*Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-50940

_____________________

ALVA CURRY,

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

(1:98-CV-318)

_________________________________________________________________

July 18, 2000

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alva Curry, sentenced to death for capital murder, requests a

certificate of appealability (COA) from denial of his habeas

application. The request is DENIED.

I.

The Texas Court of Criminal Appeals affirmed Curry’s 1992

conviction and death sentence for murder in the course of
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committing a robbery. Curry v. State, 910 S.W.2d 490 (Tex. Crim.

App. 1995).

In March 1998, the trial court entered findings of fact and

conclusions of law, recommending denial of state habeas relief.

The Court of Criminal Appeals denied relief that May, based on

those findings and its review of the record.

Curry sought federal habeas relief that August. The

application was referred to a magistrate judge, who recommended

that the State be granted summary judgment. The report and

recommendation, to which Curry did not object, was adopted by the

district court. It treated Curry’s notice of appeal as a motion

for a COA, and denied it in November 1999. In March 2000, Curry

filed his COA request here.

II.

Only Curry’s sentence is at issue. The Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-32, 110 Stat.

1214 (AEDPA) applies, because the federal application was filed

subsequent to its enactment. See Green v. Johnson, 116 F.3d 1115,

1119-20 (5th Cir. 1997). The district court having denied a COA,

Curry must obtain it here. 28 U.S.C. § 2253(c)(1)(A).

A COA is granted if there is “a substantial showing of the

denial of a constitutional right”. 28 U.S.C. § 2253(c)(2). Curry

must demonstrate that “reasonable jurists could debate whether ...

the petition should have been resolved in a different manner or
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that the issues presented were adequate to deserve encouragement to

proceed further”. Slack v. McDaniel, ___U.S.___, 120 S. Ct. 1595,

1603-04 (2000)(internal quotation marks and citation omitted).

For a state prisoner, such as Curry, habeas relief may not be

granted under AEDPA

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim —

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was

based on an unreasonable determination of the

facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254(d).

Normally, for deciding whether such relief (as opposed to a

COA) should be granted, “pure questions of law and mixed questions

of law and fact are reviewed under § 2254(d)(1), and questions of

fact are reviewed under § 2254(d)(2)”. Corwin v. Johnson, 150 F.3d

467, 471 (5th Cir.), cert. denied, 525 U.S. 1049 (1998). Here,

however, Curry failed to object to the magistrate judge’s report

and recommendation. Pursuant to our supervisory powers, we may

limit appellate review for such failure. See Thomas v. Arn, 474

U.S. 140, 155 (1985). 

In this circuit, the failure to so object limits appellate

review to plain error, if the party has been so warned. See
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Douglass v. United States Automobile Ass’n, 79 F.3d 1415, 1430 (5th

Cir. 1996) (en banc). The magistrate judge warned, however, that

such failure would limit appellate review of factual findings to

“clear”, rather than “plain”, error and would not limit the

appellate court’s review of legal conclusions.

Assuming that this forfeiture rule applies to ruling on a COA

request, the rule does not apply, because the correct warning was

not given. Curry does not challenge the findings of fact.

Accordingly, as discussed in part II.B., we review the presented

issues of law in the light of the “contrary to” and “unreasonable

application of” standards found in § 2254(d)(1). 

“[A] decision [is] contrary to ... clearly established Federal

law”, § 2254(d)(1), “if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts”.

Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1523 (2000).

And, there is an “unreasonable application of ... clearly

established Federal law”, § 2254(d)(1), “if the state court

identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case”. Id.

Curry disputes applying AEDPA’s standards of review, claiming

the state habeas court did not conduct a full and fair review of
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his constitutional claims. In any event, he claims COA entitlement

on each of the following bases: (1) due process was denied,

because the trial and state habeas courts refused to allow

reasonable funds for expert testimony; (2) equal protection was

denied, because the trial court denied his requested instruction

that a life sentence would require his serving at least 35 years;

(3) the Texas death penalty statute is unconstitutional, because

the jury’s decision on mitigation is not subject to meaningful

appellate review; (4) the prosecutor’s comments during voir dire

undermined the jurors’ sense of responsibility; and (5) his trial

counsel was ineffective regarding mitigation and future

dangerousness.

A.

To support his claim that we should not defer to the state

habeas findings and conclusions, 28 U.S.C. §§ 2254(d)-(e)(1), Curry

notes an evidentiary hearing was not held on his ineffective

assistance claims.

“But, [a] full and fair hearing does not necessarily require

live testimony. We have repeatedly found that a paper hearing is

sufficient to afford a petitioner a full and fair hearing”. Murphy

v. Johnson, 205 F.3d 809, 816 (5th Cir.), petition for cert. filed,

(U.S. 31 Mar. 2000)(No. 99-10268). Moreover, the state habeas

court reviewed Curry’s lead trial counsel’s affidavit concerning
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his reasons for making certain decisions and whether he rendered

ineffective assistance.

B.

At issue is whether to grant a COA, not whether to grant

habeas relief. But, obviously, in applying the earlier described

standard for whether to grant a COA on any of the issues presented,

we must keep in mind AEDPA’s hurdles for obtaining habeas relief.

As discussed infra, and for essentially the reasons stated in the

magistrate judge’s report and recommendation adopted by the

district court, Curry v. Johnson, No. 1:98-CV-318 (W.D. Tex. 30

Sep. 1999), Curry has not made, for any of those issues, the

requisite “substantial showing of the denial of a constitutional

right”, as required by § 2253(c)(2).

1.

Claimed denial of due process at the trial’s punishment phase

is based on the trial court’s refusing to appropriate reasonable

funds to counter the State’s expert on future dangerousness. That

court provided Curry $1,000 to retain an expert. Counsel retained

Dr. Marquart, who testified that future dangerousness could not be

reliably predicted.

In an affidavit in support of Curry’s federal habeas

application, trial counsel stated that, had adequate funds been

available, he “would have been [also] able to retain a psychiatric

expert”. In an affidavit given in the state habeas proceeding,
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however, trial counsel stated that, given the nature of the case,

he retained Dr. Marquart, because he would be more helpful than a

psychiatrist on the future dangerousness issue.

Curry does not cite to the record where trial counsel

requested, and was denied, additional funds for experts.

Furthermore, he points to no authority for his proposition that he

is entitled to state funds for expert witnesses during his habeas

proceeding.

2.

The claimed equal protection denial is premised on the trial

court’s refusing Curry’s requested instruction that a life

imprisonment sentence would require his serving 35 years. Under

our precedent, however, such refusal in Texas is constitutional.

Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994), cert. denied,

514 U.S. 1108 (1995).

3.

The claimed unconstitutionality of the Texas death penalty

statute springs from the jury’s verdict on the mitigation special

issue supposedly not being subject to meaningful appellate review.

This issue is cursory and not properly briefed. Therefore, it is

deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993).

4.
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The prosecutor’s comments during voir dire are claimed to have

undermined the jury’s sense of responsibility in answering the

special issues. This issue was not presented to the state courts

on either direct or collateral review. Accordingly, it has not

been exhausted, is procedurally barred under the Texas abuse of the

writ doctrine, and is correspondingly not cognizable in federal

habeas proceedings. See Fuller v. Johnson, 158 F.3d 903, 906 (5th

Cir. 1998), cert. denied, 526 U.S. 1133 (1999); 28 U.S.C. § 2254

(b)(1)(A)(failure to exhaust state remedies).

5.

To succeed on any of his three ineffective assistance claims,

Curry must demonstrate counsel’s performance was deficient, and

this prejudiced his defense, such that there is a reasonable

probability the trial’s result would have been different.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

a.

Concerning failing to investigate and present evidence of

mitigation at the punishment phase, trial counsel stated, in his

affidavit: a “number of relatives, friends, teachers and religious

advisers were interviewed”; and, “[b]ased on these interviews

[,counsel] made the decision to use the persons [he] felt would

make the most effective witnesses”.

Furthermore, the affidavit of Curry’s wife (common law)

claiming that she requested to meet with Curry’s counsel, but was
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unable to schedule an appointment, primarily negates the testimony

of her mother that Curry had threatened to kill the mother and had

struck his wife. Moreover, the wife stated her mother’s testimony

was false. And, if called, the wife would have been subject to

cross-examination on Curry’s drug use and her knowledge of his

criminal history. The decision not to call her, because of the

double-edged nature of her testimony, is not deficient performance.

West v. Johnson, 92 F.3d 1385, 1409 (5th Cir. 1996), cert. denied,

520 U.S. 1242 (1997).

b.

Regarding not using available funds to obtain an appropriate

expert to counter the State’s on future dangerousness, counsel

elected, as noted, to retain Dr. Marquart to testify that it was

not possible to reliably predict such conduct. This was a

strategic decision and is “virtually unchallengeable”. Vega v.

Johnson, 149 F.3d 354, 361 n.5 (5th Cir. 1998), cert. denied, 525

U.S. 1119 (1999).

c.

Concerning not obtaining a hearing, outside the presence of

the jury, to determine the admissibility of the State’s experts’

future dangerousness testimony, psychiatric testimony concerning

such conduct is admissible. See Barefoot v. Estelle, 463 U.S. 880,

896-905 (1983). The failure to request a hearing to determine the
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admissibility of testimony the Supreme Court has ruled is

admissible is not deficient performance.

III.

For the foregoing reasons, a COA is

DENIED.