IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50485

JERRY McFADDEN

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 Western District of Texas

January 29, 1999

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Jerry McFadden appeals the district court’s denial of his

petition for federal habeas. McFadden attacks his conviction of

capital murder and sentence of death by a Texas jury, contending

that the state trial judge applied an incorrect constitutional

standard in excluding two prospective jurors in the course of jury

selection without insisting on a focus upon the juror’s ability to

answer the sentencing q uestions. We are not persuaded the

exclusions were error, and we affirm the denial of the petition.

I2

On July 14, 1987, a jury in Bell County, Texas, convicted

McFadden of murdering Suzanne Harrison in the cou rse of an

aggravated sexual assault. On affirmative answers to the requisite

questions asked the jury in the sentencing phase, the state

district judge sentenced McFadden to death. The Texas Court of

Criminal Appeals affirmed the conviction and sen tence in an

unpublished opi nion on May 26, 1993, and denied rehearing on

November 3, 1993. McFadden filed his initial application for

habeas relief in the state trial court, which was overruled by

operation of law. The Texas Court of Criminal Appeals denied

relief on January 22, 1997, and a week later McFadden filed a

second application for habeas relief, whi ch the Texas appellate

court dismissed for abuse of the writ on March 12, 1997. On April

11, 1997, McFadden petitioned the federal district court for habeas

relief, which was denied in 1998. The district court granted a

certifica te of appealability and denied motions to amend its

judgment on June 15, 1998.

II

This appeal is controlled by the provisions of the

Antiter rorism and Effective Death Penalty Act of 1996. AEDPA’s

compelled deference to decisions of state courts is now familiar.

Under 28 U.S.C. § 2254(d), a writ of habeas corpus shall not be

granted with respect to a claim that was adjudicated on the merits

in state court proceedings unless the adjudication of the claim:1 Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968).

3 (1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the S upreme

Court of the United States; or

(2) resulte d in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

As we will explain, McFadden has failed to demonstrate that

the determination by the Texas Courts of his claims of error,

sustaining the state’s challenges for cause to two members of the

venire, Segura and Locklear, were unreasonable in light of the

evidence or contrary to clearly established federal law as

determined by the Supreme Court of the United States.

III

For some time under the Witherspoon standard, 1 we were

compelled to engage in a nigh de novo review of the jury selection

process in capital cases. The exercise was difficult for our court

and insulting to the state systems. Attempting a wholly fresh

review from so distant a point of the certainty of view expressed

in a voir dire examination of prospective jurors ignored the

realities of trial. It looked aside from the limited capture by a

transcript of courtroom exchanges, bereft as they are, of

inflection, pause, facial expression, and body language. What was

clear to all at trial can become clear to none with only the

tra nscript to read. This opaqueness is inherent in the

difficulties of probing for the views of a lay person about death4

and crime in the unfamiliar and tense environment of a courtroom in

a capital case. W ainwright v. Witt

, 469 U.S 412, 424-26 (1985),

confronted this difficulty:

This is because determinations of juror bias cannot be

reduced to question-and-answer sessions which obtain

results in the manner of a catechism. What common sense

should have realized experience has proved: many

veniremen simply ca nnot be asked enough questions to

reach the point where their bias has b een made

“unmistakably clear”; these veniremen may not know how

they will react when faced w ith imposing the death

sentence, or may be unable to articulate, or may wish to

hide their true feelings. Despite this lack of clarity

in the printed record, however, there will be situations

where the trial judge is left with the definite

impression that a prospective juror would be unable to

faithfully and impartially apply the law.... [T]his is

why deference must be paid to the trial judge who sees

and hears the juror.

Justice Rehnquist’s opinion for the court also recognized that

a trial judge cannot be expected to dictate findings of fact and

conclusions of law with each ruling. Hence, under W itt the

sustai ning of a challenge for cause for bias was held to be an

implicit finding of bias enjoying the statutory pr esumption of

correctness. S ee at 430. The laconic “sustained” or “granted”

carries that force.

McFadden urges that despite Witt

, the decisions by the state

trial judge to sustain the state’s challenges for cause to Locklear

and Segura, prospective juro rs, are not due deference. No

deference due becaus e, McFadden contends, the voir dire did not

specifically exc lude the possibility that the excluded prospects

could have answered the questions required by Texas in the5

sentencing phase despite their expressed views regarding the death

penalty. We turn first to the relevant portions of the voir dire.

IV

Locklear quickly responded: To the prosecutor’s questions

about the death penalty, “I don’t believe in it.” The questioning

continued:

Q: That’s fine, if you don’t then I need to ask

you a few more questions, but let me just be

sure I understand and know where you stand on

it. If I’m understanding correctly, you

simply are opposed to th e death penalty, is

that correct?

A: Yes sir.

Q: And that is regardless of how se rious or

vicious the facts of the case might p rove to

be, unde r no set of circumstances could you

sit on a jury and make decisions that would

result in a death verdict, is that correct?

A: Yes sir.

Q: Can I assume that your opposition to the death

penalty is based on feelings you have and

scruples you have th at would just keep you

from ever voting death in a case regardless of

how vicious the fact situation was?

A: No sir, it’s just that the Lor d says he will

take vengeance in his own hands.

Q: So it’s a religious feeling that you have, and

it’s your religious belief that keeps you, or

has you opposed to the death penalty, is that

right?

A: Yes sir.

Q: And I presume that nothing would change your

mind in that regard, is that correct?

A: Right.6

Q: And that under no circumstances, because of

your religious belief against the death

penalty, that under no circumstances, under no

procedure would you ever be a part of a jury

that would make decisions that would result in

a death sentence, is that correct ? (emphasis

supplied)

A: Yes sir.

8 Sr 1702-03. The state then challenged Locklear for cause. After

objections concerning the procedure for conducting the voir dire in

the case, McFadde n’s counsel asked Locklear several questions,

including the following:

Q: Are you telling us that if that judge ordered

you in his instructions to the jury to

consider fairly and unbiased (sic) the penalty

range for an allegation of criminal misconduct

that included the death penalty that you would

ignore that instruction?

A: Yes, I would.

V

Segura’s opening response was:

A: I think if he committed it, for sure, I think

he s hould suffer in jail and be punished for

it instead of just terminating his life.

The questioning continued:

Q: Are you a person who because of strong

feelings that you have, religious feelings

perhaps, conscientious scruples, are you a

person who is opposed to the death penalty?

A: In a way. It just depends on what they did.

Like if he killed one person I think he should

suffer for it, but now if he killed three,

four, or five people, then he should die; but

for one person I don’t think he should die.7

Q: Let me be sure that I under stand you

correctly. He is charged with taking the life

one (sic) person, Suzanne Denise Harrison. Do

I unde rstand you correctly to say that you

would be conscientiously opposed to the death

penalty in any c ase where the defendant only

killed one person?

A: Yes.

* * *

Q: ...[A]re you saying that regardless of how

aggravated the facts and circumstances of the

case, that if we convinced you that a

defendant committed capital murder, but only

killed one human being, as is charged in this

indictment, regardless of how aggravated the

facts and the circumstances, that you would

never vote the death penalty?

A: Right.

* * *

Q: And these feelings that you have, these

conscientious feelings that you have against

the d eath penalty in that kind of situation

[where the defendant killed only one person],

is it fair to say that you honestly could not

set those feelings aside and be a p art of a

jury in a case in which the result of that

process would be the death penalty for a

person charged and convicted of killing one

person, is that correct? (emphasis supplied)

A: I believe that’s correct.

Q: So that in a situation where we convinced you

beyond a reasonable doubt that the defendant

was gu ilty of capital murder of one person,

you would automatically vote against the death

penalty, is that correct?

A: Yes.

Q: Regardless of the facts and circumstances of

the case?8

A: Yes.

McFadden’s counsel did not examine Segura, and the

prosecution’s challenge for cause was sustained.

VI

Witt set the applicable constitutional rule: “[T]he quest is

for jurors who will conscientiously find the facts and apply the

law. That is what an ‘impartial’ jury consists of ....” W itt

, 469

U.S. at 423. “[T]he proper standard for determining when a

prospective juror may be excluded for cause because of his or her

views on capital punishment

... is whether the juror’s views would

‘prevent or substantially impair the performance of his duties as

a juror in accordance with his instructions and his oath.’” Id

.

at 424.

McFadden contends that the state tria l judge applied an

incorrect s tandard in sustaining the prosecutor’s challenges for

cause of both Segura and Locklear. Of course, the trial judge did

not recite the standard he was employing, so the contention is that

in the absence of a recitation of the measure employed, we should

presume that the trial judge followed then applicab le state law.

The argument continues that Texas law then set the measure as

whether the juror could consider the full range of punishment;

jurors could be exclude d even though they could answer the

sentencing questions.

This contention is without merit. First, as the district

court pointed out in its thoughtful memorandum, we have rejected9

the suggestion that W itt requires that veniremen be explicitly

asked if they could answer the sentencing questions despite their

other reservations. S ee Fuller v. Johnson

, 114 F.3d 491, 500 (5th

Cir.), c ert. denied

, 118 S.Ct. 399 (1997). In any event, it was

reasonable for the trial judge to conclude that Locklear and Segura

would not be able to give an affirmative answer to the sentencing

questions.

The voir dire developed whether the jurors could be part of a

jury in whic h the result of that process would be the death

penalty. There is no uncertainty about the views of Segura and

Locklear. Both made plain that they were unable to apply the law

to the facts free of bias, a bias rooted in their opposition to the

death penalty, and that neither could participate in a process

producing a death sentence.

Witt eschewed any insistence that a state trial judge dictate

findings of fact or conclusions of law. It held that the simple

grant of a challenge for cause is an implied finding of bias, as we

have explained. But McFadden urges that the finding is not due

deference because Texas law did not then focus upon whether the

views o f a prospective juror would allow an answer to the death

questions in the sentencing phase.

Putting aside t hat McFadden’s contention insists on legal

explanations by the trial judge that are not required, we are

pointed to no denial of McFadden’s constitutional rig hts. That

Texas courts may have after this trial expressed their preference10

for this emphasis in voir dire upon the prospect’s ability to

answer the death questions does not suggest that at the time of

trial it employed a standard that contravened Witt

.

In short, McFadden was free to turn the focus of the inquiry

to the death questions, but he points to no rule of constitutional

magnitude that co mpelled the prosecutor to do so. His effort to

attach consequences to the absence of explicit findings by the

t rial judge -- to presume a standard he says was contrary to

Supreme Court authority ( Witt ) and to trigger de novo review

-- is

in the teeth of Witt ’s explicit freeing of trial judges from such

an impractical burden in presiding over jury selection in capital

cases. And the confusing path of McFadden’s argument, even if

located and followed to its destination of de novo review, is a

fruitless journey. It does not face the reality that even under a

de novo review the absence of ambiguity permits no conclusion but

that the requirements of Witt were met.

We expand on McFadden’s contentions only to expose their

emptiness. When all is said, McFadden cannot escape by a door

Congress has closed. Congress has narrowed our authority in habeas

review of state convictions to asking if the adjudication by the

state courts was an unreasonable application of clearly established

federal law, as determined by the Supreme Court of the United

States. We are persuaded that the decisions of the state trial

judge to exclude the two prospective jurors were based on a

reasonable determination of the facts in light of the evidence11

presented in the state court proceedings, and we are pointed to no

violation of clearly established federal law as determined by the

Supreme Court.

McFadden’s federal petition f or a writ of habeas corpus is

without merit.

We affirm.