UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2204

MARKHAM DUFF-SMITH,

Petitioner-Appellant,

versus

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(September 17, 1992)

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

POLITZ, Chief Judge:

Markham Duff-Sm i th, a Texas prisoner sentenced to death,

appeals the rejection of his application for a writ of habeas

corpus. Finding no error, for the reasons assigned we affirm the

district court's denial of habeas relief.1 We present only the facts necessary for an understanding

of the issues raise d in this appeal. A detailed review of the

facts, including the pertinent corroborating evidence, may be found

in the Texas Court of Criminal Appeals' opinion affirming

Duff-Smith's conviction on direct appeal, Duff-Smith v. State

, 685

S.W.2d 26 (Tex.Crim.App.), cert

. denied , 474 U.S. 865 (1985).

2 Background 1

On Octo ber 15, 1975, Gertrude Zabolio, Duff-Smith's adopted

mother, was murdered in her home. According to the prosecution,

Duff-Smith solicited Walter Waldhauser to kill her and his

stepfather, Dow Zabolio. Waldhauser in turn solicited Paul

MacDonald, a bail bondsman, who hired Allen Wayne Janecka. Janecka

killed Gertrude Zabolio by strangulation.

Duff-Smith was a spendthrift who lived beyond his means.

During the period preceding his mother's murder he had several

arguments with her over requests for money. He told several

persons that he wished her dead. Duff-Smith acted on this desire

and determined to secure the murder of both his mother and

stepfather. Dow Zabolio was included because Duff-Smith speculated

that his stepfather might delay the final distribution of his

mother's estate.

Detailed evidence of the crime was provided by MacDonald who

testified that in the late summer of 1975 Waldhauser told MacDonald

that a friend named "Duff" needed an estate cleared up in order to

accelerate receipt of his inheritance. When MacDonald stated that

he was not willing to commit murder Waldhauser asked him to use his

bail bond connections to find someone willing to do so.2 Gertrude told Janecka that her husband was merely working

late when in fact he was in Austria.

3 The decea sed's death was, in fact, originally ruled a

suicide.

3 Waldhauser later called to ask whether MacDonald had located

a hit man. Janecka was present and MacDonald asked him whether he

knew of anyone available for murder for hire and Janecka replied

that he would take the job. MacDonald and Janecka then contracted

to perform the killings for $10,000

-- $6,500 for Janecka and

$3,500 for MacDon ald who was to assist Janecka in planning. A

small amount of this money was provided up front.

Waldhauser supplied MacDonald with details about the intended

victims, including the fact that on each Wednesday night they ate

dinner at a nearby cafeteria. On Wednesday October 15, 1975

Janecka and MacDonald staked out the Zabolio home. When Gertrude

Zabolio left alone to go to the cafeteria Janecka entered the home

to await her return. Janecka then spent several hours in the

Zabolio home with Mrs. Zabolio, ostensibly waiting for her husband

to return from work. 2 According to MacDonald's testimony, Janecka

told him that Mrs. Zabolio resignedly accepted her imminent death

and was not surprised when Janecka revealed that her son was behind

the plan. Eventually Janecka strangled the victim with her

pantyhose, leaving behind two purported suicide notes, as well as

a "practice" panty hose tied into a loop, much like the one used in

the strangulation. 3

The next day MacDonald met Waldhauser and Duff-Smith to4

discuss the murder. Having been told by Waldhauser to bring some

proof that he had committed the murder, MacDonald brought

Mrs. Zabolio's driver's license which Janecka had given him. The

license was accepted by Duff-Smith wi thout comment. During this

same meeting Duff-Smith complained that only one-half of the

contract had been completed. He informed MacDonald that no more

money would be paid to Janecka until Dow Zabolio had al so been

killed.

After a few months Janecka grew impatient and threatened

MacDonald. MacDonald told Waldhauser about Janecka's threats, but

no money was forthcoming. Finally, Waldhauser gave MacDonald

Duff-Smith's unlisted phone number so that MacDonald could "shake

things up a bit." When MacDonald told Duff-Smith about Janecka's

threats, Duff-Smith agreed to "get it taken care of." Shortly

thereafter, Janecka received full payment from Waldhauser.

The police were eventually alerted of the murder conspiracy by

Donald Wayne Chaline. Chaline worked with Duff-Smith at Prudential

Insurance Company in 1975. According to Chaline, he and Duff-Smith

met several months after the murder. During the chance meeting

Duff-Smith told Chaline in great detail about how he had arranged

for the death of his mother in order to collect proceeds from her

estate.

For three years Chaline said nothing to the police because he

felt implicated. In 1979 Chaline read about the deaths by gunshot

of Duff-Smith's sister, Diana Wanstrath, her husband, John4 The medical examiner initially ruled that the Wanstrath

family deaths were the result of a double murder-suicide; that

Diana Wanstrath had murdered her husband and son before committing

suicide.

5 Duff-Smith was charged with but never tried for arranging

the murders of the Wanstrath family. However, during both the

guilt-innocence and punishment phases of his trial for the murder

of Mrs. Zabolio, the Wanstrath murders were made know to the jury

via the testimony of coconspirators.

6 There was no indication that defense counsel knew of the

perjurious nature of the defense theory. Several weeks before

trial five inmates, all previous jail-mates of MacDonald, contacted

defense cou nsel by letter and offered to testify in Duff-Smith's

favor.

5 Wanstrath, and their 14-month-old child, Kevin Wanstrath. 4

A p parently Duff-Smith had squandered his inheritance from his

mother and he hired Waldhauser and Janecka to murder the Wanstrath

family so he could inherit his sister's estate. Suspecting foul

play by Duff-Smith, Chaline called and then eventually met with the

homicide detective investigating the Wanstrath killings.

Duff-Smith was tried for the murder of his mother. 5 During

his case-in-chief he first presented the perjured testimony of two

witnesses. 6 The third witness defense counsel called was Jerry Sol

Eickenhorst. Unfortunately for Duff-Smith, Eickenhorst destroyed

the defense theory. Eickenhorst testified that Duff-Smith had

suborned perjury by various inmates and had concocted a false story

that Waldhauser and MacDonald had murdere d Mrs. Zabolio and were

attempting to place the blame on him to avoid the death penalty.

In support of his testimony, Eickenhorst provided the handwritten

notes made by Duff-Smith outlining the perjurious scheme.7 Duff-Smith v. State , 685 S.W.2d 26 (Tex.Crim.App.), cert

.

denied , 474 U.S. 865 (1985).

6 Duff-Smith conceded that the handwriting was his.

Duff-Smith was convicted of murdering Gertrude Zabolio for

renumeration, namely, for half of the proceeds of her $190,000

estate. The jury returned affirmative findings to the two special

issues under Article 37.071(b), V.A.C.C.P ., and punishment was

assessed at death. The Texas Court of Criminal Appeals affirmed

the conviction and death sentence. 7

Execution was scheduled for January 10, 1986. When Duff-Smith

f iled a petition for habeas relief in state court a s tay was

issued. Following an evidentiary hearing the trial court entered

findings of fact and conclusions of law refusing all relief. The

Texas Court of Criminal Appeals denied Duff-Smith's habeas

application and the trial court reset the execution for October 8,

1987.

Duff-Smith filed his first federal habeas petition in

September of 1987 and a stay of execution was granted. Duff-Smith

raised 11 claims, including those raised in this appeal. An

evidentiary hearing was conducted and the magistrate judge entered

his report recommending that the writ be denied. The district

court adopted the magistrate judge's recommendation, entered an

order denying the writ of habeas corpus, vacated the stay of

execution, and denied a certificate of probable cause.

D uff-Smith filed a notice of appeal, which under

Fed.R.App.P. 21 we consider to be a request for a cer tificate of8 Barnard v. Collins

, 958 F.2d 634 (5th Cir. 1992) (citing

28 U.S.C. § 2254(d)).

9 Humphrey v. Lynaugh

, 861 F.2d 875 (5th Cir. 1988), cert

. denied , 490 U.S. 1024 (1989).

7 probable cause, raising ten claims for relief. He alleges that:

(1) his substitute counsel was not given adequate time to prepare

his habeas claims; (2) two prospective jurors were improperly

removed; (3) in violation of a discovery order, the prosecution

failed to reveal the existence of the handwritten script outlining

the perjurious defense theory; (4) witness Eickenhorst was an

undercover agent for the state who improperly solicited admissions

from Duff-Smith after his right to counsel ha d attached;

(5) Eickenhorst affirmatively deceived defense counsel; (6) the

state offered Eickenhorst undisclosed benefits and inducements;

(7) subpoenas of material witnesses were quashed; (8) he was denied

effective assistance of counsel; (9) the evidence was insufficient

to sus tain a conviction of capital murder for remuneration; and

(10) unadjudicated criminal conduct was in t roduced during the

punishment phase of his trial. We granted the CPC.

Analysis

In considering a federal habeas corpus petition federal courts

must accord a presumption of correctnes s to state court factual

findings. 8 We accept the district court's findings of fact unless

they are clearly erroneous; issues of law are reviewed de novo

. 98

1. Substitute counsel

The record indicates that Duff-Smith was represented at trial

by attorneys V ictor Blaine and Candelario Elizondo. His direct

appeal, state habe as petition, and the initial aspects of the

federal habeas petition w ere handled by attorneys Will Gray and

Carolyn Garcia. During the second evidentiary hearing Gray and

Garcia asked to withdraw as counsel. The magistrate judge

ultimately granted a motion to substitute Douglas C. McNabb as

counsel.

At the time of his ap pointment, McNabb was informed that

although Duff-Smith's evidentiary hearing had been held, he could

suppl ement the record as long as he did so before the magistrate

judge issued his report to the district court. No particular time

period was set.

Four months later McNabb re alized that previous counsel had

requested a transcript of the federal evidentiary hearings but that

no transcript was ever produced. McNabb requested the transcript,

the request was approved, and McNabb received the bulk of the

transcript the last week of October 1990.

Meanwhile, the magistrate judge had finished his report which

he filed on October 9, 1990. McNabb received a copy on October 17

and was given until October 30 to file objections. This objection

deadline was later extended to November 30, 1990 and then to

January 4, 1991.

In his objections to the magistrate judge's report, Duff-Smith

requested that his substitute counsel be given additional time to1 0

_____ U.S.

_____, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

11 Cf

. Coleman v. Vasquez , 771 F.Supp. 300 (N.D.Cal. 1991)

(stay ing proceedings for 120 days to allow a M cCleskey

investigation).

9 examine the records, investigate the facts, and amend and/or

supplement the application for writ of habeas corpus. The district

court impliedly rejected this request when on January 28, 1991 it

adopted the magistrate judge's report, denying the writ.

Duff-Smith argues on appeal th at his substitute counsel did

not have sufficient time to supplement the record bef ore the

magistrate judge issued his report, thereby denying him a fair

federal habeas proceeding. He asserts that his substitute counsel

has found additional material not previously applied to the facts

of the writ. Citing the mandate of M cCleskey v. Zant 10 that all

claims fo r relief be raised in a petitioner's first habeas

petition, Duff-Smith also insists that his counsel should be given

additional time to perform what he terms a " McCleskey

investigation." Accordingly, Duff-Smith requests a stay of

180 days so that his substitute counsel might fully investigate his

claims in this, his first federal habeas peti tion. Should

a dditional claims be discovered, he requests an opportunity to

amend his petition to raise them. 11

Discovery decisions in habeas proceedings, including whether

to allow an extension of time, a re left entirely to the sound12 28 U.S.C. § 2254.

13 Fed.R.Civ.P. 15(a); Hernandez v. Garrison , 916 F.2d 291

(5th Cir. 1990).

14 Carter v. Procunier , 755 F.2d 1126 (5th Cir. 1985).

15 Hernandez , 916 F.2d at 293. The district court did not

abuse its discretion.

10 discretion of the district court. 12 Amendments should be liberally

allowed but the decision whether to permit an amendment to a

petition after responsive pleadings have been filed is within the

discretion of the district court. 13 The decision to deny leave to

amend is reviewed on appeal only for abuse of that discretion. 14

Duff-Smith w as represented by competent counsel for several

years before counsel withdrew. When McNabb was appointed as

Duff-Smith's substitute counsel he was given an opportunity to

supplement the record at anytime before the magistrate judge issued

his report to the district court. This was a period of four and

one-half months. McNabb then had three months to respond and

object to the report. Counsel was afforded sufficient time to

review the records, investigate the facts, and present them to the

court. The new information which Duff-Smith purports to have

dis covered is nothing more than a bald assertion that with

additional time he might be able to prove p sychological

mistreatment and that Eickenhorst was a government witness. We are

not persuaded. Duff-Smith has failed to show that "he was

prejudiced by his inability to amend his petition." 1516 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

17 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

18 Russell v. State , 598 S.W.2d 238 (Tex.Crim.App.), cert

. denied , 449 U.S. 1003 (1980).

19 Duff-Smith , 685 S.W.2d at 36-38.

20 White v. Collins , 959 F.2d 1319 (5th Cir. 1992).

11 2. Improperly removed venire members

Duff-Smith alleges that venire members Sarah Nagler and Harold

Boyd were improperly excused by the trial court in violation of

Adams v. Texas 16 and Witherspoon v. Illinois

. 17 He contends that the

voir dire responses given by the two prospective jurors do not

indicate that they were so opposed to the death penalty as to

interfere with their duties as jurors and that they should not have

been excused.

During the trial, counsel did not object to the exclusion of

either prospective juror as required by the Texas contemporaneous

objection rule. 18 Consistent with state law, the Texas Court of

Criminal Appeals expressly stated that its judgment as to this

iss ue rested on a state procedural bar. 1 9 The district court

correctly concluded that the procedural default doctrine forecloses

federal habeas rev iew of this claim. 2 0 When a state prisoner has

defaulted a claim in state court under an independent and adequate

state procedural rule, federal habeas review is barred unless the

prisoner can demonstrate cause for the default and actual2 1 Coleman v. Thompson

, 501 U.S.

_____, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).

2 2 Smith v. Murray

, 477 U.S. 527, 106 S.Ct. 2661, 9l L.Ed.2d

434 (1986).

12 prejudice, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice. 21

But for his ineffective assistance of counsel claim discussed

infra , Duff-Smith does not allege cause for his failure to comply

with the state procedural rules for preserving error. Moreover, he

offers no proof tending to show that as a consequence thereof there

was a fundamental miscarriage of justice in his trial. 22

3-6. Witness Jerry Sol Eickenhorst

Duff-Smith's third, fourth, fifth, and sixth claims for relief

center around the testimony of defense witness Eickenhorst. It was

Eickenhorst who surprised the defense by testifying at trial that

Duff-Smith's entire defense

-- that he was being fr amed by

MacDonald and Waldhauser

-- was but a perjurious concoction by

Duff-Smith. The state actually learned of the scheme a few weeks

before trial when Eickenhorst gave the prosecution Duff-Smith's

handwritten script detailing the perjurious scheme.

Duff-Smith's first contention is that the state violated the

trial court's pretrial discovery and inspection order when it

failed to provide the defense with a co py of Duff-Smith's

handwritten script before Eickenhorst testified. He argues that

the state's failure to comply with the discovery order violates due

process and deprives him of effective assistance of counsel.23 Duff-Smith , 685 S.W.2d at 33.

24 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See

Mattheson v. King

, 751 F.2d 1432 (5th Cir. 1985), cert

. denied

, 106

S.Ct. 1798 (1986); United States v. Jones , 712 F.2d 115 (5th Cir.

1983).

25 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

26 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

13 This contention is also barred under the pr ocedural default

doctrine because Duff-Smith did not object to the admission of the

script at trial. As the Texas Court of Criminal Appeals noted in

rejecting this claim, "[i]t is well settled that the proper

procedure whe n alleging surprise due to violation of a trial

court's order for discovery is to object or ask for a postponement

or continuance of the trial." 23 Moreover, were we to reach the

merits of this claim, it is apparent that no federal constitutional

right is implicated. Eickenhorst's testimony and the script were

fully known and available to Duff-Smith; thus, he cannot complain

that it was withheld in violation of Brady v. Maryland

. 24

Duff-Smith's next allegation is that Eickenhorst was an

undercover agent for the state who solici ted admissions from him

after his rig ht to counsel had attached in violation of M aine v.

Moulton 25 and Massiah v. United States

. 26 He also insists that at

the request of the prosecution, Eickenhorst affirmatively deceived

defense counsel by informing them that his in-court testimony would

su pport the fabricated defense theory. In addition, Duff-Smith27 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)

(failure o f the state to reveal favorable information such as

inducements may violate due process).

28 Ex parte Duff-Smith , No. 16,92601 at 81-85.

29 28 U.S.C. § 2254(d).

30 Ross v. Estelle , 694 F.2d 1008 (5th Cir. 1983).

14 all eges that Eickenhorst's testimony was induced by promises of

favorable treatment by the prosecutor in violation of United States

v. Bagley

. 27

Duff-Smith offe red no evidence to support any of these

contentions. In the state habeas proceedings, the trial court

found that Eickenhorst was never a state agent, that the

prosecutors did not ask Eickenhorst to deceive defense counsel, and

that no inducements were given to Eickenhorst by the state either

bef ore or after his testimony. 2 8 These state findings, supported

by the record, are entitled to a presumption of correctness. 2 9

Moreover, after the federal evidentiary hearing in which Duff-Smith

calle d several witnesses in an attempt to prove his allegations,

the magistrate judge again determined that Eickenhorst was not an

agent and that his actions were not induced by the state. There is

simply no evidence supporting these allegations, and mere arguments

to the contrary do not raise a constitutional issue. 30

7. Compulsory process

Duff-Smith contends that his sixth amendment right to

compulsory process was denied during the state collateral hearing31 Vail v. Procunier , 747 F.2d 277 (5th Cir. 1984).

15 when the judge quashed subpoenas duces tecum served on three

witnesses, Harris County District Attorn ey Johnny Holmes, Texas

Attorney General Jim Mattox, and United States Marshal B.S. Baker.

Duff-Smith claims he was seeking information that these individuals

may have had regarding th e fact that Eickenhorst was eventually

transferred to the federal prison system.

This contention is without merit for infirmities in state

habeas pro ceedings do not constitute grounds for federal habeas

relief. 31 We look only to the trial and direct appeal. Further,

Duff-Smith was granted permission to call these same witnesses in

the federal evidentiary hearing if he was not satisfied with the

affidavits they submitted. Although Duff-Smith's defense counsel

expressed some dissatisfaction with Holmes' affidavit, counsel

elected not to call him.

8. Ineffective assistance of counsel

In his eighth claim for relief Duff-Smith argues that he was

denied his sixth amendment r ight to the effective assistance of

counsel. Specifically, he contends that his counsel: (1) failed

to object to the excusal for cause of prospective jurors Boyd and

Nagler; (2) failed to object to prosecutorial misconduct; (3) did

not present mitigating eviden ce during the punishment phase of

trial; (4) failed to challenge th e medical examiner reports;

(5) did not pursue a change in venue; and (6) failed to investigate

adequately the background of witness Don Chaline.32 Strickl and v. Washington

, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); Lincecum v. Collins

, 958 F.2d 1271

(5th Cir. 1992).

33 Strickland

, 466 U.S. at 690, 104 S.Ct. at 2066, 80

L.Ed.2d at 695; Barnard , 958 F.2d at 638.

3 4 Wilkerson v. Collins

, 950 F.2d 1054, 1065 (5th Cir. 1992)

(citing Strickland ).

35 Kimmelman v. Morrison , 477 U.S. 365, 106 S.Ct. 2574, 91

L.Ed.2d 305 (1986); Strickland

, 466 U.S. at 690, 104 S.Ct. at 2066,

80 L.Ed.2d at 695.

16 To succeed with an ineffective assistance o f counsel claim,

Duff-Smith must show that counsel's performance was deficient,

falling below an objective standard of reasonableness and the

deficient performance prejudiced the defense to the extent that

"counsel's errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable." 32 The reasonableness

of the challenged conduct is determined by vi ewing the

circumstances at the time of that conduct. 33 In our assessment, we

"strongly presume that trial counsel rendered adequate assistance

and that the challenged conduct was the product of a reasoned trial

strategy." 34

As previously discussed, defense counsel did not object to the

trial court's excusal for cause of venire members Boyd and Nagler,

and thus Du ff-Smith is precluded from directly litigating that

issue on the meri ts. Under S trickland

, however, Duff-Smith may

still raise the merits of this issue through an ineffective

assistance of counsel claim. 353 6 Wainwright v. Witt

, 469 U.S. 412, 424, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985).

37 Id.

3 8 28 U.S.C. § 2254(d); Ellis v. Lynaugh , 873 F.2d 830 (5th

Cir.), cert

. denied , 493 U.S. 970 (1989).

17 The applicable standard to determine whether a prospe ctive

juror may be excluded for cause because of his or h er views on

capital punishment 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.'" 36 A juror's bias

need not be proven with "unmistakable clarity." 37 The trial judge

is in the best position to assess the demeanor and credibility of

a prospective juror; accordingl y, the judge's determination is

statutorily accorded a presumption of correctness. 38

A studied review of the responses of Boyd and Nagler during

voir dire confirms that they were not excused improperly under

Adams and Witt . After admitting that she philosophically opposed

the death penalty, Nagler was asked if she would resolve the

conflict between her conscience and oath by answering the special

answers "no" to avoid the death penalty. Nagler first responded

that she would and later stated that she did not know what she

would do to resolve the admitted conflict. Boyd was not sure that

he believed in capital punishment and for that reason he stated

that he "might answer the second [question] no to keep from having

to kill." When defense counsel asked Boyd "if you were in that39 Witt

, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at

853.

40 Mattheson , 751 F.2d at 1444; Jones , 712 F.2d at 122.

18 position then you would violate that oath that you would take and

answer it wrongfully, contrary to the law and the evidence?" Boyd

replied that he "wouldn't take the oath in the first place

. . . if

it meant killing somebody." The trial court could have been "left

with the definite impression that [Nagler and Boyd] would be unable

to faithfully and impartially apply the law." 39 Hence, Duff-Smith's

counsel did not act unreasonably or unprofessionally in failing to

object to the excusing of Nagler and Boyd.

Duf f-Smith also alleges his counsel were ineffective in

failing to object to prosecutorial misconduct

-- that in violation

of a discovery order the prosecution did not notify defense counsel

of their advance knowledge of the perjurious defense theory and of

Duff-Smith's handwritten script. This claim has no merit.

Duff-Smith was not deprived of a fundamentally fair trial because

the state failed to inform him that the authorities were aware that

he planned and then suborned perjury. Duff-Smith obviously had

full knowledge of the information the prosecution did not reveal;

his constitutional rights manifestly were not implicated. 40

We next examine Duff-Smith's allegation that his counsel was

ineffective for failing to present any mitigating evidence during

the punishm ent phase of his trial. "[F]ailure to present

mitigating evidence 'if based on an informed and reasoned practical4 1 Wilkerson

, 950 F.2d at 1065 (quoting Mattheson

, 751 F.2d

at 1441).

42 Strickland , 466 U.S. at 694; Green v. Lynaugh , 868 F.2d

176 (5th Cir.), cert

. denied , 493 U.S. 831 (1989).

4 3 Gilliard v. Scroggy

, 847 F.2d 1141 (5th Cir. 1988), cert

. denied , 488 U.S. 1019 (1989).

19 judgment, is well within the range of practical choices not to be

second-guessed.'" 41 Duff-Smith presented his counsel with the names

of several potential character witnesses. Defense counsel

contacted each person. Determining that these witnesses might be

more dama ging than helpful, counsel decided not to present their

testimony during the punishment phase of trial. Such reasoned

trial strategy, although it might be challenged with the benefit of

20-20 hindsight, is not defective within the meaning of Strickland

.

Duff-Smith's remaining ineffective assistance of counsel

claims are equally without merit. The decision by his counsel not

to challenge the medical examiner's report on Mrs. Zabolio's cause

of death was clearly t rial strategy. 4 2 Both Waldhauser and

MacDonald had admitted to the killing of Mrs. Zabolio. Likewise,

counsel's decision not to pursue Duff-Smith's initial motion for a

change of venue was also the product of reasoned trial strategy.

After voir dire defense counsel was satisfied that Duff-Smith could

r eceive a fair trial in Harris County. As there was neither a

demonstration nor suggestion of prejudice, this cannot be deemed

ineffective assistance of counsel. 43 And finally, Duff-Smith fails

to demonstrat e what relevant fact(s) a more thorough background44 See Barnard , 958 F.2d at 642 n.11.

4 5 Jackson v. Virginia

, 443 U.S. 307, 318-19, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979).

4 6 Parker v. Procunier

, 763 F.2d 665, 666 (5th Cir.), cert

. denied , 474 U.S. 855 (1985).

20 check on Don Chaline, the state's primary non-accomplice witness,

would have revealed. Pure speculation that crucial

cross-examination material might have been discovered is

insufficient to raise a constitutional claim of ineffective

assistance. 44

9. Insufficiency of evidence

Duff-Smith asserts that the state failed to present sufficient

evidence to support the jury's finding of the remuneration element

of capital murder. The heart of his argument is that remuneration

was not shown because he would have inherited the same amount of

money from his mother if she died naturally as he received after

her murder. Thus, Duff-Smith argues, he did not gain from the

murder.

When testing the sufficiency of the evidence in the context of

a habeas petition the state conviction must stand unless no

rational trier of fact, when viewing the evidence in the light most

favorable to the prosecution, could have found the essential

elements of the offense proven beyond a reasonable doubt. 4 5 When

a state appellate court reviews the sufficiency of the evidence,

that court's opinion must be given great weight. 4647 767 S.W.2d 711 (Tex.Crim.App. 1985) ( en banc ).

48 685 S.W.2d at 33 (evidence sufficient to sustain a conviction of capital murder for remuneration).

49 McGee v. Estelle , 732 F.2d 447, 451 (5th Cir. 1984).

21 Duff-Smith's argument runs afoul of Beets v. State 47 wherein

the Texas Court of Criminal Appeals specifically approved its prior

holding in his case. 48 In B eets the defendant murdered her husband

to collect on his insurance policy and to sell his separate

property. In reversing the initial panel ruling, the Court of

Criminal Appeals sitting en banc held that re muneration includes

murder in anticipation of receiving an estate from the murdered

victim. Questions regarding the sufficiency of the evidence are

gauged in the light of applicable state law. 49 Under Texas law the

trial record contains evidence sufficient to establish beyond a

reasonable doubt the essential elements of capital murder for

remuneration.

10. Use of unadjudicated criminal conduct

During the punishment pha se of the trial evidence was

introduced of Duff-S m ith's conspiracy to murder the Wanstrath

family, and his offer to murder the husband of an ex-girlfriend for

inheritance purposes. Duff-Smith alleges that this was error. He

also contends that the evidence pertaining to the Wanstrath murders

was hearsay and thus violated his right of cross examination.

His first contention is squarely foreclosed by the law of this50 Landry v. Lynaugh

, 844 F.2d 1117 (5th Cir.), cert

.

denied

, 488 U.S. 900 (1988) (admission at sentencing in state

cap ital murder trial of evidence of prior unadjudicated offenses

does not violate due process rights).

51 Fed.R .Evid. 801(d)(2)(E); United States v. Miller

, 799

F.2d 985 (5th Cir. 1986).

22 circuit. 50 As for the second argument, the statements Duff-Smith

complains of were coconspirator statements made in the course and

within the scope of the conspiracy. They were admissible. 51

For these reasons, the decision of the district court denying

the application for writ of habeas corpus is AFFIRMED.