Felder v. Johnson

Revised July 22, 1999

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 98-20575
_______________________

SAM FELDER, JR.,
also known as Sammie Felder,

Petitioner-Appellant,

v.

GARY L. JOHNSON, Director,
Texas Department of Criminal Justice, Institutional Division

Respondent-Appellee.

_________________________________________________________________

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

June 30, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.1

EDITH H. JONES, Circuit Judge:

Sam Felder, a death row prisoner in Texas, appeals the

district court’s denial of his petition for a writ of habeas

corpus. He raises numerous issues, three of which are discussed in

depth in this opinion. First, Felder challenges the consti-

tutionality of the “Texas waiver rule,” which -- until it was

abrogated last year -- treated a criminal defendant’s admission of

1
Judge Dennis concurs in the judgment.
guilt during the punishment phase of his trial as a guilty plea

that waived all guilt-phase trial errors. This claim is Teague-

barred. Second, Felder argues that the prosecution violated his

due process rights by suppressing the arrest record of a government

witness. Third, Felder argues his representation was

constitutionally deficient. Because these claims and the others

raised by Felder are meritless, the district court’s denial of

habeas corpus is affirmed.

I. Facts and Procedural Background

Felder’s habeas petition arises from the third time he

was convicted and sentenced to death for the 1975 murder of James

C. Hanks. The first two convictions were reversed on appeal or

collateral review.2 The third conviction occurred in 1989 and was

affirmed by the Texas Court of Criminal Appeals in 1992.3

Testimony at Felder’s third trial established that James

Hanks, a 41-year-old quadriplegic, was fatally stabbed with

scissors in the temples and neck -- among the few areas of his body

in which he could feel pain -- in the early morning hours of March

14, 1975. Because of his quadriplegia, Hanks lived in a Houston

apartment complex for the disabled where he could receive frequent

care and services. That morning, when an attendant came to

reposition Hanks as he slept, she discovered that Hanks’s door was

2
See Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985); Felder v. State,
758 S.W.2d 760 (Tex. Crim. App. 1988).
3
See Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992), cert. denied,
510 U.S. 829 (1993)

2
open, though she had closed it on her previous stop two hours

before. (Because Hanks’s mother, who normally lived with him, was

temporarily in the hospital, his apartment door was being left

unlocked that week.)

Hanks was found in his bed, with his head contorted into

an awkward position. His breathing was very faint, and he had

wounds on the sides of his head.4 The mattress was bloody.

Hanks’s wallet, which he kept under his pillow when he slept, was

missing. The pillow was on the floor. Also missing was a pair of

stainless-steel surgical scissors that was usually kept on a table

near Hanks’s bed. Hanks, comatose, was taken to a hospital and

placed on life support. When it was later determined that Hanks

was brain dead, he was removed from the life support system.

Felder worked for the company that provided services to

the disabled residents in Hanks’s apartment complex. He was an

attendant whose duties extended to about fifteen residents,

including Hanks. On the day before Hanks was found stabbed, Felder

worked until 2:00 or 3:00 P.M. He was scheduled to work the day

Hanks was found, but he did not report to work that day or later,

or ever make arrangements to receive his last paycheck. Felder was

arrested one month later in Idaho Falls, Idaho, when he was unable

to produce valid identification during a traffic stop and found to

have a concealed .38 caliber pistol.

4
There were ten wounds on Hanks’s temples and neck. A medical examiner
testified that the cause of death was a stab to the left temple that had
penetrated into Hanks’s brain by 2½ to 3 inches. A hospital summary noted that
“brain was extruding” through this wound.

3
 Edith Cobb testified that she had seen Felder in Denver

for “a couple of weeks” in late March and early April -- after

Hanks’s death and before Felder’s arrest. Cobb had met Felder in

August 1974 and helped him get a job in Denver before he returned

to Houston in November 1974. When Felder re-appeared in Denver in

March 1975, Cobb asked Felder if he would like her to get him

another job. Cobb testified that Felder told her “he had killed a

man in ... Houston, and that he couldn’t get a job.” Felder told

Cobb that he had been working in some kind of hospital and had seen

a paralyzed man with a lot of money. After getting off of work in

the afternoon, Felder returned at 2:00 or 3:00 A.M., armed with a

.38 caliber handgun, to rob the man. When Felder tried to take the

money, the man woke up, recognized him, and, calling him by name,

asked Felder what he was doing. Felder then grabbed a pair of

scissors next to the bed and “started stabbing him in his head and

throat and back and forth and back and forth and back and forth and

then he took the pillow and was -- kind of smothered -- the man was

crying and hollering, please don’t hurt me, and ... he just kept

stabbing him back and forth....” When it looked like the man was

still breathing, Felder stabbed him more times. Finally, when it

looked like the man was dead, Felder took the money, over $300, and

drove off in his car, throwing the scissors out the window on his

way home. That day, his brother took him to the airport, and

Felder flew to Denver, having packed the pistol in his suitcase.

Cobb testified that Felder was “kind of laughing” when he recounted

4
the killing. When she asked Felder why he had to kill the man,

Felder said, “a dead man tells no tales.”

Cobb saw Felder frequently over the next several days.

He told her that he called his sister in Texas every day to ask

whether the police were looking for him. Eventually, Felder heard

from his mother that he should not come back to Texas because he

was wanted by the police. Cobb last saw Felder on April 9, 1975,

five days before he was arrested in Idaho.

After the jury found Felder guilty of capital murder,

Cobb testified in the punishment phase of his trial. She described

other crimes Felder told her he had committed in Denver. The jury

answered both special issues in the affirmative, and Felder was

sentenced to death.

After his conviction and sentence were affirmed on direct

appeal, Felder filed a habeas petition in state court. The state

district court’s denial of relief was affirmed by the Court of

Criminal Appeals in 1995. Felder’s federal habeas petition was

denied by the district court in 1998. The district court granted

a certificate of probable cause. Felder now appeals the denial of

habeas relief.

II. Standard of Review

This case is governed by pre-AEDPA habeas standards

because Felder’s petition was filed before April 24, 1996. See

Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997). This means

that state-court fact findings are binding on federal courts when

5
they are “fairly supported by the record.” 28 U.S.C. § 2254(d)(8)

(1994) (amended 1996). Legal questions, however, as well as mixed

questions of law and fact, are reviewed de novo. See Johnson v.

Puckett, 176 F.3d 809, 814 (5th Cir. 1999).

The district court in this case mistakenly recited AEDPA

standards. Yet, because the record is complete, and virtually

every issue must be reviewed de novo, we need not remand the case

for further fact findings. Cf. Magouirk v. Phillips, 144 F.3d 348,

362-63 (5th Cir. 1998) (remanding on fact-based claims where state

trial transcript was missing from federal record and magistrate

judge incorrectly applied heightened, AEDPA-level deference).

III. The Texas Waiver Rule

At the time of Felder’s trial, Texas law treated a

defendant’s admission of guilt during testimony in the punishment

phase of a bifurcated trial as waiving for appeal any guilt-phase

trial errors. See McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.

Crim. App. 1995); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex.

Crim. App. 1985). This procedure, known as the DeGarmo doctrine or

“Texas waiver rule,” was abrogated by the Texas Court of Criminal

Appeals in December 1998. See Leday v. State, 983 S.W.2d 713, 725-

26 (Tex. Crim. App. 1998).

Felder argues that the Texas waiver rule -- when combined

with the district court’s refusal to grant a motion in limine for

his proposed punishment-phase testimony -- unconstitutionally

chilled his Fifth Amendment rights and compromised his Eighth

6
Amendment right to present all mitigation evidence. The waiver

rule purportedly achieved this result through the excessive threat

it posed to Felder if he decided to testify and risk opening the

door to cross-examination questions about his guilt. While

testifying in a bill of exceptions, Felder agreed that he wanted

“to give testimony regarding [his] feelings about [his] remorse in

regards to this offense,” that he wanted to describe how he had

“changed” since he had been to prison, and, in his own words, said,

“I wanted to explain to the Court how I felt about things.” He

also said that he would deny Edith Cobb’s allegations that he had

committed other crimes in Denver.

The district court rejected Felder’s claim. This court

has never ruled on the constitutionality of the Texas waiver rule

under the Fifth or Eighth Amendment.5

No matter how we characterize Felder’s constitutional

claims, however, they are not cognizable in this habeas corpus

proceeding because of the anti-retroactivity rule of Teague v.

Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). Teague resolved that

federal habeas relief may not be granted based on “new” rules of

constitutional law. Under Teague a new rule is one in which the

result was not “dictated by precedent existing at the time the

defendant’s conviction became final.” Id. at 301, 109 S. Ct. at

5
In a habeas appeal related to Felder’s first conviction, this court
expressly refused to decide the question. See Felder v. McCotter, 765 F.2d 1245,
1251 (5th Cir. 1985).

7
1070 (plurality opinion) (emphasis in original); see also Lambrix

v. Singletary, 520 U.S. 518, 527-28, 117 S. Ct. 1517, 1525 (1997).

Felder’s conviction and sentence became final for Teague

purposes on October 4, 1993, when the Supreme Court denied his

petition for certiorari after his conviction was affirmed on direct

review in state court. See Caspari v. Bohlen, 510 U.S. 383, 390,

114 S. Ct. 948, 953 (1994). Thus, this court must “[s]urve[y] the

legal landscape as it then existed and determine whether a state

court considering [Felder’s] claim at the time his conviction

became final would have felt compelled by existing precedent to

conclude that the rule [he] seeks was required by the

Constitution.” Id. (internal quotations and citations omitted).

If not, then Teague’s bar applies. Teague’s only exceptions are

for rules that would place certain primary conduct beyond the

government’s power to proscribe or bedrock rules of criminal

procedure that are necessary to ensure a fundamentally fair trial.

See O’Dell v. Netherland, 521 U.S. 151, 157, 117 S. Ct. 1969, 1973

(1997).

In this case, Teague clearly bars the relief Felder

seeks, and neither of its exceptions is applicable. The Texas

waiver rule, although unusual and now disavowed by the Texas

courts, was not condemned by any Supreme Court authority and,

indeed, was at least inferable from McGautha v. California, 402

U.S. 183, 91 S. Ct. 1454 (1971), vacated on other grounds by

Crampton v. Ohio, 408 U.S. 941, 92 S. Ct. 2873 (1972).

8
 In McGautha, the Supreme Court interpreted its prior

opinion in Simmons v. United States, 390 U.S. 337, 88 S. Ct. 967

(1968). In Simmons, the Court had held that testimony given by the

defendant during a suppression hearing could not be used against

him on the issue of guilt during his trial. In McGautha, the

Supreme Court explained that Simmons involved an unusual situation

of pitting “another provision of the Bill of Rights” against the

Fifth Amendment. See McGautha, 402 U.S. at 212, 91 S. Ct. at 1469

(quoting Simmons, 390 U.S. at 394, 88 S. Ct. at 976). The McGautha

Court concluded that “the policies of the privilege against

compelled self-incrimination are not offended when a defendant in

a capital case yields to the pressure to testify on the issue of

punishment at the risk of damaging his case on guilt.” Id. at 217,

91 S. Ct. at 1472. It also rejected the related argument about a

defendant who is deterred into silence, concluding: “We do not

think that Ohio was required to provide an opportunity for [the

defendant] to speak to the jury free from any adverse consequences

on the issue of guilt.” Id. at 220, 91 S. Ct. at 1474. Although

the Supreme Court since McGautha has precluded a unitary trial

procedure in capital cases, bifurcation is normally understood as

insulating the guilt-phase determination from broader punishment-

phase testimony. See Gregg v. Georgia, 428 U.S. 153, 190-95, 96 S.

9
Ct. 2909, 2933-36 (1976) (plurality opinion). That is not the

problem of which Felder complains.6

Relief is thus unavailable to Felder in federal habeas

corpus because his entitlement to it would depend on establishing

a “new” rule of constitutional criminal procedure.

IV. Brady Claim for Impeachment Evidence

Felder argues that the prosecution violated Brady v.

Maryland, 373 U.S. 85, 83 S. Ct. 1194 (1963), by not disclosing

that its chief witness, Edith Cobb, had been arrested for forgery

in 1982. On appeal, this Brady claim is directed toward only the

sentence of death, even though Cobb testified during both the guilt

and punishment phases.

The state habeas court concluded that evidence of an

arrest without conviction was not Brady material because it would

not have been admissible to impeach Cobb. In addition, it found

that any suppression did not undermine confidence in the trial and

cited cases to show that the “mere possibility” that an item “might

have helped defendant” is insufficient to make it Brady material.

The federal district court found that the evidence was

inadmissible, and that, even if admitted, the evidence would not

have changed the outcome of the trial.

6
We also note the Supreme Court’s recent decision in Mitchell v. United
States, 119 S. Ct. 1307 (1999). In Mitchell, the Court held that a guilty plea
does not waive the Fifth Amendment privilege against adverse inferences from
failure to testify during the sentencing phase. This does not establish anything
approaching the right Felder proposes.

10
 This court reviews the district court’s Brady

determinations de novo. See East v. Johnson, 123 F.3d 235, 237

(5th Cir. 1997).

Brady’s requirement that the prosecution disclose

exculpatory evidence does extend to information that could be used

to impeach government witnesses. See United States v. Bagley, 473

U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The suppressed

information, however, must still be “evidence” that is “material

either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.

Ct. at 1197. Evidence is material “only where there exists a

‘reasonable probability’ that had the evidence been disclosed the

result at trial would have been different.” Wood v. Bartholomew,

516 U.S. 1, 5, 116 S. Ct. 7, 10 (1995).

The Fifth Circuit has not clearly specified how to deal

with Brady claims about inadmissible evidence -- a matter of some

confusion in federal courts7 -- except to reaffirm that

7
In Wood v. Bartholomew, the Supreme Court did not declare squarely
whether inadmissible information could be material evidence under Brady, even
though the circuit courts had already developed various approaches to that
question. The Court first noted that polygraph results, being inadmissible, were
“not ‘evidence’ at all” and “could have had no direct effect on the outcome of
trial.” 516 U.S. at 6, 116 S. Ct. at 10. It proceeded, however, to discuss the
merits of the Ninth Circuit’s attempt to “get around this problem,” and concluded
that “mere speculation” about whether the information could have led defense
counsel to “additional evidence that could have been utilized” did not meet “the
standards we have established.” Id.
Reactions to Wood have been as varied as the pre-Wood jurisprudence. Some
courts read Wood to mean inadmissible information cannot be material under Brady.
See Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir. 1996) (inadmissible
statements are immaterial “as a matter of law”); United States v. Montalvo, 20
F. Supp. 2d 270, 277 (D.P.R. 1998). One circuit has concluded that Wood did not
affect its practice of allowing inadmissible evidence to be material if it “would
have led to admissible evidence.” See Wright v. Hopper, 169 F.3d 695, 703 & n.1
(11th Cir. 1999). Another has followed Wood’s methodology, noting inadmissible
evidence is “not ‘“evidence” at all,’” and then asking whether a link to
(continued...)

11
“inadmissible evidence may be material under Brady.” Spence v.

Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996) (citing Sellers v.

Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. Unit A July 1981)).

Thus, we ask only the general question whether the disclosure of

the evidence would have created a reasonable probability that the

result of the proceeding would have been different. See East, 123

F.3d at 237. In this case, the question is whether the disclosure

of the inadmissible evidence of Cobb’s arrest would have created a

reasonable probability that Felder would not have been sentenced to

death.

Felder argues that if the evidence of Cobb’s arrest had

been disclosed, attempts to follow up on the arrest would have led

his attorneys to admissible impeachment evidence about Cobb’s

reputation for dishonesty in Denver.8 In the habeas proceeding,

Felder produced an affidavit from a Denver police officer saying in

part: “During 1988 and 1989 (and perhaps before), Edith Cobb was

known by the members of this community to be a dishonest person.”

Two aspects of Cobb’s testimony were relevant to the

jury’s punishment-phase decisions. First, Cobb testified during

the punishment phase that Felder had told her of other crimes he

7
(...continued)
admissible evidence is based on more than “mere speculation.” See Madsen v.
Dormire, 137 F.3d 602, 604 (8th Cir.), cert. denied, 119 S. Ct. 247 (1998).
Still another has done the same as the Fifth Circuit and hewed to its pre-Wood
practice without discussing Wood’s potential relevance. See Coleman v. Calderon,
150 F.3d 1105, 1116-17 (9th Cir.), rev’d on other grounds, 119 S. Ct. 500 (1998)
(per curiam).
8
On appeal, Felder wisely does not repeat his argument that the evidence
of the arrest would itself have been admissible to impeach Cobb.

12
had committed after the murder. She recounted his description of

his armed robbery of a barbershop in Denver. She also recounted

his explanation that he was able to afford staying at a hotel in

downtown Denver by burglarizing “the projects” to steal stereos and

televisions, and that he carried a gun with him during these

burglaries in case any of his victims woke up. These other crimes

were relevant to the jury’s punishment-phase determination that

there was a probability Felder would “commit criminal acts of

violence that would constitute a continuing threat to society.”

Second, some of Cobb’s guilt-phase testimony was relevant to the

jury’s punishment-phase determination that Felder’s conduct in

causing Hanks’s death was “committed deliberately.” Cobb had

supplied chilling details of the killing itself as described to her

by Felder and also of his laughing as he described the killing.

This court finds that the shadow cast upon Cobb’s

testimony by potentially-discoverable evidence of her dishonesty

does not “put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S.

419, 435, 115 S. Ct. 1555, 1566 (1995); see also Strickler v.

Greene, 119 S. Ct. 1936, 1953 (1999) (not material if there is only

“a reasonable possibility that either a total, or just a

substantial, discount of [a witness’s] testimony might have

produced a different result” (emphasis in original)). Other

factors demonstrate that the introduction of evidence casting doubt

on Cobb’s honesty would not have created a reasonable probability

13
of a different sentence for Felder. First, there was physical

evidence to corroborate Cobb’s second-hand description of the

murder’s deliberateness: chiefly the number of wounds, their

severity, and their concentration in Hanks’s neck and head.

Second, Felder had a prior criminal record of burglaries, and he

had a gun when he was arrested, both demonstrating his threat to

society. Third, Cobb’s testimony about the additional crimes did

not go unquestioned. In fact, Felder’s defense counsel highlighted

the lack of any corroboration for Cobb’s descriptions of the

additional crimes. He noted that the prosecution brought a police

officer from Idaho to testify about the pistol Felder had when he

was arrested, but brought nobody from Denver besides Cobb to

testify about these other crimes. Defense counsel also openly

wondered at how Cobb had “miraculously remembered something else”

and stressed that Cobb had not testified about these other crimes

at either of Felder’s two previous trials. Cf. United States v.

Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (“Suppressed evidence is not

material when it merely furnishes an additional basis on which to

impeach a witness whose credibility has already been shown to be

questionable.” (internal quotation omitted)).

This case is also distinguishable from East, on which

Felder relies and in which this court found a Brady violation based

on the suppression of a prosecution witness’s criminal history.

The witness in East testified at the punishment phase of East’s

murder trial that East had raped her at gunpoint, threatened to

14
murder her, and told her he had murdered several other women. See

123 F.3d at 237-38. Revelation of that witness’s criminal history,

however, would have led defense counsel to a report describing her

mental illness: she “experienced bizarre sexual hallucinations and

believed that unidentified individuals were attempting to kill

her.” Id. at 238. Thus, in East, the potential impeachment

evidence related directly to the subject-matter of the witness’s

testimony, and her testimony about future dangerousness was more

extreme than Cobb’s because it accused East of “several” other

murders.

The prosecution did not violate Brady because disclosure

of Cobb’s forgery arrest would not have created a reasonable

probability that Felder would not have been sentenced to death.

V. Ineffective Assistance of Counsel

Felder next asserts that his trial attorneys provided

unconstitutionally deficient representation because they (1) failed

to investigate and impeach the key prosecution witness, Edith Cobb;

and (2) failed to investigate and present mitigating testimony from

Felder’s family. In addition to these two grounds, Felder argues

that his representation was rendered deficient by the prosecution’s

surprise tactic of introducing unadjudicated offenses during the

punishment phase.

The test for defective representation is two-fold:

whether counsel’s representation was so objectively unreasonable

and incompetent as to be constitutionally deficient; and whether

15
counsel’s errors actually prejudiced the defendant by depriving him

of a fundamentally fair trial. See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The state court’s

findings of fact are binding so long as they are “fairly supported

by the record,” 28 U.S.C. § 2254(d)(8) (1994) (amended 1996), but

the ultimate question of effective assistance is itself a mixed

question of law and fact, reviewed de novo. See Bryant v. Scott,

28 F.3d 1411, 1414 (5th Cir. 1994). Relief may be denied if the

defendant fails to establish either prong of the Strickland test.

See id. at 1415.

Reviewing the claims of deficient representation, the

federal district court found that the state court findings were

supported by the record, and we agree.

On counsel’s failure to investigate Cobb and impeach her

testimony with evidence of her lack of credibility, it is

sufficient to note that the standard for prejudice under Strickland

is “identical to” the standard for materiality under Brady.

Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995). Because the

impeachment evidence was not material under Brady -- as discussed

above, in part IV -- failure to present it was not prejudicial

under Strickland.

As for the mitigating evidence available from family

members,9 there is no reasonable probability that trial counsel’s

9
Felder summarizes 1994 affidavits from his family and friends as proof
that, had they been called by the defense in 1989, they would have testified as
follows:
(continued...)

16
deficient performance -- if any10 -- yielded a different result or

an unfair trial. The addition of testimony from family members to

buttress the mitigating character evidence already introduced would

not have created a reasonable probability of a different result in

the punishment phase. This claim does not meet Strickland’s

prejudice requirement.

Felder’s final claim of ineffective assistance of counsel

is odd because it focuses on the prosecution’s conduct. Felder

argues that Cobb’s testimony about unadjudicated offenses was such

a surprise that it made effective cross-examination impossible and

thus deprived him of effective assistance of counsel. To the

9
(...continued)
Felder was a “respectful and well-mannered person”; he was “quiet”
and “got along well with others”; ... he was “a real good listener,”
who was “always kind [and] peaceful”; “everyone liked Sam”; he was
not known to be the “type to argue, get in fights or act violent
towards anyone”; “he was never disrespectful or mean”; “Sam was not
violent and did not have a temper.”

None of the affidavits makes any explicit mention of any contact with Felder
after 1975.
10
Rather than failing to present any mitigating evidence whatsoever,
Felder’s defense attorneys presented testimony from a psychiatrist and from three
prison chaplains. Unlike the family-member affidavits presented by Felder, these
witnesses spoke about Felder’s character since he had been incarcerated. In his
bill of particulars, Felder himself said he wanted to testify about how he had
changed since 1975. The theme of defense counsel’s closing argument in the
punishment phase was captured in this passage:

Folks, Sammie has changed. All the evidence points to it.
Folks, some of you may not care. Some of you may say, I don’t
care if he has changed, that was such a horrible crime, I’m killing
him. It’s up to you. All I have to ask you is if that’s the way
you feel about it, then please just disregard all the chaplains,
disregard the psychiatric testimony, throw it out the window.

It is not obvious that the changed-man theme was an objectively unreasonable
trial strategy. Nor is it obvious that it would have been a better strategy to
rely on family members and tell the jury that had just convicted Felder for a
heinous murder something like “Sammie was never really that bad.” Furthermore,
it could have been equally suspicious to combine the changed-man strategy with
family testimony: “Sammie was never that bad, but he’s much better now.”

17
extent that this is a substantive claim that the introduction of

unadjudicated offenses was unfair, Felder is procedurally barred

from asserting it by his failure to object at trial on these

grounds.11 To the extent that Felder identifies ineffective counsel

as “cause” for the failure to object, our discussion above makes

clear that there was no Strickland prejudice from introduction of

the unadjudicated offenses, meaning the procedural bar cannot be

overcome.12

The district court did not err in finding that Felder had

not met his burden of demonstrating ineffective assistance of

counsel under both prongs of Strickland.

VI. Other Claims

Felder raises three contentions that border on the

legally frivolous: that executing him after two decades of delay is

unconstitutional; that the trial court failed to define reasonable

doubt; and that Texas’s method of lethal injection violates the

11
The trial transcript does not support Felder’s claim that this ground of
objection was apparent from context. Felder’s counsel objected to Cobb’s
testimony about the burglaries on the grounds that it lacked detail and had no
corroboration. The alleged armed robbery of the barbershop was objected to as
being “generally irrelevant to this hearing.”
12
It is not clear whether Strickland prejudice would be sufficient to meet
the prejudice required to overcome a procedural bar in habeas. Cf. Strickler v.
Greene, 119 S. Ct. 1936, 1956 n.2 (1999) (Souter, J., dissenting in part) (Court
treats habeas prejudice as synonymous with Brady materiality); Williams v.
French, 146 F.3d 203, 210 n.10 (4th Cir. 1998) (unclear whether habeas prejudice
is same as Strickland prejudice), cert. denied, 119 S. Ct. 1061 (1999); United
States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998) (“habeas prejudice may
require a greater showing” than Strickland prejudice), cert. denied, 119 S. Ct.
794 (1999); Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995) (habeas
prejudice “must be a higher standard” than Strickland prejudice). But without
Strickland prejudice at a minimum, there is not even cause to overcome the
procedural bar. See Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir. 1997);
Ellis v. Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989).

18
Eighth Amendment.13 This court has previously rejected such claims

in similar or identical circumstances. It was not error for the

district court to deny relief on these claims.

Two of Felder’s other claims were inadvertently not ruled

on by the district court. Under the circumstances, where they are

easily resolved on the record and Felder already complains of the

time this case has taken, we can affirm the district court’s denial

of habeas corpus.

The first of these two claims is that there was

insufficient evidence of Felder’s future dangerousness in the

punishment phase of trial. Given the facts recited above --

including the brutality of the murder itself, Felder’s prior

burglary convictions, and his possession of a concealed weapon upon

arrest -- the contention that the evidence was insufficient must

fail.

The second claim on which the district court did not rule

is Felder’s challenge to the prosecution’s use of victim character

evidence. The state court found that Felder was barred from

raising the victim character evidence because his counsel never

objected to that testimony. This is true with respect to only some

of the testimony now invoked. In any event, the Supreme Court has

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The lethal injection claim is procedurally barred. Several circuits have
applied habeas requirements to suits challenging methods of execution, even when
they are denominated civil rights claims. See Williams v. Hopkins, 130 F.3d 333
(8th Cir.), cert. denied, 118 S. Ct. 595 (1997); McQueen v. Patton (In re Sapp),
118 F.3d 460 (6th Cir.), cert. denied, 521 U.S. 1130 (1997); Felker v. Turpin,
101 F.3d 95 (11th Cir. 1996). But see Fierro v. Gomez, 77 F.3d 301 (9th Cir.),
vacated and remanded in light of new statute, 519 U.S. 918, 117 S. Ct. 285
(1996).

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held that the Eighth Amendment poses no per se bar to a state’s

decision to allow victim impact evidence in the sentencing phase of

a capital case. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.

Ct. 2597, 2609 (1991). The testimony about the victim here -- that

Hanks “never refused anyone anything,” “was always in good spirits

even though he was disabled,” and was “a very good natured person”

who “didn’t have any enemies” -- was no more inflammatory than what

this court has allowed in other cases. See, e.g., Westley v.

Johnson, 83 F.3d 714, 722 (5th Cir. 1996) (testimony about victim’s

“community volunteer service and other good deeds”); Wiley v.

Puckett, 969 F.2d 86, 105 (5th Cir. 1992) (testimony that victim

was “not a violent or mean person, that he was known in the

community as ‘Mr. Good Buddy,’ and that he occasionally loaned

small amounts of money”). Furthermore, the potential impact of the

testimony must be considered in perspective with the facts of the

crime itself. See United States v. Hall, 152 F.3d 381, 405 (5th

Cir. 1998), cert. denied, 119 S. Ct. 1767 (1999).

VII. Conclusion

Because none of Felder’s claims justifies granting habeas

corpus relief, the district court’s judgment is AFFIRMED.

AFFIRMED

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