1 492 U.S. 302 (1989). UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2026

HERMAN ROBERT CHARLES CLARK, JR.,

Petitioner-Appellee

Cross-Appellant,

versus

JAMES A. COLLINS, DIRECTOR, TEXAS

DEPT. OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant

Cross-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(April 14, 1994)

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

POLITZ, Chief Judge:

The State of Texas appeals a grant of habeas corpus relief to

Herman Robert Charles Clark, Jr., vacating the death sentence

imposed on him due to a violation of P enry v. Lynaugh

. 1 Clark

cross-appeals, challenging the denial of postconviction relief on

14 other grounds. We affirm in part, reverse in part, and remand

with instructions to deny the writ.2 Background

At approximately 3:00 a.m. on April 4, 1981, Clark, armed with

a gun, forcibly entered the Houston apartment of Joseph Edward

McClain. McClain and his girlfriend were asleep in one bedroom

while the girlfriend's son slept in another. After a brief

reconnaissance of the dwelling Clark awakened the three occupants

and robbed them at gunpoint. Confining McClain and the child in a

bathroom, he brought the woman into the child's bedroom and

prepared to rape her. Clark inadvertently left the gun within her

reach as he searched the kitchen for matches to light a marihuana

cigarette. She grabbed the gun and cried out for help. Clark

rushed back to the son's bedroom as McClain emerged from the

bathroom. In the ensuing struggle Clark shot McClain and the

woman. McClain died. After police apprehended Clark, and against

the advice of his attorneys, he made a full confession, admitting

a preconceived plan t o burglarize the McClain apartment and rape

any female he might encounter there. He disclaimed any intent to

kill, asserting that he intended only to wound McClain to

facilitate escape.

Clark pleaded not guilty to a grand jury indictment charging

capital murder in the course of committing and attempting to commit

robbery, burglary, and aggravated rape. A jury found him guilty.

During the penalty phase the state introduced evidence that Clark,

both before and after killing McClain, had committed three other

burglaries involving rape and sodomy of female victims. Taking the

stand against his attorneys' advice, Clark admitted to those2 Tha t statute, as applied to Clark, required the jury to

determine the following special issues:

1. Whether the conduct of the defendant that cause the

death of the deceased was committed deliberately and with

the reasonable expectation that the death of the deceased

or another would result;

2. Whether there is a probability th at the defendant

would commit criminal acts of violenc e that would

constitute a continuing threat to society; and

3. Whether the conduct of the defendant in killing the

deceased was unreasonable in response to the provocation,

if any, by the deceased.

Texas has since modified its capital sentencing scheme.

3 Tex. Code Crim. Proc. art. 37.071(e) (codified as amended at

Tex. Code Crim. Proc. art. 37-071(g)).

4 Although Clark failed to raise the Penry point at trial, the

Court of Criminal Appeals reached its merits on direct appeal.

3 offenses as well as "60 to 70 incidents, probably upward to 100"

others, but attrib uted all to mental illness, including

post-traumatic stress disorder resulting from prior incarceration.

Clark further testified that, during childhood, he suffered sexual

assaults at his father's hands and had to "hit the streets" to

support his family after his parents' divorce. The jury answered

affirmatively the special issues then set forth in Tex. Code Crim.

Proc. art. 37-071(b), 2 requiring the trial court to impose a

sentence of death by lethal injection. 3

On direct appeal Clark claimed that the Texas cap ital

sentencing scheme unconstitutionally failed to require jury

consideration of all m itigating evidence -- an argument now

recognized as a Penry claim

-- and asserted 11 other points of

error. 4 The Texas Court of Criminal Appeals affirmed the5 Clark v. State

, 717 S.W.2d 910 (Tex.Crim.A pp. 1986) ( e n

banc ).

6 Clark v. Texas , 481 U.S. 1059 (1987).

7 In this regard, Clark alleged that his trial attorneys failed

to conduct a proper investigation of his background and mental

health; failed to ask prospective jurors on voir dire whether the

difference in race between he and his victim would affect their

impartial ity; conducted his defense in the absence of a cohesive

strategy; failed to cross-examine penalty-phase witnesses who

testified to other crimes he committed; and presented prejudicial

closing argument in the penalty phase.

8 Clark reurged his Penry claim and further asserted that Tex.

Code Crim. Proc. art. 37.071, because it precluded proper jury

consideration of psychiatric evidence, rendered his counsel

ineffective and violated the sixth, eighth, and fourteenth

amendments.

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

4 conviction and sentence. 5 The Supreme Court denied his petition

for certiorari. 6

After r ejection of an initial state habeas corpus petition,

Clark filed simultaneous state and federal appli cations for

postconviction relief. Both petitions alleged ineffective

assistance of counsel in five respects; 7 presentation at the

penalty phase of unfairly inflamm atory testimony and closing

argument regarding other crimes he committed amount to victim

impact statements; improper dismissal for cause of prospective

jurors due to their views on the death penalty; underrepresentation

of blacks and hispanics in the venire violating the sixth

amendment's fair cross-section requirement; vagueness in the Texas

capital sentencing statute; and unconstitutionality of the statute

as applied to him. 8 Clark's federal petition further alleged a

Batson 9 violation at trial, and insanity precluding his execution.5

The district court dism i ssed Clark's federal petition without

prejudice for failure to exhaust state remedies. The Texas Court

of Criminal Appeals later adopted trial-court findings of fact and

conclusions of law rejecting Clark's claims.

Clark then filed the instant petition under 28 U.S.C. § 2254,

restating the claims asserted in his first federal application and

adding an ineffective assistance of counsel claim arising from his

trial atto rney's failure to challenge racially-motivated use of

perempt ory strikes. The district court concluded that because

Clark had presented evidence at the penalty phase with mitigating

force beyond the scope of the Texas special issues, Penry required

vacatur of his death sentence, but denied relief without an

evidentiary hearing on the 14 other grounds asserted in his

petition. Both parties timely appealed.

Analysis

1. The Penry

Claim

In Penry v. Lynaugh

, the Supreme Court held Johnny Paul

Penry's death sentence unconstitutional because in the absence of

a supplemental jury instruction the jury could not give mitigating

effect to his mental retardation and history of child abuse.

Without a definition of "deliberately," it was unclear whether the

jury could consider the evidence in relation to the first special

issue, while the evidence was solely an aggravating factor with

respect to the second special issue and had no relevance to the

third.

The Court circumscribed the reach of P enry in Graham v.10 113 S.Ct. 892 (1993).

11 113 S.Ct. 2658 (1993).

12 489 U.S. 288 (1989).

13 _____ F.2d _____, 1994 WL 109209 (5th Cir. 1994).

6 Collins 10 and Johnson v. Texas

. 11 Gary Graham contended that his

Texas jury was unable to give mitigating effect to his youth. The

Court held that Graham's claim was outside the scope of Penry and

barred by Teague v. Lan e 12 because it sought on collateral review

the announcement of a new rule. The Court explained that P enry

stood for the limited proposition t hat a jury must be able to

consider all mitigating evidence. Consistent with P enry

, Graham's

jury was deemed able to give mitigating effect to the transient

condition of youth in answering the future dang erousness issue.

Graham, however, sought the proscription of any limitation on the

manner in which the jury could consider mitigating evidence. In

Johnson

, which reached the Court on direct review without a Teague

bar, the Court rejected that proposition. Instead, it reaffirmed

that states have discretion to structure the way in which capital

juries consider mitigating evidence provided the evidence may be

considered in some manner.

While Graham and Dorsie Lee Johnson cited youth as a factor

with relevance beyond the Texas special issues, Clark contends that

his jury was unable to give mitigating effect to the sexual abuse

that he suffered as a young child. We applied the teachings of

Graham and Johnson to evidence of child abuse in Motley v.

Col lins

. 1 3 Motley's father subjected him to brutal beatings from7

the age of four until at least age thirteen; during that period he

also forced the child to engage in anal and oral sex. A

p sychiatrist testified that such an upbringing tended to produce

violent antisocial behavior, a condition which had the possibility

of successful treatment. Observing that Motley's evidence, unlike

Penry's, indicated that he was subject to change, we found that the

jury was able to give mitigating effect to his evidence of child

abuse in answering the future dangerousness inquiry, and we held

that his habeas claim was barred by Teague

.

Clark's evidence simi l arly pointed to the possibility of

rehabilitation. Although declining to predict that he would no

longer be a menace to society, he expressed confidence that

treatment would alleviate his psychological "torments."

I'm sure of that.

. . . [I]f it's possible to acquire

psychiatric help, I intend to do that; because since I've

been at the rehab unit the past year, I've talked to the

resident psychologist there. And he's helped me to work

out a lot of problems and mental aspects of my character

that I didn't understand.

Defense counsel elicited additional testimony about Clark's desire

to ch ange. The police officer who took Clark's confession

testified that Clark purportedly agreed to cooperat e because "he

was tired of doing what he had done [and] wanted to change his

life." Clark confirmed that sentiment.

Yes, sir, it's very true; bec ause for a long time -- I

would say for at least a year

-- I had begun to think

about it seriously, the type of human being I had become

and what I was doing and how it was causing people to

feel that I was coming in contact with. I'm not a

c allous-type person. I knew they must have felt great

amounts of fear, not just of their lives, but of their

relatives involved. And because of that factor, knowing

that what I was doing was getting more and more out of1 4 Clark also relies on Penry to mount a facial challenge to the

Texas death penalty statute. As noted, the Supreme Court limited

Penry in G raham and Johnson and expressly reaffirmed Jurek v.

Texas

, 428 U.S. 262 (1976), approving the Texas statute. Clark

also urges that Penry requires a definition o f "deliberately" as

that term is used in the first special issue, contrary to our prior

decisions. The first special issue is not pertinent to our

disposition of Clark's claim; therefore, we do not address his

argument. Finally, Clark contends that the operation of the

statute prevented his attorney from providing effective

representation. That claim is foreclosed by M ay v. Collins

, 948

F.2d 162 (5th Cir. 1991), cert

. denied , 112 S.Ct. 907 (1992).

15 466 U.S. 668 (1984).

8 hand where it seemed I was losing control of it, I tried

to think of different ways within myself to control the

type of human being I was becoming.

This is not a picture of an individual who, like Penry, is unable

to learn from his mistakes, but reflects an individual who wants to

overcome the handicaps of the past and is optimistic about his

ability to do so. This would militate in favor of a negative

response to the question whether Clark would be a continuing threat

to society. The jury was free to give the evidence mitigating

effect in answering the second special issue. Clark, like Motley,

would have us go beyond the scope of Penry and announce a new rule

on collateral review. This we may not do. The district court

erred in granting habeas relief. 14

2. Ineffective Assistance of Counsel

Clark first contends on cross-appeal that the district court

erroneously rejected, without an evidentiary hearing, his

ineffecti ve assistance of counsel claims. In S trickland v.

Washington

, 15 the Supreme Court held that in order to establish an

ineffective assistance of counsel claim, the petition er must1 6 Carson v. Collins

, 993 F.2d 461 (5th Cir) ( citing Martin v.

Maggio

, 711 F.2d 1273 (5th Cir. 1983), cert

. denied

, 469 U.S. 1028

(1984)), cert

. denied , 114 S.Ct. 265 (1993).

17 Strickland , 466 U.S. at 699.

18 Id. at 694.

1 9 Streetman v. Lynaugh

, 812 F.2d 950 (5th Cir. 1987) ( c iting

Townsend v. Sain , 372 U.S. 293 (1963)).

2 0 Joseph v. Butler

, 838 F.2d 786 (5th Cir. 1988) ( citing

Baldwin v. Blackburn

, 653 F.2d 942 (5th Cir. Unit A 1981), c ert

. denied , 456 U.S. 950 (1982)).

21 28 U.S.C. §§ 2254(d)(1)-(8).

9 demonstrate both the attorney's deficient performance and prejudice

to the defens e flowing therefrom. Habeas corpus petitioners

seeking relief on this basis bear the burden of demonstrating both

of these elements. 16 To satisfy the first S trickland prong a

petitioner must demonstrate attorney performance outside the wide

range of reasonable professional assistance, and must overcome a

strong presumption of adequacy. 17 After surmounting this first

hurdle, the petitioner further must demonstrate "a r e asonable

probabi lity that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." 18

The distr ict court need not hold an evidentiary hearing to

resolve ineffective assistance claims where the petitioner has

failed to allege facts which, if proved, would admit of relief 19 or

where the s tate court record suffices for their disposition. 2 0

Under 28 U.S.C. § 2254(d), we must, absent one of the statutory

exceptions, 21 accord a presumption of correctness to state court2 2 Loyd v. Whitley

, 977 F.2d 149 (5th Cir. 1992), cert

. denied

,

113 S.Ct. 2343 (1993).

23 28 U.S.C. § 2254(d).

10 fact-findings in the course of resolving such claims. 22 Petitioners

s e eking to overcome this presumption must present "convincing

evidence that the factual determination by the State court was

erroneous." 23 Under this rubric there was no error in the district

court's rejection of Clark's ineffective assistance claims without

conducting an evidentiary hearing.

a. Failure to Investigate Mental Health

Clark argues that failure by his trial attorneys to seek an

independent psychiatric evaluation or to interview family members

in support of a possible insanity defense constituted ineffective

assistance of counsel. In the first state habeas corpus proceeding

the Court of Criminal Appeals adopted a trial court finding that

Clark's attorneys did not request additional psychiatric evaluation

because (1) the examination conducted on motion of both prosecution

and defense counsel by Dr. James Hunter at Rusk State Hospital

appeared very thorough; (2) defen se counsel had no reason to

believe that another psychiatrist might reach a conclusion

different from Dr. Hunter's; and (3) Dr. Hunter's evaluation was

consistent with their own perception and observation of Clark. The

court also adopted a finding that Clark specifically requested that

counsel refrain from involving his family in the case. Clark

suggests no inadequacy in these fact-findings which would deprive

them of the presumption of correctness. Further, evidence that2 4 Barnard v. Collins

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

defense counsel had no reason to suspect that petitioner suffered

from mental defect, failure of counsel to conduct an investigation

into such matters not deficient per formance), c ert

. denied

, 113

S.Ct. 990 (1993).

2 5 See Moore v. But ler , 819 F.2d 517 (5th Cir.) (denying

certificate of probable cause in successive habeas corpus petition

where defendant's allegations tha t he was tried for interracial

11 habeas counsel believed Clark's sanity ques tionable after a

three-hour interview and afte r obtaining two medical opinions in

conflict with Dr. Hunter's, does not impel a contrary finding.

Accepting the state court fact-findings, as statutorily directed,

we must conclude that Clark's trial attorneys did not per form

deficiently in failing to seek additional med ical opinions or in

failing to interview family members regarding Clark's sanity. 24

b. Voir Dire

Clark asserts that, in view of the difference in race between

him and his victims, his attorney's failure to inquire on voir dire

into racial bias of a ll venire members constituted ineffective

assistance of counsel. We doubt that counsel's failure in this

regard amounted to constitutionally deficient performance, but need

not resolve that question in view of Clark's failure to allege

prejudice in satisfaction of the second Stricklan d prong. While

Clark points out that questions regarding racial bias led to the

d ismissal for cause of at least one venire member, he does not

claim that racial bias tainted the petit jury actually impaneled.

This claim fails to allege a reasonable probability that, but for

his attorney's failure to inquire into racial bias of prospective

jurors, his trial would have reached a different r esult. 2 5 Theoffense before all-white jury in parish with history of racial

discrimin ation failed to allege prejudice sufficient to support

claim of ineffective assistance of counsel flowing from attorney's

failure to inquire on voir dire a s to potential racial bias of

prospective jurors) (dictum), cert

. denied , 482 U.S. 920 (1987).

12 district court correctly disposed of this contention.

c. Absence of Cohesive Strategy

Clark claims that his trial attorneys rendered ineffective

assistance of counsel because they conducted the voir dire

, guilt,

and penalty p hases of his trial in the absence of a cohesive

strategy. The Texas state courts found that Clark's trial

attorneys pursued a strategy of challenging the voluntariness of

his confessions and consent to the search of his apartment or,

failing that, of establishing absence of intent to kill. They

further found that, if the jury convicted Clark of capital murder,

his attorneys planned to establish in the penalty phase that the

killing was in response to provocation, eliciting a "no" answer to

the third special issue. Clark suggests no defect in these state

court finding s which would divest them of the presumption of

correctness under se c tion 2254(d) and presented no convincing

evidence in rebuttal. In view of the highly inculpatory nature of

Clark's confessions and the strong presumption of counsel's

adequacy, employment of such a strategy would not con stitute

deficient perfo rmance under S trickland

. We conclude that this

contention lacks merit.

d. Closing Argument at Penalty Phase

Clark vigorously attacks defense counsel's closing arguments

at the penalty phase, complaining that they effectively invited the26 380 U.S. 202 (1965).

2 7 Proctor v. Butler

, 831 F.2d 1251 (5th Cir. 1987), cert

. denied , 488 U.S. 888 (1988).

28 Wiley v. Puckett , 969 F.2d 86 (5th Cir. 1992).

13 jury to answer the first two special issues affirmatively. We

disagree. Counsel's arguments were consistent with the defense

trial strategy.

e. Lack of Objection to Peremptory Strikes

Clark's last ineffective assistance of counsel claim flows

from his attorneys' failure to ob ject to purported

racially-motivate d use of peremptory strikes by the prosecution.

Clark's trial took place in 1982, when the onerous regime of Swain

v. Alabama 26 rather than the more lenient standards set forth in

Batson governed such claims. As Clark does not allege

discriminatory use of peremptory strikes in prior cases by Harris

County prosecuting authorities, he has failed to allege prejudice

flowing fromhis attorneys' failure to raise a S wain objection. 27

Likewise, bec ause B atson effected a clear break with preexisting

precedent, failure in a pre-1986 case to urge application of the

standards there annou nced would not fall short of the reasonable

professional assistance guaranteed by the sixth amendment. 28 This

contention lacks merit.

f. Failure to Cross-Examine Witnesses and to Object

to Admission of Extraneous Offenses at Penalty Phase

The prosecutor called at the penalty phase several of Clark's

victims to testify about other robberies an d rapes. Defense

counsel conducted only minimal cross-examination of these2 9 Williams v. State

, 622 S.W.2d 116 (Tex.Crim.App. 1981), cert

.

denied

, 455 U.S. 1008 (1982); Milton v. Procunier

, 744 F.2d 1091

(5th Cir. 1984), cert

. denied , 471 U.S. 1030 (1985).

30 E.g.

, Harris v. Reed , 489 U.S. 255 (1989).

14 witnesses. Clark claimed that cross-examination might have shaken

their identification of him as the assailant. In his penalty phase

testimony, however, he readily admitted to committing the offenses.

There could have been no prejudice from the alleged deficiency.

Clark also complains of trial counsel's failure to object to

the admission of the extraneous offense testimony. Defense counsel

objected to any testimony concerning any extraneous offenses when

the first witness was called; his objection was overruled. In any

event, the objection was meritless; unadjudicated extraneous

offenses generally are admissible at the penalty phase of a capital

murder trial. 29 Failure to raise meritless objections is not

ineffective lawyering; it is the very opposite.

2. Fair Cross-Section Claim

Clark next claims underrepresentation of blacks and hispanics

in the pool from which his petit jury was chosen. Because the

state court in Clark' s second habeas corpus proceeding expressly

relied on procedural default in rejecting this claim, it provides

no basis for federal habeas corpus relief absent a showing of cause

a nd prejudice or that a fundamental miscarriage of justice would

result from failure to consider it. 30 As Clark alleges no cause for

his procedural default and inasmuch as failure to consider it will

not result in manifest injustice, this assignment of error fails.

4. Batson Violation3 1 Jones v. Butler

, 864 F.2d 348 (5th Cir. 1988) (on rehearing),

cert

. denied , 490 U.S. 1075 (1989).

15 Clark claims that the district court erroneously rejected his

Batson clain. We disagree. In the absence of contemporaneous

objection, a claim th at prosecutors made use of peremptory

challenges in violation of the Batson standards cannot succeed. 31

As Clark concedes his failure to raise this claim at trial, this

contention fails.

5. Other Claims

Clark gives only cursory attention to his remaining claims.

Our review of the record persuades that none has merit.

The judgment of the district court is AFFIRMED IN PART,

REVERSED IN PART, and REMANDED with instructions to d eny the

petition for a writ of habeas corpus.