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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 96-20511

______________________________________

PONCHAI WILKERSON,

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 Southern District of Texas

(H-95-4493)

_____________________________________________

August 18, 1999

Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges. 

WIENER, Circuit Judge.*

Petitioner-Appellant Ponchai Wilkerson asks us to reverse the

district court’s denial of his federal petition for habeas corpus,

and its refusal to grant a certificate of probable cause (CPC) to

appeal that ruling. He also asks us to grant CPC. Concluding that

Wilkerson has not met the standard required for the granting of

CPC, we deny his request and affirm the rulings of the district

court.

I.

FACTS AND PROCEEDINGS
 

1 881 S.W.2d 321, 324 (Tex. Crim. App.), cert. denied, 513

U.S. 1060 (1994).

 

2 Tex. Code Crim. P. Code Ann. § 37.071(b) (West 1981 & Supp.

1999).

2

The facts of the capital murder of which Wilkerson was

convicted are set forth in Wilkerson v. State.

1 It suffices for

today’s purposes that even Wilkerson, who testified on his own

behalf, concedes that he fatally shot a jewelry store employee

during an armed robbery and that the shooting was neither

accidental nor in self-defense. He was tried and convicted in

state court by a jury which, in the subsequent punishment phase of

the trial, affirmatively answered the questions of deliberateness

and future dangerousness pursuant to the Texas special issues.2

The state trial court sentenced Wilkerson to death. Wilkerson’s

conviction and sentence were affirmed by the Court of Criminal

Appeals of Texas, which subsequently denied rehearing. The United

States Supreme Court denied certiorari. After exhausting the state

habeas process to no avail, Wilkerson filed this action in the

district court seeking federal habeas relief, which that court

denied. It also declined to issue a CPC, and the instant appeal

followed.

II.

ANALYSIS

A. Standard of Review
 

3 Anti-terrorism and Effective Death Penalty Act. of 1996, 28

U.S.C. § 2254 (1994 & Supp 1998).

 

4 Barefoot v. Estelle, 463 U.S. 880 (1983).

 

5 Id. at 893 n.4 (quoting Gordon v. Willis, 516 F. Supp. 911,

913 (N.D. Ga. 1980)). 

3

Before issuing a CPC in this pre-AEDPA3 case we must determine

whether Wilkerson has made a substantial showing of the denial of

a federal right.4 To do so, Petitioner must “demonstrate that the

issues are debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the questions

are ‘adequate to deserve encouragement to proceed further.’”5 We

apply our well-known standards of review when we examine the

district court’s denial of habeas relief, i.e., our review of the

factual findings of that court is conducted under the clearly

erroneous standard, and our review of questions of law, and of

mixed questions of fact and law, is plenary. Under 28 U.S.C. §

2254(d), factual findings of the state courts are entitled to a

presumption of correctness.

B. Guilt-Innocence Phase

In applying to us for a CPC, Wilkerson has specified no issues

implicating the conduct of the guilt-innocence phase of the state

jury trial that produced his conviction for capital murder of the

jewelry store employee. Rather, Wilkerson advances six claims of

error in the punishment phase of his trial, insisting that as to

each he has made a substantial showing of the denial of a federal

right, thereby meeting the pre-AEDPA CPC standard stated in
 

6 Id.

 

7 As a matter of law, Wilkerson’s claim is exhausted under 28

U.S.C. § 2254 because he cannot now raise it under state law;

indeed, were he to try, even after failing in federal habeas, he

would be prevented by the Texas version of abuse of the writ.

4

Barefoot v. Estelle.

6 We turn therefore to the punishment phase of

his trial and examine the errors alleged to have been committed

there. 

C. Punishment Phase

Wilkerson’s trial attorney sought a punishment-phase jury

instruction explaining the effects of parole in the context of a

Texas life sentence. In Wilkerson’s direct appeal, however, his

trial counsel did not compound this vain act by asserting trial

court error in refusing such an instruction. Nevertheless, at

least three of Wilkerson’s six claims of constitutional error

implicate the question of the effects of parole, including the

trial court’s refusal to give such an instruction, defense

counsel’s failure to argue on appeal that such ruling constituted

reversible error, and the prosecution’s comments about confinement

in closing argument.

Regarding the instruction, the State responds, and we agree,

that Supreme Court precedent and our own combine to eviscerate

Wilkerson’s assignments of equal protection, due process, and cruel

and unusual punishment errors on no less than three grounds.

First, they are procedurally barred given Wilkerson’s failure to

pursue —— exhaust —— this matter in his direct appeal and in his

habeas applications in the state system.7 That defense counsel
 

8 489 U.S. 288 (1989).

5

might perceive objections or claims of error on appeal to be

useless, hollow acts does not excuse the failure to make them so as

to preserve the objection and avoid procedural bar. Second, these

claims are without substantive merit. Albeit subsequently, the

Court in Simmons expressly excepted Texas and its sentencing and

parole systems from the requirement to instruct the jury on the

effects of parole under a life sentence, and our precedent under

Allridge is to the same effect. Prior to Simmons no precedent had

required a parole-effects instruction, at least not in Texas.

Wilkerson concedes as much and, in admirable candor, also concedes

that his efforts in this regard are grounded in the hope, however

forlorn, that this panel might write something that would lead to

an en banc reconsideration of our Allridge position. We decline

this invitation, which brings us to Wilkerson’s third strike:

Teague v. Lane.

8 Even if we were to disregard both procedural bar

and existing precedent, and were to convince this court to revisit

the issue en banc and overrule Allridge and its progeny (and

thereafter not be reversed by the Supreme Court on the basis of

Simmons), the result would constitute a “new rule” under Teague and

thus would be unavailable to Wilkerson because of Teague’s

prohibition against applying new rules retroactively.

This is a double-edged sword, but a proper one: The same

analysis thwarts Wilkerson’s ineffective assistance of counsel.

Wilkerson cannot get past the “cause” prong of the test articulated
 

9 466 U.S. 668 (1984).

6

in Strickland v. Washington.

9 Objectively judged, the professional

performance of Wilkerson’s counsel on direct appeal, in not

claiming error in the trial court’s refusal to grant the parole

instruction, cannot be deemed to have been deficient. Even though,

as noted, Simmons and Allridge were not decided until after the

professional performance at issue, the fact that the Supreme Court

in Simmons expressly excepted Texas from the effect of that

judgment supports a determination that counsel cannot be faulted

for failing to include the denial of the parole instruction among

those issues urged on appeal. Moreover, were we to reach the

prejudice prong of the Strickland test, we would almost certainly

conclude that the absence of the parole instruction in the

punishment phase of Wilkerson’s trial was not a “but for” cause of

the jury’s response to the special issue of future dangerousness.

The extensive litany of Wilkerson’s violently dangerous behavior

eschews any such conclusion.

Albeit legally distinct, Wilkerson’s due process claim that

the prosecution’s assertions in closing argument to the effect that

nothing guarantees that Wilkerson will remain in prison is closely

analogous to his complaints regarding the absence of the parole

instruction and the deficiency of counsel’s performance in failing

to advance that error on direct appeal. Wilkerson insists that,

despite (1) the trial court’s instruction to the jury to disregard

the prosecution’s comment, and (2) the prosecution’s explanation to

the jury that the comments were made in reference to the
 

10 See Clark v. State, 643 S.W.2d 723, 724 (Tex. Crim. App.

1982).

7

possibility of escape, the court’s denial of Wilkerson’s motion for

a mistrial on the basis of the remarks —— which, according to

Wilkerson, violated Texas jurisprudence that prohibited the

prosecution from asking jurors to consider the actual length of the

time of incarceration that will result from the sentence they

assess10 —— was not grounds for a mistrial under the instant

circumstances. In rejecting this contention by Wilkerson, the

district court agreed with the observation of the Court of Criminal

Appeals of Texas that any error in the prosecution’s closing

argument was harmless because it is common knowledge that prisoners

—— even death row prisoners —— do escape. Although Wilkerson’s

habeas counsel now characterizes that holding as “outrageous,” in

his oral argument to this panel, counsel argued, in discussing this

very concept in the context of future dangerousness, that jurors

have no concern about future danger to fellow prisoners. This

argument is at least as outrageous: The law has long recognized

that future danger to inmates, and, even more so, future danger to

prison personnel, are valid considerations in the context of the

possibility (or absence thereof) of escape, parole, or probation.

It suffices that we agree with the analysis of the district court

in rejecting this contention.

Wilkerson asserts that the trial court’s permitting the

prosecution to introduce the testimony of a witness, James McCowan,

regarding offenses committed by one Wilton Bethany in the presence
 

11 See Wilkerson, 881 S.W.2d at 326-27.

 

12 See, e.g., Duff-Smith v. Collins, 973 F.2d 1175, 1184 (5th

Cir. 1992); Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir. 1984)

cert. denied. 

8

of Wilkerson was an erroneous admission of evidence of extraneous

offenses by another person. This is a mischaracterization of the

nature and purpose of McCowan’s testimony. Although the testimony

of the unlawful acts of Bethany were indeed described by the

witness, it was done by way of background and perspective, given

that the “extraneous offense” committed by Wilkerson during the

same violently unlawful episode —— his indiscriminate firing of

multiple rounds in the densely-populated urban setting of an

occupied apartment complex where the incident occurred —— was the

point being made by the prosecution in its case for future

dangerousness. Moreover, Wilkerson’s failure to object

contemporaneously to the admission of McCowan’s testimony

procedurally bars its consideration now.11 And, even if it were not

barred, when that testimony is read in its entirety it is easily

recognized as evidence of Wilkerson’s —— not Bethany’s ——

unadjudicated offenses, which is clearly admissible in the

punishment phase.12

Wilkerson’s two remaining claims may escape the label

“frivolous,” but, at best, are void of both legal and factual

merit. Apart from the likelihood of being procedurally barred,

Wilkerson’s challenge to (1) the method and extent of the review by

the Court of Criminal Appeals of Texas of mitigating evidence

presented to the jury regarding future dangerousness, and (2) the
9

sufficiency of the evidence to support the jury’s conclusion of

future dangerousness, may be acceptable vigorous advocacy in light

of the ultimate penalty faced by Wilkerson, but that does not raise

these contentions to a level that even approaches a demonstration

of a substantial showing of the denial of a federal right. It

suffices that our review of the record, the district court’s

disposition of this case, and the legal arguments of counsel in

their respective appellate briefs and oral arguments to this court

make clear beyond cavil that, like the other four issues, these two

fall short of the Barefoot standard and therefore do not justify

the issuance of a CPC.

III.

Conclusion

For the reasons set forth above, we decline Wilkerson’s

request for a CPC and affirm the rulings of the district court.

CPC DENIED; Rulings of the District Court AFFIRMED.