1 Each time Harris appealed on direct review to the Texas

Court of Criminal Appeals, that court took three years to address

his case. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 92-2918

_______________________

CURTIS PAUL HARRIS,

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

_________________________________________________________________ (April 22, 1993)

Before GARWOOD, JONES, and EMILIO GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Thirteen years ago, Curtis Paul Harris was first

c onvicted of murder in a Texas court and was sentenced to death.

He has since been tried, convicted and sentenced to death again,

and he has unsuccessfully sought relief on direct appeal and by

habeas corpus in state court. These protracted proceedings lend

new meaning to the phrase "exhaustion" of state remedies. 1 After

Harris filed a federal petition for writ of habeas corpus, the

district court, in a very thoughtful opinion, denied relief on all2 This account is primarily taken from the opinion set

forth in the Texas Court of Criminal Appeals. Harris v. State

, 738 S.W.2d 207, 213-15, 224-25 (en banc).

2 claims and refused to grant a certificate of probable cause to

appeal. Harris now appeals to this court for a certificate of

probable cause. We deny the application.

FACTS AND PROCEDURAL HISTORY

On the night of December 11, 1978, Curtis Paul Harris,

James Manuel, Curtis's girlfriend Valerie Rencher and his brother

Danny Harris drove their car to visit a friend in Bryan . Upon

arriving at the friend's house they discovered she was not there.

Their car would not start, and the three men began to beat up the

car and tear up the interior. 2

When no neighbor could be found to help with the car the

group walked down the road and flagged a passing pick-up truck. A

would-be Good Samaritan, Tim Merka, stopped his truck and attempted

for 20-25 minutes to repair their car. Frustrated at the car's

continued breakdown, the group decided to take Merka's truck.

Danny pushed Merka down and pinned him to the ground. While Danny

sat on Merka's chest, Curtis Harris began to beat him in the head

with an automobile jack. Valerie Rencher testified that she begged

him to stop but Harris hit the victim at least six more times.

Merka died of severe injuries to the head and brain. He suffered

fifteen head lacerations that were consistent with having been

inflicted by a bumper jack shaft and ratchet mechanism.

The group's destructive instincts were not yet sated.

Leaving Merka's body in a ditch, they absconded with his pick-up,3

appropriated his shotgun and drove to a U-Totem store in Waller,

which they robbed at gunpoint of the cash in the till and a change

bottle that contained donations for the Multiple Sclerosis Society.

Upon their return to Bryan about midn ight, Danny Harris secreted

Merka's truck. The truck was found at 10:00 a.m. on December 12,

1978 on the Old Mumford Road in Bryan approximately four blocks

from the Harris house.

Harris was found guilty based particularly on the

testimony of his girlfrie nd Valerie Rencher and the testimony of

the U-Totem clerk who saw him during the robbery in which Merka's

shotgun was used. Physical evidence against him included Merka's

Texas A&M identification card, g un case and payment book, which

wer e found in the woods behind Harris's home. The jury found

Harris guil ty of murder and sentenced him to death. The Texas

Court of Criminal Appeals reversed Harris' convictions due to

improper restrictions on cross-examination, H arris v. State

, 642

S.W.2d 471 (Tex. Crim. App. 1982), but he was retried and again

sentenced to death. The conviction was affirmed by the Texas Court

of Criminal Appeals, Harris v. State

, 738 S.W.2d 207 (Tex. Crim.

App. 1987) and petition for writ of c ertiorari was denied by the

U.S. Supreme Court. H arris v. Texas

, 484 U.S. 872, 108 S. Ct. 207,

98 L.Ed.2d 158 (1987). Having exhausted state collateral remedies,

Harris next appli ed for a stay of execution in the United States

District Court for the Southern District of Texas. Eventually, the

district court denied relief and denied Harris's request for a4

certificate of probable cause to appeal. He now appeals the denial

of the certificate of probable cause to this court.

Harris argues four issu es in his effort to obtain CPC.

First, he asserts tha t the prosecutor utilized peremptory

challenges in a racially discriminatory way. Second, he states

under the Texas death penalty law, the jury was unable to consider

and give effect to mitigating eviden ce of Harris' role in

committing the offense. Third, he contends that the trial court

violated his due process rights by "testifying" into the record

about events surrounding the separation of jurors. He finally

argues that two prosp ective jurors were improperly excused for

cause in violation of Witherspoon v. Illinois

.

DISCUSSION

This court lacks jurisdiction to hear an appeal in this

case unless a certificate of probable cause is gr anted. Fed. R.

App. Proc. 22(b). To obtain a certificate of probable cause,

Harris must "make a substantial showing of the denial of a federal

right." Barefoot v. Estelle , 463 U.S. 880, 893, 103 S. Ct. 3383,

3394, 77 L.Ed.2d 1090 (1983); Jones v. Whitley , 938 F.2d 536, 539

(5th Cir. 1991, cert. denied

,

____ U. S. _____, 112 S. Ct. 8, 115

L.Ed.2d 1093 (1991). To sustain this burden, Harris "must

demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues [in a different manner]; or

that the questions are adequate to deserve encouragement to proceed

further". Barefoot , 463 U.S. at 493 n.4, 103 S. Ct. at 3394 n.4.5 A. Batson Claim.

Harris initially seeks a certificate of probable cause to

review his claim that the prosecutor utilized a peremptory

challenge in a racially discriminatory fashion, violating Batson v.

Kentucky

, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). The

prospective juror was Georgia Fay Harris, a black woman. The

record reflects that Harris's counsel did not object at trial to

the exclusion of Ms. Harris. For this reason, we must follow

established circuit precedent and find that Harris failed to assert

a proper Batson claim as a matter of federal law. B atson

, 476 U.S.

at 100, 106 S. Ct. at 1725; Wilke rson v. Collins , 950 F.2d 1054,

1063 (5th Cir. 1992); United Sta tes v. Erwin , 793 F.2d 656, 667

(5th Cir. 1986). As we held in W ilkerson , 950 F.2d at 1063, the

fact that the state habeas court later considered on the merits the

prosecutor's alleged racial use of preemptory challenges does not

cure the defect, fatal to federal review, of failure to object

timely to the peremptory str ike. S ee also Jones v. Butler

, 864

F.2d 348, 369 (5th Cir. 1988) (on pet. for reh.).

Harris asserts that Powers v. Ohio , ____ U.S. ____, 111

S. Ct. 1364, 113 L.Ed.2d 411 (1991) announced a new rationale for

Batson which would dispense with the contemporaneous objection rule

in order to preserve jurors' equal protection rights. This is not

correct. P owers applied Batson to peremptory challenges of jurors

of a different race from the defendant. Nothing in P owers changes

the procedure appropriate for asserting a Batson claim. Further,

Powers itself strongly suggests that a contemporaneous object ion3 Harris tries to circumvent our federal contemporaneousobjection rule by asserting that race was so plainly a ground for

the prosecutor's exclusion of Ms. Harris that no objection was

needed to preserve the error. We disagree. The purpose of the

prosecutor's question, as he explained to the state habeas court,

was to ascertain whether Ms. Harris might feel an affinity, or

"kinship", for Curtis Harris, because they were from the same

town, of the same race and had the same last name. He pointed

out that he would not have needed to make this inquiry if Ms.

Harris had been white. The state habeas court accepted this

reason, as well as several others articulated by the prosecutor,

and found that the peremptory strike was not exercised

discriminatorily. Harris has mischaracterized the state court's

finding as permitting a "race-plus" peremptory strike after

Batson . Even if there were no federal contemporaneous objection

component to a Batson claim, we would be bound by the state

court's finding. 28 U.S.C. § 2254(d).

4 Under the law in effect when Harris committed his

crime, the jury must answer "yes" to two questions before the

defendant may be sentenced to death:

6 mus t be made. P owers

,

____ U.S. at

____, 111 S. Ct. at 1371-72

(the trial court has a duty t o make a prompt inquiry during voir

dire concerning improper exclusion of jurors when the issue is

raised). This circuit has continued t o apply the rule of

contemporaneous objection even after Powers

. Wilkerson , 950 F.2d

1062-63. We may not consider this argument further. 3

B. Possible Mitigating Evidence.

Harris asserts that according to the law of parties

instruction given to the jury during the guilt phase of the trial

the jury was never required to de cide whether the petitioner

physically caused the death of Merka in order to find him guilty of

capital murder. Harris also asserts that the penalty phase

inquiries posed by Texas law to the jury failed to allow them to

give mitigating effect to his allegedly less culpable role in the

offense. 4 Taken together, these conditions are said to render(1) Whether the conduct of the

defendant that caused 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 that

the defendant would commit criminal acts of

violence that would constitute a continuing

threat to society. Tex. Crim. Proc. Code

Ann. Art. 37.071(b) (Vernon 1981).

7 Texas law unconstitutional under Penry v. Lynaugh

, 492 U. S. 302,

109 S. Ct. 2934 (1989).

The most serious weakness of this argument is its lack of

evidentiary support. It was uncontroverted that Harris struck the

deceased with an automobile jack. There was no direct evidence

that any other person struck Merka with a jack or any instrument.

The evidence was likewise uncontroverted that every blow delivered

to the defendant's head could have been fatal, and Merka's hair and

b lood were found on the jack. Although a hammer found under

Merka's body could have been used as the murder weapon, blood was

found only on its handle, a spot inconsistent with aggressive use.

Substantively, Harris's argument has been undercut by the

recent Supreme Court decision in Graham v. Collins

,

____ U.S.

____,

113 S.Ct. 892,

____ L.Ed.2d

____ (1993). G raham reviewed this

court's en banc decision holding that the Texas d eath sentencing

statutory provisions suff iciently allow a jury to consider the

mitigating effect of a defendant's youth at the time he committed

a capital offense. G raham v. Collins

, 950 F.2d 1009, 1027 (5th

C ir. 1992). G raham was decided under the principle of Teague v.

Lane

, 489 U.S. 288, 109 S. Ct. 1060 (1989) and couched as a8

decision whether an extension of Penry to youth is a "new rule" not

cognizable on habeas, yet it makes clear that Penry is limited in

scope. The Supreme Court noted that P enry addressed an atypical

factual scenario, evidence that was a double-edged sword. The

primary r elevance of Penry's substantial evidence of retardation

lay in its aggravating effect and its tendency to prove Penry's

future dangerousness, while its miti gating effect on the future

dangerousn ess issue was too tenuous to overcome the aggravating

impact. ____ U.S. at _____, 113 S. Ct. at 900-901. Thus, while

Penry 's jury had no reliable means of giving mitigating effect to

his retardation as presented, Graham 's evidence of youth, transient

childhood, and good character "was not beyond the jury's effective

reach". ____ U.S. at _____, 113 S. Ct. at 902.

In this case, the only other person who could have struck

a fatal blow to Merk a was Danny Harris as he bestrode Merka's

chest. But the possibility that Harris did not fatally wound

Merka, as in Graham

, was not beyond the effective reach of the jury

in regard to either of the special issues. This court has

succinctly answered Harris's Penry / Graham argument in a pre- Graham

case, in which the defendant alleged that the jury could not give

mitigating effect to the possibility that an accomplice might have

killed the victim. In B ridge v. Collins

, 963 F.2d 767, 770 (5th

Cir. 1992), it was pointed out:

If the jury members believed that Bridge's

accomplice killed the victim, then they could

have answered "no" to the first question.

. . .5 Nichols has been stayed in part pending appeal to the

Fifth Circuit, Nichols v. Collins , No. 92-2720 (Dec. 30, 1992).

9 If the jury membe rs believed that Bridge did

not shoot the vic tim, then they could have

c oncluded that Bridge would not be a future

threat.

Id

. S ee also

, Drew v. Collins

, 964 F.2d 411, 421 (5th Cir. 1992).

Harris attempts to distinguish Bridge on the basis that

Harris could have been convicted under the law of parties even

though the jury believed he had not killed Merka. Then, according

to the argument, the jury could have answered both special

punishment issues without considering that Harris did not actually

kill Merka. This argument derives from a recent district court

opinion. N ichols v. Collins

, 802 F.Supp. 66 (S.D. Tex. 1992). For

several r easons, it is unpersuasive. First, Harris's argument

ignores the law of this circuit that a jury need only be provided

one fair vehicle for considering mitigating evidence. White v.

Collins

, 959 F.2d 1319, 1322-23 (5th Cir. 1992), cert. denied

,

____

U.S.

____, 112 S. Ct. 1714, 118 L.Ed. 2d 419 (1992)); B oyde v.

California

, 494 U.S. 370, 382 n.5, 110 S. Ct. 190, 199 n.5, 108

L.Ed.2d 316 (1990). Second, the state points out that in D rew and

in B ridge the jury was instructed to convict under the law of

parties. D rew

, 964 F.2d at 421; Drew v. State

, 743 S.W.2d 207, 214

n.3 (Tex. Crim. App. 1987) (describing the facts of Drew ). These

cases are not factually distinguishable. Third, Harris's reliance

on Nichols 5 is unavailing. Besides having had its opinion in

regard to sentencing vacated pending appeal, the court in Nichols

simply did not discuss the controlling law of the circuit in6 Brown v. Lynaugh , 843 F.2d 849 (5th Cir. 1989), cited

by Harris, is inapposite to this case as in Brown , the judge

testified on a matter of guilt. Id . at 849.

10 Bridge

. N ichols

, 802 F.Supp. at 71-72. Fourth, the Supreme

Court's decis ion in G raham appears to vitiate any legitimate

disagreement among jurors otherwise attributable to Nichols

.

C. The Judge's Statements.

During his trial, Harris moved for mistrial under state

law based on the allegations of an improper separation of the jury.

In denying the pe titioner's motion, the trial judge described on

the record the events surrounding his supervision of the jury while

they transported their cars from the county parking lot to parking

spaces underneath the courthouse before commencing deliberations.

The separation occurred after the jury had been given the charge at

the end of the guilt\innocence phase of the trial. After providing

his recollection of the event, the trial judge testified that he

was "positive that none of the jurors had access to any information

or contact with any other person during this process." Harris

contends that under Tyler v. Swenson

, 427 F.2d 412 (8th Cir. 1970),

t his action offended his due process rights. 6 T yler

, however,

stands only for the proposition that when the testimony of the

t rial judge addresses m aterial and disputed facts, a due process

violation may occur. Tyler , 427 F.2d at 417.

In this case, the trial judge merely offe red his

recollections of matters within the judge's observations of the

trial. Harris offered no evidence contrary to the trial judge's

statements. C ompare Harris v. State

, 738 S.W.2d at 223 (noting7 Harris's citation to Swain v. Alabama , 380 U.S. 202, 85

S. Ct. 824, 13 L.Ed. 759 (1965), in an effort to show that the

prosecutor used his questioning for an improper purpose, is

inapposite. Witherspoon -excludables are not a cognizable group

for constitutional purposes, Lockhart v. McCree , 476 U.S. 162,

174, 106 S. Ct. 1758, 1765, 90 L.Ed.2d 137 (1986).

11 "[none of the judge's] statements were refuted"), with Tyler , 427

F.2d at 417 (noting the testimony of the judge "must be challenged

by the petitioner"). Thus, under T yler

, Harris fails to

demonstrate a material conflict regarding disputed facts.

D. The Exclusion of Jurors Easley and Koy for Cause.

Finally, Harris contends that the prosecutor improperly

challenged for cause two prospective jurors, Easley and Koy, in a

manner tha t evaded and violated the Supreme Court's decision in

Witherspoon v. Illinois , 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d

776 (1968). Harris admits that the state may challenge jurors for

c ause on the basis of state law even if their answers rega rding

capital punishment did not entitle the state to a strike under

Witherspoon

. B rooks v. Estelle

, 697 F.2d 586, 589-90 (5th Cir.

1982). Harris contends, however, that in questioning the potential

venirepersons the prosecutor acted differently toward another

member who voiced no personal concern about the death penalty but

gave the same answers to the questions regarding minimum punishment

under state law as Easley and Ko y. Harris alleges that the

prosecution's use of a state law principle to challenge for cause

a juror perceived to be "soft" on the death penalty is a subterfuge

designed to circumvent Witherspoon

. 712 Whether this argument has merit is not for us to say in

the first instance on a federal writ of habeas corpus. Under the

Teague rule, supra

, it would manifestly be a "new rule" of

constitutional criminal procedure to require courts to examine a

prosecutor's conduct in voir dire to determine whether the

prosecutor pretextually used answers to quest ions n ot related to

Witherspoon qualification to disqualify jurors who had not run

afoul of Witherspoon when directly questioned about their views of

the death penalty. Further, this "new rule" does not fall under

either of the exceptions to Teague

, for if accepted, it neither

makes conduct beyond the reach of criminal law nor is it implicit

in our concept of ordered liberty. We decline to reach the merits

of this argument.

CONCLUSION

Because Harris has raised no issues on which reasonable

jurists could disagree, we are compelled to DENY Harris' motion for

CPC.

Motion for CPC DENIED

.