### REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20839

JESSEL TURNER,

Petitioner-Appellant,

versus

GARY JOHNSON, Director, Texas Department

of Criminal Justice, Institutional

Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

February 19, 1997

Before POLITZ, Chief Judge, GARWOOD and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Jessel Turner, a Texas death row inm ate, seeks additional

counsel, a stay of execution, and an evidentiary hearing on this,

his first petition for federal habeas corpus relief. Finding

Turner represented by very competent counsel and that he has

received a full and fair hearing in state court, we deny that

relief. In addition, because petitioner has not made a substantial

showing of the denial of a federal right, we deny the requested

Certificate of Probable Cause to appeal the district court’s denial2

of a writ of habeas corpus as well as the successor Certificate of

Appealability.

BACKGROUND

Near midnight on February 10, 1986, Jessel Turner walked up to

a gas station in Houston, Texas and sought a ride from Archie

Holmes, the driver of a cab parked there. Holmes was off duty but

he asked his dispatcher to send out another cab for Turner. Turner

spoke with Tracy McGrew, an employee of the station, as he waited

for the cab. In a few minutes a cab driven by Charles Hunter

p icked up Turner and departed. A short time later Jimmy Darks,

anoth er cab driver, found Hunter lying in the road a few hundred

yards from the station. He had been shot to death; his cab was

gone.

Meanwhile, Turner had returned to the station driving a

Chevrolet Impala. Shortly after Turner left, Houston police

officers, alerted about the homicide and informed of Hunter’s last

dispatch, arrived at the gas station. As they were interviewing

McGrew, who was giving them a description of Turner and his

vehicle, Turn er drove by. The police gave pursuit and, after a

brief car chase, stopped Turner and placed him under arrest.

Turner was taken to a police station and placed in a line-up.

McGrew identified Turner as the man who had entered Hunter’s cab at

the gas station a few minutes before Hunter’s death. Archie

Holmes, while unable to identify Turner positively as Hunter’s last

cab fare, advised of a similarity in appearance.3

Around 8:00 a.m., while in police custody, Turner signed a

written statement claiming that he had not been involved in

Hunter’s death. Several hours later he signed a second statement

asserting that Hunter had threatened him with a pistol and that the

fatal wound had been inflicted as the two men struggled for control

of the gun. In a third statement, made at 2:40 p.m. that day,

Turner admitted that the murder weapon was his but he stated that

Hunter was killed when the weapon accidentally discharged.

Finally, Turner gave a fourth written statement in which he

confessed to robbing and kidnapping two women on the night of

Hunter’s murder.

Hunter’s cab was found at Tu rner’s apartment complex; a

fingerprint from Turner’s left ring finger was recovered from the

outside of the front passenger door. A .22 caliber pistol was

found under the front seat of the Impala Turner was driving when he

was arrested. Ballistics tests confirmed that this weapon fired

the shot which killed Hunter.

On April 13, 1987, Turner went on trial for capital murder

while in the course of committing and attempting to commit a

robbery, in v iolation of Section 19.03(a)(2) of the Texas Penal

Code. Turner’s motions to suppress the pretrial identifications

and his statements to the police were denied. At the guilt phase

Holmes and McGrew identified Turner as the man who had entered

Hunter’s cab shortly before his murder. The state also presented

redacted versions of Turn er’s four statements, forensic evidence1 The state presented expert testimony to demonstrate that

Turner had possessed the requisite intent to kill Hunter. C.E.

Anderson, a firearms examiner with the Houston police department,

testified that the trigger pull on the murder weapon was eight

pounds on single action and nineteen pounds on double action,

and opined that

the act of firing the weapon “would have to be very intentional and

pressure would have to be e xerted to pull this trigger.” Dr.

Harminder S. Narula, the Harris County assistant medical examiner,

testified that the absence of soot or gunpowder stipp ling on

Hunter’s body meant that the fatal bullet had been fired from “at

least 24 inches away.” Further expert testimony by a police

department chemist related that no gunpowder or stippling had been

found on Hunter’s shirt and that therefore the shot that killed

Hunter was fired from a distance of three to five feet away.

4 tying him to the crime, 1 ."Single action” is the relevant mechanism

when the pistol has been cock ed, while “double action” describes

the mechanism used to fire a round when it is uncocked. The pistol

in question, a Saturday Night Special , has no safety. Given the

significant pull needed to depress the trigger and fire a round

when the weapon was uncocked, i.e. “double action,” the expert

testimony cast extreme doubt upon the proposition that the weapon

was accidenta l ly discharged. 2 and additional evidence of two

extraneous armed robberies committed by Turner.

On April 23, 1987, the jury found Turner guilty of capital

murder and the trial advanced into the punishment phase. The state

presented significant other crimes evidence, including excerpts

fromTurner’s four written statements. The only mitigating

evidence Turn er presented was testimony by two Harris County

jailers that he was not a troublemaker and had helped restore order

in the jail on several oc casions. On April 27, 1987, the jury

r eturned a unanimous affirmative response to the death penalty3 Turner v. State

, 805 S.W.2d 423 (Tex. Crim.App.), c ert.

denied , 502 U.S. 870 (1991).

4 Ex Parte Turner

, No. 26,853-01 (Tex.Crim.App. Sept. 7, 1994).

5 Ex Parte Turner

, No. 26,853-02 (Tex.Crim.App. Nov. 3, 1994).

6 T his case was briefed, argued and submitted for dec ision

before April 24, 1996, the effective date of the AEDPA. Brown v.

Cain , 104 F.3d 744 (5th Cir. 1997). If applicable, the standards

contained therein would not change today’s decision.

5 special issues and Turner was sentenced to death. His conviction

and sentence were subsequentl y affirmed on direct appeal and the

Supreme Court denied certiorari. 3

On June 11, 1992, Turner sought a state writ of habeas corpus.

On June 29, 1994, after an evidentiary hearing, the trial court

entered factual findings and legal conclusions, recommending that

relief be denied; the Court of Criminal Appeals denied relief on

the basis of the trial court’s findings. 4 Turner filed a second

application on October 3, 1994, and a second evidentiary hearing

was held on October 10, 1994. On November 2, 1994, the trial court

again recommended that relief be denied and the Court of Criminal

Appeals adopted that recommendation. 5

Turner th en filed the instant petition for federal habeas

corpus relief, followed shortly thereafter by motions for a stay of

execution and an evidentiary hearing. The state answered, filing

a motion for summary judgment and a response to the request for a

stay. The day before the scheduled execution the district court

de nied Turner’s petition and declined to issue a Certificate of

Probable Cause for appeal. Turner filed a notice of appeal,

requested a CPC, 6 and sought and secured from this court a stay of7 Although this case is only before us on consideration of the

application for a CPC, we hav e heard full oral argument from the

parties to assist in today’s disposition.

8 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994).

9 Turner’s section 848(q)(4) entitlement to the assistance of

competent counsel in pursuing federal postconviction relief is not

at issue because Turner has been very ably represented by counsel

for many years, a period including the direct appeal in state court

and the subsequent state postconviction proceedings. “There is no

indication in the [ McFarland ] opinion that the Court’s reading of

the statute applies to the case of a well-counseled prisoner whose

counsel, for technically admirable, though dilatory, reasons,

wishes to obtain both the security of a stay of execution from a

federal court while simultaneously reserving, rather than

exercising and thus exhausting, his right to federal court review

by petitioning for a writ of habeas corpus.” Steffen v. Tate , 39

F.3d 622, 625 (6th Cir. 1994).

6 execution in order that we might appropriately review the matter. 7

ANALYSIS

Turner first contends that the Supreme Court’s recent decision

in McFarland v. Scott 8 entitles him to the appointment of counsel

and a stay order. Turner reads McFarlan d too expansively. The

McFarland Court was concerned only with that period of time between

the habeas petitioner’s motion for the appointment of counsel and

the filing of the initial petition. The Court reasoned that to

preclude the issuance of a stay until a petition was filed would,

as a practical matter, force the hasty and perhaps careless

preparation and submission of a h abeas petition merely to invoke

the district court’s power to enter a stay, a result inconsistent

with section 848(q)(4)’s goal of providing effective legal

representation for indigent capital defendants. Where, as here, a

comprehensive petition has been filed, the mandate of McFarland has

no application. 9 Turner has not established any “substantial10 Drew v. Scott , 28 F.3d 460, 462 (5th Cir.), cert. denied

,

U.S. , 115 S.Ct. 5, 129 L.Ed.2d 906 (1994), ( q uoting Delo v.

Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325

(1990)).

1 1 Ward v. Whitley

, 21 F.3d 1355, 1367 (5th Cir. 1994), c ert.

denied

, U.S. , 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995).

1 2 Keeney v. Tamayo-Reyes , 504 U.S. 1, 112 S.Ct. 1715, 118

L.Ed.2d 318 (1992).

1 3 Turner suggests that if he were given sufficient time to

gather and present unspecified forensic evidence he will be able to

7 grounds upon which relief might be granted” 10 and we perc eive no

error in the district court’s ruling.

Turner next claims that despite the two postconviction

evidentiary hearings in state court, he is entitled to an

evidentiary hearing in federal court. “A federal habeas court must

allow discovery and an evidentiary hearing only where a factual

dispute, if resolved in the petitioner’s favor, would entitle him

to relief and the state has not afforded the petitioner a full and

fai r evidentiary hearing.” 1 1 If the petitioner has been afforded

a full and fair hearing in state court he may still claim an

evidentiary hearing in federal court if he can show cause and

prejudice for his failure to develop the desired facts in state

court, or if the failure to hold such a hearing would result in a

miscarriage of justice. 12

Turner, focusing upon the relatively short period between the

filing of his second state habeas application and the evidentiary

hearing thereon, complains that he was denied a full and fair

hearing in state court because he was not allowed sufficient time

to develop certain forensic evidence. 13 Turner’s assertions,cast doubt upon the State’s medical and ballistics evidence which

indicated that Turner intended to kill Hunter. This, in turn,

would bolster his contention that trial counsel were ineffective in

choosing a defense based upon the theory that Turner lacked the

requisite intent to r ob, rather than to kill, Hunter. We are

impressed by the intensity of habeas counsels’ efforts but are

unpersuaded.

1 4 See Barnard v. Collins, 13 F.3d 871, 877 (5th Cir.), cert.

denied

, 510 U.S. 1102, 114 S.Ct. 946, 127 L.Ed.2d 363 (1994)(“an

unexpected outcome does not automatically render the state

procedure unfair

- especially when Barnard was afforded a fullblown evidentiary hearing”).

1 5 Andrews v. Collins

, 21 F.3 d 612 (5th Cir. 1994), c ert.

denied

, 115 S.Ct. 908 (1995).

8 however plaus ible, are nonresponsive to the essential question

whether he received a full and fair hearing in state court. In

d etermining whether a state hearing was full and fair, we do not

consider only the nature of the evidence which might have been

adduced but, rather, inquire whether any procedural or substantive

barriers precluded a fair presentation of that evidence during the

state proceeding. 14

We previously have found the procedures governing Texas habeas

corpus evidentiary hearings to be sufficient to produce a full and

fair hearing. 15 The October 1994 evidentiary hearing was held

specifically to address the claims of ineffective assistan ce of

counsel raised in Turner’s second state petition. At that hearing,

Turner was represented by counsel familiar with the case and was

afforded the opportunity to subpoena and question witnesses, submit

exhibits and affidavits, cross-examine state witnesses, and

generally to be heard. He received a full-blown evidentiary1 6 Id. at 619 (full and fair hearing when defendant was allowed

“to present evidence and witnesses, to fully cross-examine

witnesses called by the state, and, after the hearing’s conclusion,

to submit affidavits”); Jernigan v. Collins

, 980 F.2d 292, 297 (5th

Cir.) (defendant had a full and fair hearing when he was a party to

the p roceeding, was represented by counsel, and afforded every

opportunity to be heard), cert. denied , 508 U.S. 978 (1993).

1 7 Turner’s right under 21 U.S.C. § 848(q)(9) to the assistance

of experts where reasonably necessary to press his ha beas claims

does not entitle him to a federal evidentiary hearing when he has

failed to comply with his duty under Keeney v. Tamayo-Reyes to

develop his evidence in s tate court. F earance v. Scott

, 56 F.3d

633 (5th Cir.), cert. denied

, U.S. , 115 S.Ct. 2603, 132

L.Ed.2d 847 (1995).

9 hearing. 16 Testimony from both of Turner’s trial counsel were

developed at that hearing and additional affidavits were entered

into the record.

The record, and the opinions of the courts which have dealt

with this case, make clear that the ballistics and medical

testimony Turner challenges has bee n a matter of record since

Turner’s trial in 1987. Turner has not alleged that the weakness

or inadequacy which he perceives in this evidence was not

previous ly known to him; thus, his contention that he had

inadequate time to prepare forensic rebuttal evidence for either

state evidentiary hearing simply is not persuasive. Further, the

record of the second evidentiary hearing reflects no request for a

continuance so that such experts might be recruited. Unless state

adjudicatory officials or procedures somehow impeded Turner’s

ability to submit ex hibits and to subpoena and fully question

expert witnesses under oath, which the record before u s belies,

Turner’s failure to present this evidence in the state hearing in

no way discredits the full and fair nature of that hearing. 171 8 Jernig an at 297 ( quoting McCleskey v. Zant

, 499 U.S. 467,

493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991)).

1 9 Id

. For this exception to apply, Turner “would have to

demonstrate ‘by clear and convincing eviden ce that but for a

constitutional error, no reasonable juror wou ld have found [him]

eligible for the death penalty.’” Id . ( quoting Sawyer v. Whitley

, 505 U.S. 333, 335, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992)).

Turner’s showing, which we conclude does not demonstrate probable

cause for an appeal, falls far short of this exacting standard.

20 " These rules are applicable to proceedings for admission to

citizenship , habeas corpus, and quo warranto, to the extent that

the practice in such proceedings is not set forth in statutes of

the United States and has heretofore conformed to the practice in

10 Insofar as Turner is unable to show that the state evidentiary

hearings were anything other than full and fair, we must determine

whether cause and prejudice exist for Turner’s failure to present

the proffered evidence, or whether a miscarriage of justice would

result from the absence of a federal hearing. Neither Turner nor

the record suggest that “‘some objective factor external to the

defense impeded counsel’s efforts’ to develop the evidence;” 18 thus,

Turner has not shown cause for his failure to develop the evidence

adequately in state court. Similarly, Turner “cannot show that the

absence of a federal evid entiary hearing has resulted in a

fundamental miscarriage of justice.” 19 Based upon these findings,

we conclude that Turner’s demand for an evidentiary hearing lacks

merit.

Turner next maintains that the district court’s dismissal of

his lawsuit was improper because he did not receive ten days notice

of the court’s action as provided by Fed.R.Civ.P. 56(c) which

details the procedure for obtaining summary judgment. Turner

contends that under Fed.R.Civ.P. 81(a)(2) 20 and Habeas Rule 11 21 thecivil actions.” Fed.R.Civ.P. 81(a)(2).

2 1 " T he Federal Rules of Civil Procedure, to the extent that

they are not inconsistent with these rules, may be applied, where

appropr iate, to petitions filed under these rules.” Rules

Governing § 2254 Cases, Rule 11, 28 U.S.C. foll. § 2254.

22 765 F.2d 504 (5th Cir. 1985).

23 Id at 507

. In McDonnell v. Estelle

, 666 F.2d 246 (5th Cir.

1982), we applied the Rule 56(c) notice requirement to a motion to

dismiss under Habeas Rule 9(a).

24 Norman at 508.

11 notice requirement of Rule 56(c) applied. Turner further claims

that he was prejudiced by the lack of notice because he had

insufficient time to respond to the state’s copious 112-page motion

for summary judgment, which Turner contends was filled with errors

and misrepresentations.

Turner’s case was dismissed under Habeas Rule 8(a) , which

directs a district court, “after the answer and the transcript and

record of state court proceedings are filed,” to “make such

disposition of the petition as justice shall require.” Despite the

summary nature of this disposition, in Norman v. McCotter 22 we held

that a dismissal under Rule 8(a) may not transpire “on the basis of

the n on-pleading factual showing of one party, without notice to

the other and an opportunity by him to respond by controverting

factual showing.” 23 We found the error in M cCotter to be harmless,

however, determining, after a review of the appellate record, that

even with a ten-day notice defendant would not have avoided adverse

summary judgment. 24

We clarified the rule governing the applicability of this25 780 F.2d 509 (5th Cir. 1986).

26 Id. at 515.

27 Id . at 515-16.

2 8 Federal Rule of Civil Procedure 12(c) provides that the

summary judgment procedures of Rule 56 are applicable if “matters

outside the pleadings are presented to and not excluded by the

court.” The term “pleadings” is defined by Rule 7(a) to include a

complaint and an answer. It is noteworthy that an “answer,” in the

context of a habeas corpus proceeding, is defined by Habeas Rule 5

12 notice requiremen t to Rule 8(a) dismissals in D illard v.

Blackburn

. 25 In D illard

, after noting t hat there is clearly no

requirement for notice prior to every dismissal of a habeas

petition, we determined that the question was one to be decided on

a case-by-case basis:

Many habeas cases can be resolved on issues that are

fully determinable from the record and from the law. The

question facing us is whether the district court in this

case was required to give Dillard ten days’ notice before

dismissing the petition. To resolve this question we

look to the purpose and effect of the Rule 56(c) notice

provision and ask whether Dillard has suffered any

disadvantage by not having been given speci fic notice

that his habeas petition might be dismissed finally as a summary judgment. 26

In Dillard

, as in Norman

, we found that no no tice was required,

expressly holding that “the ten day notice [provision] ... is not

required in habeas cases where the petitioner never claims the

benefit of notice, never claims to have been disadvantaged by the

lack of notice, and where the court is satisfied that he has not

been so disadvantaged.” 27

There is no question that Rule 56(c) potentially is applicable

here, considering that in dismissing Turner’s petition the district

court relied upon matters outside of the pleadings, 28 in particularto include not only the bare answer of the state, but also relevant

portions of the record. Both N orman and Dillard

, like the instant

case, involved extraneo us state memoranda or motions outside the

definition of an answer found in Habeas Rule 5, and thus those

judgments were rendered in part upon consideration of matters

outside the pleadings.

29 Dillard at 515.

3 0 Fed.R.App.P. 22(b); Montoya v. Collins , 988 F.2d 11 (5th

Cir.), cert. denied

, 507 U.S. 1007, 113 S.Ct. 1630, 123 L.Ed.2d 263

(1993).

3 1 Barefoot v. Estelle

, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d

1090 (1983).

13 the state’s motion for summary judgment. When we review the

relevant facts of this case in light of the Dillard analysis,

however, we must conclude that no notice was required.

“The purpose of the notice provision in Rule 56(c) is to give

the nonmoving party a rea sonable opportunity to submit opposing

material to create a genuine issue of material fact.” 2 9 The only

“opposing material” Turner points to in his brief is the

speculation that something might be adduced i n a federal

evidentiary hearing. The district court ruled that Turner may not

invoke such a hearing. We find no basis whatever for a reversal of

that ruling.

We now address the dist rict court’s dismissal of Turner’s

petition and its denial of a CPC, and the application to us for a

CPC without which we have no appellate jurisdict ion. 3 0 To secure

appellate review, Turner must make a substantial showing of the

denial of a federal right. 3 1 “This standard does not require

petitioner to show that he would prevail on the merits, but does

require him to show the issues presented are debatabl e among32 Drew v. Collins , 5 F.3d 93, 95 (5th Cir.), cert. denied

,

510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994) ( citing

Barefoot)

.

3 3 Jacobs v. Scott

, 31 F.3d 1319, 1323 (5th Cir.), cert. denied

, U.S. , 115 S.Ct. 711, 130 L.Ed.2d 618 (1995).

3 4 Turner’s brief does not discuss the multitude of these

alleged failures of represent ation. Rather than consider them

abandoned, which is the customary procedure, because of Turner’s

status as a death row inmate we exercise our discretion and elect

to examine his pleadings and the record to determine whether any cognizable claims bearing upon his conviction or sentence are

extant.

35 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

3 6 Motley v. Collins

, 18 F.3d 1223, 1226 (5th Cir.), c ert.

denied

, U.S. , 115 S.Ct. 418, 130 L.Ed.2d 333 (1994)

( quoting Strickland ).

14 jurists of reason.” 32 In addition, “[a]lthough in a capital case

the court may properly consider the nature of the penalty in

deciding whether to grant CPC, this alone does not suffice to

justify issuing a certificate.” 33

Turner’s first claim is composed of a litany of particular

instances of trial counsels’ alleged ineffective assistance. 34 We

must analyze this submission under the two-pronged te st for

i neffective assistance of counsel set out in Strickland v

.

Was hington

. 35 The first prong of this test mandates that we find

that counsel’s perfor mance was deficient; in making this

determination, we consider the particular circumstances of the case

as viewed from counsels’ perspec tive in light of the prevailing

professional norms at the time of trial in order to discern whether

counsels’ performance fell below an “objective standard of

reasonableness.” 36 If deficient performance is demonstrated, then37 Strickland at 694.

3 8 This story was repeated in an affidavit by Franklin entered

into the record at the second evidentiary hearing. According to

this affidavit, Franklin and Roosevelt Turner depa rted Turner’s

company just before he was picked up at the gas station by Hunter.

Franklin and Roosevelt Turner followed the cab until it stopped to

let Turner out, at which point Franklin and Roosevelt Turner passed

the cab and drove around the block for another look. At that time,

Franklin stated that he and Roosevelt Turner saw Turner and Hunter

struggling in the cab. Franklin and Roosevelt Turner slowed down

to help Turner, but because there were other cars behind them they

were forced to go around the block again. When they returned the

second time, they saw Hunter’s body in the road. This affidavit

repeats the essence of the statements of Roosevelt Turner and

Franklin from February of 1986.

15 the petitioner must show prejudice, defined by S trickland as “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.” 37

The only ineffectiven ess claim addressed in any detail by

Turner’s brief centers around trial counsels’ purported failure to

make an adequate investigation. Turner now contends that had

counsel done so, they would have realized that a defense attacking

the intent to kill element of the offense offered the best prospect

of success. The evidentiary basis for this claim consists of

Turner’s second and third written statements to the police, and the

statements of two all eged eyewitnesses to the crime, Roosevelt

Turner and Derek Franklin , who claimed in interviews with the

police and a defense investigator that they had seen Turner and

Hunter strugg ling in the taxi prior to the murder. 3 8 Turner

the orizes that with these two witnesses to corroborate his

statements to the police a successful defense could have been

mounted.3 9 At trial Turner’s counsel questioned several police officers

regarding their interviews of Roosevelt Turner and Franklin.

16 Although Turner characterizes this claim as failure of counsel

to investigate, he is, rather, seeking to second guess their trial

strategy. The testimony of the trial attorneys at the second

evidentiary hearing makes it abundant ly clear that they reviewed

the reports of the police and their investigato r regarding

Roosevelt Turner and Franklin. They knew that these prospective

witnesses had seen Turner struggling with Hunter prior to his

murder. 39 The question thus becomes whether the trial strategy they

ultimately pursued was reasonable given the information available

to them. We perforce conclude that it was.

Turner’s argument is premised upon an analytical framework

which, focused as it is upon the two intent elements of the capital

murder charge, ignores other issues mater ial to his culpability.

For example, the record reveals that counsels’ primary focus early

in the trial was upon the i ssue of identity. Trial counsel

attempted first to suppress the pretrial identifications of Turner

and then attacked those identifications during trial. They also

moved to suppress Turner’s incul patory statements, the only

evidence placing Turner with Hunter when he was shot, and continued

to challenge the veracity and reliability of those statements after

they were admitted by bringing to the jury’s atten tion Turner’s

lack of education and sleep and food deprivation. Finally, the

defense moved to suppress the murder weapon, which could be tied to

Turner. While these efforts ultimately failed, that result was not4 0 Trial counsel elicited testimony fro m Jimmy Darks, the cab

driver who found Hunter’s body, that no money was missing from the

cab, and from police officers that Hunter did not appear to have

been robbed.

17 a foregone conclusion; each exhib ited a reasonable chance of

success, and a contrary result on any might have raised a

reasonable doubt among members of the jury.

As to trial counsels’ attack on the intent to rob element of

the offense, the defense underscored that there was no evidence

that any money was taken, 4 0 and reasonably argued that Turner’ s

theft of the cab was part of his flight and not a preme ditated

attempt to steal the cab. While evidence of two extraneous

offenses was admitted to show Turner’s intent to rob Hunter, the

admissibility of those offenses was, like the result of the various

suppression motions, not written in stone. The record discloses

that trial counsel brought to the judge’s attention precedent that

the judge recognized was contrary to his ruling. In short,

Turner’s tria l counsel mounted a broad defense which offered

several possibilities of raising reasonable doubt among members of

the jury as to various elements of the offense. We cannot conclude

that such a course of action was objectively unreasonable.

Our conclusio n is not changed by comparing trial counsels’

strategy to the alternative strategy Turner now proffers. The

state’s forensic evidence cast extrem e doubt upon the ability of

the defense to disprove that Turner’s action in shooting Hunter was

anything other than deliberate. The nature of that evidence, and

the lack of any credible challenge that it was unreliable or4 1 For this reason Turner’s claim that trial counsel wer e

ineffective for failing to request a jury instruction on the lesser

included offense of felony murder is also meritless. S ee Anderson

v. Collins , 18 F.3d 1208 (5th Cir. 1994).

42 Murray v. Carrier , 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d

397 (1986). Turner’s submission that Texas’ contemporaneous

objection rule is not an “independent and adequate state ground”

upon which to base a procedural default is foreclosed by our opinion in Amos v. Scott, 61 F.3d 333 (5th Cir.), cert. denied

, 116

S.Ct. 557 (1995).

18 fraudulently obtained, made trial counsels’ decision not to expend

vital resources in trying to rebut it a reasonable one. Even if

Turner’s current effort to conjure up controverting f orensic

evidence were successful, it would not render trial counsels’

decision objectively unreasonable.

Turner’s sub mission, therefore, is that trial counsel acted

unreasonably when they decided not to present a defense which:

(1) conceded identity and intent to rob, (2) relied upon the

inconclusive testimony of two questionable witnesses, and (3) was

controverted by considerable forensic evidence. This contention

does not present a debatable question for reasonable jurists. Our

concl usion is inexorable; Turner’s trial counsel did not perform

deficiently. 41

Turner next challenges the trial court’s jury instruction on

the intentional element of capital murder. To circumvent the Texas

courts’ refusal to consider the claim for lack of timely objection,

Turner asserts counsels’ ineffectiveness as cause and prejudice for

his procedural default. 42 On direct appeal the Texas Court of

Criminal Appeals found no reversible error in the instruction as a4 3 Turner

, 805 S.W.2d at 428-30. Turner based his claim that

the instruction was erroneous on A lvarado v. State

, 704 S.W.2d 36

(Tex.Crim.App. 1986) (en banc). The Court of Criminal Appeals

found the more recent case of Kinnamon v. State , 791 S.W.2d 84

(Tex.Crim.App. 1990), to be controlling, and accordingly rejected

Turner’s claim. A concurrence to the denial of Turner’s motion for

rehearing noted that Kinnamon was wrongly d ecided in light of

Alvarado

. The concurrence observed, however, that in Turner’s

case, considering the error in the context of the instruction as a

whole, “t here was no egregious harm . . . and the correct result

was reached.” Turner at 432.

4 4 See Victor v. Nebraska

, 511 U.S. 1, 114 S.Ct. 12 39, 127

L.Ed.2d 583 (1994) (indefinite instruction is not erroneous unless

there is “reasonable likeli hood” that jury drew improper

conclusions from that instruction); Henderson v. Kibb e , 431 U.S.

145, 97 S.Ct. 1730, 62 L.Ed.2d 203 (1977) (to obtain federal habeas

corpus for

erroneous j ury instruction petitioner must prove instruction “by

itself so infected the entire trial that the resulting conviction

violates due process”).

19 matter of sta te law 4 3 and we discern no cognizable claim under

federal constitutional law. 44 Given this, Turner can demonstrate

neither prejud ice under S trickland nor cause for the procedural

default.

The next grouping of inef f ectiveness claims proffered by

Turner relate to the punishment phase of the trial. Turner submits

that trial counsel failed to investigate, develop, and present

mitigating evidence properly at the punishment phase. He points to

a number of prospective witnesses who now maintain, via affidavit,

that they would have testified that Turner had good qualities and

was not a troublemaker. The record, however, supports the state

habeas court’s determination that each of these proffered witnesses

ran the risk of harming Turner more than helping him and that the

decision not to call them was the product o f a reasonable trial

strategy. “[F]ailure to present mitigating evidence ‘if based on4 5 Wilkerson v. Collins

, 950 F.2d 1054, 1065 (5th Cir. 1992),

cert. denied

, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)

(quoting Mattheson v. King , 751 F.2d 1432, 1441 (5th Cir. 1985)).

4 6 To ascertain w h ether improper prosecutorial conduct is

harmless error, the Texas Court of Criminal Appeals has mandated

that courts “consider the nature and source of the error, the

degree the prosecutor emphasized the erroneous ju r y argument,

probable collateral implications, how much weight a juror placed on

the erroneous jury argument, and whether holding the improper jury

argument harmless would encourage the State to repeat it.” Coble

v. State , 871 S.W.2d 192, 206 (Tex.Crim.App. 1993), cert. denied

, U.S. , 115 S.Ct. 101, 130 L.Ed.2d 50 (1994). In this case,

the record shows the comments pointed out by Turner were minor and

fleeting, did not evide nce any intentional misconduct by the

prosecutor, and were overshadowed by proper argument and the jury

charge.

20 an informed and reasoned practical judgment, is well within the

range of practical choices not to be second-guessed’” and thus

cannot constitute deficient performance. 45

Turner also cites trial counsels’ failure to object to certain

portions of the prosecutor’s closing argument as an example of

their ineffectiveness. Turner, again, seeks to demonstrate the

ineffectiveness of counsel to show c ause and prejudice and thus

elude the state procedural bar. Based upon our review of the

relevant portions of the record we conclude that even if this issue

had been preserved for direct appeal, the error would have been

held to be harmless; 46 thus, Turner cannot demonstrate Strickland

prejudice. Turner similarly has failed to meet the test for

federal habeas relief applicable to improper prosecutorial

argument, i.e.

, that “the misconduct [was] persisten t and

pronounced or that the evidence of guilt was so insubstantial” that

but for the improper remarks the conviction or sentence would not47 Jones v. Butler , 864 F.2d 348, 356 (5th Cir. 1988), c ert.

denied

, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989)

(citing Felde v. Blackburn

, 795 F.2d 400 (5th Cir.), cert. denied

, 484 U.S. 873 (1987)).

4 8 See In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970).

21 have resulted. 47

The remainder of Turner’s ineffective ness of counsel claim

consists of challenges to trial counsels’ failure to object to a

multitude of perceived improprieties. Our review of the record

persuades that these alleged failures either did not occur, did not

constitute deficient performance, or did not affect the outcome of

the trial. For these reasons we find insufficient support for an

appeal of the district court’s finding that Turner’s claim of

ineffective assistance of counsel lacks merit.

Moving to the balance of Turner’s petition, we consider his

claim that the eighth and fourteenth amendments required that the

unadjudicated offenses entered into evidence during the punishment

phase of his trial be proven beyond a reasonable doubt. Although

Turner frankly admits that neither this court nor the State of

Texas currently have such a requirement, he contends that it is

dictated by Supreme Court precedent. We are not persuaded.

Although the due process clause requires the state to prove each

element of the offense charged beyond a reasonable doubt to secure

a conviction, 48 neither this court nor the Supreme Court has ever

held that a similar burden exists regarding the proof of facts

adduced during the sentencing phase. The precedents are to the4 9 See Huddleston v. United States

, 485 U.S. 681, 108 S.Ct.

1496, 99 L.Ed.2d 771 (1988) (jury may hear relevant evidence of

unadjudicated extraneous offenses if the court concludes, after

examining all the evidence, that the jury reasonab ly could find

that the accused committed the offense by a preponderance of the

evidence); United States v. Mir

, 919 F.2d 940, 943 (5th Cir. 1993)

(any unadjudicated conduct considered in determining sentence must

be supported by a preponderance of the evidence).

50 661 F.2d 464 (5th Cir. Unit B 1981), cert. denied , 458 U.S.

1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).

51 Id at 471.

52 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

22 contrary. 49

Turner next claims that the jury was not properly instructed

to consider mitigating evidence when determining the special

iss ues. Relying upon our decision in S pivey v. Zant

, 50 Turner

focuses u pon the fact that the word “mitigating” was not used in

the jury charge for the punishment phase. He ignores the fact that

Spivey expressly approved of Texas’ capital sentencing scheme,

finding it to be a prime exampl e of a system which focuses the

jury’s attention upon the offense and the offender in such a way as

to obviate any need for “ explicit discussion of mitigating

circumstances.” 51 Turner’s submission to the contrary is without

merit.

Turner claims as c onstitutional error the trial court’s

failure to define reasonable doubt in its instructions to the jury.

In Victor v. Nebraska 52 the Supreme Court made it clear that “[t]he

beyond a reasonable doubt standard is a requirement of due process,

but the Constitution neither prohibits trial courts from defining

reasonable do u bt nor requires them to do so as a matter of53 Id. at 5 ( emphasis added ).

54 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

5 5 Graham v. Collins

, 950 F.2d 1009, 1029 (5th Ci r. 1992) (en

banc), a ff’d on other grounds

, 506 U.S. 461, 113 S.Ct. 892, 1 2 2

L.Ed.2d 260 (1993).

5 6 Davis v. Scott

, 51 F.3d 457 (5th Cir.), c ert. denied

, 116

S.Ct. 525 (1995).

5 7 Teague v. Lane

, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 256

(1989); Motley

.

23 course .” 53

Turner attacks the statutory special issues under the rule of

Penry v. Lynau gh

, 54 contending that the jury was prevented from

considering the mitigating effect of his youth and good behavior

during his pretrial detention. Turner misapprehends the reach of

Penry. To qualify for the special exception to the scope of the

special issues carved out by Penry

, proffered evidenc e must

demonstrate a “uniquely severe permanent handicap

... with which

the defendant was burdened through no fault of his own.” 55 Further,

we have made it clear that, for evidence to have mitigating

relevance to the special issues, there must be a nexus between the

mitig ating evidence and the criminal act. 5 6 Turner’s submission

man ifestly does not fall within the scope of P enry and is not

dictated by this court’s precedents. Granting Turner the relief he

here seeks would create a new rule of constitutional law on habeas

review. 57

In a related vein Turner challenges the constitutionality of

the Texas special issues on the ground that, Penry evidence aside,

they do not provide the jury with an adequate means to consider all5 8 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (upholding

the Texas capital sentencing procedures against eighth and

fourteenth amendment challenges). S ee Penry at 315 (“Penry doe s

not challenge the facial validity of the Texas death penalty

statute, which was upheld against an Eighth Amendment challenge in

Jurek v. Texas ”).

5 9 These claims include a challenge to the framework within

which the Court of Criminal Appeals reviews the sufficiency of the

evidence in support of an affirmative finding on the special

issues; an attack on a jury instruction regarding the need under

Texas law for ten jurors to concu r in order to render a “no”

verdict on the special issues; a claim that V.A.A.C.P. Art. 35.13

unconstitutionally prevented Turner from exercising his peremptory

challenges at the concl usion of v oir dire ; a claim that the jury

charge relieved the state from proving every element of the offense

by failing to properly define mens rea ; and a claim that the jury

charge led the jury to misunderstand the concept of deliberate

conduct.

60 Wainwright v. Sykes , 433 U.S. 72 (1977).

6 1 Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808

(1995).

6 2 Amos v. Scott

, 61 F.3d 333 (5th Cir.), cert. denied , 116

S.Ct. 557 (1995).

24 mitigating evidence presented. We consider this claim foreclosed

by the Supreme Court’s decision in Jurek v. Texas. 58

Our reading of the Court of Criminal Appeals’ disposition of

Turner’s second state habeas application satisfies that a number of

Turner’s claims are procedurally barred. 59 Because neither Turner

nor the record suggest that there exists cause and prejudice for

these procedural defaults, 60 or that the failure to consider these

issues would result in a miscarriage of justice, 61 we are barred

from considering these claims. 62

Finally, Turner assigns as error the district court’s order

denying him leave to amend his petition to add yet another claim.

The claim involved is one of ineffective assistance of counsel on6 3 Palafox v. State

, 608 S.W.2d 177 (Tex.Crim.App. 1979) (en

banc). This rule requires the state to disprove beyond a

reasonable doubt exculpatory information contained in a defendant’s

confession.

6 4 Moody v. State

, 827 S.W.2d 875 (Tex.Crim.App.), cert. denied

, 506 U.S. 839 (1992).

25 Turner’s direct appeal, and is premised upon appellate co unsel’s

failure to raise the so-calle d Palafox rule 63 in relation to the

sufficiency of the evidence sustaining Turner’s conviction. Turner

does not dispute that this rule no longer exists, having been

abrogated by the adoption of the Texas Rules of Criminal Evidence

in 1986. 64 We must conclude that the district court did not err by

denying Turner leave to add this meritless claim to his petition.

For the foregoing reasons, we DENY Turner’s requests for the

appointment of counsel an d for an evidentiary hearing. Further,

because we find that the proffered claims do not contain any

indicia of merit and therefore make no substantial showing of the

denial of a federal right, we DENY Turner’s application for a

Certificate of Probable Cause. Were we to deem it an application

for a Certificate of Appealability it likewise would be DENIED.