*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40658

_____________________

JAMES PAUL JOHNSON,

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

USDC No. 6:95-CV-206

_________________________________________________________________

April 2, 1997

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

James Paul Johnson appeals the district court’s denial of his

habeas corpus petition. For the reasons stated below, we affirm

the judgment of the district court.

I

James Paul Johnson was convicted in 1992 for burglary of a

habitation and is serving a life sentence in the custody of the

Texas Department of Criminal Justice, Institutional Division as an

habitual offender. The underlying facts are reported in the
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opinion of the state appellate court affirming the conviction and

sentence on direct appeal:

[T]he home of Jackie and Caroline Barker was burglarized

on June 6, 1991. On the same day, Appellant visited for

about five minutes at the home of the next door neighbor,

U. Z. Bell, inquiring after Barker and his family. A

more distant neighbor saw an automobile like Appellant’s

parked at the Barker mobile home, although he could not

identify Appellant as the car’s driver. U. Z. Bell

identified Appellant’s photograph as the photograph of

the man who had visited him and asked about the Barkers

on the day of the burglary. Appellant was a former inlaw of Jackie Barker and was well known to him. A

warrant was issued for Appellant’s arrest.

Seventeen days later, a highway patrol officer in

Ozona stopped Appellant in an unrelated charge.

Appellant initially gave a false name. Deputy Sheriff

Tim Hooten went to Ozona from Rains county to arrest

Appellant for the Barker burglary. In Ozona, Hooten gave

Appellant a Miranda warning, and then asked Appellant’s

permission to search the car he had been driving when

arrested. Appellant consented to the search, provided he

was allowed to be present. The search disclosed a

camera, a coin purse, and a Crown Royal bag, all items

taken in the burglary of the Barker residence.

Johnson filed a petition seeking a writ of habeas corpus in

the district court. The respondent answered, conceding that

Johnson had exhausted his state remedies. The magistrate judge

recommended that the petition be denied. The district court

adopted the recommendation of the magistrate judge, and entered

judgment dismissing the petition. Johnson gave notice of his

appeal. The district court issued a certificate of probable cause

(a "CPC") for an appeal.
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II

Johnson attacks his conviction on four grounds. First, he

maintains that the indictment against him was defective and that

the defect deprived the trial court of jurisdiction. Second,

Johnson contends that the prosecutor made unfair reference to his

failure to testify at trial in contravention of his Fifth Amendment

rights. Third, Johnson contends that the evidence was insufficient

to convict him. Fourth, Johnson maintains that he received

ineffective assistance of counsel. Before we address the merits of

the case, however, we must determine whether this case is properly

before the court given the amendments to 28 U.S.C. § 2253 effected

by the Antiterrorism and Effective Death Penalty Act.

III

The Antiterrorism and Effective Death Penalty Act (Pub.L. 104-

132, 110 Stat. 1214)(the "Act") was signed into law on April 24,

1996. Title I of the Act addresses habeas corpus reform. Section

102 of the Act amended 28 U.S.C. § 2253 to require a prisoner in

state custody to obtain a "certificate of appealability" (a "COA")

before proceeding with an appeal. 28 U.S.C. § 2253(c)(1)(A). Prior

to the adoption of the Act, a prisoner was required to obtain a CPC

before his appeal could proceed. 

A COA may issue only if the applicant has made a "substantial

showing of the denial of a constitutional right." 28 U.S.C. §

2253. This language varies slightly from that used to define the
 

1In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983),

the Court stated the standard governing the issuance of a CPC: the

applicant must make "a substantial showing of the denial of a

federal right." Id. at 893 (emphasis added).

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standard for granting a CPC.1 Nevertheless, we have determined

that the standard for granting a CPC and a COA are the same.

Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). Therefore,

a court may treat an application for a CPC as an application for a

COA. See Drinkard, 97 F.3d at 756. 

Nevertheless, additional concerns are raised when a prisoner

has been granted a CPC prior to the adoption of the Act. We cannot

simply treat a previously granted CPC as a COA. The Act introduced

an additional requirement for issuing a COA: a judge granting a COA

must specifically identify the issues upon which the COA is being

issued. Therefore, a CPC could only be treated as a substitute for

a COA if the granting judge fortuitously identified the issues upon

which the CPC was granted. Because most CPCs do not identify the

issues upon which they were granted, we are forced to either refuse

the prisoner's appeal until a COA is obtained pursuant to the Act,

or refuse to give retrospective application to this narrow portion

of the Act.

In Brown v. Cain, No. 95-30870, 1997 WL 20736 (5th Cir.

Jan. 21, 1997) we resolved this question, holding that an appellant

who has obtained a CPC before the Act was adopted is not required

to also obtain a COA. In making this determination, we applied the
 

2 Section 2253, as amended by the Act, states as follows:

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from --

(A) the final order in a habeas corpus proceeding

in which the detention complained of arises out of

process issued by a State court . . . .

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right. 

28 U.S.C. §2253.

This language reveals no Congressional intent that the statute

should apply retrospectively. Likewise, a thorough examination of

Title I of the Act, in its entirety reveals no intent to require

retrospective application. Similarly, the legislative history of

the Act reveals no mention of retrospective application. 

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analysis established in Landgraf v. USI Film Products, 511 U.S.

244, 114 S.Ct. 1483 (1994).

Under the Landgraf approach, we begin by determining whether

Congress evinced a clear intent to have the statute apply

retrospectively. Section 2253 gives no indication that Congress

intended that it be given retrospective application.2 Accordingly,

we proceed to determine whether the statute is of the type that may

be applied retrospectively.

A statute is not to be applied retrospectively if doing so

would “impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with

respect to transactions already completed.” Landgraf, 511 U.S. at
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1505. This test is designed to protect individuals from having

their "settled expectations" being swept away, without fair

warning.

In Brown, we noted that "[the appellant] had requested and

received the right to appeal; his 'settled expectation' was that he

had successfully passed all procedural hurdles to this court's

consideration of his clams." Brown, 1997 WL 20736. Brown

concluded that when a prisoner had obtained a CPC before the

adoption of the Act, the Act would not be retrospectively applied,

and the prisoner could proceed with an appeal without also

obtaining a COA. Brown clearly governs this case. Therefore, the

Act will not be retrospectively applied to Johnson, and he may

proceed with his appeal without obtaining a COA. Accordingly, we

proceed to the merits of the case.

IV

A

Defective Indictment

The state indictment initially alleged that the burglary was

committed in Hopkins County. Subsequently, the clerk crossed out

“Hopkins” and wrote in “Rains” without the trial court’s

authorization. Johnson contends that this action rendered the

indictment fundamentally defective, and that this defect deprived

the trial court of jurisdiction. See Morlett v. Lynaugh, 851 F.2d

1521, 1523 (5th Cir. 1988)(In reviewing a habeas petition, this

court is not free to review the sufficiency of a state criminal
 

3The magistrate judge also took judicial notice that the Texas

trial court had jurisdiction over both Rains and Hopkins Counties

and concluded that the trial court could not have been deprived of

jurisdiction by the typographical error in the indictment.

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indictment unless the defect robbed the trial court of

jurisdiction.).

If the question of the sufficiency of the indictment is

presented to the highest state court, consideration of the question

is foreclosed in federal habeas corpus proceedings. Id. This issue

was presented to the Texas Court of Criminal Appeals in Johnson’s

state habeas petitions. The state court denied the applications

without written orders. Hence, we decline to review this issue.3

B

Unfair comment on failure to testify

During his closing argument, the state prosecutor stated:

What does he have in the car? He’s got a camera;

he’s got a bracelet; he’s got a coin purse; and, he’s got

that Crown Royal bag.

Where did they come from?

From Jackie Barker’s house.

That was never challenged that these items right

here didn’t come from Jackie Barker’s house.

The defendant’s counsel objected that the argument constituted an

impermissible reference to Johnson’s failure to testify. The trial

court overruled the objection. Johnson contends that the
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prosecutor’s remark deprived him of his due process right to a fair

trial. We are unpersuaded. 

This court has held that such a reference is well within the

bounds of the Fifth Amendment. “The Fifth amendment prohibits a

prosecutor from commenting directly or indirectly on a defendant’s

failure to testify. A prosecutor may comment, however, on the

failure of the defense, as opposed to the defendant, to counter or

explain the evidence.” United States v. Borchardt, 809 F.2d 1115,

1119 (5th Cir. 1987) (internal citations omitted). “A statement

violates the Fifth Amendment if the prosecutor intended to comment

on the defendant’s failure to testify or if a jury would naturally

and necessarily interpret the prosecutor’s remarks in that light.”

Montoya v. Collins, 955 F.2d 279, 286-87 (5th Cir.1992)(internal

quotations omitted). The jury would not naturally and necessarily

interpret the prosecutor’s remark as a comment on Johnson’s failure

to testify. The prosecutor’s argument was not improper.
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C

Sufficiency of the evidence

Johnson challenges the sufficiency of the evidence presented

to prove his guilt. The standard for testing the sufficiency of

the evidence in a federal habeas review of a state court conviction

is whether, “after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2791-92

(1979). This standard must be applied with reference to the

substantive elements of the criminal offense as defined by state

law. Isham v. Collins, 905 F.2d 67, 69 (5th Cir. 1990). At the

time Johnson committed the offense, Texas Penal Code provision §

30.02 defined the elements of burglary, in pertinent part, as

follows: 

(a) A person commits [burglary] if, without the effective

consent of the owner, he: 

(1) enters a habitation, or a building (or any

portion of a building) not then open to the

public, with intent to commit a felony or

theft; or . . . ;

(3) enters a building or habitation and

commits or attempts to commit a felony or

theft. 

. . . .

(d) An offense under this section is a felony of the

first degree if: 

(1) the premises are a habitation . . . .

Tex. Penal Code Ann. § 30.02 (West 1994).
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Where “a state appellate court thoughtfully reviews the issue

of sufficiency of the evidence, that court’s determination is

entitled to ‘great weight.’” Parker v. Procunier, 763 F.2d 665,

666 (5th Cir. 1985)(citation omitted). Review of the state

appellate court’s opinion reveals that the court thoughtfully

considered Johnson’s challenge to the sufficiency of the evidence.

Because Johnson “was in unexplained possession of items taken from

the Barker’s home seventeen days after the burglary” and because

Johnson “was at the Barker home on the day of the burglary [and]

knew the victims,” the state appellate court held that “the

evidence was sufficient for a rational trier of fact to find the

essential elements of the offense beyond a reasonable doubt.”

Johnson argues that the jury could not have reasonably

concluded that he was present at the Barker house and that the

items seized from his car were the items taken from the Barker

house. The evidence is to the contrary.

U. Z. Bell positively identified Johnson as the person who

came to his house and asked about the Barker residence. Jackie and

Caroline Barker both testified that Johnson did not have permission

to come into their house. Jackie Barker further testified that he

gave a list of items missing from his home to the sheriff’s

department. After Johnson’s arrest, Barker went to the sheriff’s

office and identified several of the stolen items. Caroline Barker

testified that she kept jewelry in a Crown Royal bag. She also

identified a rubberized coin purse, a charm bracelet and the
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camera. Deputy Tim Hooten testified that he seized all of the

above items from Johnson’s automobile. A reasonable juror could

convict Johnson on the basis of this testimony.

In the light of the evidence presented and the deference given

to the state court’s assessment of such evidence, we find that the

evidence was sufficient to convict the defendant.

D

Ineffective assistance of counsel

Johnson contends that he received ineffective assistance of

counsel at trial. In order to prove that his counsel was

ineffective, Johnson must show that his attorney’s performance was

deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064 (1984). To show deficient performance, Johnson must

overcome the “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id.

“[T]he ‘prejudice’ component of the Strickland test . . . focuses

on the question whether counsel’s deficient performance renders the

result of the trial unreliable or the proceeding fundamentally

unfair.” Id. at 689. A court need not address both components if

the petitioner makes an insufficient showing on one. Id. at 697.

“[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional
 

4The magistrate judge also noted that Johnson had failed to

demonstrate that Sills was available for trial. In his affidavit,

Sills stated that he was a longtime Texas resident and that he

would have been willing to testify at Johnson’s trial.

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judgments support the limitations on investigation.” Black v.

Collins, 962 F.2d 394, 401 (5th Cir. 1992)(internal quotations and

citation omitted).

Johnson contends that he told his attorney to contact a

witness, James Everet Sills, who would testify that he was present

when Johnson purchased the thirty-five millimeter camera. The

magistrate judge determined that this claim was without merit

because Johnson had failed to show that the existence of the

witness was brought to the attention of Johnson’s attorney.4 The

magistrate judge noted that Johnson’s contention was undermined by

the Barkers' positive identification of the camera. Because

Johnson failed to establish the facts underlying this ineffectiveassistance claim, he has not shown that his attorney was

professionally unreasonable in failing to investigate this witness.

Johnson also contends that his attorney should have requested

a curative instruction regarding the legality of the search and

seizure. Under state law at the time of the trial, when the

evidence raised an issue regarding the legality of a search and

seizure, the jury should be instructed to disregard any evidence

obtained through the search and seizure if it believes there is a

reasonable doubt whether the search and seizure was legal. Tex.

Code Crim. Proc. art. 38.23(a) (West Supp. 1996). In his brief to
 

5Again, Johnson attempts to incorporate his district court

briefing by reference.

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this court, Johnson did not explain why he believes that the search

and seizure were illegal. Johnson argued in his brief in the

district court that his testimony at the suppression hearing

demonstrated that the search was nonconsensual. Johnson may not

incorporate this argument in his appellate brief by reference. See

Yohey v. Collins, 985 F. 2d 222, 225 (5th Cir. 1993) (holding that

appellant could not incorporate in his brief his arguments from

other pleadings). In any event, the argument does not establish

that his counsel acted unprofessionally. The defendant’s counsel

litigated the suppression motion. Deputy Hooten testified that

Johnson consented to the search of the vehicle. Although Johnson

denied that he had consented to the search, the trial court

credited Hooten’s testimony--not an unreasonable decision

considering Johnson’s nine prior felony convictions. It was not

professionally unreasonable for Johnson’s lawyer to fail to request

an instruction, and there is no reason to believe that the trial

court would have given the instruction if it had been requested. 

Johnson contends that his attorney rendered ineffective

assistance in failing to request an instruction on circumstantial

evidence.5 In Hankins v. State, 646 S.W.2d 191, 197-200 (Tex.

Crim. App. 1983) (opinion on rehearing) the Texas Court of Criminal

Appeals abolished Texas’s circumstantial evidence charge. Under

that charge, juries were instructed to exclude, to a moral
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certainty, every other reasonable hypothesis except the defendant’s

guilt. In Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App.

1991) (en banc) the court rejected the reasonable hypothesis

analysis for review of the sufficiency of circumstantial evidence,

directing appellate courts to apply instead the rationality

standard of Jackson. Johnson’s attorney was not professionally

unreasonable in failing to request a circumstantial evidence

charge.

For the reasons stated in this opinion, the judgment of the

district court is 

A F F I R M E D.