IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-1415

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JOSEPH PAUL JERNIGAN,

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

Northern District of Texas

__________________________________________________________________

(December 15, 1992)

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1981, a jury in Texas state court found Joseph Paul

Jernigan guilty of the cold-blooded murder of Edward Hale and made

the findings necessary to sentence Jernigan to death. Jernigan now

seeks habeas corpus relief under 28 U.S.C. § 2254. He contends

that in the absence of certain errors by his counsel and the trial

judge, he would not have received the death penalty. Finding no

merit in his arguments, the district court granted summary judgment

in favor of the respondent, James A. Collins, the director of the

Texas Department of Criminal Justice. We believe that Jernigan is

not entitled to habeas relief because he has not demonstrated that
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any errors on the part of his attorney or the trial judge

prejudiced his trial. We, therefore, affirm the decision of the

district court.

I

On July 3, 1981, Joseph Paul Jernigan and an accomplice

burglarized a home near the town of Dawson, Texas. While they were

there, the owner, Edward Hale, returned. Jernigan attacked Hale,

hitting him repeatedly in the face with an ashtray and attempting

unsuccessfully to stab him with a kitchen knife. Jernigan then

grabbed a nearby shotgun and shot Hale in the chest and neck.

After the shooting, Jernigan continued to burglarize the house. 

The sheriff arrested Jernigan several days later based on

information his wife, Vicki Jernigan, provided. A few days after

his arrest, Jernigan confessed to the murder of Hale. 

On November 4, 1981, a jury convicted Jernigan of capital

murder. The jury made the findings required by Texas law for the

imposition of the death penalty, and the state trial court

accordingly sentenced Jernigan to death.

On direct appeal, the Texas Court of Criminal Appeals affirmed

the conviction and sentence. See Jernigan v. State, 661 S.W.2d

939, 943 (Tex. Crim. App. 1983) (en banc). The court held that

Jernigan's confession was legally obtained, the jury was properly

selected and instructed, there were no errors in the joinder of

portions of the indictment, and the prosecutors' closing argument
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did not deny Jernigan a fair trial. The United States Supreme

Court denied a petition for writ of certiorari. 

In March of 1984, Jernigan sought collateral review in the

Texas state courts. After an evidentiary hearing, the state trial

court found, inter alia, that Jernigan's attorneys effectively

assisted him at trial and adequately prepared for the sentencing

phase of his trial. Accordingly, the state trial court denied

Jernigan's habeas petition. The Texas Court of Criminal Appeals

also denied him relief.

At the time he petitioned the state court for habeas relief,

Jernigan also petitioned the United States District Court, for the

Northern District of Texas, for a writ of habeas corpus. Jernigan

filed the petition on the docket of Judge Porter, who entered a

stay of execution on March 16, 1984. Jernigan contended he was

entitled to the writ on eighteen grounds. The respondent, James A.

Collins, director of the Texas Department of Criminal Justice,

moved for summary judgment and both sides filed briefs with the

court. After hearing oral argument, the district court adopted the

findings of the state court and granted summary judgment in favor

of Collins. Jernigan appeals. 

II

A

Jernigan argues that the Texas statutory scheme did not allow

the jury to consider his mitigating evidence. Jernigan's death
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sentence was based on the jury's affirmative responses to the

following two questions:

1) Was the conduct of the defendant that caused the

death of the deceased committed deliberately and with the

reasonable expectation that the death of the deceased

would result?

2) Is there a probability that the defendant would

commit criminal acts of violence that would constitute a

continuing threat to society?

Relying on our holding in Graham v. Collins, 950 F.2d 1009

(5th Cir. 1992) (en banc), the district court held that the Texas

capital sentencing statute permitted the jury to fully consider the

mitigating evidence that Jernigan offered. In Graham, the Fifth

Circuit held "that Penry does not invalidate the Texas statutory

scheme, and that Jurek continues to apply, in instances where no

major mitigating thrust of the evidence is substantially beyond the

scope of all the special issues." Graham, 950 F.2d at 1027.

Jernigan is now arguing that the Fifth Circuit reached the wrong

decision in Graham. He relies--we must say, rather weakly--on the

fact that Graham was a close decision, and that the Supreme Court

has granted the writ of certiorari in Graham, casting doubt on our

decision in Graham. 

It must be no surprise that we think that Graham and Penry are

harmonic. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934

(1989), the state of Texas convicted the defendant of murder and

sentenced him to death. In the sentencing stage of his trial, the

defendant presented mitigating evidence indicating that he was
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mildly retarded and that his parents had abused him while he was

growing up. The Supreme Court held that the Texas special issues,

without a special instruction, did not allow the jury to give

effect to the defendant's mitigating evidence, and, hence, the

jury's answers to the special issues did not reflect a "reasoned

moral response" to the defendant's mitigating evidence. Penry, 109

S.Ct. at 2949.

In Graham, we reevaluated the Texas statutory scheme in the

light of the Supreme Court's decision in Penry. The defendant's

mitigating evidence in that case was his youth and his difficult

childhood. The Fifth Circuit held that the Texas statutory scheme

allowed the jury fully to consider the defendant's mitigating

evidence. See also Cordova v. Collins, 953 F.2d 167 (5th Cir.

1992). 

In the instant case, Jernigan's brother-in-law and his sisterin-law both gave mitigating evidence at the sentence phase of

Jernigan's trial. Both of them testified basically that Jernigan

was a kind, gentle person who deserves a second chance. Jernigan's

brother-in-law testified that Jernigan had rededicated his life to

God.

Despite counsel's able arguments, we think that the Texas

Special Issues allowed the jury to consider Jernigan's mitigating

evidence. First, Graham is the prevailing law in this circuit.

Second, irrespective of the continuing viability of Graham, the

jury was easily able to give affect to Jernigan's mitigating
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evidence when it answers special issue number two, which relates to

whether Jernigan represents a continuing threat to society.

Jernigan's evidence that he is kind and gentle suggests that he is

not a continuing threat to society. Unfortunately for Jernigan,

the jury found otherwise.

B

We now turn to Jernigan's ineffective assistance of counsel

claim. Jernigan argues that the district court used the wrong

standard when it concluded that his attorneys provided him with

effective assistance at trial. Jernigan contends that the district

court erred when it presumed that the state court's factual

findings were correct. Jernigan further contends that the district

court erred when it granted summary judgment in favor of Collins

because the affidavits of Ms. Tullos Kozlowski and Lynn Malone,

relating to his future dangerousness, created a genuine issue of

material fact.

(1)

We begin with Jernigan's allegation that the district court

used the wrong standard when it evaluated his claim that his

attorneys did not provide effective assistance of counsel. In the

district court, Jernigan alleged that his trial counsel were

ineffective in twelve different respects. Noting that Jernigan did

not plead the claims with the requisite specificity, the district

court dismissed seven of Jernigan's twelve ineffective assistance
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claims. The district court considered Jernigan's five remaining

claims individually before rejecting them. 

Contrary to Jernigan's argument, the district court correctly

applied the two-part standard for evaluating ineffective assistance

of counsel claims that the Supreme Court established in Strickland

v. Washington, 466 U.S. 668, 687 104 S.Ct. 2058, 2064 (1984).

Under Strickland, the defendant must first demonstrate that "his

counsel's performance was deficient." For his counsel's

performance to be deficient, the defendant must show that his

attorney's errors were "so serious that his counsel was not

functioning as the `counsel'" the Sixth Amendment guarantees the

defendant. Id. Second, the defendant must also show that his

counsel's performance prejudiced him and lead to a trial "whose

result is unreliable." Id. The petitioner has the burden of proof

on this claim. He must demonstrate, by a preponderance of the

evidence, that his counsel was ineffective. Martin v. Maggio, 711

F.2d 1273, 1279 (5th Cir. 1983). 

(2)

Moving on to the substance of Jernigan's ineffective

assistance of counsel claim, Jernigan complains that his attorneys

failed to prepare for the punishment phase of his trial. He

contends that his attorneys failed to investigate his background

and interview his family members. In the state court habeas corpus

hearing, the court found that Jernigan's attorneys did investigate

his background and prepare for the punishment phase of his trial.
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The district court presumed that the state court's factual findings

were correct and granted summary judgment in favor of the

respondent, Collins. Jernigan contends that the district court

should not have adopted the state court's factual findings.

Consequently, Jernigan argues that he is entitled to a federal

hearing to evaluate his ineffective assistance of counsel claim. 

Jernigan's argument fails for two reasons. First, Jernigan

bears the burden of proving there is a need for a federal

evidentiary hearing to evaluate his claim. To meet that burden,

Jernigan must demonstrate that his "allegations, if proved, would

establish the right to habeas relief." Streetman v. Lynaugh, 812

F.2d 950, 956 (5th Cir. 1987), quoting Townsend v. Sain, 372 U.S.

293, 307 83 S.Ct. 745, 754 (1963). Jernigan has failed to meet

this burden. As noted above, under Strickland, in order to make

out an ineffective assistance of counsel claim, the defendant must

demonstrate, inter alia, that his counsel's performance prejudiced

him and led to a trial "whose result is unreliable." Strickland,

104 S.Ct. at 2064. 

According to Jernigan, if his attorneys had investigated his

background and interviewed his family members, they would have

discovered mitigating evidence that would have convinced the jury

not to give him the death penalty. The record does not support

this contention. Jernigan's family members testified in the state

court habeas hearing, and their testimony does not add

substantially to what was said by those who testified at trial.
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Jernigan's lead attorney, Jimmy Morris, testified that he made a

strategic decision not to call more members of his family because,

in his experience, juries do not respond well to that kind of

evidence. Thus, Jernigan has not established prejudice and, hence,

we must reject his ineffective assistance of counsel claim. 

Jernigan's ineffective assistance of counsel claim also fails

because federal law generally requires the district court to

presume that the state court correctly found the facts in its

habeas corpus hearing. 28 U.S.C. § 2254; King v. Collins, 945 F.2d

867. 868 (5th Cir. 1991). Thus, unless Jernigan demonstrates that

his case falls within one of the exceptions to this rule, the

district court was fully justified when it accepted the factual

findings of the state court. Jernigan argues that the district

court should have disregarded the state court's findings for the

following three reasons. First, the state court hearing was not

full and fair. Second, the state court hearing did not adequately

develop the material facts. Third, the record does not adequately

support the findings of the state court. 28 U.S.C. §§

2254(d)(3,6,8). 

We begin with Jernigan's contention that the state court

hearing was not full and fair. This argument is frivolous.

Jernigan was a party to the proceeding, and he was represented by

counsel. Furthermore, the court afforded him every opportunity to

be heard. Accordingly, the state court provided a full and fair
 

1Jernigan also contends that the state court was biased

against him. He argues that the state court's factual findings and

one of its statements demonstrate bias. Jernigan failed to raise

this argument before the district court, and, hence, he waived it.

Lincecum v. Collins, 958 F.2d 1271, 1280-1281 (5th Cir. 1992). In

addition, this argument is totally without merit. Jernigan argues

that the lack of support for the state court's findings in the

record proves bias. This argument assumes that the record does not

support the state court's findings. Yet, that is the very

proposition the argument is intended to prove. Thus, Jernigan's

argument is circular and, hence, frivolous. 

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hearing. See King, 945 F.2d at 868; Sumner v. Mata, 449 U.S. 539,

546-547, 101 S.Ct. 764, 769 (1981).1

Next, we consider Jernigan's contention that the parties did

not adequately develop the material facts in the state court

proceeding. We will only excuse a federal habeas corpus

petitioner's failure to develop material facts and mandate a

federal evidentiary hearing under two circumstances: First, the

petitioner can show cause for his failure to develop the facts in

the state court proceeding and actual prejudice resulting from that

failure; and second, when the petitioner can show that a

fundamental miscarriage of justice would result from the failure to

hold a federal evidentiary hearing. Keeney v. Tamayo-Reyes, ___

U.S. ___, 112 S.Ct. 1715, 1721 (1992). 

Jernigan can neither show cause for his failure to present

evidence, nor can he demonstrate that the failure to hold a federal

evidentiary hearing has resulted in a fundamental miscarriage of

justice. To show cause, Jernigan must demonstrate that "some

objective factor external to the defense impeded counsel's efforts"
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to develop the evidence. McCleskey v. Zant, 499 U.S. ___, 111 U.S.

S.Ct. 1454, 1470 (1991). No external concerns or events prevented

Jernigan from calling his witnesses, and we have already concluded

that the state court afforded him a full and fair hearing.

Similarly, Jernigan cannot show that the absence of a federal

evidentiary hearing has resulted in a fundamental miscarriage of

justice. To show a fundamental miscarriage of justice, Jernigan

would have to demonstrate "by clear and convincing evidence that

but for a constitutional error, no reasonable juror would have

found [him] eligible for the death penalty." Sawyer v. Whitley,

___ U.S. ___ 112 S.Ct. 2514, 2517 (1992). As noted above,

Jernigan's new mitigating evidence is cumulative of what he

presented at trial, and it certainly does not show that a

reasonable jury would not have given him the death penalty. Thus,

we must reject Jernigan's argument that he deserves a federal

hearing because the facts were not adequately developed in the

state hearing.

We now turn to Jernigan's allegation that the record does not

support the state court's findings. In particular, Jernigan

complains about findings of fact numbers seventeen and nineteen:

17) The family members' testimony presented by Applicant

at this hearing would not have helped Applicant in any

way in the trial and would not have changed the outcome

of the trial.

19) The attorneys for Applicant did make an

investigation into Applicant's background for the purpose

of securing witnesses to testify in mitigation of

punishment and they called all of the witnesses that they
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believed would help the Applicant, and the attorneys for

the Applicant strategically determined that the people

named by Applicant in his petition for writ of habeas

corpus would be more than helpful to Applicant's case.

We find unconvincing Jernigan's argument that the record does

not support these findings. Jernigan's argument is based on the

affidavit of Ms. Tullos Kozlowski, one of his trial attorneys.

Kozlowski, who did not testify at the hearing, now claims that she

did little or nothing to prepare for trial. She specifically

asserts that she did not speak to Jernigan's family members or

otherwise prepare for the sentencing phase of the trial. 

Despite Kozlowski's current allegations, we believe that the

record supports the state court's findings. Kozlowski seems to

have exaggerated her role in the trial. It was her first murder

trial, and in the sentencing phase of the trial, she only crossexamined one witness. Mr. Morris, the lead attorney, had already

participated in over a hundred murder trials and is now a judge on

the Texas court of criminal appeals. At the state habeas corpus

hearing, he testified that he prepared for the sentencing phase of

the trial, and that he made a tactical decision not to call

Jernigan's family members because, in his experience, juries do not

respond well to this kind of evidence. Furthermore, as we have

already noted, testimony by several more of Jernigan's family

members would not have added substantially to the evidence before

the jury. Thus, from our review of the testimony of Jernigan's
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family members and the testimony of Morris, we conclude that the

state court's findings are fully supported.

C

Finally, we consider Jernigan's contention that the testimony

of three attorneys at the sentencing phase prejudiced his trial.

The three attorneys were: 1) Mr. Lynn Malone, a district attorney

in another court, 2) Mr. Walden, an assistant attorney general for

the state of Texas, and 3) Mr. Nicholson, a former judge. They all

testified during the punishment phase of the trial that Jernigan

was likely to commit violent criminal acts in the future. These

attorneys were not professional experts in human behavior, and only

one of them had any personal knowledge about the defendant.

Jernigan argues that this evidence was unreliable and its admission

violated his rights under the Fifth, Sixth, and Eighth Amendments.

We review state evidentiary rulings merely to determine

whether the trial judge's error was so extreme that it constituted

a denial of fundamental fairness. Evans v. Thigpen, 809 F.2d 239,

242 (5th Cir. 1987). Thus, the erroneous admission of prejudicial

testimony justifies habeas corpus relief only when it played a

"crucial, critical [and] highly significant" role in the trial.

Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986). Because

our review is limited to errors of constitutional dimension,

federal courts do not review the mere admissibility of evidence

under state law. Peters v. Whitley, 942 F.2d 937, 940 (5th Cir.

1991). 
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Collins argues that the testimony of the attorneys was

admissible under state law, and hence, admission of the evidence

was not an error reaching constitutional dimension. The Texas

courts have held that the lay opinion of a prosecutor is relevant

and admissible evidence in a capital case on the issue of the

defendant's future dangerousness. Esquivel v. State, 595 S.W.2d

516, 527-528 (Tex. Crim. App. 1980); Simmons v. State, 594 S.W.2d

760, 763 (Tex. Crim. App. 1980); Burns v. State, 556 S.W.2d 270,

280 (Tex. Crim. App. 1977). In Burns, a district attorney

testified during the sentencing stage of a murder trial that "once

they have committed one offense they are a menace to society and

continue to do so," and that in his opinion, the defendant would

commit violent criminal acts in the future. Id. The situation in

Burns is analogous to the instant case. Thus, the precedents make

clear that the evidence of the three attorneys was admissible under

Texas law. 

Even if the evidence was not admissible in Texas, Jernigan has

not demonstrated that the evidentiary error, if any, made his trial

fundamentally unfair. He had every opportunity to cross-examine

the attorneys and to call his own witnesses to rebut their

testimony. Relying on Malone's affidavit, Jernigan argues that the

attorneys' testimony was full of misrepresentations. Malone's

affidavit, however, does not indicate that he misrepresented the

truth when he testified. Instead, he says in his affidavit that he

now believes that the judge should not have permitted the jury to
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consider his testimony because he was not qualified to testify.

Moreover, the testimony of the three attorneys played a small

role in the trial. The state presented evidence that Jernigan had

been involved in numerous other crimes including several other

violent burglaries. The state also presented evidence concerning

Jernigan's behavior while in custody that indicated he was a

violent person. Finally, seven law enforcement officers testified

that Jernigan was reputed to be a violent, dishonest person.

Considered in the light of all the other evidence, the testimony of

the three attorneys was not a critical, highly significant part of

the trial and, thus, does not, in any event, justify habeas corpus

relief. 

III

For all of the foregoing reasons, we AFFIRM the decision of

the district court.

A F F I R M E D.