimony, proven that it

suppressed evidence, nor demonstrated that he was deprived of the

effective assistance of counsel. Accordingly, his claim fails.

VII. Miscellaneous

We have carefully reviewed McFarland’s Penry claim relative to

the jury charge, hi s claim of counsel’s failure to introduce

evidence of a rabbit fur coat, and his claims relative to

discovery, and the r ecord related to each, and we find all to

border on the frivolous and do not discuss them.

CONCLUSION

McFarland has completely failed to make a substantial showing

of the denial of a federal right. Accordingly, we deny his request

for a certificate of probable cause and vacate his stay of

execution.

CERTIFICATE OF PROBABLE CAUSE DENIED. STAY OF EXECUTION

VACATED.