Turner v. Johnson

REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20839

JESSEL TURNER,
Petitioner-Appellant,
versus

GARY JOHNSON, Director, Texas Department
of Criminal Justice, Institutional
Division,
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

February 19, 1997
Before POLITZ, Chief Judge, GARWOOD and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:
Jessel Turner, a Texas death row inmate, seeks additional

counsel, a stay of execution, and an evidentiary hearing on this,

his first petition for federal habeas corpus relief. Finding

Turner represented by very competent counsel and that he has

received a full and fair hearing in state court, we deny that

relief. In addition, because petitioner has not made a substantial

showing of the denial of a federal right, we deny the requested

Certificate of Probable Cause to appeal the district court’s denial
of a writ of habeas corpus as well as the successor Certificate of

Appealability.

BACKGROUND

Near midnight on February 10, 1986, Jessel Turner walked up to

a gas station in Houston, Texas and sought a ride from Archie

Holmes, the driver of a cab parked there. Holmes was off duty but

he asked his dispatcher to send out another cab for Turner. Turner

spoke with Tracy McGrew, an employee of the station, as he waited

for the cab. In a few minutes a cab driven by Charles Hunter

picked up Turner and departed. A short time later Jimmy Darks,

another cab driver, found Hunter lying in the road a few hundred

yards from the station. He had been shot to death; his cab was

gone.

Meanwhile, Turner had returned to the station driving a

Chevrolet Impala. Shortly after Turner left, Houston police

officers, alerted about the homicide and informed of Hunter’s last

dispatch, arrived at the gas station. As they were interviewing

McGrew, who was giving them a description of Turner and his

vehicle, Turner drove by. The police gave pursuit and, after a

brief car chase, stopped Turner and placed him under arrest.

Turner was taken to a police station and placed in a line-up.

McGrew identified Turner as the man who had entered Hunter’s cab at

the gas station a few minutes before Hunter’s death. Archie

Holmes, while unable to identify Turner positively as Hunter’s last

cab fare, advised of a similarity in appearance.

2
 Around 8:00 a.m., while in police custody, Turner signed a

written statement claiming that he had not been involved in

Hunter’s death. Several hours later he signed a second statement

asserting that Hunter had threatened him with a pistol and that the

fatal wound had been inflicted as the two men struggled for control

of the gun. In a third statement, made at 2:40 p.m. that day,

Turner admitted that the murder weapon was his but he stated that

Hunter was killed when the weapon accidentally discharged.

Finally, Turner gave a fourth written statement in which he

confessed to robbing and kidnapping two women on the night of

Hunter’s murder.

Hunter’s cab was found at Turner’s apartment complex; a

fingerprint from Turner’s left ring finger was recovered from the

outside of the front passenger door. A .22 caliber pistol was

found under the front seat of the Impala Turner was driving when he

was arrested. Ballistics tests confirmed that this weapon fired

the shot which killed Hunter.

On April 13, 1987, Turner went on trial for capital murder

while in the course of committing and attempting to commit a

robbery, in violation of Section 19.03(a)(2) of the Texas Penal

Code. Turner’s motions to suppress the pretrial identifications

and his statements to the police were denied. At the guilt phase

Holmes and McGrew identified Turner as the man who had entered

Hunter’s cab shortly before his murder. The state also presented

redacted versions of Turner’s four statements, forensic evidence

3
tying him to the crime,1."Single action” is the relevant mechanism

when the pistol has been cocked, while “double action” describes

the mechanism used to fire a round when it is uncocked. The pistol

in question, a Saturday Night Special, has no safety. Given the

significant pull needed to depress the trigger and fire a round

when the weapon was uncocked, i.e. “double action,” the expert

testimony cast extreme doubt upon the proposition that the weapon

was accidentally discharged.2 and additional evidence of two

extraneous armed robberies committed by Turner.

On April 23, 1987, the jury found Turner guilty of capital

murder and the trial advanced into the punishment phase. The state

presented significant other crimes evidence, including excerpts

from Turner’s four written statements. The only mitigating

evidence Turner presented was testimony by two Harris County

jailers that he was not a troublemaker and had helped restore order

in the jail on several occasions. On April 27, 1987, the jury

returned a unanimous affirmative response to the death penalty

1
The state presented expert testimony to demonstrate that
Turner had possessed the requisite intent to kill Hunter. C.E.
Anderson, a firearms examiner with the Houston police department,
testified that the trigger pull on the murder weapon was eight
pounds on single action and nineteen pounds on double action,

and opined that
the act of firing the weapon “would have to be very intentional and
pressure would have to be exerted to pull this trigger.” Dr.
Harminder S. Narula, the Harris County assistant medical examiner,
testified that the absence of soot or gunpowder stippling on
Hunter’s body meant that the fatal bullet had been fired from “at
least 24 inches away.” Further expert testimony by a police
department chemist related that no gunpowder or stippling had been
found on Hunter’s shirt and that therefore the shot that killed
Hunter was fired from a distance of three to five feet away.

4
special issues and Turner was sentenced to death. His conviction

and sentence were subsequently affirmed on direct appeal and the

Supreme Court denied certiorari.3

On June 11, 1992, Turner sought a state writ of habeas corpus.

On June 29, 1994, after an evidentiary hearing, the trial court

entered factual findings and legal conclusions, recommending that

relief be denied; the Court of Criminal Appeals denied relief on

the basis of the trial court’s findings.4 Turner filed a second

application on October 3, 1994, and a second evidentiary hearing

was held on October 10, 1994. On November 2, 1994, the trial court

again recommended that relief be denied and the Court of Criminal

Appeals adopted that recommendation.5

Turner then filed the instant petition for federal habeas

corpus relief, followed shortly thereafter by motions for a stay of

execution and an evidentiary hearing. The state answered, filing

a motion for summary judgment and a response to the request for a

stay. The day before the scheduled execution the district court

denied Turner’s petition and declined to issue a Certificate of

Probable Cause for appeal. Turner filed a notice of appeal,

requested a CPC,6 and sought and secured from this court a stay of

3
Turner v. State, 805 S.W.2d 423 (Tex.Crim.App.), cert.
denied, 502 U.S. 870 (1991).
4
Ex Parte Turner, No. 26,853-01 (Tex.Crim.App. Sept. 7, 1994).
5
Ex Parte Turner, No. 26,853-02 (Tex.Crim.App. Nov. 3, 1994).
6
This case was briefed, argued and submitted for decision
before April 24, 1996, the effective date of the AEDPA. Brown v.
Cain, 104 F.3d 744 (5th Cir. 1997). If applicable, the standards
contained therein would not change today’s decision.

5
execution in order that we might appropriately review the matter.7

ANALYSIS

Turner first contends that the Supreme Court’s recent decision

in McFarland v. Scott8 entitles him to the appointment of counsel

and a stay order. Turner reads McFarland too expansively. The

McFarland Court was concerned only with that period of time between

the habeas petitioner’s motion for the appointment of counsel and

the filing of the initial petition. The Court reasoned that to

preclude the issuance of a stay until a petition was filed would,

as a practical matter, force the hasty and perhaps careless

preparation and submission of a habeas petition merely to invoke

the district court’s power to enter a stay, a result inconsistent

with section 848(q)(4)’s goal of providing effective legal

representation for indigent capital defendants. Where, as here, a

comprehensive petition has been filed, the mandate of McFarland has

no application.9 Turner has not established any “substantial

7
Although this case is only before us on consideration of the
application for a CPC, we have heard full oral argument from the
parties to assist in today’s disposition.
8
512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994).
9
Turner’s section 848(q)(4) entitlement to the assistance of
competent counsel in pursuing federal postconviction relief is not
at issue because Turner has been very ably represented by counsel
for many years, a period including the direct appeal in state court
and the subsequent state postconviction proceedings. “There is no
indication in the [McFarland] opinion that the Court’s reading of
the statute applies to the case of a well-counseled prisoner whose
counsel, for technically admirable, though dilatory, reasons,
wishes to obtain both the security of a stay of execution from a
federal court while simultaneously reserving, rather than
exercising and thus exhausting, his right to federal court review
by petitioning for a writ of habeas corpus.” Steffen v. Tate, 39
F.3d 622, 625 (6th Cir. 1994).

6
grounds upon which relief might be granted”10 and we perceive no

error in the district court’s ruling.

Turner next claims that despite the two postconviction

evidentiary hearings in state court, he is entitled to an

evidentiary hearing in federal court. “A federal habeas court must

allow discovery and an evidentiary hearing only where a factual

dispute, if resolved in the petitioner’s favor, would entitle him

to relief and the state has not afforded the petitioner a full and

fair evidentiary hearing.”11 If the petitioner has been afforded

a full and fair hearing in state court he may still claim an

evidentiary hearing in federal court if he can show cause and

prejudice for his failure to develop the desired facts in state

court, or if the failure to hold such a hearing would result in a

miscarriage of justice.12

Turner, focusing upon the relatively short period between the

filing of his second state habeas application and the evidentiary

hearing thereon, complains that he was denied a full and fair

hearing in state court because he was not allowed sufficient time

to develop certain forensic evidence.13 Turner’s assertions,

10
Drew v. Scott, 28 F.3d 460, 462 (5th Cir.), cert. denied,
U.S. , 115 S.Ct. 5, 129 L.Ed.2d 906 (1994), (quoting Delo v.
Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325
(1990)).
11
Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994), cert.
denied, U.S. , 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995).
12
Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118
L.Ed.2d 318 (1992).
13
Turner suggests that if he were given sufficient time to
gather and present unspecified forensic evidence he will be able to

7
however plausible, are nonresponsive to the essential question

whether he received a full and fair hearing in state court. In

determining whether a state hearing was full and fair, we do not

consider only the nature of the evidence which might have been

adduced but, rather, inquire whether any procedural or substantive

barriers precluded a fair presentation of that evidence during the

state proceeding.14

We previously have found the procedures governing Texas habeas

corpus evidentiary hearings to be sufficient to produce a full and

fair hearing.15 The October 1994 evidentiary hearing was held

specifically to address the claims of ineffective assistance of

counsel raised in Turner’s second state petition. At that hearing,

Turner was represented by counsel familiar with the case and was

afforded the opportunity to subpoena and question witnesses, submit

exhibits and affidavits, cross-examine state witnesses, and

generally to be heard. He received a full-blown evidentiary

cast doubt upon the State’s medical and ballistics evidence which
indicated that Turner intended to kill Hunter. This, in turn,
would bolster his contention that trial counsel were ineffective in
choosing a defense based upon the theory that Turner lacked the
requisite intent to rob, rather than to kill, Hunter. We are
impressed by the intensity of habeas counsels’ efforts but are
unpersuaded.
14
See Barnard v. Collins, 13 F.3d 871, 877 (5th Cir.), cert.
denied, 510 U.S. 1102, 114 S.Ct. 946, 127 L.Ed.2d 363 (1994)(“an
unexpected outcome does not automatically render the state
procedure unfair - especially when Barnard was afforded a full-
blown evidentiary hearing”).
15
Andrews v. Collins, 21 F.3d 612 (5th Cir. 1994), cert.
denied,
115 S.Ct. 908 (1995).

8
hearing.16 Testimony from both of Turner’s trial counsel were

developed at that hearing and additional affidavits were entered

into the record.

The record, and the opinions of the courts which have dealt

with this case, make clear that the ballistics and medical

testimony Turner challenges has been a matter of record since

Turner’s trial in 1987. Turner has not alleged that the weakness

or inadequacy which he perceives in this evidence was not

previously known to him; thus, his contention that he had

inadequate time to prepare forensic rebuttal evidence for either

state evidentiary hearing simply is not persuasive. Further, the

record of the second evidentiary hearing reflects no request for a

continuance so that such experts might be recruited. Unless state

adjudicatory officials or procedures somehow impeded Turner’s

ability to submit exhibits and to subpoena and fully question

expert witnesses under oath, which the record before us belies,

Turner’s failure to present this evidence in the state hearing in

no way discredits the full and fair nature of that hearing.17

16
Id. at 619 (full and fair hearing when defendant was allowed
“to present evidence and witnesses, to fully cross-examine
witnesses called by the state, and, after the hearing’s conclusion,
to submit affidavits”); Jernigan v. Collins, 980 F.2d 292, 297 (5th
Cir.) (defendant had a full and fair hearing when he was a party to
the proceeding, was represented by counsel, and afforded every
opportunity to be heard), cert. denied, 508 U.S. 978 (1993).
17
Turner’s right under 21 U.S.C. § 848(q)(9) to the assistance
of experts where reasonably necessary to press his habeas claims
does not entitle him to a federal evidentiary hearing when he has
failed to comply with his duty under Keeney v. Tamayo-Reyes to
develop his evidence in state court. Fearance v. Scott, 56 F.3d
633 (5th Cir.), cert. denied, U.S. , 115 S.Ct. 2603, 132
L.Ed.2d 847 (1995).

9
 Insofar as Turner is unable to show that the state evidentiary

hearings were anything other than full and fair, we must determine

whether cause and prejudice exist for Turner’s failure to present

the proffered evidence, or whether a miscarriage of justice would

result from the absence of a federal hearing. Neither Turner nor

the record suggest that “‘some objective factor external to the

defense impeded counsel’s efforts’ to develop the evidence;”18 thus,

Turner has not shown cause for his failure to develop the evidence

adequately in state court. Similarly, Turner “cannot show that the

absence of a federal evidentiary hearing has resulted in a

fundamental miscarriage of justice.”19 Based upon these findings,

we conclude that Turner’s demand for an evidentiary hearing lacks

merit.

Turner next maintains that the district court’s dismissal of

his lawsuit was improper because he did not receive ten days notice

of the court’s action as provided by Fed.R.Civ.P. 56(c) which

details the procedure for obtaining summary judgment. Turner

contends that under Fed.R.Civ.P. 81(a)(2)20 and Habeas Rule 1121 the

18
Jernigan at 297 (quoting McCleskey v. Zant, 499 U.S. 467,
493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991)).
19
Id. For this exception to apply, Turner “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.’” Id. (quoting Sawyer v. Whitley,
505 U.S. 333, 335, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992)).
Turner’s showing, which we conclude does not demonstrate probable
cause for an appeal, falls far short of this exacting standard.
20
"These rules are applicable to proceedings for admission to
citizenship, habeas corpus, and quo warranto, to the extent that
the practice in such proceedings is not set forth in statutes of
the United States and has heretofore conformed to the practice in

10
notice requirement of Rule 56(c) applied. Turner further claims

that he was prejudiced by the lack of notice because he had

insufficient time to respond to the state’s copious 112-page motion

for summary judgment, which Turner contends was filled with errors

and misrepresentations.

Turner’s case was dismissed under Habeas Rule 8(a), which

directs a district court, “after the answer and the transcript and

record of state court proceedings are filed,” to “make such

disposition of the petition as justice shall require.” Despite the

summary nature of this disposition, in Norman v. McCotter22 we held

that a dismissal under Rule 8(a) may not transpire “on the basis of

the non-pleading factual showing of one party, without notice to

the other and an opportunity by him to respond by controverting

factual showing.”23 We found the error in McCotter to be harmless,

however, determining, after a review of the appellate record, that

even with a ten-day notice defendant would not have avoided adverse

summary judgment.24

We clarified the rule governing the applicability of this

civil actions.” Fed.R.Civ.P. 81(a)(2).
21
"The Federal Rules of Civil Procedure, to the extent that
they are not inconsistent with these rules, may be applied, where
appropriate, to petitions filed under these rules.” Rules
Governing § 2254 Cases, Rule 11, 28 U.S.C. foll. § 2254.
22
765 F.2d 504 (5th Cir. 1985).
23
Id at 507. In McDonnell v. Estelle, 666 F.2d 246 (5th Cir.
1982), we applied the Rule 56(c) notice requirement to a motion to
dismiss under Habeas Rule 9(a).
24
Norman at 508.

11
notice requirement to Rule 8(a) dismissals in Dillard v.

Blackburn.25 In Dillard, after noting that there is clearly no

requirement for notice prior to every dismissal of a habeas

petition, we determined that the question was one to be decided on

a case-by-case basis:

Many habeas cases can be resolved on issues that are
fully determinable from the record and from the law. The
question facing us is whether the district court in this
case was required to give Dillard ten days’ notice before
dismissing the petition. To resolve this question we
look to the purpose and effect of the Rule 56(c) notice
provision and ask whether Dillard has suffered any
disadvantage by not having been given specific notice
that his habeas petition might be dismissed finally as a
summary judgment.26

In Dillard, as in Norman, we found that no notice was required,

expressly holding that “the ten day notice [provision] ... is not

required in habeas cases where the petitioner never claims the

benefit of notice, never claims to have been disadvantaged by the

lack of notice, and where the court is satisfied that he has not

been so disadvantaged.”27

There is no question that Rule 56(c) potentially is applicable

here, considering that in dismissing Turner’s petition the district

court relied upon matters outside of the pleadings,28 in particular

25
780 F.2d 509 (5th Cir. 1986).
26
Id. at 515.
27
Id. at 515-16.
28
Federal Rule of Civil Procedure 12(c) provides that the
summary judgment procedures of Rule 56 are applicable if “matters
outside the pleadings are presented to and not excluded by the
court.” The term “pleadings” is defined by Rule 7(a) to include a
complaint and an answer. It is noteworthy that an “answer,” in the
context of a habeas corpus proceeding, is defined by Habeas Rule 5

12
the state’s motion for summary judgment. When we review the

relevant facts of this case in light of the Dillard analysis,

however, we must conclude that no notice was required.

“The purpose of the notice provision in Rule 56(c) is to give

the nonmoving party a reasonable opportunity to submit opposing

material to create a genuine issue of material fact.”29 The only

“opposing material” Turner points to in his brief is the

speculation that something might be adduced in a federal

evidentiary hearing. The district court ruled that Turner may not

invoke such a hearing. We find no basis whatever for a reversal of

that ruling.

We now address the district court’s dismissal of Turner’s

petition and its denial of a CPC, and the application to us for a

CPC without which we have no appellate jurisdiction.30 To secure

appellate review, Turner must make a substantial showing of the

denial of a federal right.31 “This standard does not require

petitioner to show that he would prevail on the merits, but does

require him to show the issues presented are debatable among

to include not only the bare answer of the state, but also relevant
portions of the record. Both Norman and Dillard, like the instant
case, involved extraneous state memoranda or motions outside the
definition of an answer found in Habeas Rule 5, and thus those
judgments were rendered in part upon consideration of matters
outside the pleadings.
29
Dillard at 515.
30
Fed.R.App.P. 22(b); Montoya v. Collins, 988 F.2d 11 (5th
Cir.), cert. denied, 507 U.S. 1007, 113 S.Ct. 1630, 123 L.Ed.2d 263
(1993).
31
Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983).

13
jurists of reason.”32 In addition, “[a]lthough in a capital case

the court may properly consider the nature of the penalty in

deciding whether to grant CPC, this alone does not suffice to

justify issuing a certificate.”33

Turner’s first claim is composed of a litany of particular

instances of trial counsels’ alleged ineffective assistance.34 We

must analyze this submission under the two-pronged test for

ineffective assistance of counsel set out in Strickland v.

Washington.35 The first prong of this test mandates that we find

that counsel’s performance was deficient; in making this

determination, we consider the particular circumstances of the case

as viewed from counsels’ perspective in light of the prevailing

professional norms at the time of trial in order to discern whether

counsels’ performance fell below an “objective standard of

reasonableness.”36 If deficient performance is demonstrated, then

32
Drew v. Collins, 5 F.3d 93, 95 (5th Cir.), cert. denied,
510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994) (citing
Barefoot).
33
Jacobs v. Scott, 31 F.3d 1319, 1323 (5th Cir.), cert. denied,
U.S. , 115 S.Ct. 711, 130 L.Ed.2d 618 (1995).
34
Turner’s brief does not discuss the multitude of these
alleged failures of representation. Rather than consider them
abandoned, which is the customary procedure, because of Turner’s
status as a death row inmate we exercise our discretion and elect
to examine his pleadings and the record to determine whether any
cognizable claims bearing upon his conviction or sentence are
extant.
35
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
36
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert.
denied, U.S. , 115 S.Ct. 418, 130 L.Ed.2d 333 (1994)
(quoting Strickland).

14
the petitioner must show prejudice, defined by Strickland as “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.”37

The only ineffectiveness claim addressed in any detail by

Turner’s brief centers around trial counsels’ purported failure to

make an adequate investigation. Turner now contends that had

counsel done so, they would have realized that a defense attacking

the intent to kill element of the offense offered the best prospect

of success. The evidentiary basis for this claim consists of

Turner’s second and third written statements to the police, and the

statements of two alleged eyewitnesses to the crime, Roosevelt

Turner and Derek Franklin, who claimed in interviews with the

police and a defense investigator that they had seen Turner and

Hunter struggling in the taxi prior to the murder.38 Turner

theorizes that with these two witnesses to corroborate his

statements to the police a successful defense could have been

mounted.

37
Strickland at 694.
38
This story was repeated in an affidavit by Franklin entered
into the record at the second evidentiary hearing. According to
this affidavit, Franklin and Roosevelt Turner departed Turner’s
company just before he was picked up at the gas station by Hunter.
Franklin and Roosevelt Turner followed the cab until it stopped to
let Turner out, at which point Franklin and Roosevelt Turner passed
the cab and drove around the block for another look. At that time,
Franklin stated that he and Roosevelt Turner saw Turner and Hunter
struggling in the cab. Franklin and Roosevelt Turner slowed down
to help Turner, but because there were other cars behind them they
were forced to go around the block again. When they returned the
second time, they saw Hunter’s body in the road. This affidavit
repeats the essence of the statements of Roosevelt Turner and
Franklin from February of 1986.

15
 Although Turner characterizes this claim as failure of counsel

to investigate, he is, rather, seeking to second guess their trial

strategy. The testimony of the trial attorneys at the second

evidentiary hearing makes it abundantly clear that they reviewed

the reports of the police and their investigator regarding

Roosevelt Turner and Franklin. They knew that these prospective

witnesses had seen Turner struggling with Hunter prior to his

murder.39 The question thus becomes whether the trial strategy they

ultimately pursued was reasonable given the information available

to them. We perforce conclude that it was.

Turner’s argument is premised upon an analytical framework

which, focused as it is upon the two intent elements of the capital

murder charge, ignores other issues material to his culpability.

For example, the record reveals that counsels’ primary focus early

in the trial was upon the issue of identity. Trial counsel

attempted first to suppress the pretrial identifications of Turner

and then attacked those identifications during trial. They also

moved to suppress Turner’s inculpatory statements, the only

evidence placing Turner with Hunter when he was shot, and continued

to challenge the veracity and reliability of those statements after

they were admitted by bringing to the jury’s attention Turner’s

lack of education and sleep and food deprivation. Finally, the

defense moved to suppress the murder weapon, which could be tied to

Turner. While these efforts ultimately failed, that result was not

39
At trial Turner’s counsel questioned several police officers
regarding their interviews of Roosevelt Turner and Franklin.

16
a foregone conclusion; each exhibited a reasonable chance of

success, and a contrary result on any might have raised a

reasonable doubt among members of the jury.

As to trial counsels’ attack on the intent to rob element of

the offense, the defense underscored that there was no evidence

that any money was taken,40 and reasonably argued that Turner’s

theft of the cab was part of his flight and not a premeditated

attempt to steal the cab. While evidence of two extraneous

offenses was admitted to show Turner’s intent to rob Hunter, the

admissibility of those offenses was, like the result of the various

suppression motions, not written in stone. The record discloses

that trial counsel brought to the judge’s attention precedent that

the judge recognized was contrary to his ruling. In short,

Turner’s trial counsel mounted a broad defense which offered

several possibilities of raising reasonable doubt among members of

the jury as to various elements of the offense. We cannot conclude

that such a course of action was objectively unreasonable.

Our conclusion is not changed by comparing trial counsels’

strategy to the alternative strategy Turner now proffers. The

state’s forensic evidence cast extreme doubt upon the ability of

the defense to disprove that Turner’s action in shooting Hunter was

anything other than deliberate. The nature of that evidence, and

the lack of any credible challenge that it was unreliable or

40
Trial counsel elicited testimony from Jimmy Darks, the cab
driver who found Hunter’s body, that no money was missing from the
cab, and from police officers that Hunter did not appear to have
been robbed.

17
fraudulently obtained, made trial counsels’ decision not to expend

vital resources in trying to rebut it a reasonable one. Even if

Turner’s current effort to conjure up controverting forensic

evidence were successful, it would not render trial counsels’

decision objectively unreasonable.

Turner’s submission, therefore, is that trial counsel acted

unreasonably when they decided not to present a defense which:

(1) conceded identity and intent to rob, (2) relied upon the

inconclusive testimony of two questionable witnesses, and (3) was

controverted by considerable forensic evidence. This contention

does not present a debatable question for reasonable jurists. Our

conclusion is inexorable; Turner’s trial counsel did not perform

deficiently.41

Turner next challenges the trial court’s jury instruction on

the intentional element of capital murder. To circumvent the Texas

courts’ refusal to consider the claim for lack of timely objection,

Turner asserts counsels’ ineffectiveness as cause and prejudice for

his procedural default.42 On direct appeal the Texas Court of

Criminal Appeals found no reversible error in the instruction as a

41
For this reason Turner’s claim that trial counsel were
ineffective for failing to request a jury instruction on the lesser
included offense of felony murder is also meritless. See Anderson
v. Collins, 18 F.3d 1208 (5th Cir. 1994).
42
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986). Turner’s submission that Texas’ contemporaneous
objection rule is not an “independent and adequate state ground”
upon which to base a procedural default is foreclosed by our
opinion in Amos v. Scott, 61 F.3d 333 (5th Cir.), cert. denied, 116
S.Ct. 557 (1995).

18
matter of state law43 and we discern no cognizable claim under

federal constitutional law.44 Given this, Turner can demonstrate

neither prejudice under Strickland nor cause for the procedural

default.

The next grouping of ineffectiveness claims proffered by

Turner relate to the punishment phase of the trial. Turner submits

that trial counsel failed to investigate, develop, and present

mitigating evidence properly at the punishment phase. He points to

a number of prospective witnesses who now maintain, via affidavit,

that they would have testified that Turner had good qualities and

was not a troublemaker. The record, however, supports the state

habeas court’s determination that each of these proffered witnesses

ran the risk of harming Turner more than helping him and that the

decision not to call them was the product of a reasonable trial

strategy. “[F]ailure to present mitigating evidence ‘if based on

43
Turner, 805 S.W.2d at 428-30. Turner based his claim that
the instruction was erroneous on Alvarado v. State, 704 S.W.2d 36
(Tex.Crim.App. 1986) (en banc). The Court of Criminal Appeals
found the more recent case of Kinnamon v. State, 791 S.W.2d 84
(Tex.Crim.App. 1990), to be controlling, and accordingly rejected
Turner’s claim. A concurrence to the denial of Turner’s motion for
rehearing noted that Kinnamon was wrongly decided in light of
Alvarado. The concurrence observed, however, that in Turner’s
case, considering the error in the context of the instruction as a
whole, “there was no egregious harm . . . and the correct result
was reached.” Turner at 432.
44
See Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127
L.Ed.2d 583 (1994) (indefinite instruction is not erroneous unless
there is “reasonable likelihood” that jury drew improper
conclusions from that instruction); Henderson v. Kibbe, 431 U.S.
145, 97 S.Ct. 1730, 62 L.Ed.2d 203 (1977) (to obtain federal habeas
corpus for
erroneous jury instruction petitioner must prove instruction “by
itself so infected the entire trial that the resulting conviction
violates due process”).

19
an informed and reasoned practical judgment, is well within the

range of practical choices not to be second-guessed’” and thus

cannot constitute deficient performance.45

Turner also cites trial counsels’ failure to object to certain

portions of the prosecutor’s closing argument as an example of

their ineffectiveness. Turner, again, seeks to demonstrate the

ineffectiveness of counsel to show cause and prejudice and thus

elude the state procedural bar. Based upon our review of the

relevant portions of the record we conclude that even if this issue

had been preserved for direct appeal, the error would have been

held to be harmless;46 thus, Turner cannot demonstrate Strickland

prejudice. Turner similarly has failed to meet the test for

federal habeas relief applicable to improper prosecutorial

argument, i.e., that “the misconduct [was] persistent and

pronounced or that the evidence of guilt was so insubstantial” that

but for the improper remarks the conviction or sentence would not

45
Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992),
cert. denied, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)
(quoting Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985)).
46
To ascertain whether improper prosecutorial conduct is
harmless error, the Texas Court of Criminal Appeals has mandated
that courts “consider the nature and source of the error, the
degree the prosecutor emphasized the erroneous jury argument,
probable collateral implications, how much weight a juror placed on
the erroneous jury argument, and whether holding the improper jury
argument harmless would encourage the State to repeat it.” Coble
v. State, 871 S.W.2d 192, 206 (Tex.Crim.App. 1993), cert. denied,
U.S. , 115 S.Ct. 101, 130 L.Ed.2d 50 (1994). In this case,
the record shows the comments pointed out by Turner were minor and
fleeting, did not evidence any intentional misconduct by the
prosecutor, and were overshadowed by proper argument and the jury
charge.

20
have resulted.47

The remainder of Turner’s ineffectiveness of counsel claim

consists of challenges to trial counsels’ failure to object to a

multitude of perceived improprieties. Our review of the record

persuades that these alleged failures either did not occur, did not

constitute deficient performance, or did not affect the outcome of

the trial. For these reasons we find insufficient support for an

appeal of the district court’s finding that Turner’s claim of

ineffective assistance of counsel lacks merit.

Moving to the balance of Turner’s petition, we consider his

claim that the eighth and fourteenth amendments required that the

unadjudicated offenses entered into evidence during the punishment

phase of his trial be proven beyond a reasonable doubt. Although

Turner frankly admits that neither this court nor the State of

Texas currently have such a requirement, he contends that it is

dictated by Supreme Court precedent. We are not persuaded.

Although the due process clause requires the state to prove each

element of the offense charged beyond a reasonable doubt to secure

a conviction,48 neither this court nor the Supreme Court has ever

held that a similar burden exists regarding the proof of facts

adduced during the sentencing phase. The precedents are to the

47
Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988), cert.
denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989)
(citing Felde v. Blackburn, 795 F.2d 400 (5th Cir.), cert. denied,
484 U.S. 873 (1987)).
48
See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970).

21
contrary.49

Turner next claims that the jury was not properly instructed

to consider mitigating evidence when determining the special

issues. Relying upon our decision in Spivey v. Zant,50 Turner

focuses upon the fact that the word “mitigating” was not used in

the jury charge for the punishment phase. He ignores the fact that

Spivey expressly approved of Texas’ capital sentencing scheme,

finding it to be a prime example of a system which focuses the

jury’s attention upon the offense and the offender in such a way as

to obviate any need for “explicit discussion of mitigating

circumstances.”51 Turner’s submission to the contrary is without

merit.

Turner claims as constitutional error the trial court’s

failure to define reasonable doubt in its instructions to the jury.

In Victor v. Nebraska52 the Supreme Court made it clear that “[t]he

beyond a reasonable doubt standard is a requirement of due process,

but the Constitution neither prohibits trial courts from defining

reasonable doubt nor requires them to do so as a matter of

49
See Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988) (jury may hear relevant evidence of
unadjudicated extraneous offenses if the court concludes, after
examining all the evidence, that the jury reasonably could find
that the accused committed the offense by a preponderance of the
evidence); United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1993)
(any unadjudicated conduct considered in determining sentence must
be supported by a preponderance of the evidence).
50
661 F.2d 464 (5th Cir. Unit B 1981), cert. denied, 458 U.S.
1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).
51
Id at 471.
52
511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

22
course.”53

Turner attacks the statutory special issues under the rule of

Penry v. Lynaugh,54 contending that the jury was prevented from

considering the mitigating effect of his youth and good behavior

during his pretrial detention. Turner misapprehends the reach of

Penry. To qualify for the special exception to the scope of the

special issues carved out by Penry, proffered evidence must

demonstrate a “uniquely severe permanent handicap ... with which

the defendant was burdened through no fault of his own.”55 Further,

we have made it clear that, for evidence to have mitigating

relevance to the special issues, there must be a nexus between the

mitigating evidence and the criminal act.56 Turner’s submission

manifestly does not fall within the scope of Penry and is not

dictated by this court’s precedents. Granting Turner the relief he

here seeks would create a new rule of constitutional law on habeas

review.57

In a related vein Turner challenges the constitutionality of

the Texas special issues on the ground that, Penry evidence aside,

they do not provide the jury with an adequate means to consider all

53
Id. at 5 (emphasis added).
54
492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
55
Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en
banc), aff’d on other grounds, 506 U.S. 461, 113 S.Ct. 892, 122
L.Ed.2d 260 (1993).
56
Davis v. Scott, 51 F.3d 457 (5th Cir.), cert. denied, 116
S.Ct. 525 (1995).
57
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 256
(1989); Motley.

23
mitigating evidence presented. We consider this claim foreclosed

by the Supreme Court’s decision in Jurek v. Texas.58

Our reading of the Court of Criminal Appeals’ disposition of

Turner’s second state habeas application satisfies that a number of

Turner’s claims are procedurally barred.59 Because neither Turner

nor the record suggest that there exists cause and prejudice for

these procedural defaults,60 or that the failure to consider these

issues would result in a miscarriage of justice,61 we are barred

from considering these claims.62

Finally, Turner assigns as error the district court’s order

denying him leave to amend his petition to add yet another claim.

The claim involved is one of ineffective assistance of counsel on

58
428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (upholding
the Texas capital sentencing procedures against eighth and
fourteenth amendment challenges). See Penry at 315 (“Penry does
not challenge the facial validity of the Texas death penalty
statute, which was upheld against an Eighth Amendment challenge in
Jurek v. Texas”).
59
These claims include a challenge to the framework within
which the Court of Criminal Appeals reviews the sufficiency of the
evidence in support of an affirmative finding on the special
issues; an attack on a jury instruction regarding the need under
Texas law for ten jurors to concur in order to render a “no”
verdict on the special issues; a claim that V.A.A.C.P. Art. 35.13
unconstitutionally prevented Turner from exercising his peremptory
challenges at the conclusion of voir dire; a claim that the jury
charge relieved the state from proving every element of the offense
by failing to properly define mens rea; and a claim that the jury
charge led the jury to misunderstand the concept of deliberate
conduct.
60
Wainwright v. Sykes, 433 U.S. 72 (1977).
61
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995).
62
Amos v. Scott, 61 F.3d 333 (5th Cir.), cert. denied, 116
S.Ct. 557 (1995).

24
Turner’s direct appeal, and is premised upon appellate counsel’s

failure to raise the so-called Palafox rule63 in relation to the

sufficiency of the evidence sustaining Turner’s conviction. Turner

does not dispute that this rule no longer exists, having been

abrogated by the adoption of the Texas Rules of Criminal Evidence

in 1986.64 We must conclude that the district court did not err by

denying Turner leave to add this meritless claim to his petition.

For the foregoing reasons, we DENY Turner’s requests for the

appointment of counsel and for an evidentiary hearing. Further,

because we find that the proffered claims do not contain any

indicia of merit and therefore make no substantial showing of the

denial of a federal right, we DENY Turner’s application for a

Certificate of Probable Cause. Were we to deem it an application

for a Certificate of Appealability it likewise would be DENIED.

63
Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App. 1979) (en
banc). This rule requires the state to disprove beyond a
reasonable doubt exculpatory information contained in a defendant’s
confession.
64
Moody v. State, 827 S.W.2d 875 (Tex.Crim.App.), cert. denied,
506 U.S. 839 (1992).

25