IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50441

_____________________

JAMES OTTO EARHART,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________ January 9, 1998

Before KING, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge

This appeal presents the question whether the district court

erred in denyin g federal habeas relief to James Otto Earhart. A

Texas jury convicted Earhart for capital murder and sentenced him

to death. The conviction and sentence were affirmed on direct

appeal. Earhart then filed a petition for habeas relief in the

federal district court under 28 U.S.C. § 2254. He alleged, inter

alia

, that defen s e counsel rendered ineffective assistance in

violation of his Sixth Amendment rights. He further alleged that

failure to define “reasonable doubt” for the jury in his case, but

requiring it in all cases after his, violated his due process and

equal protection rights. In a different vein, Earhart argued that2

his petition should be dismissed and his execution stayed until he

had had an opportunity to exh aust his state habeas remedies. In

response to this argument, however, the State waived the exhaustion

requirement. The district court accepted the State’s waiver and,

examining the merits of Earhart’s remaining claims, denied relief.

Earhart appeals. Finding no error in the district court’s

decision, we affirm.

I

On May 26, 1987, the body of nine-year-old Kandy Kirtland was

discovered in a trash heap in Bryan, Texas. She had been missing

for two weeks. The young girl was discovered with her hands tied

behind her back with an electrical cord and a bullet wound to her

head.

The same day, Earhart was arrested in connection with

Kirtland’s death. He was indicted two weeks later on charges of

capital murder. Earhart pled not guilty, and the case went to

trial a year later. As part of its case against Earhart, the

prosecution presented an expert witness who testified that the

bullet recovered from the girl was “analytically indistinguishable”

from those loaded in a gun later discovered among Earhart’s

belongings. The expert further testified that analytically

indistinguishable bullets are typically found within the same box

of ammunition. The expert conceded, however, that he could not

determine whether the bullet that killed Kirtland was fired from

Earhart’s gun and acknowledged that the bullet may not have come1 For a more complete discussion of the facts and e vidence

introduced at trial, see Earhart v. State , 823 S.W.2d 607, 611-16

(Tex. Crim. App. 1991).

2 The issue in Johnson involved the con stitutionality of

Texas’s death penalty.

3 from the same box of ammunition as the other bullets. The jury

found Earhart guilty of murder while in the course of kidnaping and

sentenced him to death by lethal injection. 1

Earhart took a direct appeal to the Texas Court of Criminal

Appeals, which affirmed his conviction on September 18, 1991. S ee

Earhart v. State

, 823 S.W.2d 607 (T ex. Crim. App. 1991). The

United States Sup reme Court granted Earhart’s writ of certiorari

and remanded the case for further consideration in the light of its

opinion in Johnson v. Tex as , 113 S.Ct. 2658 (1993). 2 On remand,

the Court of Criminal Appeals again affirmed Earhart’s conviction

a nd sentence. S ee Earhart v. State

, 877 S.W.2d 759 (Tex. Crim.

App. 1994). Earhart’s second petition for certiorari was denied on

October 31, 1994. Earhart v. Texas , 513 U.S. 996 (1994).

Thereafter, the trial court scheduled Earhart’s execution for

February 7, 1995. Earhart immediately attempted to initiate state

habeas proceedings. He requested the state trial court to stay or

withdraw his execution date and to appoint counsel to assist him in

preparing a state habeas application. Both requests were denied on

January 23, 1995. As a result, Earhart initiated federal habeas

proceedings by filing a motion for appointment of counsel and for4

a stay of execution. The district court granted both motions on

February 2, 1995.

Earhart filed his fed eral habeas petition on September 29,

1995. He alleged six grounds in support of his petition: (1) trial

counsel rende red ineffective assistance by failing to object

properly to the admissibility of Earhart’s tape-recorded statement

to police; (2) trial counsel rendere d ineffective assistance by

failing to request an expert regarding analysis of bullet evidence;

(3) the decision by the Texas Court of Criminal Appeals to require

a definition of “reasonable doubt” in all subsequent cases,

announced 49 days after rejecting the same rule of law in Earhart’s

case, violated his due process and equal protection rights; (4) the

denial of an instruction informing the jury that it could give

effect to mitigating evidence by declining to impose the death

penalty violated Earhart’s Eighth and Fourteenth Amendment rights;

(5) trial counsel rendered ineffective assistance by f ailing to

adduce sufficient evidence to support such an instruction; and (6)

the “cumulative and synergistic effect” of trial counsel’s errors

amounted to ineffective assistance. Earhart contended that most of

these claims had not been presented t o state courts and that his

petition should be dismissed so that he could exhaust state

remedies before proceeding in federal court.

In response, the State waived the exhaustion requirement and

filed a motion for summary judgment. The district court granted

summary judgment against Earhart on May 15, 1996. Earhart timely5

filed a notice of appeal. The district court issued a certificate

of probable cause on June 21, 1996. This appeal followed.

II

On appeal, Earhart has narrowed the number of his claims. He

now challenges the distri ct court’s decision on the ineffective

assistance of counsel claims concerning his tape-recorded statement

and denial of a defense expert, as well as his due proc ess and

equal protection claim. He further argues that the district court

err ed by accepting the State’s waiver of the exhaustion

requirement. In considering Earhart’s claims under 28 U.S.C.

§ 2254, we accord a presumption of correctness to any state court

factu al findings. S ee Mann v. Scott

, 41 F.3d 968, 973 (5th Cir.

1994), cert. denied

, 514 U.S. 1117 (1995). We review the district

court’s factual findings for clear error, but decide any issues of

law de novo

. I d. Because claims concerning ineffective assistance

of counsel generally involve mixed questions of law and fact, we

review them de novo as well. U nited States v. Faubion

, 19 F.3d

226, 228 (5th Cir. 1994).

III

We first address Earhart’s argument that the district court

erred by accepting the State’s waiver of the exhaustion requirement

contained in 28 U.S.C. § 2254. By refusing to permit him to

exhaust his state habeas remedies, Earhart insists, the district

court “cheated” him out of his statutory right to state habeas

proceedin gs. The State responds that exhaustion is unnecessary3 For this reason, Earhart cannot sustain his claim that the

district court erred by refusing to hold an evidentiary hearing on

his ineffective assistance of counsel claims. See Amos v. Scott

, 61 F.3d 333, 346 (5th Cir.), cert. denied , 116 S.Ct. 557 (1995).

6 because Earhart has not raised a claim requiring further factual

development or a claim implicating important state interests.

We have held that exhaustion of state habeas remedies is not

a jurisdictional prerequisite and, as a result, may be waived by

the State. McGee v. Estelle , 722 F.2d 1206, 1212 (5th Cir. 1984)

(en banc); accord Granberry v. Greer

, 481 U.S. 129, 132-33 (1987).

The requirement exists to protect states’ interests in the

enforcement of federal laws and pre vent disruption of state

judicial proceedings. R ose v. Lundy

, 455 U.S. 509, 518 (1982).

The district court, however, need not accept a state’s waiver of

the exhaustion requirement. The district court, or this court, in

the exercise of its discretion, may reject a waiver in the

interests of comity. S ee McGee

, 722 F.2d at 1214. Thus, for

example, if the case presents an issue involving an unresolved

question of fact or state law, the court may insist on complete

exhaustion to ensure its ultimate review of the issue is fully

informed. S ee Granberry

, 481 U.S. at 134-35; see also Gr aham v.

Johnson , 94 F.3d 958, 968-70 (5th Cir. 1996).

Such circumstances are not present in this case. The facts

necessary to dispose of Earhart’s ineffective assistance of counsel

claims are in the record. 3 The issue whether the court-announced

rule regarding the definition of reasonable doubt should be applied4 Of course, Earhart may seek state court habeas review solely

for the purpose of delaying his impending execution. This is not,

however, a legitimate reason fo r a federal court requiring

exhaustion of state remedies. Furthermore, as the State notes in

its brief, dismissing Earhart’s present claims would have the

ultimate effect of requi ring him to litigate his future federal

habeas petition under the more stringent standards of the AEDPA.

Thus, we conclude that rejecting the State’s waiv er of the

exhaustion requirement would serve no legitimate purpose, especially given the time and resources already spent taking this

case on appeal, nor in any event would it likely benefit Earhart

himself.

7 retroactively to Earhart’s case is a question of law. Thus, the

claims Earhar t advances turn on the resolution of legal, not

factual, issues. Moreover, to the extent Earhart’s claims involve

questions of state law, they entail straight-forward application of

principles already settled by state courts. Finally, the principal

interest of the prisoner is in obtaining speedy relief on his

claims, see Rose

, 455 U.S. at 520, which is served in this case by

giving immediate consideration to the merits of Earhart’s claims. 4

In short, little counsels in favor of compelling exhaustion of

state habeas remedies.

IV

We next consider Earhart’s ineffective assistance of counsel

claims. Earhart argues that his trial counsel rendered ineffective

assistance by (1) failing to object to the admissibility of his

tape-recorded statement to police on state law grounds and (2)

failing to request the assistance of a defense expert on the

elemental composition of the bullets in this case. Earhart further8

contends that the district court’s failure to hold an evidentiary

hearing on these issues was reversible error.

To prevail on these claims, Earhart must satisfy the familiar

two-part test announced in Strickland v. Washington , 466 U.S. 668

(1984). The S trickland test requires the habeas petitioner to

prove that c ounsel’s performance was deficient and that the

deficient performance resulted in ac tual prejudice to the

petitioner’s defense. A rmstead v. Scott

, 37 F.3d 202, 206 (5th

Cir. 1994), cert. denied , 514 U.S. 1071 (1995). That is, Earhart

must affirmatively prove that counsel’s performance was objectively

unreasonable and resulted in a reasonable probability that, but for

counsel’s unprofessional errors, the outcome of the proceedings

would have been different. S ee id. Applying these general

guidelines, we turn to the merits of Earhart’s ineffective counsel

claims.

A

Earhart first argues that defense counsel rendered ineffective

assistance by failing to obje ct properly to the admissibility of

his recorded statement to the police. In particular, Earhart

contends that the tape-recorded statement he gave to police was not

prefaced with a specific warning of his right to remain silent, as

required by article 38.22 of the Texas Code of Criminal Procedure.

Defense counsel did not object to admission of the statement on

these grounds, and the Court of Criminal Appeals refused to review9

the claim on direct appeal because of counsel’s failure to preserve

the error under state law. See Earhart , 623 S.W.2d at 621.

Texas law is clear that, so long as the State substantially

complies with the requirements of art icle 38.22, failure to give

the precise warnings included in the statute does not render a

confession inadmissable. S ee Hardesty v. Sta te , 667 S.W.2d 130,

135 (Tex. Crim. App. 1985); see also Stinnett v. State

, 720 S.W.2d

663, 666 (Tex. App. 1986). The State argues that the warnings

Earhart received before giving a statement substantially complied

with the requirements of article 38.22. The record shows that

Earhart received the following warning before giving the recorded

statement:

You have the right to have a lawyer present to advise you prior or during any questioning. You have the right to

terminate this interview at any time. And any statement

that you do make may and probably will be used against

you at your trial. Do you understand all of the above

rights?

The record further reveals that Earhart had been warned in accord

with article 38.22 on at least two other occasions (including the

right to remain silent), had signed a written rights form advising

him of his article 38.22 rights, and had been similarly advised by

a magistrate judge 14 minutes before giving the statement.

Because admissi on of the statement did not violate article

38.22, the State contends, Earhart cannot prove either prong of the

Strickland test. We agree. In Clark v. State , 627 S.W.2d 693

(Tex. Crim. App. 1982), the Texas Court of Criminal Appeals,10

addressing the adequacy of warnings under article 38.22, held that

“the coupling of the right ‘not to make a statement’ with the right

to ‘terminate any interview at any time’ if the appellant ‘decided

to talk with us’ adequately conveyed the right to remain silent.”

Id. at 704. Similarly, in the instant case, Earhart was directly

advised of his right to terminate the interview at any time and

then cautioned that any statement he did make would be used against

him at trial. This warning came on the heels of other warnings

more precisely tracking the language of article 38.22 and expressly

relating Earhart’s right to remain silent. We find these warnings,

when read together and as a whole, indistinguishable from those

found sufficient in Clark

. Admission of the statement did not

violate article 38.22, and, therefore, Ea rhart cannot prove that

defense counsel acted unreasonably in not objecting to admission of

the statement.

B

Earhart’s second ineffective counsel claim focuses on defense

counsel’s failure to request the assistance of a defense expert to

testify on the elemental composition of the bullet that killed

Kandy Kirtland and on the composition of those seized among

Earhart’s belongings. He argues that, under Texas law, denial of

an expert when properly requested is a structural error mandating

reversal. Because evidence relating to these bullets was a

significant factor at trial, Earhart contends, he was entitled to11

an expert and would have obtained one had the proper request been

made.

Texas law supports Earhart’s argument. Effective September 1,

1987, an attorney “appointed to represent a defendant in a criminal

proceeding, including a habeas corpus hearing, shall be reimbursed

for reasonable ex penses incurred with prior court approval for

purposes of investigation and expert testimony.” Tex. Crim. P.

Code Ann. § 26.05(a). Texas courts have interpreted this provision

to extend to all experts, and the failure to approve expenses under

this provision is reversible error where the defendant demonstrates

a need for the expert’s assistanc e. See Rodriguez v. State

, 906

S.W.2d 70, 73 (Tex. App. 1995). Of course, since Earhart’s counsel

did not request an expert, he had no opportunity to show a need for

expert assistance. Given the significant role the bullet evidence

played in the prosecution’s case, we shall therefore assume Earhart

could have made a sufficient threshold showing that he was entitled

to a defense expert under Texas law. See id.

Nevertheless, the district court properly concluded that

Earhart was not entitled to relief on these grounds because, in

this habeas proceeding, he still had failed to show or even allege

that an expert could be found whose testimony would have altered

the outcome of the state court trial. Even if defense counsel’s

failure to request an expert resulted in a fundamental defect in

Earha rt’s trial that would have mandated reversal had it been

raised direct appeal, Earhart still must demonstrate prejudice to12

the outcome of his trial. “[T]he right to effective assistance of

counsel, both at the trial and appellate level, ‘is recognized not

for its own sake, but becau se of the effect that it has on the

ability of the acc used to receive a fair trial.’” G oodwin v.

Johnson

, No. 95-20134, 1998 WL

_______, at

___ (5th Cir.

______

1998) (quoting Lockhart v. Fretwell

, 506 U.S. 364, 369 (1993)). In

other words, Earhart must show a reasonable probability that, but

for counsel’s failure to request an expert, the jury would have had

a reason able doubt concerning his guilt. S ee Ricalday v.

Procunier

, 736 F.2d 203, 208 (5th Cir. 1984); s ee also Gray v.

Lynn

, 6 F.3d 265, 269-70 (5th Cir . 1993). “Because the error at

the appellate stage stemmed from the error at trial, if there was

no prejudice from the trial error, there was also no prejudice from

the appellate error.” R icalday

, 736 F.2d at 208; accord Lombard v.

Lynaugh , 868 F.2d 1475, 1482 n.9 (5th Cir. 1989).

Thus, Ricalday makes clear that Earhart’s failure to identify

an expert whose testimony would have altered the outcome of his

t rial is fatal to his habeas claim. In R icalday

, the habeas

petitioner argued that his attorney rendered ineffective assistance

by failing to object to a variation between the indictment and the

jury instructions and by failing to raise the issue on direct

appeal. We recognized that such error constituted a fundamental

trial defect under Texas law and would have resulted in reversal on

direct appeal even though no objection had been made at trial. S ee

736 F.2d at 207. Consequently, we concluded that counsel’s13

performance was deficient. S ee id. at 207-08. We refused to grant

habeas relief, however, because the petitioner failed to establish

that the error altered the outcome of the trial

. See id. at 208-

09.

For the same reason, we conclude that Earhart’s claim was

properly dismissed. Earhart has not identified an expert witness

available to testify on his behalf or the type of testimony such a

w itness would have provided beyond that elicited at trial

.

Furthermore, he has not m ade any showing with respect to how any

expert testimony would affect the outcome of the trial. In short,

assuming defense counsel was deficient in failing to request an

exper t, Earhart has not established that this failure prejudiced

his defense or otherwise rendered t he outcome of his trial

unreliable.

V

Earhart’s final argument is that the decision by the Texas

Court of Criminal Appeals to require a definition of “rea sonable

do ubt,” but to do so only in all subsequent cases, announced 49

days after rejecting the same rule of law in Earhart’s case,

violated his due process and equal protection rights. Earhart

requested a jury instruction on the definition of reasonable doubt

during both guilt and punishment phases of hi s trial. The trial

court refused, and the Court of Criminal Appeals affirmed. Within

less than two months after Earhart’s direct appeal was decided, the

Court of Criminal Appeals decided Geesa v. State

, 820 S.W.2d 1545 The exc eptions are limited to rules placing a class of

conduct beyond the government’s power to proscribe and “watershed”

rules of criminal procedure implicating the fundament al fairness

and accuracy of the criminal proceeding. See Teague , 489 U.S. at

311.

14 (Tex. Crim. App. 1991), which provided a definition of reasonable

doubt to be presented to juries in all cases tried after the date

of its opinion. Earhart argues that the timing of the decision and

the refusal to apply the Geesa rule retroactively to his case

violate the principle of fundamental fairness embodied in the due

process and equal protection clauses of the Constitution.

This claim has no merit. As for Earhart’s contention that

Geesa should have been applied retroactively to his case, this

court’s decision in Lackey v. Scott

, 28 F.3d 486 (5th Cir.), cert.

denied

, 115 S.Ct. 743 (1994), forecloses the argument. In L ackey

,

we rejected the exact same argume nt regarding the G eesa opinion.

See id. at 491. As for the Texas Court of Criminal Appeal’s timing

of the rule announced in Geesa , Earhart points us to no precedent

establishin g a constitutional interest in an appellate court’s

timing of its announcement of a new rule. Under Teague v. Lane

,

489 U.S. 288 (1989), habeas relief may not be premised on

constitutional principles yet to be announced or announce d after

the challenged conviction became fina l, with two limited

exceptions. 5 Even were we prepared to announce a new rule of

constitutional law in accord with Earhart’s argument (which we are

not), neith er Teague exception applies in this case. The15

Constitution neither prohibits trial courts from defining

reasonable doubt nor requires them to do so. Victor v. Nebraska

,

114 S.Ct. 1239, 1243 (1994). The district court, therefore,

correctly concluded that Earhart’s claim does not implicate notions

of fundamental fairness.

VI

For the above-s tated reasons, the judgment of the district

court is

A F F I R M E D.