UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 89-3831 and 90-3855

THOMAS LEE WARD,

Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden, Louisiana

State Penitentiary, Angola, Louisiana,

ET AL.,

Respondents-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

(May 17, 1994)

Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.

POLITZ, Chief Judge:

Thoma s Lee Ward, convicted of first degree murder and

sentenced to death, appeals the denial of his petition for a writ

of habeas corpus. We affirm.

Background

Upon his release from a California jail Ward boarded a bus for

New Orleans. He drank vodka and shot cocaine throughout the

three-day trip and slept little, if at all. Arriving late in the

evening of June 22, 1983, he went directly to the Ha gan Street

address of Lydia and John Spencer, where his wife, Linda, and their2

children were liv ing. Lydia Spencer was Linda's mother.

Explaining that he was on his way to New York and wanted to see his

children, Ward was admitted. His wife informed him that she would

not accompany him. Ward departed. He testified that he spent the

night drinkin g vodka and beer and injecting cocaine. Around

5:30 a.m., he returned to the Hagan Street house, asking to see his

children again. Once again he was admitted. According to his

wife, Ward left an address and phone number at which he could be

reached in New York and then walked into the Spencers' bedroom.

Pulling a gun, he said, "John, I'm sorry I have to shoot you," and

fired once at close r ange, killing John Spencer. He then shot

Lydia Spencer five times as she tried to escape. She survived.

A jury convicted Ward of the first degree murder of John

Spencer, La. R.S. 14:30. At the penalty phase of the trial, Linda

Ward testified that she first had sexual relations with Ward when

she was ten years old. She further testified that she saw him have

sexual relations with her sister Ramona, aged 14 at the time, and

their daughter Tasha, then aged nine. Ernest Scott, Linda's

b rother, testified to witnessing a sexual encounter between Ward

and his sister Lorraine when she was seven. The prosecution

introduced a 1975 complaint c harging sexual relations with the

minor Linda and two of her minor sisters; War d pleaded guilty to

having relations with Linda. The prosecution also offered a 1983

complaint charging Ward with sexual abuse of his daug hter Tasha;

Ward pleaded guilty to the misdemeanor of cruelty to a minor.

The jury found two statutory aggravating factors and sentenced1 State v. Ward

, 483 So.2d 578 (La.), c ert

. denied

, 479 U.S.

871 (1986).

2 492 U.S. 302 (1989).

3 Ward to death under Article 905.3 of the Louisiana Code of Criminal

Procedure. The conviction and sentence were affirmed on appeal and

the Supreme Court denied certiorari. 1

Effor ts to obtain post-conviction relief began. The trial

court denied Ward's first petition but the Louisiana Supreme Court

remanded for an evidentiary hearing, which was conducted over the

course of three days. The trial court again denied relief and the

Louisiana Supreme Court denied Ward's application for supervisory

writs. Ward filed a federal habeas petition under 28 U.S.C. § 2254

which was dismissed for failure to exhaust state remedies on a

mental retardation claim. Repairing to state court for another

application for post-conviction relief, Ward obtained a second

evidentiary hearing at the direction of the Louisiana Supreme

Court. Again the trial court denied the petition. In the wake of

the Supreme Court's decision in Penry v. Lynaugh

, 2 the Louisiana

Supreme Court denied the application for supervisory writs. Ward

then returned to federal court with the instant habeas pe tition.

The district co urt denied relief; Ward timely appealed and we

granted a certificate of probable cause. While his appeal was

p ending, Ward filed a Fed.R.Civ.P. 60(b) motion seeking the

admission of newly discovered evidence. The district court denied

that motion but granted a certificate of probable cause. Ward

timely appealed that ruling and we consolidated the two appeals for3 498 U.S. 39 (1990).

4 Kyles v. Whitley

, Nos. 92-3310, 92-3542 (5th Cir. Aug . 7,

1992) (unpublished) (a habeas petitioner may not use Rule 60(b) to

raise new constitutional claims after judgment).

4 disposition.

Analysis

At the threshold, Ward asks us to remand his case to district

court so that he might amend his petition to add a claim that the

"reasonable doubt" instruction given to his jury was invalid under

Cage v. Louisiana

. 3 We stayed disposition of his appeal pending

exhaustion of that issue in the Louisiana courts, which denied him

relief. We deny the motion to remand to the district court. A

habeas petitioner may not add new constitutional clai ms to a

petition after the district court has entered judgment. 4 We

express no opinion whatever on the Cage issue.

Ward seeks habeas relief on six grounds: (1) the state

withheld Brady material; (2) he did not receive effective

assistance of counsel; (3) the prosecutor made improper argument;

(4) one of the two aggravating circumstances found by the jury has

been invalidated; (5) the prosecution eliminated African-American

jurors because of their race; and (6) racial discr imination

in fected the selection of the jury pool and venire. We address

these contentions seriatim

.

1. Brady

material

.

W ard contends that his due process rights under B rady v.5 373 U.S. 83 (1963); see also Giglio v. Uni ted States , 405

U.S. 150 (1972).

6 United States v. Bagley , 473 U.S. 667 (1985).

7 La. R.S. 14:31; State v. Tompkins

, 403 So.2d 644 (La. 1981);

State v. Johnson , 613 So.2d 746 (La.App. 1993).

5 Maryland 5 were violated by the prosecution's failure to produce

police documents tending to show that he killed John Spencer and

shot Lydia Spencer under the emotional stress of an argument about

whether his wife and children would accompany him to New York.

These documents, he maintains, contradict ed testimony by Lydia

Spencer, his wife Linda, and Ernest Scott that no such argument

occurred and corroborated his testimony in the penalty phase.

To succeed on a Brady claim the petitioner must show, inter

alia , a reasonable probability that the suppressed material would

have changed the outcome of the proceedings. 6 Ward has not done

so. The police reports reflect that Ward argued with the Spencers

when he returned to the Hagan Street residence on the morning of

June 23 and that he believed they were preventing a reconciliation

with his wife. That is not sufficient provocation to cause a

reasonable person to kill in the heat of passion, as required for

a responsive verdict of manslaughter. 7 Nor would the documents

have affected the sentencing determination, even if they had

convinced the j ury to believe Ward's testimony at the penalty

phase. Ward testified that he was upset by his wife's refusal to

accompany him because that meant the children would stay behind as

well. "Something snapped," he stated, when John Spencer said that

Linda "was doing all right" in New Orleans. The prospect that the8 Strickland v. Washington

, 466 U.S. 668 (1984); S harp v.

Puckett , 930 F.2d 450 (5th Cir. 1991).

9 Kimmelman v. Morrison , 477 U.S. 365 (1986).

6 jury might have found reduced culpability because of John Spencer's

support of hi s step-daughter's decision not to accompany her

husband to New York is remo te at best. There is no reasonable

possibility that the jury would have reached a different result at

either phase of the trial had the police documents been produced.

Ward also asserts a B rady violation in connection wit h

possibly missing portions of the prosecutor's files sought in

connection with post-conviction proceedings. He has not shown that

any of these documents co ntained B rady material nor a reasonable

probability that they were outcome-determinative. The prosecutor

w as uncertain what portion of the file, if any, was missin g and

merely speculated that th e file was incomplete because it was

relatively thin. This assignment of error is without merit.

2. Ineffective assistance of counsel

.

Ward asserts multip le ways in which his trial counsel

allegedly failed to provide adequate representation. To prevail on

a claim of ineffective assistance, he must show that (1) counsel's

performance was so deficient as to fall below an objective standard

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

but for the u nprofessional errors, the result of the proceeding

would have been different. 8 Ward has succeeded on neither prong.

Cou nsel's overall performance 9 was not "outside the wide range of10 Strickland , 466 U.S. at 690.

11 See State v. Brooks , 541 So.2d 801 (La. 1989).

7 professionally competent assistance" 10 and his errors, viewed

separately and cumulatively, did not render the result of either

the guilt or penalty phase unreliable.

At th e heart of the ineffectiveness complaint is counsel's

failure to present evidence of Ward's good character at the penalty

phase. Counsel testified at the state post-conviction hearing that

this omission was a matter of trial strategy. During his initial

investigation of Ward's background counsel discovered the sexual

abuse of the minors. While it was settled law that those instances

of sexual misconduct for which Ward had been convicted were

admissible at the penalty phase of the trial, d efense counsel

believed the law unsettled as to whether evidence of unadjudicated

incidents was admissible. By bringing in good character evidence

defense counsel feared that he would open the door to such

evidence. He therefore limited his case at the penalty phase to

the presentation of a report of a psychologist who evaluated Ward

in California, which could not be cross-examined, and a 1965 order

ob tained by Ward's previous wife. Ward unexpectedly decided to

testify, changing the dynamics of the defense.

Louisiana law was unsettled as to the admissibili ty of

unadjudicated acts of misconduct at the time of Ward's trial in

August 1984. 11 Ward argues, however, that once the trial court

overruled his objection to the admission of bad acts evidence, his

trial attorney could have introduced good character e vidence1 2 21 C. Wright and K. Graham, Jr., F ederal Practice and

Procedure: Evidence , § 5039 at 199-200 (1977 and 1994 Supp.); s ee

also King v. Puckett , 1 F.3d 280 (5th Cir. 1993).

8 without waiving his objection. That argument is misplaced. The

issue is not waiver of the ob jection but rather a removal of the

grounds for th e original objection. As explained by Professors

Wright and Graham:

It is important to distinguish . . . between action of

a party that is asserted to estop him from objecting and

action that makes admissible evidence that would

otherwise be inadmissible. For example, in a prosecution

for sale of heroin, the fact that the defendant's

mother-in-law died two years before the date of the sale

would be irrelevant. But if the defendant takes the

stand and testifies, by way of alibi, that at the time of

the crime he was taking tea with his mother-in-law,

evidence that she was then mouldering in th e grave is

admissible to impe ach him and to disprove the

alibi.

. . . What the defendant has done is to introduce

evidence that changes irrelevant evidence to relevant

evidence. 12

Trial counsel had objected to evidence of sexual molestation on the

grounds of relevance. Had he introduced good character evidence,

the objectionable evidence would have become relevant. We cannot

say that trial counsel's strategy, although ultimately

unsuccessful, was unsound.

Ward also charges that trial counsel did not adequately

inves tigate his case and therefore did not have sufficient

information to form a sound strategy. We find no evidence in the

habeas record that would have changed trial counsel's strategy had

it been garnered, or changed the outcome of the proceedings had it

been presented. Dr. Robert Guthrie, the California psychologist,

testified that Ward placed great importance on keeping his family1 3 Ward also complains of counsel's failure to contact Cecil

Travis, a wealthy friend. Counsel testified that he tried to

telephone Travis but the woman who answered the call would not talk

to him and his call was not returned. Travis died before the

habeas hearing.

9 together, had a good relationship with his children and p rovided

well for them. His examination of Ward's daughter indicated that

Ward had not molested her. Llewellyn Gedge, an attorney who

represented Ward in efforts to regain custody of his children from

the state, an d Dennis Burden, a friend, submitted affidavits

attesting to Ward's devotion as a parent; neither had observed

indications of child abuse. Ward's eldest son's affidavit declared

that he wo uld have testified that his father was a good parent.

Ward himself testified about his childhood in Long Island and his

w ork history, denying sexual relations with anyone but his wi fe.

We cannot conceive, as a matter o f law, how such testimony could

have outweighed the overwhelming eyewitness testimony of sexual

abuse. 13

Ward com plains of trial counsel's failure to obtain the

transcript of the trial of the 1975 sexual misconduct charges.

That transcript, Ward maintains, would have shown that Lydia

Spencer had suborned perjury, supporting his claimthat she

maliciously concocted the sexual abuse charges against him. Trial

counsel tried to obtain the transcript but was unable to do so for

lack of funds. Ward did not produce the transcript on collateral

review; the record before us contains no showing of prejudice.

Another aspect of Ward's failure-to-investigate complaint is

that defense counsel did not interview Lydia Spencer, Linda Ward,14 Strickland , 466 U.S. at 689.

10 or Ernest Scott prior to trial. Counsel testified that they had

moved and that he was unable to locate them. This impacted his

cross-examination. With no knowledge of how she would respond, he

asked Linda Ward whether she wanted Ward executed. Her response

was in the affirmative.

It obviously is preferred trial preparation that an attorney

or someone on his behalf interview witnesses before trial. We

cannot say, however, that defense counsel's unsuccessful efforts to

locate these three witnesses fell below prevail ing professional

norms to the point of constitutional implication. Utility and

telephone company records were reviewed without success. Funds

were limited and counsel's investigators could suggest no further

practical measures.

It is a basic rule of cross-examination: Never ask a question

for which you do not know the answer. Every experienced trial

lawyer realizes that that rule is honored more in the breach than

the observance. We do not perceive a reasonable possibility of a

different result but for defense counsel's blunder, given the

prosecution's evidence. "[T]he purpose of the effective assistance

guarantee of the Sixth Amendment is not to improve the quality of

legal representation, although that is a goal of considerable

importance to the legal system. The purpose is simply to ensure

that criminal defendants receive a fair trial." 14

Ward also criticizes his trial counsel for not interviewing

employees at Champs, the liquor store where he bought vodka and1 5 See Strickland

, 466 U.S. at 691 ("[C]ounsel ha s a duty to

make reasonable invest igations or to make a reasonable decision

that makes p articular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must

be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's judgments.").

11 beer after his first visit to the Hagan Street house; had he done

so, Charles Washington, a store clerk, attested that he would have

confirmed that Ward had purchased alcohol. Trial counsel decided

that a visit to Champs would be futile because Ward told him that

he had not seen anyone there that he knew. Further, he had found

Champs personnel singularly uncooperative in past efforts to elicit

information. Although another attorney might have decided

differently, we are not prepared to say that trial counsel's

decision not to investigate at Champs was unreasonable under these

circumstances. 15

Ward himself bears the blame for some of the deficiencies in

his defense. He criticizes his lawyer's failure to obtain a

toxicologist. The toxicologist whom his lawyer consulted, however,

withdrew at the eleventh hour, stating that he could not help.

Trial was continued for two weeks while counsel scrambled to find

another. Counsel finally located a forensic psychiatrist but Ward

refused to speak with him. Ward also faults his trial attorney for

failing to prepare him to testify. In the critical weeks preceding

trial, however, Ward grew increasingly hostile and ult i mately

refused to speak with trial counsel o r the lawyer who joined the

defense t eam shortly before trial. Ward gave no indication of a

change in this posture at trial; he sat as far as possible from12

counsel and rejected co unsel's advice to testify at the guilt

phase. Ward's decision to testify at the penalty phase was his

u nilateral last-minute choice. Finally, Ward complains that his

attorney committed the cardinal sin of not producing the evidence

that he promised in his opening statement. That failure was due in

large part to Ward's refusal to testify at the guilt phase.

Whatever the reason for Ward's refusal to cooperate, he cannot now

blame the consequences on his trial attorneys.

Finally, Ward cla ims ineffectiveness in the conduct of v oir

dire

, complaining that counsel did not request indi vidual

examination and did not ask "open-ended" questions. Again, while

these may be better trial practices, they are not mandated by the

sixth amendment; counsel's deviations did not place his performance

outside the wide range of professional com petence. Ward also

complains that his attorney did not rehabilitate "scrupled" jurors.

Counsel testified that it is his practice to take a "soft" approach

with potential jurors and preserve his objections for appeal. Ward

has shown no prejudice from this strategy.

3. Improper prosecutorial argument

.

Ward challenges multiple aspects of the prosecution's closing

argument. None of the assigned errors warrant issuance of the

Great Writ.

W ard maintains that the prosecutor urged the jury to impose

the death penalty partly as punishment for prior sexual offenses,

thereby subjecting him to double jeopardy. We do not so interpret

the challenged comments.1 6 Boyde v. California , 494 U.S. 370 (1990), quoting D onnelly

v. De Christoforo , 416 U.S. 637 (1974).

13 The prosecution closed its argument with the plea "Come back

with a proper penalty for this man and for his actions over the

last twenty to thirty years." That statement standing alone is

problematic but in rebuttal the prosecution explained further.

You giv e him life, he wins. You give him life and you

walk out of here and he wins, and I will tell you why.

Look at his criminal history. He should not only have

been sentenced to life imprisonment, he ought to be doing

about twenty life sentences and in the state of

Louisiana, not the revolving doors of California and

New York. In the state of Louisiana he would have gone

to jail for life imprisonment ten years ago the first

time he fooled with one of his children who was under age

twelve or one of those children who was under age twelve.

Life imprisonment, he would have gone for here. If you

add up all the times, all the crimes he has committed on

those children, he should be doing a thousand years right

now for all that, and what has he done? Nothing, he is

out, essentially he is out and he is facing this charge.

You give him life he wins, but what you are giving him is

what he deserved ten years ago, fifteen years ago, twenty

year ago when he was convicted of rape in New York.

That's not what he deserves now.

That was not an urging to execute Ward as punishment for his prior

offenses. The prosecution was contending that life imprisonment

would have been appropriate for Ward's prior violations, but the

murder called for a more severe punishm ent. We do not lightly

attribute an improper meaning to ambiguous prosecutorial comment. 16

The prosecution did not urge the jury to punish Ward a second time

for his p rior offenses; it sought what it considered appropriate

punishment for the offense at issue.

Next Ward contests the pr osecutor's references to John

Spencer's good character. The prosecution may argue the human cost1 7 Payne v. Tennessee

, 501 U.S. 808 (19 91); Black v. Collins

,

962 F.2d 394 (5th Cir.), cert

. denied , 112 S.Ct. 2983 (1992).

18 La. Code Crim. P. 905.5(e).

14 of the charged offense unless its statements are so inflammatory as

to deprive the defendant of a fundamentally fair tr ial. 1 7 The

p ortrayal of John Spencer as a good provider for his

step-daughter's children was not improper.

We agree with Ward's contention, however, that the

prosecutor's argument that intoxication was not a mitigating factor

was improper. Among the mitigating circumstances which Louisiana

juries must consider is impairment of a defendant's c apacity "to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law

. . . as a result of

. . .

intoxication." 18 Despite this legal requirement, the prosecution

argued:

[E]ven if he was high on cocaine and he had been drinking

booze, [defense counsel] says that because o f that,

that's mitigation. You shouldn't feel as badly towards

him because of that; that makes this better. Think of

the message you send to this community if you are going

to buy that theory and buy that line of nonsense. It

makes it pretty convenient that if I want to go kill

somebody the best thing for me to do is go out and get a pint of booze first, drink it down and then I can come to

Court and say I was drunk. Don't put me in the electric

chair because I had a pint of booze before I did it, or

I did a line of cocaine before I did it. That's

absolutely absurd. No one pinned him down and poured

booze down his throat, no one pinned him down and stuffed

cocaine up his nose, he did it to himself. Y'all

shouldn't feel bad about that, not one bit, not one bit.

There is a fine line between the argument that a statutory

mitigating circumstance merits no weight in the jury's ultimate

decision and the argument that the mitigating circumstance should1 9 Sawyer v. Whitley

, 945 F.2d 812 (5th Cir. 1991), aff'd , 112

S.Ct. 2514 (1992).

20 Cf

. Boyde

.

2 1 Bagley v. Collins

, 1 F.3d 378 (5th Cir. 1993); R ogers v.

Lynaugh , 848 F.2d 606 (5th Cir. 1988).

15 not be considered or is not mitigating. The former is permissible

under Louisiana law; 19 the latter is not. 20 The prosecution crossed

the line in making this argument.

An improper prosecutorial argument that does not implicate a

specific constitutional provision, however, is not cognizable on

collateral review unless the defendant shows an abridgment of due

process, that is, that the improper argument rendered the

proceeding fundamentally unfair. 21 Ward has not done so. The trial

court correctly instructed the jury that impairment of mental

capacity due to intox ication was a statutory mitigating factor.

The court also gave the jury the standard charge that statements by

the lawyers were not to be taken as evidence and that it was bound

to apply the law as given by the court. In light of the court's

charge it is reasonable to conclude that the jury viewed the

prosecutor's erroneous and excessive comments as no more than the

prosecutor's exhortation to accord that circumstance little or no

weight.

Finally, Ward complains that the pros e cutor violated his

privilege against self-incrimination by commenting during the

sentencing phase about his failure to testify at the guilt phase.

The offending comments were:22 Brecht v. Abrahamson , 113 S.Ct. 1710 (1993).

2 3 Article 905.3 of the Louisiana C ode of Criminal Procedure

provides: "A sentence of death shall not be imposed unless the

jury finds beyond a reasonable doubt that at least one statutory

aggravating circumstance exists and, after con sideration of any

mitigating circumstances, recommends that the sentence of death be

16 You know what ought to be the most offensive thing of all

this, you know what ought to infuriate you and I'm sure

it does, he's a stinking liar `cause he gets up here on

the witness sta nd [during the sentencing phase] and he

lies to you . He lies, he is not going to be a man and

get up here and say, alrig ht, you found me guilty. I

didn't testify at my trial because of that criminal

record that I knew would come out under cross examination

by the D.A., y'all know that's why he didn't take the

stand at the trial, `cause all that would have come out.

He doesn't say you found me guilty, I did it. Please,

don't sentence me to death. Please have mercy on me.

Does he do that? No, he gets up there and he is

indignant, he is a horrible man, and he is going to get

up there and he defies you to sentence him to death.

The prosecution's attempt to use Ward's election of his right not

to testify at the guilt phase of his trial to argue bad character

at the penalty phase was improper. That error warrants reversal on

collateral review only if it had a substantial and injurious effect

or influence on the outcome. 22 This it decidedly did not have. The

argument that Ward was a bad person deserving of death because he

did not inculpate himself before the jury pales beside the other

evidence of bad character, to-wit , his attempt to kill Lydia

Spencer after killing John Spencer and his sexual encounters with

the children in his family. We perceive no gain for the

prosecution in the prosecutor's improper comments in this instance.

4. Invalid aggravating circumstance

.

Louisiana law requires the jury t o find at least one

aggravating circumstance before it may consider the death penalty. 23imposed."

2 4 State v. David

, 468 So.2d 1126 (La. 1984), supplemented

, 468

So.2d 1133 (1985), cert

. denied , 476 U.S. 1130 (1986).

25 462 U.S. 862 (1983).

17 Ward's jury found two: (1) knowing creation of a risk of death or

great bodily harm to more tha n one person and (2) a significant

prior history of criminal activity. Before the disposition of

Ward's appeal the Louisiana Supreme Court invalidated the latter as

unconstitutionally vague. 24 Nevertheless, it affirmed Ward's

sentence, reasoning that one valid aggravating circumstance

supported the verdict and that the evidence offered to show

criminal history was otherwise admissible as proof of character.

Ward claims prejudice on the grounds that a second aggravating

factor was improperly on the scales when the jury chose between

life and death.

The Louisiana capital punishment statute does not direct the

jury to weigh aggravating against mitigating circumstances. After

the threshold finding of at least one aggr avating factor, the

statute does not structure the jury's deliberations other than to

require that it consider all mitigating circumstances. Addressing

a substantially similar death penalty statute in Zant v. Stephens

, 25

the Supreme Court expressly rejected the argument now urged by Ward

and held that the erroneous classification of otherwise admissible

evidence as an aggravating circumstance does not invalidate a death

sentence where the jury also finds a vali d aggravating

circumstance. That is substantially the same analysis applied by2 6 See

, e.g.

, James v. Butler

, 827 F.2d 1006 (5th Cir. 1987),

cert

. denied , 486 U.S. 1046 (1988).

27 Boyde

.

18 the Louisiana Supreme Court to Ward's claim on direct appeal and

approved by this court on collateral review of Louisiana death

penalty sentences. 26

Stephens , however, reserved the question of the impact of an

invalid aggravating circumstance in a statutory scheme in which the

factfinder must weigh aggravating against mitigating circumstances.

According to Ward, that is the question presented here because the

prosecutor urged the jury to engage in weighing. Ward misframes

the issue.

The prosecutor misstated the law when he exhorted the jury to

weigh aggravating aga inst mitigating circumstances. The trial

court, however, correctly instructed the jury:

You are required to consider the existence of aggravating

and mitigating circumstances in deciding which sentence

should be imposed.

. . . Before you decide that a

sentence of death should be imposed, you must unanimously

find beyond a reasonabl e doubt that at least one

aggravating circums tance exists. If you find beyond a

reasonable doub t that any of the statutory aggravating

circumstances existed you are authorized to consider

imposing a sentence of death.

. . . Even if you find the

existence of an aggravating circumstance, you must also

consider any mitigating circumstances before you decide

a sentence of death should be imposed.

The arguments of counsel perforce do not have the same force as an

instruction from the court. 27 Here, where the prosecutor's

reference to weighing was cursory, there is no reasonable

likelihood that the jury disreg arded or misconstrued the court's2 8 Ward did not object to the prosecutor's statement at trial.

Nor did he allege a misstatement of the law on direct or collateral

review. Accordingly, we do not address it.

29 Batson v. Kentucky , 476 U.S. 79 (1986).

3 0 Wilkerson v. Collins

, 950 F.2d 1054 (5th Cir. 1992), c ert

. denied , 113 S.Ct. 3035 (1993); Jones v. Butler , 864 F.2d 348 (5th

Cir. 1988) (on petition for rehearing), cert

. denied

, 490 U.S. 1075

(1989).

31 498 U.S. 411 (1991).

32 380 U.S. 202 (1965).

19 specific instructions. 28

5. Batson claim

.

Ward con tends that the state exercised seven of its ten

peremptory challenges against Afr ican-American venirepersons

because of their race, in violation of the equal protection clause.

He did not object at trial. We repeatedly have held that as a

matter of federal law, a contemporaneous objection is a necessary

element of a Batson 2 9 claim. 30 Ward argues that the Supreme Court

impliedly rejected that position in Ford v. Georgia

. 31 We disagree.

Ford was tried before the Supreme Court decided Batson

. In

accordance with the prevailing evidentiary burden of Swain v.

Alabama

, 32 the defendant filed a pretrial motion claiming that the

prosecution routinely exercised its peremptory challenges to strike

African-Americans in cases with black defendants and asked that it

be prohibited from doing so in the case at bar. The district court

denied the motion. The case proceeded to trial; the prosecution

exercised nine of its ten peremptories to strike African-American

jurors. On the second day of trial the court called a conference20

in chambers to put that fact on the record. The prosecutor asked

the court whether he needed to explain the justifications for his

challenges and the judge said he did not. After he was convicted

and sentenced to death Ford moved for a new trial, claiming the

racial exercise of peremptory challenges. The motion was denied.

On appeal the Supreme Court of Georgia refused to reach Ford's

claim on the grou nds of procedural bar. The court interpreted a

case decided after Ford's trial to establish a rule that an equal

protection challenge must be lodged after the jurors are selected

and before they are sworn. Because that was not done in Ford's

case, the court rejected his Batson argument.

The Supreme Court reversed. It found that Ford had raised a

Batson cl aim prior to trial and held that a state may not

retroactively bar litigation of a federal c onstitutional right.

Ward contends that the applicability of the state procedural bar

would have been moot if there was a federal requirement of a

contemporaneous objection. To the contrary, the Court's inquiry

whether the state properly found Ford's objection untimely was

p remised on the fact that he had complained of the racial use of

peremptories in time for the trial court to require an explanation

from the prosecution. As the Court in F ord recognized, Batson

required a "timely objection" but left the definition of "timely"

to the trial courts. The opinion in F ord a ddresses the latter

i ssue only. In the matter s ub judice

, Ward raised no Batson

objection in the trial court. He has not satisfied the requisites

for a Batson claim.33 While his appeal was pending Ward moved the district court

for admission of newly discovered evidence pertinent to this claim.

The district court denied the motion. In the interesets of justice

we consider the evidence.

3 4 Harris v. Nelson

, 394 U.S. 286 (1969); Young v. Herring

, 938

F.2d 543 (5th Cir. 1991) (on remand), cert

. denied

, 112 S.Ct. 1485

(1992); Mayberry v. Petsock

, 821 F.2d 179 (3d Cir.), cert

. denied

, 484 U.S. 946 (1987).

3 5 Willie v. Maggio

, 737 F.2d 1372 (5th Cir.), cert

. denied

, 469

U.S. 1002 (1984); Mayberry

.

36 Kirkpatrick v. Whitley , 992 F.2d 491 (5th Cir. 1993).

21 6. Racial discrimination in the selection of the

jury pool and venire

.

Ward contends that the Orleans Parish jury commissioner s

excluded blacks from his jury pool and venire, in violation of his

sixth and fourteenth amendment rights. The district court rejected

thi s claim. Ward maintains that he was entitled at least to

discovery and an evidentiary hearing. We are not persuaded. 33

A federal habeas court must allow discovery and an evidentiary

hearing only where a factual dispute, if resolved in the

petitioner's favor, would entitle him to relief and the state has

not afforded the petitioner a full and fair evidentiary hearing. 34

Conclusionary allegations are not enough to warrant discovery under

Rule 6 of the Federal Rules Governing Section 2254 Petitions; the

petitioner must set forth specific allegations of fact. 35 Rule 6,

which permits the district court to order discovery on good cause

shown, does not authorize fishing expeditions. 36

The short answer to Ward's assignment of error is that he had

the opportunity to present evidence at his state post-conviction

hearing. We do not dispose of Ward's argument on these grounds,37 Duren v. Missouri , 439 U.S. 357 (1979).

3 8 Because African-Americans were present on Ward's venire in

proportion to their representation in the population, we can only

presume that alleged u nderrepresentation in the instant context

refers to the appearance of proportionately fewer black persons on criminal court venires generally than on civil court venires.

39 486 U.S. 214 (1988).

22 however, because the state trial court denied discovery and he

later obtained additional evidence.

Factual development will not help Ward's sixth am e ndment

claim. He informs that his venire was half black and half white

and does not dispute the prosecution's contention that the eligible

population had essentially the same racial composition.

Accordingly, Ward cannot prove underrepresentation, a necessary

element of a fair cross-section claim. 37

Ward's fourteenth amendment claim fares no better. He alleges

that the jury commiss ioners knew the race of each member of the

venire before directing the members to criminal or civil district

court and that blacks were underrepresented in criminal court

venires. 38 That does not constitute a specific factual allegation

of intentiona l discrimination. Ward attempts to bolster his

petition with a hearsay affidavit in which one of his attorneys

attests that the former director of the jury commission told him

that he had heard that the district attorney wanted more whites on

criminal court juries. Unlike A madeo v . Zant

, 39 on which Ward

relies, there is no indication that the commission hee ded the

district attorney's purported preferences. In another affidavit,

Ward's paralegal attests that a jury commissioner told her that she4 0 In a counter-affid avit, the commissioner denies the

statement. In addition, her tenure in office ended before the

selection of Ward's venire.

41 Aubet v. Maine , 431 F.2d 688, 689 (1st Cir. 1970).

23 selected more whites than blacks from the jury wheel to compensate

for differing appearance rates. 40 That is the only specific factual

allegation of intentional discrimination presented by Ward but it

cuts against his charge that blacks were steered onto civil and

away from criminal venires.

As our colleagues on the First Circuit have succinctly stated,

"Habeas corpus is not a general form of relief for those who seek

to explore th eir case in search of its existence." 4 1 Ward's

discrimination claim falls within that proscription.

The judgment of the district court is AFFIRMED.