* 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this opinion should not be published and is not precedent except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. 96-50798

DWIGHT DWAYNE ADANANDUS,

Petitioner-Appellant,

versus

GARY JOHNSON, Director,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Texas, San Antonio Division

(SA 95-CA-415)

April 7, 1997

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge: *

Petitioner-Appellant Dwight Dwayne Adanandus, a Texas death

row inmate, appeals the district court’s judgment denying his2

petition for a writ of habeas corpus. The district court issued a

certificate of appealability (COA) on Oct ober 18, 1996, granting

Adanandus permission to appeal two issues: (1) whether his trial

counsel rendered ineffective assistance, and (2) whether the trial

court violated Adanandus’s constitutional rights by ref using to

submit instructions on lesser included offenses to the jury.

Even if we were empowered to revi ew Adanandus’s habeas

petition de novo

, we would be inclined to affirm the conclusions

reached by the district court in its lengthy, thorough, and

thoughtful opinion, rejecting Adanandus’s federal habeas petition.

In it e ach issue was analyzed d e novo pursuant to the pre-AEDPA

standards for federal habeas review. Moreover, given the deference

that we are now obliged to afford state court findings of law and

fact under the AEDPA’s new federal habeas standards, the result is

clear. Both issues presented in the instant habeas appeal were

addressed and rejected on their meri ts by the state court. The

state habeas court rejected Adanandus’s ineffective assistance of

counsel claim after conducting a fu ll evidentiary hearing; and

Adanandus’s claim that the jury charge was improper was raised and

rejected on direct appeal. As those determinations were based on

reasonable conclusions of law and fact, we affirm.

I

SUMMARY OF THE FACTS

On January 28, 1988, Adanandus sh ot and killed Vernon Hanan1 As discussed below, Adanandus makes much in his brief about

minor discrepancies in the trial testimony of several eyewitnesses

to the shooting. Some witnesses testified that Hanan was flat on

his back when Adanandus stood over him and fired, but other

witnesses testified that Hanan was either standing or falling when

the shot was fired. Those discrepancies are immaterial, however.

Th ere is no dispute that Adanandus fired the fatal bullet from a

distance of at least two feet from Hanan, and there was no

testimony or other evidence in the record to suggest that the shot

might have been fired accidentally.

2 A danandus v. State

, 866 S.W.2d 210 (Tex. Crim. App. 1993).

3 Adanandus v. Texas , 114 S.Ct. 1338 (1994).

3 while committing an armed robbery of a bank in San Antonio, Texas.

The relevant events were recorded on videotape and have never been

seriously disputed. Hanan entered the bank lobby just as Adanandus

was making his exit. Hanan heard the bank teller’s shouts for help

and attempted to tackle Adanandus and prevent his escape. The two

wrestled their way into the foyer of the bank before Adanandus

pushed Hanan away, pointed his gun at Hanan, and fired the fatal

shot. 1

Adanandus was convicted of capital mu rder on May 12, 1989,

and, after the jur y answered “yes” to each of the three special

issues presented to them at the punishment phase of the trial, the

trial court sentenced Adanandus to death. Adanandus appealed, but

the Texas Court of Cr iminal Appeals affirmed the conviction and

sentence on June 16, 1993. 2 The United States Supreme Court denied

writs on March 21, 1994. 3

On September 7, 1994, Adanandus filed his initial application

for state habeas corpus relief, which he amended on October 21. On4 Adanandus v. Johnson , 947 F.Supp. 1021 (N.D. Tex. 1996).

5 Adanandus v. Johnson , 947 F.Supp. 1098 (N.D. Tex. 1996).

6 -- F.3d --, 1997 WL 73845 (5th Cir. Feb. 20, 1997).

4 January 9, 1995, after conducting an evidentiary hearing, the state

trial court issued findings of fact and conclusions of law and

recommended that Adanandus’s sta te habeas corpus application be

denied. On February 21, 1995, the Texas Court of Criminal Appeals

issued an unpublished per curiam opinion determining that the trial

court’s findings and conclusions were supported by the record, and

denying Adanandus’s habeas corpus application on the basis of those

findings and conclusions.

Adanandus th en filed his federal habeas petition, which the

district court denied on August 27, 1996. 4 The district court then

granted Adanandus a COA to appeal the two issues to us. 5

II

DISCUSSION

A. D ISTRICT C OURT ’ S P OWER TO G RANT A COA

This issue was settled in Else v. Johns o n

, 6 in which a panel

of this court held that a district court has authority to issue a

COA in a § 2254 case, provided that the certificate properly

identifies the particular issue or issues on which the petitioner

has presented a sub stantial showing of the denial of a

constitutional right. The COA issued by Judge Biery in the instant

case appears to be proper in all respects. The district court was

aware of the AEDPA’s enactment and properly issued a COA rather7 S ee Lockhart v. Johnson

, 104 F.3d 54, 57 (5th Cir. 1997);

Mata v. Johnson

, 99 F.3d 1261, 1267-68 (5th Cir. 1996); Drinkard v.

Johnson , 97 F.3d 751, 767 (5th Cir. 1996).

5 than a certificate of probable cause (CPC), as was formerly

required. Adanandus raised 21 issues in the district court and

then requested a COA to appeal three issues, of which the district

court certified two. Thus, we accept that COA and proceed directly

to the merits of the two certified issues.

B. S TANDARD OF R EVIEW

As both issues raised by Adanandus in the i nstant habeas

appeal were adjudicated on the merits in state court proceedings,

w e cannot grant Adanandus’s petition for federal habeas corpu s

relief unless the state court adjudication resulted in a decision

that (1) rested on a legal determination that was contrary to

clearly established federal law as determined by the Supreme Court,

(2) was based on an unreasonable determination of the facts in

light of the evidence, or (3) rested on an unreasonable application

of clearly established federal law to the fa cts surrounding the

petitioner’s claim. 7 Although we refer to the district court’s

opinion throughout this opinion, we must review the state court ’s

disposition of these claims, and we must affirm the result reached

by the state court if it is based on reasonable conclusions of law

and fact.

C. I NEFFECTIVE A SSISTANCE OF C OUNSEL

Adanandus claims that his trial counsel rendered ineffective6

assistance in two respects: first, his failure, at both the

guilt/innocence and punishment phases of the trial, to introduce as

mitigating evidence the fact that Adanandus suffered a head injury

during his adolescence; and second, that his trial attorney’s

political ambitions created a conflict of interest that undermined

the effectiveness of his defense at trial.

1. Mitigating Evidence -- the head injury

At the age of 13, Adanandus suffered a head injury in a

horseback-riding accident, requiring a metal plate to be implanted

in his head. Before trial, Adanandus’s trial counsel submitted

Adanandus to a medical examination by psychiatrist Dr. Raymond M.

Costello. Dr. Costello included the following statement in his

report:

I f a change in life style orientation from

noncriminal to criminal can be related to the head trauma

then it becomes at least plausible that despite his

apparent intellectual intactness, his behavior may be at

least a partial product of an inj ured brain and the

social learning consequences immediately following the

injury and compounded throughout the recuperative period.

His ability to conform his behavior to the requirement of

law would then be debatable. If a life style change

predated the injury, the mitigating defense is less

plausible. Defense may also have to rule out the

possibility that there was no life style change and that

his criminality was a simple process of his unique

maturation into adulthood.

Adanandus argues that his trial counsel rendered ineffective

assistance because, despite the inform ation in Costello’s report

alluding to the possibility of linking Adanandus’s head injury to

his crimin al behavior, the attorney failed to introduce such8 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

9 I d. See also Kimmelman v. Morrison

, 477 U.S. 365, 375

(1986); Sharp v. Johnson

, -- F.3d --, 1997 WL 80440 (5th Cir. Feb.

26, 1997).

10 See Adanandus , 947 F.Supp. at 1035-1054.

7 evidence at trial. Adanandus now proffers a new, somewhat more

f avorable psychological report, along with affidavits from his

three sisters and his common-law wife stating that his behavior

deteriorated after his head injury.

Under the two-pronged test articulated by the Supreme Court in

S trickland v. Washington

, 8 for Adanandus to prevail on a claim o f

ineffective assistance of counsel, he must show that (1) his trial

c ounsel’s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but

for his trial counsel’s unprofessional errors, the result of the

proceeding would have been different. 9 The district court analyzed

each of Adanandus’s arguments at great length before determining,

as did the state habeas court, that Adanandus failed to satisfy

either prong of that test. 10 With regard to the guilt/innocence

stage of the trial, the attorney’s tactical decision not to use the

head injury as the basis of a defense was well within the realm of

a reasonable trial strategy, particularly in light of the fact that

the introduction of such evidence would have opened the door for

the prosecution to introduce evidence concerning Adanandus’s

extensive criminal history, much of which predated the head injury

.11 492 U.S. 302 (1989)(holding the Texas capital sentencing

s cheme unconstitutional, as applied to a defendant who had

introduced evidence o f his abusive childhood and mental

retardation, because it did not permit the jury to give effect to

such mitigating factors).

12 The three special issues that were submitted to the jury

at the punishment phase of the trial asked whether 1) the defendant

had acted deliberately in killing the dec edent, 2) the defendant

posed a continuing threat of violence to society, and 3) the

defendant’s action in killing the decedent was an u nreasonable

response to the decedent’s conduct.

13 Adanandus , 947 F.Supp. at 1050.

8 With respect to the punishment phase of the trial, the

district court correctly noted that evide nce of Adanandus’s head

injury is a “double-edged sword”

-- capable of persuading a jury

that the defendant would be likely to commit additional dangerous

acts in the future. Thus, it cannot be said that his attorney’s

decision not to introduce such evid ence fell below an objective

standard of reasonableness. In any event, as Adanandus was tried

before the Supreme Court issued its seminal decision in Penry v.

Lynaugh

, 11 the jury instructions would not have permitted the jury

to consider mitigating ev idence as such when determining

Adanandus’s fate based on the three special issues. 12 Instead, as

the district court noted, “the only way the jury could have given

effect to any potentially mitigating evidence regarding

petitioner’s prior head injuries woul d have been through the

deliberateness and provocation issues.” 13 As there was nothing in

Dr. Costello’s report to indicate that Adanandus was unable to act

rationally and deliberately, it does not appear that the trial14 S ee United States v Placante

, 81 F.3d 555, 558 (5th Cir.

1996); Perillo v. Johnson , 79 F.3d 441, 447 (5th Cir. 1996).

9 attorney’ s decisions were either unreasonable or prejudicial to

Adanandus.

The state habeas co urt determined that “the evidence

[introduced at the evidentiary hearing]... indicates that the

decisions made by counsel during trial concerning the [mitigating]

evidence at is sue were based on a thorough and complete

investigation of the facts and law at the time of trial.” That

determination is reasonable in light of the record evidence and

cannot be disturbed.

2. Conflict of Interest

Next, Adanandus a rgues that his trial counsel’s “desire to

obtain a high ranking prosecutorial position interfered with his

duty to represent his client.” At the time of the trial,

Adanandus’s trial counsel was see king an appointment to a United

States Attorney position. Counsel ultimately did not receive such

an appointment, but, afte r the conclusion of the trial, he

campaigned successfully for Bexar County District Attorney.

To establish an ineff ective assistance claim based on a

conflict of interest, a petitioner who failed to raise an objection

at trial must demonstrate that an actual conflict of interest

adversely affected his attorn ey’s performance. 1 4 The presumption

of prejudice which Adanandus seeks to invoke through his assertion

of a conflict of interest applies only when an “actual” conflict15 Perillo , 79 F.3d at 447.

16 Id.

17 Adanandus , 947 F.Supp. at 1055.

18 See Adanandus , 947 F.Supp. at 1056.

10 exists. 15 To establish an actual conflict, Adanandus must identify

specific instances in the record that reflect that his counsel made

a choice be tween possible alternative courses of action, and

selected one that was helpful to his candidacy for U.S. Attorney or

harmful to Adanandus’s defense, or both. 16

As the district court noted, the defense attorney’s desire to

be appointed U. S. Attorney “might have presented a potential

conflict of interest, [but] petitioner has alleged no facts showing

this potential conflict ever evolved into an actual conflict.” 1 7

Adanandus argues t hat an actual conflict is demonstrated by the

record of his trial counsel’s punis hment-phase jury argument, in

which the lawyer expressed his perso nal approval of the death

penalty and announce d that he had previously sought the death

penalty while prosecuting other defendants. When that argument is

viewed in c ontext, however, we are convinced that the attorney’s

argument was a good one, and not the product of a conflict of

interest: Although the death penalty is an appropriate penalty in

the right circumstances and in the right case, Adanandus does not

deserve the death penalty. 18

D. T HE J URY C HARGE19 H opper v. Evans

, 456 U.S. 605, 611-612 (1982 ); Beck v.

Alabama

, 447 U.S. 625, 637-38 (1980); Cordova v. Lynaugh

, 838 F.2d

764, 767 (5th Cir.), cert. denied , 486 U.S. 1061 (1988).

20 A danandus

, 866 S.W.2d at 231 (“We conclude there is n o

evidence upon which a jury could rationally find that appellant had

the intent to rob, b ut not the intent to cause the death of the

deceased.”)(emphasis in original).

21 I d. at 232 (“There is no evidence in the record from which

a rational jury could infer that appellant’s actions we re merely

reckless and were not intentional.”)(emphasis in original).

11 In the second issue certified to us by the district court,

Adanandus argues that his constitutional rights were violated by

the trial court’s refusal to instruct the jury on the lesserincluded offenses of felony murder and involuntary manslaught er.

The law is clear that a ca pital defendant is constitutionally

entitled to a lesser-included offense instruction if the evidence

would permit a rational juror, given all the facts, to acquit the

defendant of capital murder and convict him of the lesser included

offense. 19

On direct appeal, the Texas Court of Criminal Appeals held

that Adanandus was not entitled to a jury instruction on either

felony murder 20 or involuntary manslaughter 21 because no evidence was

introduced at trial, by either the prosecution or the defense, to

indicate that Adanandus might be guilty of a lesser offense than

capital murder. In essence, both sides went for “all or nothing.”

On federal habeas review, the dis trict court reached the same

conclusion as did the state court, and so do we.

In the instant habeas appeal, Adanandus’s brief draws22 See n.1, supra.

12

attention to discre pancies in the testimony of eyewitnesses at

trial in an attempt to sh ow that a juror could have inferred

somehow that Adanandus shot Hanan either accidentally or without an

intent to kill. 22 This position is baseless: All trial witnesses

were in agreement on the m aterial issue, i.e., that Adanandus

pointed the gun at Hanan and pulled the trigger. There simply was

no evidence at trial to suggest that Adanandus shot Vernon Hanan

accidentally, or that he lacked specific intent to kill Hanan.

III

CONCLUSION

For the reasons stated herein, as well as those articulated by

the district court, we af firm that court’s denial of Adanandus’s

petition for habeas relief and vacate the stay of execution issued

by the district court.

AFFIRMED.