1 Revised August 30, 2001

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-40539

RONFORD LEE STYRON, JR.,

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 Eastern District of Texas

August 15, 2001

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Ronford Lee Styron, Jr., seeks a certificate of appealability

(“COA”) on twelve issues to appeal the district court’s denial of

his application for habeas corpus and seeks relief from the denial

of his petition for habeas corpus. The district court considered

and rejected a certificate on these twelve issues although it

granted a COA on four other issues. For the reasons that follow,2

we deny Styron’s requests for a COA, and we affirm the denial of

habeas relief.

I. Facts and Procedural History

Appellant Ronford Lee Styron , Jr., was convicted of the

capital murder of his eleven-month old son, Lee Hollace Styron, and

sentenced to dea th. The medical evidence introduced at trial

indicated that the victim died as a result of subdural hemorrhaging

caused by trauma to the head. The evidence revealed that the child

had suffered at least three distinct blows to his head, any one of

which could have caused his death. Medical testimony indicated

that the blows appeared to have been inflicted contemporaneously.

Styron testified th at he punched the victim in the head one time

and did not offer any expla nation as to how the victim received

multiple bruises on his head.

Other medical evidence revealed the victim sustained retinal

hemorrhages consistent with repeated episodes of shaken-baby trauma

and multiple rib fractures within at least two weeks prior to his

death. Testimony established that Styron squeezed the victim’s

s tomach approximately three weeks before his death. Other

testimony revealed that Styron had on numerous occasions physically

abused the victim. The child had been taken to the hospital on

three prior occasions: once for a cut lip, once for a broken leg,

and once for treatment of a seizure disorder.

Styron was indicted by the grand jury of the 75th District3

Court of Liberty County, Texas. Count I of the indictment alleged

that Styron, on or about October 23, 1993, in Liberty County,

Texas, intentionally and knowingly caused the death of Lee Hollace

Styron, an individual under six years of age, by striking and

hitting the child’s head with his fist, by causing the child’s head

to strike and hit an object, and by manner and means unknown.

Count II of the indictment charged Styron with murder, alleging

e ssentially the same conduct as did Count I. Count III alleged

injury to a child. The 75th District Court found Styron to be

indigen t and appointed Walter F. Fontenot to represent him on

November 2, 1993.

At the request of the State, without notice to Styron or his

attorney and without a hearing, the action was transferred by the

75th District Court to the 253rd District Court of Liberty County.

On January 4, 1994, the 253rd District Court, on Styron’s motion,

appointed Gary W. Bunyard as additional counsel. On January 5,

1994, Styron file d a pre-trial motion to quash the indictment

contending that the government manipulated the transfer to secure

a more favorable forum in which to prosecute the ac tion. On May

10, 199 4, after a hearing, the trial court denied the motion to

quash.

Styron was tried before a jury upon a plea of not guilty. His

defense was based upon a lack of intent to harm or to kill the

child . The defense presented evidence that Styron was in fact a

loving father to the victim; however, the jury convicted Styron of4

capital murder on October 24, 1994.

On October 27, 1994, the punishment phase of the trial was

presented to the jury. The State produced numerous witnesses who

testified about their knowledge of Styron’s reputation and

behavior. Four witnesses testified of his propensity to instigate

fights. One witness testified that Styron provoked a fight with a

boy who could not fight back because of a bad arm, and that Styron

h it the boy several times before the witness grabbed Styron.

Styron’s hig h school principal and assistant principal both

testified that he had a reputation for violence. A Dayton police

officer, Shannon Spear, testified that Styron h ad violently

attacked another boy while in the seventh grade, attacked a man on

a freeway, and punched his sergeant while in the Army.

Curtis Wills, a psychologist called a s a witness by the

defense, testified that he could not predict whether Styron was

likely to commit future criminal acts. On cross-examination, Wills

testified that the results of the Minnesota Multiphasic Personality

Inventory (MMPI) indicated that Styron was hostile, was aggressive,

and was a person who harbored grudges. Wills further testified

that Styron was the type of person who tends to be diagnosed with

an anti-social personality.

Dr. Gripon, a psychiatrist, testified for the State. After a

review of the offense reports, Styron’s statements, and the results

of the MMPI, in response to a hypothetical question Dr. Gripon

testified that in his opinion Styron was a continuing threat to5

commit future acts of violence.

After the hearing, the jury answered affirmatively the first

special sentencing issue as to whether Styron posed a continuing

threat to society. The jury answered negatively the second special

sentencing issue as to whether mitigating circumstances warranted

a sentence of life imprisonment rather than the imposition of a

death sentence. Accordingly, the trial court sentenced Styron to

death in accordance with Texas law.

Styron appealed to the Texas Court of Criminal Appeals. The

conviction and sen tence were affirmed in an unpublished opinion

issued October 30, 1996. Styron v. State , No. 72,001 (Tex. Crim.

App. 1996). The Court of Criminal Appeals appointed James F.

Keegan to represent Styron on state habeas corpus review.

A pplication for writ of habeas corpus was filed, raising fortythree grounds for relief. E x parte Styron

, No. 20,278-A. Without

a hearing on the state writ, the state trial court adopted the

findings of fact and conclusions of law submitted by the State and

recommended that relief be denied. The Court of Criminal Appeals,

without discussion or analysis, adopted the trial court’s findings

and conclusions in a one-page opinion and denied habeas corpus

relief in an unpublished order. E x parte Styron

, No. 37,058-01

(Tex. Crim. App. 1998).

Styron filed a federal petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The United States District Court for

the Eastern District of Texas denied his motion for summary6

judgment and writ of habeas corpus, lifted the stay of execution,

and granted respondent’s motion for summa ry judgment. S tyron v.

Johnson

, No. 6:98 CV 338 (E.D. Tex. 1999). The district court

issued COA on four of twenty-one issues requested by Styron.

II. Application for COA

A. Issues and Standard of Review

Styron now seeks from this court COA for twelve additional

issues on which to appeal the district court’s denial of habeas

relief. Since Styron filed his habeas application in the district

court after April 24, 1996, we apply the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA). S ee Lindh v. Murphy

,

521 U.S. 320, 336 (1997); Green v. Johnson

, 116 F.3d 1115, 1119-20

(5 th Cir. 1997). The AEDPA provides that “[u]nless a circuit

justice or judge issues a certificate of appealability, an appeal

may not be taken to the cou rt of appeals from -- (A) the final

order in a habeas corpus proceeding i n which the detention

complained of arises out of process issued by a State court . . .

.” 28 U.S.C. § 2253(c)(1)(A). Only if the applicant makes a

“substantial showing of the denial of a constitutional right” may

a COA issue, and any such COA shall indicate the specific issue or

issues that satisfy this showing. I d

. § 2253(c)(2). “A

‘substantial showing’ requires the applicant to ‘demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the7

questions are adequate to deserve encouragement to proceed

further.’” D rinkard v. Johnson , 97 F.3d 751, 755 (5 th Cir. 1996),

(quoting Ba refoot v. Estelle , 463 U.S. 880, 893 n.4 (1983)),

overruled on other grounds by Lindh v. Murphy

, 521 U.S. 320 (1997);

see also Rudd v. Johnson

, No. 00-11173, 2001 WL 726411, *1 (5 th Cir.

June 28, 2001); D owthitt v. Johnson , 230 F.3d 733, 740 (5 t h Cir.

2000)(citing S lack v. McDaniel

, 120 S.Ct. 1595, 1603-04 (20 00)).

“Our determination requires deference to the state habeas court's

adjudication of [Styron’s] claims on the merits , unless that

adjudication: (1) ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States,’ § 2254(d)(1), or (2)

constituted an ‘unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,’ §

2254(d)(2).” W heat v. Johnson

, 238 F.3d 357, 360 (5 th Cir. 2001).

“We resolve doubts about whether to grant a COA in [Styron’s]

favor, and we may consider the severity of his penalty in

determining whether he has met his ‘substantial showing’ burden.”

Hill v. John son , 210 F.3d 481, 484 (5 t h Cir. 2000) (citing Fuller

v. Johnson , 114 F.3d 491, 495 (5 th Cir. 1997)).

In this case, the district court declined to certify seventeen

of twenty-one issues advanced by the petitioner. Styron seeks in

this court certification on twelve of those seventeen issues. The

twelve issues are as follows:

Issue 1 : Styron’s conviction for capital murder pursuant to8

former Texas Penal Code § 19.03(a)(7) violated the prohibition

a gainst ex post facto laws of Article I, § 10, Clause 1 of the

United States Constitution.

Issue 2 : Conviction for capital murder pursuant to former

Texas Penal Code § 19.03(a)(7) denied Styron due process of law

guaranteed by the Fourteenth Amendment of the Constitution.

Issue 3 : Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence est ablished beyond a reasonable doubt that all the

elements of the offense were committed on or after September 1,

1993, violated the prohibition against ex post facto laws of

Article I, § 10, Clause 1 of the Constitution.

Issue 4 : Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence established beyond a reasonable doubt that all the

elements of the offense were committed on or after September 1,

1993, denied Styron due process of law guaranteed by the Fourteenth

Amendment.

Issue 5 : Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence established beyond a reasonable doub t that all the

elements of the offense were committed on or after September 1,

1993, denied Styron the rig ht to trial by jury guaranteed by the

Sixth and Fourteenth Amendments.

Issue 6 : Transfer of cause No. 20,278 from the 75th District9

Court of Liberty County to the 253rd District Court of Liberty

County at the request of the State, but without notice to Styron or

his attorney, denied Styron due process of law guaranteed by the

Fourteenth Amendment.

Issue 7 : His absence, in violation of Texas Code of Criminal

Procedure article 28.01, from the pretrial proceeding at which the

75th District Court granted the request of the State to transfer

his cause to the 253rd District Court denied Styron due process of

law guaranteed by the Fourteenth Amendment.

Issue 8 : Transfer of the cause from the 75th District Court

to the 253rd Distri ct Court at the request of the State, but

without notice to Styron or his attorney, denied Styron the right

to counsel guaranteed by the Sixth and Fourteenth Amendments.

Issue 9 : Attack by the State upon the integrity of attorney

Walter P. Fontenot denied Styron due process of law guaranteed by

the Fourteenth Amendment.

Issue 10 : Attack by the State upon the integrity of attorney

Walter P. Fontenot denied Styron the right to counsel guaranteed by

the Sixth and Fourteenth Amendments.

Issue 11 : In violation of the Sixth and Fourteenth

Amendme nts, Styron was denied effective assistance of counsel at

trial.

Issue 12 : In violation of the Sixth and Fourteenth

Amend ments, Styron was denied effective assistance of counsel on

appeal.10

Of these twelve issues presently under consideration for COA,

none makes a substantial showing of the denial of a constitutional

right.

B. Analysis

For eas e of discussion and analysis, similar issues will be

grouped together.

1. Issues 1 through 5

S tyron complains that since the statute under which he was

convicted of capital murder became effective on September 1, 1993,

the failure of the trial court to instruct th e jury that all

elements of the offense had to be committed on or after that date

operated to subject Styron to an ex post facto law and to deny him

due process of law. However, the defense neither objected to the

jury charge n or requested an alternative charge along the lines

Styron now asserts as crucial.

S tyron’s assertion that “there was considerable evidence a t

Styron’s trial that elements of the offense were committed before

September 1, 1993" is not supported by the record. There was

evidence that the victim had suffered physical abuse for several

m onths prior to his death on October 26, 1993, but the medica l

evidence revealed tha t the victim suffered three nearly

simultaneous but distinct traumas to the head approximately three

days prior to his death, any of w hich could have caused the

fatality. Styron admitted to punching the child once on October11

23, 1993, and there was no evidence that any acts of abuse prior to

this date contributed to the victim’s death.

Moreover, the indictment properly alleged that the murder took

place “on or about” October 23, 1993, and the jury charge tracked

the language of the indictment:

Now, if you find from t he evidence beyond a reasonable

doubt that on or about the 23rd day of October, 1993, in

Liberty County, Texas, the defendant, RONFORD LEE STYRON,

JR., did then and there intentionally or knowingly cause

the death of an individual, namely, Lee Hollace Styron,

an individual under six years of age, by striking or

hitting the head of Lee Hollace Styron with Ronford Lee

Styron, Jr.’s fist or by causing the head of Lee Hollace

Styron to strike or hit an object or by manner and means

unknown to the Grand Jury, then you will find the

defendant guilty of capital murder as charged in Count I

of the indictment.

There was no evidence from whic h the jury could have found that

actions by Styron prior to September 1, 1993, were the cause of

death. The complained-of jury instruction properly charged the

jury as to the temporal element of the offense. Styron’s complaint

on these issues is without merit.

Finally, in order for Styron ’s conviction to violate the ex

post facto prohibition, the statute under which he was convicted

would have to punish as a crime an act previously legal when

committed, make mo re burdensome the punishment for a crime after

its commission, or remove a defense available according to the law

when the act was committed. S ee Dobbert v. Florida

, 432 U.S. 282,

292 (1977) (citing Beazell v. Ohio , 269 U.S. 167, 169-70 (1925)).

The statute under which Styron was tried and convicted did none of12

these things as the jury reasonably found that the offense was

committed after its effective date of September 1, 1993.

In sum, these issues raised by Styron do not make a

substantial showing of the denial of a constitutional right as

required under the AEDPA. A COA will not issue.

2. Issues 6 through 8

Styron complains that the transfer of the cause from the 75th

District Court of Liberty County, the district court from which the

grand jury handed down the indictment, to the 253rd District Court

of Liberty County, at the request of the State, without notice to

or in the presence of either Styron or his attorney and without a

hearing, violated Styron’s rights to due process of law and to

counsel.

Petitioner’s motion to quash the indictment on these grounds

was denied by the 253rd District Court after a hearing on May 2,

1994. At that hearing testimony showed that between 1977 and 1991

indictments were assigned randomly by the district clerk to either

the 75th or the 253rd District Court. The testimony further showed

that in 1992 the district clerk began to assign indictments to the

court in which the prosecutor handling the case was assigned, and

that the District Attorney’s practice was to randomly assign cases

to prosecutors. However, in this case, Prosecutor Anne Streit was

assigned to Styron’s case, and she was assigned to the 253rd

District Court. The evidence suggests that when the District13

Attorney’s office informed the clerk that Streit was prosecuting

the case, the clerk’s office informed the judge in the 75th

District Court, who then transferred the case to the 253rd District

Court without a hearing and without notice to either Styron or his

attorney.

The Texas Court of Criminal Appeals found that t he transfer

was effected pursuant to prosecutorial discretion and that Styron

failed to produce exceptionally clear proof that the discretion had

been abused.

The district court found no due process violation given that

Styron failed to demonstrate that he was in any way prejudiced by

the lack of hearing and notice of the tra nsfer, and because the

trial court hearing on the motion and the appellate and state writ

process afforded Styron a full and fair hearing on this matter.

The district court also found no violation of the right to counsel

since an administrative act transferring the case was not a

criminal proceeding in which the rights of Styron might be affected

b ecause the act of transfer was not a “critical stage” in the

prosecution.

a. Right to Counsel

The right to counsel attaches “at or after the initiation of

adversary judicial proceedings against the defendant.” U nited

States v. Gouveia

, 467 U.S. 180, 187 (1984). This right extends to

critical pretrial proceedings as “the accused is guaranteed that he14

n e ed not stand alone against the State at any stage of the

prosecution, formal or informal, in court or out, where counsel’s

absence might derogate from the accused’s right to a fair trial.”

United States v. Wade , 388 U.S. 218, 226 (1967). The court must

“analyze whether potential substantial prejudice to defendant’s

rights inheres in the particular confrontation and the ability of

counsel to help avoid that prejudice.” I d. at 227. In G ou veia

,

the Supreme Court characterized the situations where the right

extends as instances where “the results of the confrontation ‘might

well settle the ac cused’s fate and reduce the trial itself to a

mere formality.’” 467 U.S. at 189 (internal citations omitted).

As such, the Court has found a violation of the right to counsel

where counsel was not notified or allowed to confer with his client

prior to a pretrial psychiatric interview later used at the

sentencing phase. E stelle v. Smith

, 451 U.S. 454 (1981); see also

Mempa v. Rhay

, 389 U.S. 128, 135 (1967) (holding that counsel must

be appointed at a proceeding where certain legal rights like appeal

may be lost).

The transfer of Styron’s case was an administrative matter and

not a “critical” proceeding. Counsel’s absence did not derogate

from a fair trial; indeed, Styron does not even argue that he was

denied a fair trial or that the effect of the transfer pervaded the

entire proceeding. S ee Satterwhite v. Texas

, 486 U.S. 249, 257

(1988)(distinguishing cases “in which the deprivation of the right

to counsel affected–-and contaminated-–the entire criminal15

proceeding” and applying harmless error standard). He merely makes

an amorphous argument that he required aid in knowing whether to

oppose a transfer. Styron has failed to show prejudice or that the

presence of counsel would have eliminated any prejudice. There is

no indication of misconduct, animus, or discrimination by the

prosecution.

This court has refused to find a violation of the right to

counsel at a pretrial confrontation d uring which a defendant was

photographed outside the presence of counsel because “the right to

counsel at all stages of the proceedings is not absolute.” Smith

v. Puckett , 907 F.2d 581, 583 (5 th Cir. 1990). Likewise, here the

right is not absolute. The transfer did not affect any substantial

rights, see Mempa

, 389 U.S. at 134, because Styron was still

afforded a fair trial. S ee Child ress v. Johnson , 103 F.3d 1221,

1225 (5th Cir. 1997). The mere absence of counsel at an

administrative process is not sufficient to show a deprivation of

a co nstitutional right. Accordingly, no COA will issue because

Styron has failed to make the requisite substantial showing of the

denial of a constitutional right.

b. Due Process

“The constitutional right to presence i s rooted to a large

extent in the Confrontation Clause of the Sixth Amendment, but we

have recognized that this right is protected by the Due Process

Clause in some situations where t he defendant is not actually16

confronting witnesses or evidence against him.” United States v.

Gagnon , 470 U.S. 522, 526 (1985). However, the Supreme Court has

limited this right by holding that there is a due process right to

be present “‘whenever his presence has a relation, reasonably

substantial, to the fulness of his oppo rtunity to defend against

the charge . . . [T]he presence of a defendant is a condition of

due process to the extent that a fair and just hearing would be

t hwarted by his absence, and to that extent only.” I d. (c iting

Snyder v. Massachusetts

, 291 U.S. 97, 105-06, 108 (1934)). Having

recognized this limit, the Court in Gagnon held that the presence

of four defendant s and their attorneys during an in camera

discussion between a judge, juror, and an other attorney was not

required to ensure “fundamenta l fairness or a ‘reasonably

substantial

. . . opportunity to defend against the charge.’” I d.

at 527 (internal citations omitted). In Kentucky v. Stincer , 482

U.S. 730, 745 (1987), the Court determined that a defendant’s due

process right is the right to be present “at any stage of the

criminal proceeding that is critical to its outcome if his presence

would contribute to the fairness of the procedure.” In S tincer

,

there was no violation of due process for a defendant to have been

excluded from a competency hearing concerning two witnesses because

the defendant gave no indication that his presence “would have been

useful in ensuring a more reliable determination as to whether the

witnesses were competent to testify.” 482 U.S. at 747.

Styron has failed to show deprivation of a const itutional17

right. Although he argues that he was not given notice or an

opportunity to object to the tran sfer, he nevertheless fails to

demons trate “that his presence at the [transfer] would have

contributed to the fairness of the proceed ing. He thus fails to

establish, as an initial matter, the presence of a constitutional

deprivation.” S tincer

, 482 U.S. a t 747 n.21. As the district

court acknowledged, the transfer was a purely administra tive

matter, and Styron’s presence would not have had a reasonably

substantial relation to his opportunity to defend against the

charge. See Gagnon , 470 U.S. at 526.

This court has faced a similar issue in United States v. Osum

,

943 F.2d 1394 (5 th Cir. 1991). There, the court addressed the

propriety of a transfer requested by the government to a judge who

had previously presided over the trial of codefendants. I d. at

1398. First recognizing that a defendant does not have a

const itutional right to trial within a particular division of a

judicial district, and, a fortiori

, before a particular judge, the

court emphasized that a court may not transfer a c a se if a

defendant makes a strong showing of prejudice. Id. at 1399. The

court held the transfer to be valid, even though the government

specifically chose the transferee judge. Id. at 1400. “Although

the transfer of a case to a different judge upon request of the

government is not something we would endorse as routine practice,

we cannot in t his case, given the existence of a valid reason

supporting transfer and no showing of prejudice by the defendant,18

say that the district court abused its discretion.” Id. In this

case, the transfer was an administrative matter, and unlike Osum

,

the transferee court’s only connection to the matter was the fact

that the prosecutor to whom the case was randomly allotted was

assigned to that court. Styron makes no showing of prejudice based

on the transfer or his lack of presence thereat. S ee United States

v. Allen

, 633 F.2d 1282, 1294 (9 th Cir. 1980) (“They have no basis,

however, to advance as error any alleged violation of the Northern

District of Califor nia’s Random Assignment Plan unless they can

show actual prejudice.”).

Therefore, applying the prop er standard under the AEDPA, we

conclude that Styron has failed to make the requisite substantial

showing of the denial of a constitutional right under the Sixth and

Fourteenth Amendments. Accordingly, no COA will issue on Styron’s

claims related to the transfer.

3. Issues 9 and 10

Styron complains that testimony at the guilt/innocence phase

of the trial by Wallace Clark, Styron’s brother, that Styron’s

attorney (Walter P. Fontenot) had told Clark to lie to the grand

jury, and that p laying a portion of a recording of Clark’s grand

jury testimony to that effect, denied Styron due process of law and

the right to counsel.

Prosecutorial misconduct is not a ground for relief unless it

casts serious doubt upon the correctness of the jury’s verdict.

See United States v. Hernandez-Guevara

, 162 F.3d 863, 874 (5 th Cir.19

1998). This court has previously identified three factors to be

considered: 1) the magnitude of the prejudicial effect of the

remarks; 2) the efficacy of any cautionary instruction given by the

judge; and 3) the strength of the evidence supporting the

conviction. U nited States v. Casel , 995 F.2d 1299, 1308 (5 th Cir.

1993), vacated on other grounds by Reed v. United States

, 510 U.S.

1188 (1994). Only where improper prosecutorial comments

substantially affect the defendant’s right to a fair trial do they

require reversal. S ee United States v. Diaz-Carreon

, 915 F.2d 951,

956 (5 th Cir. 1990). Under these standards and viewing the

testimony as a whole in its pr oper context, the alleged

prosecutorial misconduct did not so infect the trial with

unfairness as to deny due process of law.

Styron objects to the content of the statements made by Clark.

However, this testimony w as elicited by the prosecutor as prior

inconsistent statements for impeachment purposes. Because the

testimony wa s admissible evidence under Rule 801(e)(2)(D) of the

Texas Rules of Evidence, because the injurious statements were made

by the witness and not by the prosecutor, and because crossexamination of Clark by the defense mitigated the prejudice by

pointing out that Clark had erred in attributing to Fontenot the

statements of another attorney not involved in the defense, the

alleged misconduct did not infect the trial with unfairness in

violation of due process.

As a result, Styron fails to make the showing required under20

the AEDPA for the issuance of a COA on the claim of a due process

violation. Finally, as the alleged misconduct did not in any way

prejudice Styron’s right to counsel under the Sixth Amendment, that

claim has no merit.

4. Issues 11 and 12

Styron complains that he was denied effective assistance of

counsel at trial because of his counsel’s failures to object (1) to

certain voir dire statements by the State regarding punishment (the

weighing of mitigating evidence against aggravating factors); (2)

to Styron’s tr ial pursuant to a capital murder statute not

effective at the time all elements of the crime were committed or

to jury instructions that did not expressly condition guilt upon

the finding beyond a reasonable doubt that all elements were

committed after the stat ute’s effective date; and (3) to the

State’s impeachment of Clark. He further complains that on appeal

his appellate counsel failed to pursue these issues or to allege

ineffective assistance of counsel at trial, and that such failures

constitute ineffective assistance of counsel on appeal.

To establish ineffective assistance of counsel, a defend ant

m ust show that counsel’s performance was deficient and th at the

deficient performance prejudiced his defense--that the errors were

so serious as to deprive the defendant of a fair trial, that is, a

trial the result of which is reliable. S ee Strickland v.

Washington

, 466 U.S. 668, 687 (1984). Only a “showing that counsel

made errors so serious that counsel was not functioning as the21

‘counsel’ guaranteed by the Sixth Amendment” suffices. Id. This

court has concluded that only if counsel’s acts “fell beneath an

objective standard of reasonable professional assistance” has he

failed to function as counsel guaranteed b y the Sixth Amendment.

Gray v. Lynn , 6 F.3d 265, 268 (5 th Cir. 1993).

There is a strong presumption that counsel’s con duct falls

within the wide range of reasonable professional assistance or

sound trial strategy. S ee Strickland

, 466 U.S. at 689. The

petitioner must identify the acts or omissions of counsel that are

alleged to be outside the bounds of reas onable professional

judgment, and the court must then determine whether, in light of

all of the circumstanc es, the identified acts or omissions were

outside the range of professionally competent assistance. Id. at

690.

Because a criminal defendant is constitutionally entitled to

the effective assistance of counsel on direct appeal as of right,

see Lombard v. Lynaugh , 868 F.2d 1475, 1479 (5 t h Cir. 1989), the

Strickland standard applies to claims of ineffective assistance of

counsel by both trial and appellate counsel. See Strickland , 466

U.S. at 687; United States v. Merida

, 985 F.2d 198, 202 (5 th Cir.

1993).

We adopt the district court findings that in light of all of

the circumstances and considering the affidavit of Styron’s trial1 Mr. Bunyard’s affidavit affirmed the following: he and Mr.

Fontenot were of the view that the voi r dire statement by the

prosecution that the second issue called for a weighing of the

mitigating circumstances against the aggravating circumstances was

a proper statement of the law under Texas Code of Criminal

Procedure article 37.071 § 2(e) and that the jury charge given

accurately tracked this provision; no ex post facto challenge was

made because the evidence of life threatening injuries occurred in

late Octob er 1993, after the criminal statute’s effective date;

and, the trial strategy adopted by Fontenot and Bunyard to counter

the impeachment testimony of Clark was to call Fontenot as a

witness during the defense case in chief since Clark’s tes timony

had been impeached to the point of being unreliable.

22 counsel, Gary W. Bunyard, 1 the iden tified acts and omissions were

within the wide range of reasonable professi onal assistance or

sound trial strategy. Styron has failed to show that counsel’s

trial performance was deficient, that it prejudiced his defense, or

that he was deprived of a fair trial therefrom.

Each of the grounds underlying the alleged errors by counsel

on appeal have been discussed previously and found to lack merit.

Therefore, appella te counsel’s failure to pursue relief on those

bases does not constitute ineffective assistance of counsel since

no prejudice resulted therefrom and because the reliability of the

result of the appeal was not undermined thereby.

Accordingly, as each of th e grounds raised to establish

ineffective assistance of counsel at trial and on appeal have been

resolved against Styron by this court, Petiti oner has failed to

make a substantial showing of the deprivation of a constitutional

right. No COA will issue with respect to these issues.

III. Review of Certified Issues23

A. Cruel and Unusual Punishment Challenges

A COA was granted on the issue of whether Styron’s conviction

violated the cruel and unusual punishment clauses of the Eighth and

Fourteenth Amendments. In A rave v. Cheech

, 507 U.S. 463, 470

(1993), the Supreme Court held that “to satisfy the Eighth and

Fourteenth Amendments, a capital sentencing scheme must ‘suitably

direc[t] and limi[t]’ the sentencer’s discretion ‘so as to minimize

the risk of wholly arbitrary and capricious action.’” (citing Lewis

v. Jeffers

, 497 U.S. 764 (1990)). The Court has set out a two-part

test to determine the constitutionality of a death penalty scheme,

examining both the eligibility decision and sele ction decision.

Tuilaepa v. California

, 512 U.S. 967 (1994). As Styron attacks

only the eligibility requirement, only that portion of the test is

relevant. “To render a defendant eligible for the death penalty in

a homicide case, we have indicated that the trier of fact must

convict the defendant of murder and find one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty

phase.” T uilaepa

, 512 U.S. at 972 (internal citations omitt ed).

“As we have explained, the aggravating circumstance must meet two

requirements. First the circumstance may not apply to every

defendant convicted of a murder; it must apply only to a subclass

of defendants convic ted of murder. Second, the aggravating

circumstance may not be unconstitutionally vague.” Id. (internal

citations omitted).

Styron argues that former Texas Penal Code § 19.03(a)(7), now2 Texas Penal Code § 19.03(a)(8) provides: “A person commits an

offense [of capital murder] if he commits murder as defined under

Section 19.02(b)(1) and: the person murders an individual under six

years of age.”

24 Texas Penal Code § 19.03(a)(8), 2 vi olates the prohibition against

cruel and unusual punishment because the age of a victim does not

establish a principled basis for distinguishing defendants under

the constraints of Arave . He asserts that there is no principled

basis for distinguishing between a defendant who murdered a child

under the age of six from one who mu rdered an older child. W e

disagree. Under the test presented in T uilaep a , the aggravating

circumstance for capital murder of murdering a child under the age

of six is constitutionally sufficient. First, it does not apply to

every defendant convicted of murder; it applies only to a certain

subclass of defendants. S ee Tuilaepa

, 512 U.S. at 972. Second, it

is not unconstitutional ly vague. S ee Henderson v. State

, 962

S.W.2d 544, 563 (Tex. Crim. App. 1997) (“The child-murder provision

meets both tests: murderers of children under six is a subclass of

murderers in general, and ‘children under six’ is a clear and

definite category.”). On the contrary, the statute is very clear

unlike other statutes which the Supreme Court has found to be

vague. S ee

, e.g.

, Maynard v. Cartwright

, 486 U.S. 356 (1988)

(holding “especially heinous, atrociou s, or cruel” to be vague).

The “vagueness review is quite deferential.” T uilaepa

, 512 U.S. at

973.

Styron misses the mark when he argues that under the Eighth25

Amendment, conviction and imposition of the death penalty for the

murder of a child under six years old is arbitrary. “A v ague

propositional factor u sed in the sentencing decision creates an

unacceptable risk of randomness, the mark of the arbitrary and

capricious sentencing process prohibited by Furm an v. Georgia

. ”

Id. at 974-75 (emphasis added). Texas Penal Code § 19.03(a)(7),

now Texas Penal Code § 19.03(a)(8), has no such vague propositional

factor and is not arbitrary. S ee Godfrey v. Georgia

, 446 U.S. 420,

428 (1980) (“A capital sentencing scheme must, in short, provide a

‘meaningful basis for distinguishing the few cases in which [the

penalty] is imposed from the many cases in which it is not. This

means if a State wishes to authorize capital punishment it has a

constitutional responsibility to tailor and apply its law in a

manner that avoids arbitrary and capricious infliction of the death

penalty. Part of a State’s responsibility in this regard is to

define the crimes for which death may be the sentence in a way that

obviates ‘standardless [sentencing] discretion.’ ”) (internal

citations omitted).

On a more general level, the Supreme Court upheld the Texas

death penalty scheme in sofar as it narrowed the definition of

capital murder to circumstances in which there was “at least one

statutory aggravating circumstance in a fi rst-degree murder case

before a death sentence may even be considered.” Jurek v. Texas

,

428 U.S. 262, 276 (1976). Murdering a child under six is a

sufficiently narrow statutory aggravating factor. Therefore, we do26

not find a violation of the prohibition against cruel and unusual

punishment.

B. Equal Protection Challenge

Styron contends that conviction for capital murd e r under

former Texas Penal Code § 19.03 (a)(8) denied him equal protection

under the Fourteenth Amendment when it limited capital murder to

circumstances where the victim is under six years old. First, he

contends that the statute should be reviewed under strict scrutiny

because it impinges on a nebulous right of “freedom from the

a rbitrary and capricious infliction of punishment.” However,

besides our resolution of the arbitrary and capricious issue, the

Supreme Court has never afforded t his “right” the protection of

strict scrutiny. The Fifth Circuit, led by the Supreme Court’s

decision in Gregg v. Georgia

, 428 U.S. 153 (1976), was convinced

that “equal protection clauses do not require a higher level of

scrutiny for legi slative classifications that may result in the

death penalty. Thus, [petitioner’s] claims are to be assessed

under a rational basis test.” Gray v. Lucas , 677 F.2d 1086, 1104

(5 th Cir. 1982). Despite Styron’s argument that age-based capital

murder statutes should be reviewed u nder a strict scrutiny

analysis, “[a]ge classifications, unlike governmental conduct based

on race or gender, cannot be characterized as ‘so seldom relevant

to the achievement of any legitimate state interest that laws

grounded in such considerations are deemed to reflect prejudice and

antipathy.’” Kimel v. Florida Bd. of Regents , 528 U.S. 62, 8327

(2000) (quoting Cleburne v. Cleburne Living Center, Inc.

, 473 U.S.

432, 440 (1985)). “[A]ge is not a suspect classification under the

Equal Protection Clause. States may discriminate on the basis of

age without offending the Fourteenth Amendment if the age

classification in qu estion is rationally related to a legitimate

state interest.” Id. (internal citations omitted).

Styron next contends that the Texas statute cannot withstand

even rational basis scrutiny because Texas has no legitimate

interest in granting greater protection to children under six than

to other children and adults. Rational basis scrutiny was clearly

set out in Kimel

, 528 U.S. at 84. “States may discriminate on the

basis of age without offending the Fourteenth Amendment if the age

classification in question is ration ally related to a legitimate

state interest

. . . . [W]e will not overturn such [government

action] unless the varying treatment of different groups or persons

is so unrelated to the achievement of any combination of legitimate

purposes that we can only conclude that the [government’s] actions

were irrational.” Id. (internal citations omitted).

The Texas Penal Statute is constitutional under rational basis

scrutiny. First, there is a clear governmental interest in

protecting young children. As the Texas Court of Criminal Appeals

has eloquently stated, “Children are deemed to warrant protection

because of their inexperience, lack of social and intellectual

development, moral innocence, and vulnerability.” Henderson , 962

S.W.2d at 562. Secondly, the decision of the Texas legislature to28

declare the age limit of six years is rationally rela ted to the

interest of protecting children. It is inherently difficult to

draw a line o f demarcation, i d. ; however, the Texas legislature

cannot be said to have acted irrationally. As was testified

concerning this stat ute, children under six are usually still at

home and are vulnerable to caregivers, as exactly was the case

here. S ee SB 13, Public Hearing, Senate Criminal Jurisprud ence

Committee, March 3, 1993. Using the six-year age limit is a

rationally related means to accomplish Tex as’s end: protecting

young children.

Alternatively, we agree wit h the district court that this

claim is barred by Teague v. Lane

, 489 U.S. 288 (1989), as it seeks

application of a new constitutional rule of criminal procedure.

C. Due process and fair and impartial jury challenges

A COA was granted on the issues of whether an alleged

misstatement by th e prosecution during voir dire denied Styron a

fair and impartial trial as guaranteed by the Sixth and Fourteenth

Amendments and due process as guaranteed by the Fourteenth

Amendment. Eight of twelve jurors were told during voir dire that

the second question submitted in the punishment phase of the trial

should only be answered affirmativel y if the mitigating evidence

outweighed the aggravating evidence. Texas Criminal Procedure

Article 37.071 actually instructs the court to answer the following

issue:29

Whether, taking into consideration all of the evidence,

including the circumstances of the offense, the

defendant’s character and background, and the personal

moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that

a sentence of life imprisonment rather than a death

sentence be imposed.

Styron contends that a mitigating circumstance might be sufficient

to warrant life imprisonment without outweighing the aggravating

circumstances.

However, Styron, as he readily admits, failed to object to the

voir dire questioning. “The ‘Texas contemporaneous objection rule

constitutes an ad equate and independent state ground that

procedurally bars federal habeas review of a petitioner’s claims.’”

Jackson v. Johnson

, 194 F.3d 64 1, 652 (5 t h Cir. 1999) (internal

citations omitted). “In all cases in wh ich a state prisoner has

de faulted his federal claims in state court pursuant to an

independen t and adequate state procedural rule, federal habeas

review of the claims is barred unless the prisoner can demonstrate

cause for the def ault and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that fail ure to

consider the clai ms will result in a fundamental miscarriage of

justice.” C oleman v. Thompson , 501 U.S. 722, 750 (1991). If

Styron overcomes the procedural bar, he still must demonstrate that

“the prosecutors’ comments ‘so infected the trial with unfairness30

as to make the resulting conviction [or sentence] a denial of due

process.” R ogers v. Lynaugh

, 848 F.2d 606, 608 (5 t h Cir. 1988)

(internal citations omitte d). “This Circuit has developed the

following test of constitutional error when a generic due process

violation is asserted: ‘The test app lied to determine whether a

trial error makes a trial fundamentally unfair is whether there is

a reasonable probability that the verdict might have been different

had the trial been properly conducted.’” I d. at 609 (quoting

Kirkpatrick v. Blackburn , 777 F.2d 272, 278-79 (5 th Cir. 1985)).

Although he never clearly addresses cause or prejudice, Styron

does assert that his attorney failed to ob ject to the voir dire

questioning because he misunderstood the question and thought that

the state was presenting accurate law. This reason, however, is

not sufficient cause. The Fifth Circuit found that if an attorney

“had ‘no reasonable basis upon which to formulate a constitutional

question,’ the default is excusable.” L andry v. Lynaugh

, 844 F.2d

1117, 1120 (5 th Cir. 1988). An attorney’s personal alleged

misconceptions about the law do not rise to the level of a “change

in federal law.” I d. Furthermore, Styron fails to demonstrate

prejudice. The state never referred back to voir dire in its

closing arguments, and the cour t submitted the special issue as

dictated by Texas Criminal Procedure Article 3 7.071. In

interpreting the mitigation issue, a Texas court has described it

as “the weighing of mitigating evidence[,]

. . . a subjective

determination undertaken by each juror.” M orris v. State

, 9403 Styron even admits that the jurors took a poster board

printed with Texas Criminal Procedure Article 37.071 § (2)(e) on it

with them into the jury room during their deliberations.

31 S.W.2d 610, 614 (Tex. Crim. App. 1996).

Styron also fails to show a risk of fundamental miscarriage of

justice. Although he argues that the evidence presented during the

punishment phase concerning his dysfunctional childhood and history

of abuse was considerable, nevertheless the jury still received the

p roper instruction immediately before punishment deliberations

. 3

S ee Thompson v. Lynaugh

, 821 F.2d 1054, 1061 (5 th Cir. 1 987)

(holding, despite prosecutor’s misstatement of the law during voir

dire, there was no constitutional error because the court properly

instructed the jury in accordance with law). Because Styron has

failed to overcome the procedural bar, we decline to address the

merits of his claim of violation of his right to a fair and

impartial jury and right to due process.

IV. Conclusion

For the foregoing reasons, we deny Styron’s request for a COA

on all issues, and we affirm the district court’s denial of habeas

relief on the issues of the prohibition against cruel and unusual

punishment , equal protection, fair and impartial jury, and due

process.

Application DENIED; judgment AFFIRMED.