IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-50803

 

CLIFTON EUGENE BELYEU,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas

Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

 

Appeal from the United States District Court

for the Western District of Texas

 

(October 11, 1995)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Clifton Eugene Belyeu appeals the dismissal of his federal

habeas petition seeking relief from a death sentence imposed

following a Waco, Texas jury verdict returned on August 8, 1986.

The Texas jury convicted Belyeu of robbing and killing Melody

Bolton at her home near the town of West, Texas on December 10,

1985. We affirm.

I

The Texas Court of Criminal Appeals affirmed Belyeu’s

conviction and sentence. Belyeu v. State, 791 S.W.2d 66 (Tex.
2

Crim. App. 1989). The United States Supreme Court denied

certiorari on March 18, 1991. 499 U.S. 931 (1991). Belyeu then

filed his state habeas petition. The state trial judge, and the

Texas Court of Criminal Appeals in turn, denied relief without an

evidentiary hearing. Ex Parte Belyeu, No. 22, 887-01 (Tex. Crim.

App. 1992), unpublished. Belyeu then filed his petition for a

writ of habeas corpus under 28 U.S.C. § 2254 in the United States

District Court for the Western District of Texas, Waco Division.

The petition asserted numerous claims, but only two remain in

contention before this court:

(1) whether Belyeu received effective assistance of counsel;

(2) whether Belyeu was deprived of an individualized

sentencing determination by misconduct of the prosecutor and the

trial court’s failure to instruct the jury that the law of parties

does not apply at the punishment phase of the trial. 

 The district court rejected all asserted grounds for relief

except the claims of ineffective assistance of counsel. It

ordered an evidentiary hearing, limited to whether counsel met the

standard of objective reasonableness, the first prong of Strickland

v. Washington, 466 U.S. 668 (1984), on three assertions of

ineffective assistance:

(1) failing to investigate or present evidence in mitigation

of psychiatric or neurological disorders; 

(2) failing to object to testimony regarding blood patterns

and the use of "photogrammetry";
3

(3) failing to investigate the basis of expert testimony

offered by the state and to offer testimony challenging it. 

The district court sustained the first assertion, rejected the

second and third, and ordered a hearing on the remaining question

of prejudice resulting from trial counsel's failure to develop this

possible mitigating evidence. After considering additional

submissions of the parties, the district court found that Belyeu

had not demonstrated the level of prejudice required under

Strickland and dismissed the petition in its entirety.

II

 The district court’s careful treatment of this case produced

a succinct statement of the fact matrix of the crime and the

evidence of Belyeu’s guilt at the sentencing phase of the trial:

At about 9:00 or 9:30 a.m. on the morning of

December 10, 1985, Belyeu and Ernest Moore (Belyeu's

accomplice who pled guilty to murder and was assessed a

life sentence) stopped at Betty Birdwell's Hillsboro home

to look at a Corvette she had for sale. They were

driving a small light-colored pickup with a camper on it.

At about 10:20 or 10:30 a.m., Mary Frances Kolar, who

lived one or two miles from the Boltons, saw a small red

and white pickup with a camper shell on it come down her

driveway, stop, and then back out of her driveway. She

noticed two persons were in the truck, but she could not

identify them. Two other witnesses, Laura Fry and Molly

Brenner, testified to seeing a small red and white pickup

truck with a camper shell on it in front of the Bolton

residence on the morning of December 10, 1985. The

witnesses stated that the pickup was there from at least

10:30 a.m. to at least 10:40 a.m., and it was parked

behind Mrs. Bolton's car.

After being called at work by a friend of Mrs.

Bolton's, Mr. Bolton came home around 12:00 p.m. on

December 10, 1985. He noticed that some cabinets were

open in the garage and the phone was off the hook. He

went to get one of his guns, and noticed that they were

missing. He then proceeded towards the master bedroom,
4

and found his wife's body lying on the bed. Her hands

were tied behind her back, her feet were hanging off the

bed, and it appeared that she was fatally injured.

These witnesses stated that Belyeu was wearing jeans

and a western shirt, and Moore was wearing jeans and a

white t-shirt. One man was wearing boots, and the other,

high-top tennis shoes, but the witnesses could not

remember which man was wearing which. After conversing

20 to 30 minutes, Belyeu and Moore went next door; a few

minutes later, a Cadillac jumped a bar ditch and headed

out into the pasture. While the witnesses were unable to

see who was driving the Cadillac, they noticed that it

was following the pickup truck driven by Belyeu.

Pamela and Richard Goddard testified that the red

and white pickup with camper shell was the same vehicle

Belyeu was trying to purchase from them. Belyeu had been

given two keys to the truck, one of which was copper or

brass.

When the sheriff's department arrested Belyeu and

Moore, the truck and trailer were searched. The search

of the truck revealed a knife with a large amount of

blood on the blade, a jeans jacket, and a vest with five

shotgun shells in the pocket. On the following day, the

sheriffs department searched the area in which tire

tracks had been found and discovered some gun bags, a

pine jewelry box, and a sawed-off shotgun. There were

blood splatters and brain fragments on the gun. A brass

key to the Ford Courier was also found in the pine

jewelry box. Three other guns were found in the area, as

well as additional shotgun shells in the jewelry box.

The autopsy of Mrs. Bolton revealed that she had

died of a shotgun blast to the head and multiple stab

wounds to her back. After extensive analysis of blood

stains, blood types, and splatter patterns, the State

concluded that the stains on Belyeu's clothing were

consistent with the pattern throughout the master

bedroom. Expert testimony also revealed that the shotgun

pellets that killed Mrs. Bolton were the same type found

in the sawed-off shotgun, and the shotgun barrel and

stock found in Belyeu's home were consistent with those

that would have originally been found on the sawed-off

shotgun. The buck knife found in the Ford Courier was

consistent with the stab wounds on the deceased. The

footprints found in the home were consistent with the

tennis shoes found in Belyeu's home.

Mr. Bolton identified the three additional guns and

the buck knife as belonging to him, and the jewelry box

as belonging to the deceased. The sawed-off shotgun was

stolen from Michael Wise's home on November 25, 1985.

III
5

Strickland v. Washington, 466 U.S. 686 (1984), requires that

a claim of ineffective assistance of counsel meet a two-prong test.

A petitioner must both demonstrate that counsel’s performance was

deficient and that the errors were so serious as to "deprive the

defendant of a fair trial, a trial whose result is reliable." Id.

at 687. When the sentence is challenged, "the question is whether

there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death."

Id. at 695. The measure of performance is highly deferential,

calibrated to escape "the distorting effect of hindsight." Id. At

697. We must "indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance"

and that the “challenged action might be considered sound trial

strategy.” Id. at 689 (citation and internal quotation marks

omitted).

IV

Belyeu contends, in the first two parts of his three part

attack upon the effectiveness of his trial counsel, that the

federal district court erred in concluding that trial counsel’s

“failure to conduct any investigation of the State’s blood spatter

evidence was a strategic decision and thus did not constitute

deficient performance” and that this failure did not prejudice him

at the punishment phase of the trial. The line of attack is that

the decision could not have been strategic because counsel
6

conducted no investigation and “a truly strategic decision cannot

be made in a vacuum.” The argument continues that the failure to

investigate was prejudicial because the evidence of the blood

spatters was the only evidence tending to prove that Belyeu was the

trigger man. 

The state called Sgt. Rod Englert as an expert witness in the

guilt phase of the trial. Englert expressed the opinion that blood

on a denim jacket found in Belyeu’s truck was consistent with the

blood pattern of the shooter.

It is true that Englert was an expert of considerable

experience in this field. The relevant opinion Belyeu claims his

counsel failed to counter, however, was straightforward and

uncomplicated, drawing little upon Englert's range of experience.

Englert's opinion about the match of the jacket and jeans was

little more than an observation about undisputed physical facts.

The victim was seated on a bed with her hands tied behind her. She

was stabbed repeatedly with a Buck knife later found under the seat

of Belyeu’s truck. She was shot in the head at close range with a

sawed off shotgun, virtually decapitating her. Belyeu’s jeans were

splattered with blood on the left side while the clothes of Moore,

his accomplice, was splattered on his right side. Sgt. Englert

explained this evidence as follows: 

Important is the fact that [the blood] is on the same

side, on the left side, in a prolongation of those

droplets on the sleeve and so possibly that side of the

body was facing the victim when shot. That being the

left side of the hip on the jeans and the left side on

the Jean jacket down the left sleeve.... The blue jeans

of the Defendant would be more consistent with the jacket

because it is on the left side, and as I stated
7

previously in a prolongation of the left sleeve down on

the left side of the body.

The trial counsel, Ables, testified at the first federal

evidentiary hearing that he did not recall whether he had consulted

with experts, and that his trial strategy aimed for a "no" answer

to the question of deliberateness, the first question in the

sentencing phase. His cross examination was calculated to leave

both Belyeu and Moore as possible shooters. Ables testified that

he understood the “blow-back“ of gunshot wounds that could put

blood on the shooter, and that he didn’t hire an expert because he

could get the answers he wanted on cross-examination without paying

the price of his own expert validating the state’s expert on other

points. Finally, Ables in his testimony made the point that

“[t]here is no great deal of magic to [blood spatter evidence],

it’s simply the application of physics, and the physical laws

generally follow pretty strict lines.” The district court

concluded that trial counsel “rendered effective legal assistance

with respect to blood spatter and photogrammetry evidence. . . .

Counsel had strategic reasons not to call defense experts with

respect to photogrammetry and blood spatter analysis.”

We are not persuaded that any credibility choices of the

district judge were clearly erroneous. We review afresh the

ultimate conclusion that the decisions by Ables were strategic and

objectively reasonable. Our independent reading of the record

leads us to the same conclusion as the district court's concerning

the strategic character of the decisions behind the defense to the

blood spattering evidence. Sgt. Englert’s expertise brought little
8

to the table concerning the identity of the shooter that was not

self-evident.

The parts of the shotgun left behind when its stock and barrel

were sawed off were found in Belyeu’s trailer home along with

shells with similar loads. Other unrefuted evidence showed that

Belyeu owned the shotgun and had sawed off its barrel and stock.

The buck knife belonging to Melody Bolton's husband was found under

the seat of Belyeu's truck. Trial counsel faced the task of

convincing the jury that there was reasonable doubt that Belyeu

welded neither the shotgun nor the knife, since both dealt lethal

blows. A brief cross-examination that accepted the reality that

both Moore and Belyeu were splattered with blood might perpetuate

whatever uncertainty over Belyeu’s role inhered in the facts with

which counsel was stuck. Trial counsel did that, developing on

cross examination that blood on Moore’s jeans and Melody’s Bolton’s

blood were the same type. As we will explain later in discussing

Beleu’s claims regarding the “law of parties,” there was no

constitutional requirement that the state prove that Belyeu was the

actual shooter or that he stabbed Melody Bolton. The state had

only to show “major participation in the felony committed, combined

with reckless indifference to human life.” Tison v. Arizona, 431

U.S. 137,158 (1987). The prosecution’s closing argument was geared

to this reality. He argued to the jury that, “the blue jeans, I

held them up for you the other day, side by side, blood on both of

them--Partners in crime. Was his conduct deliberate? Yes, it was.

Yes, it was. Whether Ernest Moore pulled the trigger, whether
9

Clifton Belyeu pulled the triggerr makes no difference. The conduct

was deliberate.” The fact that the prosecutor hedged with this

contention reflects the effectivness of the cross examination on

the certainty of whether Moore or Beleu was the shooter. The

state would have preferred to put the gun or knife in Belyeu’s

hand, but it was unwilling to allow the case to rise or fall on the

issue. That is the reality that we must not lose sight of, lest we

fall prey to the seductive call of hindsight. A reading of this

record makes plain the objective reasonableness of Able’s

decisions. We reject this point of error.

Nor are we persuaded, in any event, that Belyeu has shown the

requisite prejudice to sustain his attack on the guilt phase of the

trial. He offered expert testimony at the federal habeas hearings

questioning Sgt. Englert’s methods, but that expert declined to

express the opinion that the evidence, when analyzed under his own

methodology, did not support Sgt. Englert's conclusions. Rather,

Belyeu's expert stopped short of that critical defining point,

explaining he would have to do more work to arrive at any such

opinions. This stop halfway up the hill leaves wholly speculative

the assertion that calling this or any other expert would have

mattered. It suggests that Belyeu's trial counsel might have been

able to secure expert testimony questioning Englert's methods --

but the blood on the jacket and jeans would not change locations.

Even after trial with the advantages of hindsight, Belyeu has not

offered proof that might have made that location exculpatory.
10

 Relatedly, we reject the contention that by these strategic

decisions Belyeu suffered the prejudice demanded by Strickland at

the sentencing phase. As we will explain, the state offered

evidence at the sentencing phase of Belyeu’s violent nature. It is

difficult to believe that any residual doubt concerning Belyeu’s

participation with reckless indifference to life that may have

remained in the jury's minds after the guilt phase survived this

potent evidence.

V

The federal district judge held that Belyeu’s trial counsel

failed to deliver constitutionally adequate service in the

sentencing phase of the trial. The court found that trial counsel

did not consult with mental health professionals to determine if

Belyeu suffered from psychiatric or organic disorders and thus did

not discover or present evidence of Belyeu's alleged brain

impairments. The district court concluded, however, that this

failure did not prejudice Belyeu. Belyeu challenges the latter

conclusion.

-1-

We review de novo the district court’s determination of

prejudice. "[B]oth the performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law and fact."

Strickland, 466 U.S. at 698. We ask if there is a “reasonable

probability that, but for counsel's unprofessional errors, the
11

result of the proceeding would have been different." Id. at 694.

Strickland explained that “[t]he result of a proceeding can be

rendered unreliable, and hence the proceeding itself unfair, even

if the errors of counsel cannot be shown by a preponderance of the

evidence to have determined the outcome.” Id.

-2-

We turn to the evidence presented to the jury at the

sentencing phase before returning to the challenges to the

competence of trial counsel’s performance in that part of the

trial. The state relied upon a history of violence. Belyeu now

contends that evidence of head injuries, his abuse as a child, and

his “significant” impairment of mental acuity, coupled with

evidence of organic impairment of brain function from use of drugs

and alcohol, would have at least taken the edge from the state’s

evidence of his violent disposition. 

The state offered evidence at the sentencing phase that Belyeu

had been convicted in 1979 of robbery and that he had burglarized

a residence and had stolen property on at least two additional

occasions. Two state witnesses described Belyeu’s abuse of his

wife, Donna. They testified that Belyeu frequently beat Donna,

leaving her with black eyes and other injuries so severe that on

one occasion she could barely walk. He administered similar abuse

to Shirley Kay Carver, his girlfriend, beating and kicking her. On

one occasion he attempted to strangle her while she was asleep in

bed. When she attempted to escape, he ripped off all her clothes,

dragged her outside, and, while holding her by the hair with his
12

knee in her back, made her “eat the dirt.” Her face was “busted

up” and she was bleeding. She managed to climb a tree where, still

naked, she remained until Belyeu fell asleep. Carver testified

that he slapped her while she was holding her two year-old

daughter. When the baby began screaming, he hung the baby by the

hair from the second floor of a two-story house. When Carver

grabbed for her, Belyeu released the child but Carver managed to

catch her “by the hands of God.” Carver also told the jury that

while driving in Texas, Carver had a pet parakeet in a cage in

their truck. When she asked Belyeu not to drive so fast, he seized

the bird, ripped its head from its body, threw the bird’s body from

the truck, and made Carver finish the trip with the bird’s head in

her lap. She explained that she was afraid to leave Belyeu because

he threatened to kill her and her family if she did. 

Two of Belyeu's sisters testified that he was one of eight

children raised by their mother with welfare money and that the

father went to prison for raping one of his sisters. They also

testified that he mowed yards, washed dishes, and waited tables at

the restaurant where their mother worked, that he was willing to

work, and that he was a good drywaller. The sisters denied having

seen Belyeu hit anyone and stated that he had a good relationship

with siblings.

-3-

The federal district court held:

Mr. Ables and Mr. Horner did not provide

representation consistent with prevailing professional

norms and an objective standard of reasonableness in this

particular case in [that] they did not investigate
13

Petitioner’s mental health background after Dr. Gordon

raised the possibility that Mr. Belyeu had a

“neurological impairment” or after they became aware that

(1) Mr. Belyeu’s family had a history of mental

disorders, (2) Mr. Belyeu had medical problems as a child

and an adult, (3) Mr. Belyeu had suffered numerous head

injuries, (4) Mr. Belyeu had a noticeable scar on his

head, (5) Mr. Belyeu had a troubled family history, was

possibly the victim of physical abuse as a child, and

that his father had raped Mr. Belyeu’s sister, (6) Mr

Belyeu had attempted suicide while in jail, (7) Belyeu

had told acquaintances he was possessed by demons, and

(8) Mr. Belyeu had a history of past violence and anger,

especially when he was under the influence of narcotics

or alcohol.” ( Conclusion of law 3/28/94)

Belyeu offered evidence of his claimed brain impairment at the

second federal habeas hearing through the testimony of two experts,

Dr. Robert Geffner, a clinical psychologist, and Paula LundbergLove, a licensed chemical dependency counselor. Geffner testified

that Belyeu suffers from mild neuropsychological impairment

attributable to closed head injuries or polysubstance abuse, or

both, and that at the time of the murder Belyeu was “probably”

suffering from moderate neuropsychological impairment. LundbergLove testified that a high probability existed that Belyeu suffered

from “significant” brain damage and behavioral impairment.

However, she used the word significant only in the statistical

sense. That is, she used a mathematical term that was of little

relevance. The state countered with Dr. Hom, a licensed

psychologist, who concluded that Belyeu does not currently suffer

from mild neuropsychological impairment and did not at the time of

the murder. He expressed the view that the opinions of Geffener

and Lundberg-Love were based on improper procedures, inaccurate

scoring, and over-interpretation. The district court found that
14

there was “no evidence to corroborate closed head injuries

resulting in any mild organic brain disorder, or mild organic brain

disorder brought about by substance abuse.” Belyeu attacks this

conclusion as irrelevant. He argues that it was not the role of

the federal habeas court to resolve the dispute among the experts

and decide as an ultimate fact the extent of any impairment Belyeu

may have suffered. Rather, he contends, the evidence supports his

contention that the proceedings were made unreliable by the failure

of trial counsel to adduce this evidence before the jury at the

sentencing phase because this evidence went directly to whether

Belyeu committed the murder with deliberateness.

-4- 

We agree with Belyeu’s criticism of the federal habeas court’s

finding or, more precisely, the use of the finding, but we agree

only in part. It is true that it was not the district court’s task

to resolve the dispute. The court's task was to see what evidence

might have been adduced and to gauge any prejudice resulting from

trial counsel's failure to present it. The rejection of the

evidence is relevant because it casts doubt on its persuasiveness

and hence its force before the jury.

We do not, however, rest on this conclusion alone. Trial

counsel expressed his judgment that the jury would be skeptical of

such opinions in the context of this trial. He explained that

Belyeu was articulate and helpful in the preparation of the

defense. The experts would have been forced to concede that Belyeu

knew what he was doing. Even if the jury had credited the experts'
15

opinions, itself a large assumption, it could only have concluded

that Belyeu had some impairment, described as mild or moderate, not

significant in the ordinary sense of that word. How this evidence

might have played to Belyeu's advantage on the question of

deliberateness is difficult to comprehend. If the jury believed

Belyeu fired the shotgun, used the knife, or otherwise participated

with reckless indifference to the taking of Melody Bolton’s life

for no reason except to eliminate the helpless woman as a witness,

we are not persuaded that the asserted failure of trial counsel to

adduce the evidence garnered later would have made any difference.

No other reason for the slaying is offered. This evidence shed no

light on the identity of the shooter, at least any that was

exculpatory. 

The state made the powerful point that Melody Bolton did not

become a victim because she was the happenstance witness to

burglary. Belyeu and Moore blocked Melody Bolton's car in the

driveway by parking the truck immediately behind it when the garage

door opened. That is, Belyeu and Moore could have waited until her

departure and then entered the Bolton house. They did not do so,

electing instead to take her hostage. There was also evidence,

including a swing set and other toys, that Belyeu must have known

that Melody was the mother of small children. The prosecution

pointed this evidence out to the jury in the photographs taken at

the crime scene. In short, we cannot say that Belyeu's trial

counsel's failure to present the mitigating evidence now advanced

undermines the reliability of the jury's sentence.
16

VI

Belyeu contends that the state trial court committed

constitutional error in refusing his request to instruct the jury

that the “law of parties” does not apply at the sentencing phase of

the trial. The contention is that the jury was allowed to answer

"yes" to the two questions posed at the sentencing hearing without

finding that Belyeu did more than aid and abet the murder. 

Pointing to colloquy in voir dire and to the state’s final

argument, he contends that trial rulings deprived him of the

individualized sentencing decisions due under the Eighth Amendment

because the jury was not cabined in its deliberations to Belyeu’s

“personal responsibility and moral guilt” as required by Enmund v.

Florida, 458 U.S. 782, 801 (1982). Tison v. Arizona, 431 U.S. 137,

158 (1987), makes plain that "major participation in the felony

committed, combined with reckless indifference to human life, is

sufficient to satisfy the Enmund culpability requirement."

Counsel objected to the failure to instruct the jury at the

punishment phase “that only the conduct of the Defendant can be

considered in determining the answer to said [the first] issue, and

that the instructions pertaining to the law of the parties at the

guilt/innocence phase cannot be considered.” The objection was

overruled. The Texas Court of Criminal Appeals found no error in

refusing this instruction, concluding that, viewing the charge as

a whole in light of the evidence, there was no danger the jury was

misled. Belyeu, 791 S.W.2d at 74. That court also found that if

there was any error, Belyeu suffered no actual harm. The federal
17

district court agreed, pointing out that the “first special issue

focuses the jury’s attention on the individual defendant by asking

if ‘the conduct of the defendant was committed deliberately and

with the expectation that death would result.’ It includes the

required Enmund finding of individual culpability.” The federal

district judge continued that “in light of the fact that Belyeu’s

counsel clearly articulated to the jury that the law of the parties

does not apply at the punishment phase,” there was no fundamental

error.

We agree with the two courts below that have considered and

rejected this contention. We are not persuaded that the voir dire

questioning, the final arguments, or the court’s charge to the jury

carried a risk of misleading the jury that it could answer

affirmatively the questions put to it in the punishment phase even

if it harbored a reasonable doubt as to whether Belyeu’s

participation evidenced the reckless indifference to life required

by Enmund and Tison. Belyeu’s contention is made at a level of

generality about the law of parties that frees it from the

difficulties of confronting the facts of this case. Much of the

effort at trial would have been baffling to a jury who labored

under the delusion that it was not necessary to find that Belyeu's

role, as shooter, as the stabber, or as assistant to Moore who did

both, was not at the least coupled with reckless indifference to

the killing of Melody Bolton. The point is that the lines of

engagement at trial, the arguments of counsel, and the court’s

instruction, give a sure answer to this final contention by Belyeu.
18

The instruction given to the jury included the following:

The mere presence of the defendant, Clifton Eugene

Belyeu, at the scene of the offense charged, if any would

not constitute him a party to the offense charged, and if

you should find from the evidence beyond reasonable doubt

that Ernest Ray Moore did then and there intentionally

kill Melodie Bolton, as alleged in the indictment

aforesaid and that he was then and there in the course of

committing or attempting to commit Robbery, as alleged,

of the said Melodie Bolton, but you further find or

believe from the evidence, or you have a reasonable doubt

thereof, that the defendant, Clifton Eugene Belyeu, did

not act with intent to promote or assist the commission

of said offense of murder by shooting or stabbing Melodie

Bolton while in the commission of robbing or attempting

to rob her, if any, by encouraging, soliciting,

directing, aiding, or attempting to aid Ernest Ray Moore

in the commission of the offense, then you will find the

defendant, Clifton Eugene Belyeu, not guilty of capital

murder.

There was more:

Now, if you believe from the evidence beyond a reasonable

doubt that on or about the 10th day of December, 1985, in

McLennan County, Texas, the defendant, Clifton Eugene Belyeu,

acting alone or together with Ernest Ray Moore as a party

intentionally caused the death of an individual, Melodie

Bolton, by stabbing her with a knife or shooting her with a

firearm and that the said Clifton Belyeu was in the course of

committing or attempting to commit Robbery, of the said

Melodie Bolton, then you will find Clifton Eugene Belyeu

guilty of Capital Murder as charged in the indictment.

Unless you find from the evidence beyond a reasonable

doubt thereof, you will acquit the defendant.

We reject each of Belyeu's contentions and affirm the district

court's dismissal of his petition for habeas corpus.

AFFIRMED.