1 Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-10864

____________________

TROY DALE FARRIS,

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 Northern District of Texas

(4:94-CV-142-Y)

April 27, 1998 Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: 1

Troy Dale Farris, convicted in Texas state court of capital

murder and sentenced to death, appeals the denial of habeas relief,

claiming that the district court erred in applying a presumption of

correctness to the trial court’s determina tion that prospective

juror Janice Goodson was excludable for cause, in the light of the

Texas Court of Criminal Appeals, in a decision in another case,- 2 -

overruling its earlier decision in Farris’ direct appeal on that

issue; and that his court appointed counsel labored under an actual

conflict of interest due to their professional affiliation with an

attorney who was formerly the lead prosecutor assigned to his case.

We AFFIRM

.

I.

Farri s was convicted by jury in May 1986 of the offense of

capital murder for the shooting death of Tarr ant County Texas

Deputy Sheriff Clark Rosenbalm. (The facts underlying the murder

are not at issue.) Following a separate punishment hearing, the

jury affirmatively answered two special issues that were presented;

and, accordingly, the trial court sentenced Farris to death.

On direct appeal, the Texas Court of Criminal Appeals affirmed

the conviction and sentence. F arris v. State

, 819 S.W.2d 490 (Tex.

Crim. App. 1990), cert. denied, 503 U.S. 911 (1992), overruled by

Riley v. State

, 889 S.W.2d 290, aff’d on rehearing

, 889 S.W.2d 297

(Tex. Crim. App. 1994), cert. denied, 515 U.S. 1137 (1995).

Farris then filed for state habeas relief. The trial judge

conducted the state habeas proceeding; following an evidentiary

hearing, the court, in August 1993, entered findings of fact and

conclusions of law, and recommended that habeas relief be denied.

The Texas Court of Criminal Appe als adopted the trial court’s

finding and denied habeas relief in December 1993. E x parte- 3 -

Farris

, No. 15,938-02 (Tex. Crim. App. Dec. 15, 1993) (unpublished

order). Execution was set for 8 March 1994.

On 2 March 1994, Farris sought federal habeas relief and a

stay of execution; a stay was granted on 4 March. And, at the end

of 1994, while Farris’ federal habeas petition was pending, the

Texas Court of Criminal Appeals rendered Riley v. State

, 889 S.W.2d

290, aff’d on rehearing

, 889 S.W.2d 297 (Tex. Crim. App. 1994),

cert. denied, 515 U.S. 1137 (1995), which expressly overruled its

prior opinion in Farris’ appea l on the issue of whether

venireperson Goodson was properly excluded for cause.

In early 1997, the magistrate judge recommended granting

habeas relief to Farris with respect to Goodson’s exclusion, while

recommending denying relief on all other issues. But, in June

1997, the district court denied habeas relief as to all claims;

nevertheless, it granted a certificate of probable cause to appeal.

Farris v. Johnson

, 967 F. Supp. 200 (N.D. Tex. 1997). Farris moved

to amend the judgment; in July 1997, in the light of the Supreme

Court’s decision in Lindh v. Murphy , ___ U.S. ___, 117 S.Ct. 2059

(1997), the district court amended the denial order by applying the

standards of 28 U.S.C. § 2254 as existed prior to the enactment of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

(The district court later gra nted Farris an AEDPA certificate of

appealability. But, as the district court ruled, pre-AEDPA law

applies.)- 4 - II.

Farris claims that the district court erred in ac cording a

presumption of correctness to the trial court’s finding that

Goodson was excludable for cause due to her position regarding the

death penalty. For his second, and only other, issue, he maintains

that his court appointed counsel labored under an actual conflict

of interest due to their professional affiliation with the former

lead prosecutor on Farris’ case, who resigned from the district

attorney’s office prior to Farris’ trial and formed a professional

relationship with his trial counsel.

Of course, under pre-AEDPA habeas law, “[i]n considering a

federal habeas corpus petition presented by a prisoner in state

custody, federal courts must generally accord a pre sumption of

correctness to any state court factual findings.” Mann v. Scott

,

41 F.3d 968, 973 (5th Cir. 1994), c ert. denied, 514 U.S. 111 7

(1995). Of particular application here, as stated in W ainwright v.

Witt , 469 U.S. 412, 429 (1985), a state trial judge’s decision to

strike a juror because of his views on capital punish ment is a

factual finding entitled to the presumption of correctness found in

28 U.S.C. § 2254(d). (All references in this opinion to § 2254(d)

are to that secti on as it existed prior to amendment by AEDPA).

However, “[e]ight exceptions exist to this presumption. One of the

exceptions is if the record does not fairly support the finding.

If the record as a whole does not fairly support the finding, the- 5 -

finding is not entitled to the presumption of correctness.” J ames

v. Whitley

, 39 F.3d 607, 609-10 (5th Cir. 1994), cert. denied, 514

U.S. 1069 (1995); see also Gilley v. Collins

, 968 F .2d 465, 469

(5th Cir. 1992) (although findings of fact are entitled to a

presump tion of correctness, this court is not bound by those

findings if the state finding is not fairly supported by the

record).

It go es without saying that we review a district court’s

fi ndings of fact for clear error; issues of law, d e novo

. E.g.,

Mann

, 41 F.3d at 973 (citing Barnard v. Collins

, 958 F.2d 634, 636

(5th Cir. 1992), c ert. denied

, 113 S. Ct. 990 (1993)). And,

needless to say, “[a] finding of fact made by the district court is

clearly erroneous only when the rev iewing court, after reviewing

the entire evidence, is left with the definite and firm conviction

that a mistake has been committed.” Williams v. Collins , 16 F.3d

626, 630 (5th Cir.), cert. denied, 512 U.S. 1289 (1994).

A.

In asserting that the district court erred in according a

presumpti on of correctness to the trial court’s findings in

excluding Goodson, Farris contends that, instead, the presumption

should be applied to Riley v. State, which overruled Farris v.

State on the issue of whether Goodson was properly exc luded. He

maintains also that Goodson’s exclusion was based on an application- 6 -

of an improper legal standard; and that the decision to exclude her

was without support in the record.

On direct appeal, in affirming Farris’ conviction and

sentence, the Texas Court of Criminal Appeals rejected the

contentio n that Goodson was excluded improperly because of her

capital punishment views:

[W]e find Goodson established, via her juror

questionnaire form and later upon examination,

that she could not impose the death penalty

under any circumstances. She also stated that

she would not “deliberately” find appellant

“not guilty” because of her opposition to the

death penalty. On the more critical issue of

the three questions at punishment, Art.

37.071(b), however, Goodson vacillated.

Pursuant to questioning by the State, defense

counsel, and the trial judge, Goodson stated,

among other things, she was opposed to capital

punishment under any circumstances, that she

could answer affirmatively the special issues

if the facts warrante d

, but that it would

violate her conscience to vote ye s on the

issu e s “in the proper case and the proper

evidence”. Goodson understood her

responsibilities as a juror and said she would

not violate her oath, but she also stated she

did not agree with the law and if she were

sele cted as a juror she would have no choice

but to follow it.

....

On the basis of these facts, we cannot

say the trial judge abused his discretion in

granting the State’s challenge for cause to

venire-person Goodson. When presented with a

prospective juror who has conflicting feelings

regarding the law, the juror’s oath, and

cap ital punishment, the trial judge is in a

unique position to determine whether those

same feelings would prevent or substantially

impair the venire-person’s performance as a

juror.- 7 -

Farris , 819 S.W.2d at 501.

As noted , approximately three years later, however, while

Farris’ federal habeas petitio n was pending, the Texas Court of

Criminal Appeals, in Riley v. State , revisited Farris . In Riley

,

the court, in its original opinion, had held that a prospective

juror in Riley’s capital murder trial was excused improperly, based

solely on her opposition to the death penalty. Riley , 889 S.W.2d

at 296-97. On rehearing, the court held that its opinion was

inconsistent with its holding on this issue in Farris , due to the

fact that the two cases were factually indistinguishable. As a

result, the Riley court overruled Farris on that issue: “ F arris

was wrongly decided, Wainwright v. Witt notwithstanding, and [we]

hereby expressly overrule it.” R iley

, 889 S.W.2d at 298. The

R iley court concluded that Goodson was not a vacillating

venireperson, as had be en concluded in F arris

, stating that,

despite her objection to capital punishment, Goodson “insisted she

would not violate her oath to render a true verdict, and

unambiguously and unwaveringly insisted she wo uld answer the

special issues honestly and in accordance with the evidence.”

Riley

, 889 S.W.2d at 300. The court held that Goodson had been

improperly excluded due t o her conflicting feelings regarding

capital punishment, despite the fact that she stated she could

answer the special issues honestly. Id.- 8 -

Because Farris contends that Goodson was improperly excluded,

we excerpt her voire dire at considerable length:

[BY THE STATE] Q. I notice an answer to your

questionnaire

... in response to the following

question, with reference to the death penalty

which of the following statements would best

represent your feelings, circle one, and you

circled No. 3 and with your signature on the

next page or two pages later, I could never

under any circumstances return a verdict which

assessed the death p e nalty. Is that your

opinion?

[BY GOODSON] A. Yes, that’s the way I feel.

Q. I beg your pardon?

A. That’s the way I feel, yes.

Q. I presume then that you are opposed to

capital punishment?

A. Yes I am.

Q. And I will repeat that question one more

time and this is important for the record in

this case. Could you, under any circumstances

as a juror in a criminal case, vote to return

the death penalty?

A. No.

Next, counsel for Farris exp lained in detail to Goodson the

procedure for the penalty phase of the trial, including the

submission of the special questions , and the role of the jury at

that phase of the trial.

[BY DEFENSE C OUNSEL] Q

. The question that I

have of you is whether or not your feeling

about the death penalty is so strong and is so

fixed that you feel that you would not be able

to answer these factual questions fairly and- 9 - truly and honestly without regard for the

consequences. That was a long question.

[BY GOODSON] A. You are asking me if I feel

strongly enough about the death penalty that I

would not

-- that I would say not guilty, so I

wouldn’t have to say it; is that what you are

saying.

Q. Yes, ma’am. Regardless of what the facts

were presented by the State of Texas.

A. No, I would not do that.

Q. You would make up

- - we are taking this

in two stages.

A. I would try to do the best that I thought

the reasonable outcome should be.

Q. Your oath of office as a juror would

require you to render a true verdict, and what

that means, I can tell you, is to render a

verdict based upon the evidence, based upon

the facts, not based on what you want to have

happen. So at the first stage of the trial

you see no difficulty and you co uld do that?

Difficulty is not the right word. You could

do that?

A. I would not like to.

Q. Okay.

A. But on the o ther hand, if I were to be

placed in that position --

Q. Uh-huh.

A. -- then I would do the best I could.

Counsel for Farris continued questioning Goodson, once again

explaining in detail the procedures of the penalty phase of the

proceedings, including the submission of the special questions.- 10 - [BY DEFENSE COUNSEL] Q. The law requires that

these questions be based on evidence that

you’ve heard, just as your guilty verdict has

to be based on the evidence and that stands to

reason. A trial should be more than guesswork

or speculation or w hat I think maybe [might]

have happened.

[BY GOODSON] A. Yes.

Q. All r ight. Does your feeling about the

death pe nalty -- and, you know, what the

consequences of yes answers would be and you

know what the consequences of no answers would

be -- Is your feeling about the death penalty

such that you do not feel that you could

fulfill the oath of office that you would have

to take and answer those questions 1, 2 and/or

3, if 3 were to be given to you, that you

could not answer those questions fairly and

truly and honestly just as your oath requires

you?

A. I can only tell you that I would do my

best. That I would not deliberately do

otherwise.

Q. Okay. That’s --

[BY THE COURT] Q. I did not hear. Would not

deliberately do what?

[BY GOODSON] A. I wouldn’t deliberately do

otherwise.

At this point, a dispute bet ween the prosecutor and defense

counsel over whether Goodson had clearly stated her views on

capital punishment resulted in a conference in the judge’s

chambers. Questioning then resumed by counsel for Farris:

[BY DEFENSE COUNSEL] Q. What I was about to

try

-- and I don’t know if being up here is

going to help at all. What we have got is we

have jurors who have to make the decisions

about the facts in the case. They have to- 11 - make those decisions based on the evidence and

what the law is trying to do by saying that a

juror must make those decisions b ased on the

facts, is trying t o keep the jurors from

jumping the gun, if you will, f rom going

around what the facts are ju st in order to

arrive at a certain outco me. Does that make

sense?

[BY GOODSON] A. Yes.

Q. So the law says this wouldn’t be proper

for the jurors just to say, well, I am a juror

and I get to write in a yes or no up here, but

because I want it to come out a certain way, I

am just going to disregard the facts; I am not

going to pay any attention to the evidence in

the case and in order to arrive at a ce rtain

outcome I will just answer the questions in a

certain way that I know is going to bring

about the outcome. The law says that we must

go through step-by-step; that the jurors must

answer the questions based upon the facts and

then the outcome is set out by the law and

falls on the Judge. I just want to make sure

we don’t have any misunderstanding.

A. You are asking me if I feel strongly

enough about the death penalty that if I think

he is guilty I am going to say, no, he is not

guilty so he doesn’t get the death pen alty?

You are asking me if I would do that?

Q. Yes, ma’am. That would be at the first

stage, yes, ma’am.

A. I would not deliberately.

Q. Now at the second stage -- see, your job

is not over at the first stage

-- At the first

stage we decide guilty or not guilty, and at

the second stage is when you see these

questions. The Judge [will] give you a set of

written instructions, and these questions

would be in those instruction[s] and the Judge

would tell you, answer questions either yes or

no, depending on the evidence that you’ve

h eard. And if you had heard enough evidence- 12 - to convince you beyond a reasonable doubt the

law would require you to answer the questions

yes. If you had not heard sufficient

evidence, the law would require you to answer

the questions no. Your obligation is to

follow the law at both stages of the trial,

and I am sure you can agree with that. Just

as you would not automatically vote not guilty

to keep somebody from getting the death

penalty because that would be contrary to your

oath, as I understood your earlier answer you

wouldn’t automatically vote no to these

questions to keep somebody from getting the

death penalty because that also would be

contrary to your oath. Have I misstated your

answer? If I have --

A. No, that’s sound like [sic] what I said.

Q. No one i s asking you to like or dislike

the death penalty. No one is asking you to

pu t yourself in the role of judge because

that’s not you r job. Your job as a juror

would be to answer the questions, the factual

questions, and I take it, regardless of your

feelings one way or another that you could do

that because that’s what your oath requires

you to do?

A. Yes. I wouldn’t want to; I wouldn’t like

to, but I would.

....

Q. Would you follow the law and would you be

able to, in fact, base your decisions upon the

facts of the case rather than personal opinion

or personal feelings recognizing that that’s

not the job of the juror? The job of the

juror is to base their decisions on the facts.

A. I would do the best I could.

At this juncture, the court questioned Goodson.

[BY THE COURT] Q. Mrs. Goodson, when you

filled out this questionnaire, was it your

intention to sign this No. 3 which s aid, “I- 13 - could never under any circumstances return a

verdict which assessed the death penalty?” Is

that what you said?

[BY GOODSON] A. Yes.

Q. All right. Now, as Counsel has told you,

if the Defendant is found guilty you will then

be asked to answer these three questi ons yes

or no. If you answer those two or three

questions yes, depending on whether the third

one is used, you wil l be assessing the death

penalty. Now, which is proper? That you

could not under any circumstances, as you said

here, or can you follow the instructions of

the Cou rt and answer these questions yes in

the proper case? Which is it? Nobody is mad

at you. We just need to know.

A. The problem I have with that question is

that I am not sure that the way it’s worded

says what it means.

Q. What are you referring to?

A. It says under any circumstances.

[ BY DEFENSE COUNSEL] Q

. Judge, is this the

complete questionnaire? Are you talking about

the whole questionnaire?

[BY GOODSON] A. Yes. It says, would I under

any circumstances return the death penalty.

That’s what that says and I said no. Okay. I

didn’t understand what that was asking me.

What I understood was if, indeed, that he was

found guilty then we were to say, yes, we want

the death penalty and would I do that. That’s

what I understood. I did not understand that

I would be required to come here and a nswer

questions and decide what I felt was right or

not, and that in saying that I thought he was

guilty then I would be, in fact, saying that I

was for the death penalty.

[BY THE COURT] Q. All right. Now, well, it

still comes back to a situation where the jury

might be asked to assess punishment in this

case. They do not assess punishment as it is- 14 - done in other t ype cases, but they are asked

to answer those three questions either yes or

no, and I think you have surmised from talking

to Counsel for each side that if you vote yes

to 1, 2 and/or 3 you will have voted to assess

the death penalty. Now could you, in a proper

case, if the facts warranted, do that?

[BY GOODSON] A. I could. I wouldn’t want to.

I wouldn’t want to, but I would.

Q. Would it violate your conscience to vote

yes in t he proper case and the proper

evidence?

A. Yes, it would.

Apparently, (and understandably) still unclear as to Goodson’s

views, questioning resumed by counsel for Farris.

[BY DEFENSE COUNSEL] Q. Let me ask you, Mrs.

Goodson, this: Mrs. Goodson, you could follow

the l aw, is that what I understood your

answers to be; is that correct? That you

don’t like being placed in this position and

you wouldn’t want to do it, but with the full

explanation, and I am not talking a bout that

very brief question that was asked on t h e

questionn aire because as you can see by that

question it really didn’t tell you what the

procedure is. It really didn’t tell you what

all you may be faced with.

[BY GOODSON] A. I feel like if I were told

that I had to come to the Court and had to

listen to the facts and if I listened to those

facts and felt like he was guilty then I would

not deliberately say, no, he is not. I would

not want to be in that position. I would hate

very badly to be in that position, but I don’t

feel like I could do otherwise t han what the

law says I have to do.

Q. Yo u would follow the law? You wouldn’t

violate your oath of office?

A. I would not, no.- 15 - Q. By the same token, at the secon d stage

you would not violate your oath and

automatically vote one way or ano ther? Here

again, you would base your answe r s on the

facts?

A. Yes, I will.

Q. Without arguing with the Court or the

State’s counsel, we feel that Mrs. Goodson is

qualified and exactly fills the requirements

of the law and she should not be excused and

we object to excusing her.

[BY THE COURT] Each answer I get from her

still goes back to guilt or innocence. I

don’t think we have got over that point and I

would appreciate you working on that area.

....

[BY GOODSON] A. I don’t know what I can say

or maybe I am not understanding what you are

asking me, but I don’t feel like I can put it

any plainer or se e it any differently than I

already have.

In yet another attempt to clarify Goodson’s views, the

prosecution once again explained the bifurcated procedure.

[BY THE STATE] Q. And did you or did you not

circle this question, I could never under any

circumstances return a verdict which assessed

the deat h penalty, and you had four choices

and you chose that one?

A. Yes, I did.

....

Q. On this page you had the po ssibility of

answering four different questions, and I

refer to pag e 5 of this questionnaire, that

you have told and that you have signed and in

response to the following question with

referen ce to the death penalty, which of the- 16 - following statements would best represent your

fee lings, circle one. No. 1, I believe the

death penalty is appropriate in some cases.

You didn’t circle that one, did you?

A. No, I didn’t.

Q. No. 2, although I do not believe that the

death penalty should ever be involved so long

as the law provides for it I could assess if I

believed the facts warranted it, and you

didn’t circle that one, did you?

A. No, I didn’t.

Q. No. 3, I could never under any

circumstances return a verdict which assessed

the death penalty, but you did cir cle that

one, didn’t you?

A. Yes, I did.

Q. No. 4 , none of the above; you didn’t

circle that one, did you?

A. No, sir, I didn’t.

Q. Seated right there where you are, I asked

you a while ago are you oppos ed to capital

punishment?

A. Yes, I am.

....

Q. Did you or did you not answer my question

a while ago that you w ere opposed to capital

punishment?

A. Yes, I am.

Q. Is that your final answer?

A. I feel like I have no choice. I mean, I

am told that I have to come -- yes, I am told

I have to come to this jury and I have to

listen to the facts and if I listen to these

facts then I have to personally say if I

believe he is guilty or not. That’s my

responsibility. I have no choice, you know, I- 17 - really don’t want to do it and I don’t believe

in it and don’t want to do it, but if the

State of Texas tells me that I have to do it,

I have no choice.

Q. Nobo d y is telling you you have to do

anything. That’s the reason we have this

legal system we have. Nobody is about to ...

tell you to do anything.

A. If I am chosen, if I have to come to this

jury then I don’t have a choice.

Q. You certainly do have a choice. You get

a vote.

A. I can say the man is guilty. Well, I

believe there is other ways of dea ling with

that person being guilty than the death

penalty.

Q. A ll right. Let me ask you this: In the

State of Texas the law provides that in some

cases for a jury to return a verdict of death

that’s our law, and there is a lot of law that

I don’t agree with. And if you don’t agree

with this law, that’s all we are asking you.

If you will just tell us, you can go home.

A. Pardon me for saying so, but I have said

so for several times that I don’t agree with

it.

After hearing argument from counsel for Farris as to why

Goodson should not be stricken, the court, pursuant to the

following finding, excused Goodson:

The Court having observed the demeanor of the

juror and her answers to various questions,

finds her views on capital punishment would

prevent or substantially impair the

performance of her duti es as a juror in

accordance with her instructions and oath and

she is, therefore, discharged and excused from

the case.2 Pre-AEDPA 2254(d) provided:

In any proceeding instituted in a Federal

court by an application for a writ of habeas

corpus by a person in custody pursuant to the

judgment of a State court, a determination

after a hearing on the merits of a factual

issue, made by a State court of competent

jurisdiction in a proceeding to which the

applicant for the writ and the State or an

officer or agent thereof were parties,

evidenced by a written finding, written

opinion, or other reliable and adequate

written indicia, shall presumed to be correct,

unless the applicant shall establish or it

shall otherwise appear, or the respondent

shall admit—

( 1 ) that the me rits of the

factual dispute were not resolved in

the State court hearing;

( 2 ) that the factfinding

procedure employed by the State

court was not adequate to afford a

full and fair hearing;

( 3 ) that the material facts

were not adequately developed at the

State court hearing;

( 4 ) that the State court

lacked jurisdiction of the su bject

- 18 - (Emphasis added.)

As noted, “in a p roceeding under [pre-AEDPA] 28 U.S.C. §

2254(d), the trial court’s factual determination that a potential

juror is disqualified is entitled to a presumption of correctness,

absent one of the specifically enumerated exceptions contained [in

that section].” E ll is v. Lynaugh , 873 F.2d 830, 833 (5th Cir.),

cert. denied, 493 U.S. 970 (1989). 2 Such a deferential standard ofmatter or over the person of the

applicant in the State court

proceeding;

( 5 ) that the applicant was an

indigent and the State court, in

deprivation of his constitutional

right, failed to appoint counsel to

represent him in the State court

proceeding;

( 6 ) that the applicant did not

receive a full, fair, and adequate

hearing in the State co urt

proceeding; or

( 7 ) that the applicant was

otherwise denied due process of law

in the State court proceeding;

( 8 ) or unless that part of the

record of the State court proceeding

in which the determination of such

factual issue was made

... is

produced as provided for

hereinafter, and the Federal court

on a consideration of such part of

the record as a whole concludes that

such factual determination is not

fairly supported by the record....

- 19 - review, obviously, is especially appropriate for a finding of juror

bias because it “is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge’s province.”

Witt , 469 U.S. at 428; see also O’Bryan v. Estelle , 714 F.2d 365,

392 (5th Cir. 1983), cert. de nied, 4 65 U.S. 1013 (1984)

(Higginbotham, J., concurring specially) (discussing the

justification for the presumption of correctness afforded the trial

court’s finding of juror bias).- 20 - 1.

But, as noted, Farris contends that this pre-AEDPA § 2254(d)

presumption must be applied, instead, to the Texas Court of

Criminal Appeals’ ruling in Riley that Goodson “unambiguously and

unwaveringly insi sted that she would answer the special issues

honestly and in accordance with the evidence”; and that, therefore,

she was not a vacillating juror, and thus, was not properly

excludable for cause. We disagree.

Initially, we no te that § 2254(d) provides that the

presumption of correctness applies to a proceeding in which the

Applicant (Farris) and the State or its agent were parties.

Nevertheless, Farris contends that “[t]here is nothing ... that

stand s for the proposition that § 2254(d)’s reference to the

participation of the Applicant and the State is an absolute

prerequisite to [§ 2254(d)’s] application.” But, the following

language from § 2254(d) is just the opposite: “After a hearing on

the merits of a factual issue, made by a state court of competent

jurisdiction in a proceeding to which the applicant for the writ

and the State

... were parties”. (Emphasis added.) Farris was not

a party to Riley

, which was rendered nearly three years after

Farris

.

Moreover, although it is true that the § 2254(d) presumption

may apply to state trial or appellate courts, see Sumner v. Mata

,

449 U.S. 539, 547 (1981), that presumption is reserved for factual- 21 -

determinations

. R iley

, in overruling Farr is , did not make a

finding of fact regarding Goodson’s exclusion. Rather, the court

recharacterized Goodson as a non-vacillating venireperson, and then

ruled that she was improperly excluded on the basis of her

conflicting feelings regar ding capital punishment. R iley

, 889

S.W.2d at 300. Along this line, we fail to understand how, while

deciding Riley

, the Texas Court of Criminal Appeals can, for §

2254(d) purposes, make a factual finding applicable to Farris.

Again, as discussed, the finding of juror bias is based upon

the determination by the trial judge , who, alone among the judges

involved at var ious stages, personally observes the demeanor and

credibility of the prospective juror during voir dire. See Witt

,

469 U.S. at 428. Obviously, the R iley court d id not observe

venireperson Goodson during voir dire, and, as a result, could not

judge her demeanor and credibility. I n short, the ruling in Riley

,

with respect to Farris

, is a ruling on a question of law; it is not

a factual determinat ion to which the presumption of correctness

afforded by § 2254(d) attaches.

2.

Second, Farris contends that the state trial court is not

entitled to the presumption of correctness, because it applied an

erroneous legal standard in excluding Goodson. The law is well

settled regarding when a prospective juror may be excluded for

cause because of her views on the death penalty.- 22 -

“[O]pposition to capital punishment, in itsel f, is not

sufficient cause for a judge to exclude a member of the jury pool.”

Fuller v. Johnson

, 114 F.3d 491, 500 (5th Cir.), cert. denied, 118

S. Ct. 399 (1997) (citi ng Lockhart v. McCree , 476 U.S. 162, 176

(1986)). Instead, the “standard 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’”. Witt , 469 U.S. at 424; see also Mann, 41 F.3d at 980.

In order, using the appropriate standard, to exclude a

prospective juror for cause, it is not necessary “that a juror’s

bias be proved with ‘unmistakable clarity’”. W itt

, 469 U.S. at

424. As the Court noted, “determination 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 cannot be asked enough

questions to reach the point where their bias has been made

‘unmistakably clear’”. Id. at 424-25.

“Even if the record is silent as to the standard employed by

a state trial judge

... he is presumed to have applied the correct

standard.” W icker v. McCotter

, 783 F.2d 487, 493 (5th Cir.), cert.

denied, 478 U.S. 1010 (1986). But, here, we are not faced with a

situation where the trial judge failed to state the standard used

to exclude Goodson; rather, as quoted supra

, the trial judge, in

excluding her, stated the standard from Witt

.- 23 - 3.

Lastly, Farris contends there is no support in the record for

the trial court’s determination that Goodson would be substantially

impaired in her ability to perform h er duties as a juror. The

trial judge observed Goodson’s demeanor and heard her answers

during voir dire. Goodson underwent extensive questioning from not

only the prosecution and defense, but also the judge, regarding her

views on capital punishment and her ability to properly function as

a juror.

As reflected in the earlier-quoted voir dire, Goodson stated

that she was opposed to capital punishment and that under no

circumstances could she vote to return the death penalty. Also,

she stated that she would do her best to answer the special issues

honestly, and that, despite what the evidence revealed, it would

violate her conscience to assess the death penalty in a case where,

based on the evidence, it was warranted. The trial judge, at the

conclusion of the lengthy questioning and conflicti ng or

inconsistent answers, applied the Witt standard and ruled that

Goodson’s “views on capital punishmen t would prevent or

substantially impair the performance of her duties as a juror in

accordance with her oath and instructions.”

We agree with the district court that “[t]he testimony of Ms.

Goodson presents the textbook case for when a reviewing Court,

pursuant to a § 2254 revi ew, should defer to the judgment of the- 24 -

trial judge regarding the credibility and demeanor of a potential

juror.” Farris

, 967 F. Supp. at 208. This case vividly

demonstrates that, although “mere emotional opposition to capital

punishment alone is insufficient cause for juror exclusion, it is

equally clear that emotional opposition may rise to the level where

it interferes with a potential juror’s ability to sit as a

dispassionate and objective arbiter of justice.” M ann

, 41 F.3d at

981.

In sum, Farris has failed to overcome the presu mption of

correctness afforded by § 2254(d) to the trial judge’s decision to

exclude Goodson. Again, the “credibility determinations

[concerning such a decision] are more appropriately resolved under

the w atchful eye of the trial judge than by an appellate court

staring at a cold record, which is precisley why they are accorded

a presumption of correctness under 2254(d).” Id. at 982.

B.

The other issue raised by Farris is that his court appointed

counsel, Jack Strickland and Bill Lane, labored under an actual

conflict of interest that adversley affected their performance, due

to the fact that Larry Moore, the original lead prosecutor assigned

t o Farris’ case, resigned from the Tarrant County Distric t

Attorney’s Office prior to trial, and became professionally

associated with Strickland and Lane during their representation of

Farris. He asserts that his counsel could not continue to- 25 -

represent him and, at the same time, pursue allegations that Moore

was aware of improprieties in the investigation of Farris’ case.

Along this line, Farris asserts that the district court erred

in concluding that he had waived any right to a conflict of

interest; that it improperly held that the conflict did not have an

adverse effect on counsel’s perform ance; and that it applied an

erroneous legal standard in evaluating the conflict claim. (As

discussed below, because we agree that Farris waived this conflictclaim, we do not reach the other two subissues.)

The Sixth Amendment right to counsel includes, of course, the

right to conflict-free-counsel. W ood v. Georgia

, 450 U.S. 261, 271

(1981). However, “like the right to counsel of any kind, the right

to conflict-free counsel can be waived.” United States v. Greig

,

967 F.2d 1018, 1021 (5th Cir. 1992). Therefore, we first address

the validity of the waiver executed by Farris; obviously, “the

finding of a waiver obviates a determination of whether there was

an actual conflict.” U nited States v. Plewniak

, 947 F.2d 1284,

1287 n.1 (5th Cir. 1991), cert. denied, 502 U.S. 1120 (1992).

Farris contends that his waiver was invalid bec ause the

affadavit he executed in order to accomplish the waiver contained

factual inaccuracies; that it was based on counsel’s opinion that

the allegations against Moore were meritless; and that the trial

court failed to inquire into the effectiveness of his waiver.- 26 -

The law in our circuit is well established regarding the

requirements for a valid waiver of the Sixth Amendment right to

conflict-free counsel: “(1) that the defendant be aware that a

possible conflict of interest exists; (2) that the defendant

realize the consequences to his defense tha t continuing with

conflicted counsel would have; and (3) that the defendant be aware

of his right to obtain other counsel.” Crank v. Collins , 19 F.3d

172, 176 (5th Cir.), cert. denied, 512 U.S. 1214 (1994) (citing

United States v. Garcia , 517 F.2d 272, 278 (5th Cir. 1975)).

Farris executed his affidavit on 18 February 1986, waiving any

potential conflict o f interest arising from his court appointed

counsel’s professional relationship with Moore. In the affidavit,

Farris states: that his counsel informed him of that relationship,

which consisted of an office sharing arrangement; that there

existed the potential for a conflict of interest; that counsel had

agreed not to discuss Farris’ case with Moore; that he (Farris) had

been made aware of the allegation i mplicating Moore in

improprieties regarding the destruction of evidence; and that his

counsel informed Farris that, in their opinion, the allegation was

meritless. The affidavit stated also that Farris was aware of his

options: (1) to relieve S trickland and Lane of their

representation, have new counsel appointed, and pursue the claims

against Moore; (2) to direct Strickland and Moore to pursue the

allegations against Moore, which would result in counsel seeking- 27 -

permission from the court to withdraw; and (3) to agree with

Strickland and Moore that the allegations against Moore were

meritless and should not be pursued, in which event they would

remain as his counsel and he would agree that there was no conflict

between Strickland, Lane, and Farris. In the affidavit, Farris

stated, that, after carefully reviewing these options, he had

decided to choose the third: forego pursuing the allegations

against Moore, and continue to be represented by Strickland and

Lane.

Moreover, Farris had consulted with Art Brender, an attorney

appointed by the trial judge, about his affadavit and the decision

not to pursue the allegations regarding Moore. Farris’ affidavit

concluded with his stating that he had made his decision “freely,

voluntarily, and intelligently”.

Along this line, in a proceeding prior to his state trial,

Farris testified that he had executed the affidavit, and understood

the consequences. He testified also about his one hour meeting with

B render, and that they had discussed the ramifications of the

waiver-affidavit.

A state court finding that a defendant validly waived his

right to conflict-free-counsel is entitled to the § 2254(d)

presumption of correctness. C ran k , 19 F.3d at 176. Again, the

presumption applies, unless o ne of the eight earlier-quoted

exceptions exist.- 28 -

The state habeas court (as noted, the same judge presided at

Farris’ trial and at the habeas proceeding) reviewed Farris’

waiver-affidavit and concluded t hat he had “waived his right to

complain tha t ... Moore’s business relationship with [] defense

counsel posed a conflict of interest.” The state habeas court

concluded further that the waiver was “knowing and voluntary”, that

the affidavit demonstrated that Farris realized the consequences of

Strickland and Lane continuing their re p resentation, and that

Farris was aware of his right to obtain other counsel.

“This Court has held on many occasions that a state court

‘paper hearing’ is sufficient to allow a federal court to invoke

the § 2254(d) presumption of correct ness to the state court’s

findings when the state habeas judge also presided over the

petitioner’s trial.” B aldree v. Johnson

, 99 F.3d 659, 663 (5th

Cir. 1996), cert. denied, 117 S. Ct. 1489 (1997) (citing Perillo v.

Johnson

, 79 F.3d 441, 446 (5th Cir. 1996); Vuong v. Scott

, 62 F.3d

673, 683-84 (5th Cir.), cert. denied, 516 U.S. 1005 (1995)). The

state trial judge observed Farris as he testified about his waiveraffidavit, and, indeed, appointed counsel so that Farris could,

with the advice of independent counsel, decide whether to waive any

conflict of interest. That same judge examined the waiveraffidavit during the state habeas proceeding.

As noted, in this regard, Farris maintains that his affidavit

contained a factual inaccuracy, which invalidates any waiver of a- 29 -

potential conflict of interest. The affidavit states that Farris

was told that one Sheriff’s Deputy had accused Moore of being

involved in the destruction of evidence. Farris contends that it

was actually two deputies, and that this difference is significant

because “corroborated testimony always carries more weight than the

uncorroborated testimony of a singl e witness”. However, Farris

failed to produce affidavits, or any supporting documents,

regarding the testimony of either deputy.

Along this line, at the state habeas proceeding, the trial

court, in its findings of fact regarding the allegation that Moore

was involved in the destruction of evidence, stated that Moore had

heard that two deputies had alleged that they had told him (Moore)

about the destruction of evidence. The trial court also noted that

Farris’ affidavit claimed that one deputy made allegations against

Moore. Thus, the state habeas court, in concluding that Farris

validly waived any potential conflict of interest, appears to have

considered the fact that there was a factual inconsistency in the

affid avit. (In the state habeas proceeding, Farris did not

specifically raise the subissue that a factual inaccuracy

invalidated his waiver; but, as noted, the state court, in the

findings of fact, seems to note the inconsistency, yet still

concluded that the waiver was valid. Farris did raise the subissue

in his federal habeas proceeding.)

Again, Farris did not produce the affidavits or any supporting

documents of either one of the deputies. He has failed to- 30 -

demonstrate how the purported factual inaccuracy, if any, in his

affidavit, invalidated his waiver.

In sum, in executing the waiver, Farris was aware that a

p otential for conflict existed, was aware of the consequences of

continuing to be represented by Strickland and Lane, and was aware

of his right to obtain other counsel. He has failed again to

overcome the § 2254(d) presumption of correctness.

III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.