Allridge v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 01-11243

JAMES VERNON ALLRIDGE,

Petitioner-Appellant,

versus

JANIE COCKRELL, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
(96-CV-271)
--------------------

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

WIENER, CIRCUIT JUDGE.*

Having been convicted of capital murder in Texas and sentenced

to death, Petitioner James Vernon Allridge is before us by virtue

of a certificate of appealability (COA) granted by the district

court in connection with Allridge’s application for habeas corpus

relief under 28 U.S.C. § 2254. We deny all relief sought.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 I.

BACKGROUND

In 1987, a Texas jury convicted Allridge of capital murder,

after which the trial court imposed a sentence of death. See

Allridge v. State, 850 S.W.2d 471, 475 (Tex. Crim. App. 1991). In

this § 2254 habeas action, the district court granted Allridge a

COA on two claims: “(1) Petitioner’s claim that the trial court

violated the Witherspoon [v. Illinois, 391 U.S. 510 (1968)]

doctrine when it granted the State’s challenge for cause against

prospective juror Martin Osborn, and (2) Petitioner’s ineffective-

assistance-of-counsel claim.” As Allridge’s appellate brief is

limited to these two claims, the following recitation of the

procedural history of this case is limited to issues relevant to

them.

A. Trial

1. Voir Dire

During voir dire, the State challenged venireman Martin Osborn

for cause on the ground that his doubts about the propriety of the

death penalty would “substantially impair” the performance of his

duties as a juror in accordance with the court’s instructions and

his oath. Although the trial court initially denied the State’s

motion, it eventually granted the motion after further testimony

from Osborn. This testimony will be discussed below at length in

addressing Allridge’s Witherspoon arguments.

2
 2. Guilt/innocence phase

The trial evidence, as related by the Texas Court of Criminal

Appeals (“CCA”), may be summarized as follows: On the night of

February 3, 1985, Allridge and his older brother, Ronald, left

their Fort Worth apartment with the intention of robbing a Circle

K convenience store. Allridge, 850 S.W.2d at 476. Allridge was

carrying a semi-automatic pistol, and Ronald drove Allridge’s car.

Id. Allridge had previously worked at the Circle K, was familiar

with the store’s procedures, and knew where the combination to the

safe was kept. Id. He also knew the clerk on duty, Brian

Clendennen, having worked with him before. Id. At about midnight,

Ronald dropped Allridge off around the corner from the targeted

store. Id. Clendennen had already closed the store, but admitted

Allridge when he asked for change to use the phone. Id.

Clendennen made change, and Allridge “pretended to use the phone

and left to rejoin Ronald.” Id. Ronald accused Allridge of

“chickening out” and dropped Allridge off at the store again. Id.

Clendennen again let Allridge into the store, but this time

Allridge pulled his gun and forced Clendennen into the storeroom.

Id. After tying Clendennen’s hands behind his back, Allridge

emptied the safe. Id. Allridge heard sounds coming from the

storeroom and discovered that Clendennen had moved. Id. He made

Clendennen “get back on his knees,” then shot him twice in the back

of the head. Id. Allridge and Ronald left, and Clendennen died

from the gunshot wounds the next day. Id.

3
 3. Punishment phase

At the punishment phase, the State sought an affirmative

finding on the “second special issue,” which addressed “future

dangerousness” or whether the defendant would commit criminal acts

of violence that would constitute a continuing threat to society.

Id. at 487 (citing TEX. CODE CRIM. PROC. art. 37.071). The State

presented evidence of several armed robberies committed by Allridge

and Ronald in the two months following after their robbery of the

Circle K and murder of Clendennen. See id. at 487-88. In his

defense, Allridge attempted to show that, since childhood, he had

been intimidated and dominated by Ronald. Id. at 488. In support,

he called a psychologist, Dr. Richard Schmitt, to testify that

Allridge was intelligent and competent and not psychotic or

sociopathic. Id. The jury made affirmative findings as to both

special issues, and the court sentenced Allridge to death.

B. Direct appeal

On direct appeal, Allridge raised 21 points of error. See

Allridge, 850 S.W.2d at 476. In his first point, Allridge

contended that the trial court had violated the doctrine of

Witherspoon v. Illinois, 391 U.S. 510 (1968), by excluding

venireman Osborn for cause on the ground that his views on the

death penalty would adversely affect his impartiality. Id. at 477.

Allridge argued that Osborn’s answers during voir dire reflected

that he could follow the law and not be controlled by his feelings

about the death penalty. Id. After recounting Osborn’s testimony,

4
the CCA determined that “it appear[ed] that Osborn was torn between

the obligation to honestly comply with his oath as a juror and his

strong feelings in opposition to the death penalty.” Id. at 478.

That court concluded:

Osborn’s answers that those feelings would
influence his assessment of the evidence at
punishment and affect his ability to comply with
his oath support the trial court’s determination
that Osborn was substantially impaired in his
ability to perform his duties as a capital juror in
accordance with his instructions and oath.

Id. The CCA affirmed Allridge’s conviction and sentence, id. at

497, and the United States Supreme Court denied Allridge’s

application for a writ of certiorari. Allridge v. Texas, 510 U.S.

831 (1993).

C. State postconviction proceedings

In 1994, represented by a new attorney, Allridge filed a state

postconviction application, raising a newly-discovered-evidence

claim. He argued that the “new” evidence consisted of statistical

studies showing a strong correlation between the Jehovah’s

Witnesses religion, of which Allridge was a practitioner, and the

commission of crimes. Alternatively, Allridge contended that his

trial counsel had performed ineffectively by failing to develop

this exculpatory and mitigating evidence at trial. Allridge also

filed first and second amended applications raising additional

arguments. One was that the State had made improper jury arguments

when it stated that Allridge’s counsel had acted unethically by

5
having Dr. Schmitt testify about Allridge without having conducted

written psychological tests in person.

The next fall, the state trial court issued findings of fact

and conclusions of law recommending that Allridge’s claims be

rejected. A month later, the CCA denied Allridge’s application

without a written order. Later that year, the federal district

court stayed Allridge’s execution so that an attorney could be

appointed for his § 2254 habeas proceedings.

D. Federal habeas corpus proceedings

Following his appointment, newly appointed federal habeas

counsel filed Allridge’s § 2254 petition. In it Allridge contended

that (1) the trial court violated the Witherspoon rule when it

granted the State’s challenge to venireman Osborn for cause; (2)

the court violated Allridge’s due process rights when it overruled

his challenges for cause to three veniremen who allegedly would

refuse to consider particular kinds of mitigating evidence at the

punishment phase; and (3) his trial counsel had performed

ineffectively at the punishment phase by (a) failing to present

expert testimony about the nexus between Allridge’s so-called

indoctrination in the Jehovah’s Witnesses (which he refers to as

cult-like), and his criminal behavior, and (b) allowing his

psychological expert, Dr. Schmitt, to base his testimony on the

results of written tests that Allridge filled out in his jail cell

without observation or supervision.

6
 The State filed an answer, contending that all of Allridge’s

claims were meritless. Id. The State also argued that Allridge’s

second ineffective-assistance claim had not been exhausted in the

state courts and was thus procedurally defaulted. Allridge did not

address procedural default in reply.

The magistrate judge issued a report recommending that

Allridge’s § 2254 petition be denied, concluding that, by upholding

the State’s challenge to venireman Osborn, the trial court

implicitly found that his ability to act as a juror would be

substantially impaired by his qualms about capital punishment.

This finding was entitled to a presumption of correctness, which

Allridge had failed to rebut by clear and convincing evidence. The

magistrate judge also concluded that Allridge’s claim that trial

counsel performed ineffectively by failing to ensure that the

written psychological tests were supervised by Dr. Schmitt had not

been developed in state court and was thus procedurally defaulted;

and that Allridge had not shown cause and prejudice to excuse this

default. The magistrate judge concluded that, in any event, the

ineffectiveness claim was meritless because Allridge could not

demonstrate prejudice: There was no evidence that anyone other

than Allridge had completed the tests and there was extensive

additional evidence of Allridge’s future dangerousness. The

magistrate judge also recommended that Allridge’s other claims be

denied as meritless.

7
 Allridge filed lengthy objections to this report and

recommendation. In a footnote, Allridge argued that the second

ineffectiveness claim was exhausted because the CCA adopted the

state habeas trial court’s finding that defense counsel had made

reasonable strategic choices about how to present all possible

mitigating factors in consultation with Dr. Schmitt and rendered

effective assistance under the totality of the circumstances. The

State filed a responding brief that addressed these objections.

The district court adopted the magistrate judge’s findings and

conclusions and denied Allridge’s § 2254 petition. The court

issued its own findings and conclusions, which closely resembled

those of the magistrate judge.

Within 10 days following the entry of judgment, Allridge filed

a FED. R. CIV. P. 59(e) motion to alter or amend the judgment. He

continued to maintain that his ineffective-assistance claim

regarding the written tests had been exhausted because, in his

state application, he had included a general allegation that

counsel was ineffective in presenting psychiatric mitigating

evidence. The court denied Allridge’s Rule 59(e) motion, stressing

that even if the claim at issue were not procedurally defaulted, it

was meritless.

Allridge timely filed a notice of appeal, which also

functioned as a motion for a certificate of appealability (“COA”).

As noted, the district court granted Allridge a COA on his

Witherspoon claim regarding venireman Osborn and on his claim of

8
ineffective assistance of counsel. As to that latter claim, the

district court did not specify that it was granting COA as to both

of Allridge’s ineffective assistance claims or that the question of

procedural default remained at issue.

II

ANALYSIS

Under 28 U.S.C. § 2253(c)(2), our review is limited to the

issues on which the district court granted COA. Kiser v. Johnson,

163 F.3d 326, 327 (5th Cir. 1999). Although a habeas appellant may

obtain review of issues not certified by the district court if he

expressly requests from us, and we grant, a COA on such issues, see

Ott v. Johnson, 192 F.3d 510, 512 n.6 (5th Cir. 1999), Allridge

does not seek review of non-certified issues. Furthermore,

Allridge has abandoned his claim that counsel performed

ineffectively by failing to present statistical evidence regarding

Jehovah’s Witnesses and crime; he does not brief this issue on

appeal. See Dowthitt v. Johnson, 230 F.3d 733, 742 n.6 (5th Cir.

2000).

Allridge filed his § 2254 petition on April 15, 1996, just

before the April 24, 1996, effective date of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Consequently, the AEDPA’s

amended standards of review do not apply to his claims. Lockett v.

Anderson, 230 F.3d 695, 699 (5th Cir. 2000); Lindh v. Murphy, 521

U.S. 320, 336 (1997). Under the pre-AEDPA standards, we review the

9
district court’s legal conclusions de novo and the state courts’

findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d

588, 592 (5th Cir. 2002) (en banc). Under the applicable version

of § 2254(d), we must accord a presumption of correctness to all

findings of fact if they are supported by the record. Id.;

see former § 2254(d)(1)-(d)(8) (listing eight exceptions to this

rule). The pre-AEDPA standards do not require a federal court to

defer to the state courts’ legal conclusions. See Valdez v.

Cockrell, 274 F.3d 941, 949 (5th Cir. 2001), cert. denied, 123 S.

Ct. 106 (2002).

A. Exclusion of venireman Osborn

Allridge contends that venireman Osborn’s dismissal was

improper under Adams v. Texas, 448 U.S. 38 (1980), because the CCA

relied on impermissible reasons for upholding the dismissal.

Allridge argues that, in its opinion on direct appeal, the CCA made

“implicit” findings of fact that Osborn’s testimony that his

feelings about the death penalty would “temper” his views of the

evidence meant that those feelings would “influence” and “affect”

his assessment of the evidence. Allridge insists that we must

defer to those appellate findings of fact because they are

supported by the record, even if we believe that the trial court

gave the word “temper” a different meaning and based its ruling on

a different ground. Allridge urges that, under Adams, the findings

of the CCA that Osborn’s feelings would merely “influence” and

“affect” his view of the evidence were constitutionally

10
insufficient to support his dismissal. Allridge argues that the

Adams violation is clear, emphasizing that Osborn never said that

he could not participate in returning a verdict that would require

the judge to impose the death penalty.

Allridge acknowledges that the CCA and the federal district

court cited other grounds for disqualification that might have been

supported by the record. He maintains, however, that these other

grounds cannot be used to uphold the exclusion of Osborn because

they are based on facts that did not constitutionally authorize the

exclusion.

The State counters that Allridge is improperly raising his

contention regarding the state appellate court’s implied findings

of fact for the first time. The State also denies that the CCA

made its own factual findings, asserting that in actuality that

court deferred to the trial court’s implied finding that Osborn’s

feelings about the death penalty “substantially impaired” his

ability to perform his duties as a capital juror. The State

maintains that, under Wainwright v. Witt, 469 U.S. 412 (1985), the

§ 2254(d) standard of review should be applied specifically to the

trial court’s findings.

1. The applicable law

In Witherspoon, a direct appeal from a criminal conviction,

the Supreme Court held that a death sentence cannot be carried out

if it followed the exclusion of a venireman soley because he voiced

general objections to the death penalty or expressed conscientious

11
or religious scruples against its infliction. Witherspoon, 391

U.S. at 521-22. Witherspoon concerned (1) an Illinois capital-

sentencing system in which the jury had broad discretion to impose

the death penalty, and (2) an Illinois statute that permitted the

prosecution to challenge for cause any venireman who had

“conscientious scruples against capital punishment.” See id. at

512, 519.

In Adams, also a direct appeal, the Supreme Court held that a

venireman may be excused if his “views would prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” Adams, 448 U.S. at

45 (emphasis added). In Adams, the court addressed a Witherspoon

claim in the context of Texas’s capital-sentencing system, under

which jurors did not directly impose the death penalty but instead

answered three special issues. Id. at 40. At that time, TEX. PENAL

CODE ANN. § 12.31(b) stated that:

Prospective jurors shall be informed that a
sentence of life imprisonment or death is mandatory
on conviction of a capital felony. A prospective
juror shall be disqualified from serving as a juror
unless he states under oath that the mandatory
penalty of death or imprisonment for life will not
affect his deliberations on any issue of fact.

Id. at 42 (emphasis added).

The Supreme Court in Adams concluded that this oath was

applied to exclude prospective jurors on grounds impermissible

under Witherspoon. Id. at 49. The Court reasoned that “it is

apparent that a Texas juror’s views about the death penalty might

12
influence the manner in which he performs his role without

exceeding the ‘guided jury discretion,’ . . . permitted him under

Texas law.” Id. at 46-47 (emphasis added). The provision

improperly excluded potential jurors “who stated that they would be

‘affected’ by the possibility of the death penalty, but who

apparently meant only that the potentially lethal consequences of

their decision would invest their deliberations with greater

seriousness and gravity or would involve them emotionally.” Id. at

49. “[N]either nervousness, emotional involvement, nor inability

to deny or confirm any effect whatsoever is equivalent to an

unwillingness or an inability on the part of the jurors to follow

the court’s instructions and obey their oaths[.]” Id. at 50.

“[T]o exclude all jurors who would be in the slightest way affected

by the prospect of the death penalty or by their views about such

a penalty would . . . deprive the defendant of [an] impartial jury”

under the Sixth Amendment. Id. (emphasis added). A State may,

however, “bar from jury service those whose beliefs about capital

punishment would lead them to ignore the law or violate their

oaths.” Id.

In the context of a § 2254 habeas proceeding, the Supreme

Court in Witt reiterated the holding of Adams that “[t]he proper

standard for determining when a prospective juror may be excluded

for cause because of his or her views on capital punishment . . .

is whether the juror’s views would ‘prevent or substantially impair

the performance of his duties as a juror in accordance with his

13
instructions and his oath.’” Witt, 469 U.S. at 424 (quoting Adams,

448 U.S. at 45). The Court in Witt emphasized that, in a habeas

context, the question of a challenge for juror bias is a “factual

issue” covered by the standard of review in the former 28 U.S.C. §

2254(d), under which the finding of the trial judge is “presumed

correct” unless one of the reasons enumerated in the statute is

present. Id. at 426-27, 430, 431. “[W]here the record does not

indicate the [constitutional] standard applied by a state trial

judge, he is presumed to have applied the correct one.” Id. at

431; see McFadden v. Johnson, 166 F.3d 757, 758 (5th Cir. 1999).

To rebut this presumption, the petitioner must adduce “clear and

convincing evidence that the factual determination by the State

court was erroneous.” Witt, 469 U.S. at 435; Kelly v. Lynaugh, 862

F.2d 1126, 1134 (5th Cir. 1988).

In Witt, the Supreme Court made a number of observations about

the trial judge’s duties in addressing a challenge for cause for

bias and the very nature of that function.

[D]eterminations of juror bias cannot be reduced to
question-and-answer sessions which obtain results
in the manner of a catechism . . . . [M]any
veniremen simply cannot be asked enough questions
to reach the point where their bias has been made
‘unmistakably clear’. . . . Despite this lack of
clarity in the printed record, however, there will
be situations where the trial judge is left with
the definite impression that a prospective juror
would be unable to faithfully and impartially apply
the law.

Witt, 469 U.S. at 424-26. The trial judge’s “predominant function

in determining juror bias involves credibility findings whose basis

14
cannot be easily discerned from the appellate record.” Id. at 429.

Accordingly, the trial judge is not required to “write out in a

separate memorandum his specific findings on each juror excused,”

nor is he “required to announce for the record his conclusion that

[the dismissed] juror was biased, or his reasoning.” Id. at 430.

2. Pre-AEDPA applicability of § 2254(d) to state appellate
court findings

In the face of Witt’s deliberative explication of the

deference to be afforded a trial judge’s decision in this context,

Allridge nevertheless contends that we are bound to defer solely to

the CCA’s “implied” findings of fact that Osborn’s answers showed

that his feelings would “influence his assessment of the evidence

at punishment and affect his ability to comply with his oath.”2 See

Allridge, 850 S.W.2d at 478 (emphasis added). His contention is

that, under Adams, such findings are not sufficient to support the

dismissal of Osborn for cause. Pretermitting the question whether

the CCA’s reference to Osborn’s feelings having “affected” and

“influenced” him even constituted “factual findings” within the

meaning of § 2254(d), we address Allridge’s contention below and

conclude that its basic premise is flawed.

2
The State’s position that this matter is impermissibly
raised for the first time on appeal is not well taken. Even if, in
the district court, Allridge did not explicitly make the contention
regarding deference to the CCA’s “implied factual findings,” he did
argue in his § 2254 petition that the CCA erred when it stated that
Osborn’s feelings would “influence” and “affect” his abilities as
a juror, that these findings contradicted the Supreme Court’s
admonitions in Adams, and that this “finding of fact” was not
entitled to a presumption of correctness under § 2254(d).

15
 Allridge does not cite a single Supreme Court or Fifth Circuit

decision holding that, in a Witherspoon habeas challenge, a federal

court should defer solely to a state appellate court’s “factual

determination” to the exclusion of addressing what happened in the

trial court. He cites Sumner v. Mata, 449 U.S. 539 (1981), and

Wainwright v. Goode, 464 U.S. 78 (1983), for the proposition that

we are required to defer exclusively to the CCA’s “factual finding”

that Osborn’s feelings would merely “affect” and “influence” his

duties. As noted by the State, though, Mata was a habeas case in

which the constitutional claim at issue had not even been raised in

the trial court and was advanced for the first time before the

state appellate court. See Mata, 449 U.S. at 541-42. The

appellate court’s findings in Mata were thus the only findings of

fact available for review under § 2254(d). See id. at 545-46. The

Supreme Court emphasized that the state appellate court had even

held a “hearing,” within the meaning of § 2254(d), on the claim.

Id. at 546. Mata thus offers no guidance in the circumstances of

Allridge’s case.

Neither does Goode offer such guidance. In Goode, a habeas

petitioner had argued —— for the first time in a state

postconviction application before the Florida Supreme Court —— that

trial counsel had performed ineffectively by failing to challenge

the trial court’s alleged reliance on a nonstatutory aggravating

circumstance in imposing a death sentence. See Goode, 464 U.S. at

82. The Florida Supreme Court reviewed the record of the

16
sentencing hearing and determined that the trial court had not

relied on the impermissible factor in the first place. Id. In

Goode’s subsequent § 2254 proceedings, the Eleventh Circuit Court

of Appeals assumed arguendo that the Florida Supreme Court’s

finding (that the sentencing court had not relied on an

impermissible factor) was entitled to a presumption of correctness

under § 2254(d), but concluded that the state-court finding was

“not fairly supported by the record as a whole.” Id. at 83. The

United States Supreme Court held that the Eleventh Circuit had

erred in its finding, as the Florida Supreme Court’s determination

“f[ou]nd fair support in the record.” Id. at 85. In Goode as in

Mata, there were no state trial court factual findings to which the

§ 2254(d) standard of review could have been applied.

We pause here to note that Allridge fails to compare his own

case with the circumstances of Witt, wherein the Supreme Court

closely scrutinized the state trial court’s resolution of a

Witherspoon challenge in applying the § 2254(d) standard. The

petitioner in Witt had raised a Witherspoon challenge in his direct

appeal to the Florida Supreme Court, see Witt, 469 U.S. at 415, yet

the United States Supreme Court apparently saw no reason to address

the Florida Supreme Court’s “findings” as to the

Witherspoon challenge when the record included a detailed voir dire

transcript and a decision by the state trial court itself.

Allridge has cited no legal authority to suggest why his case

should be treated any differently.

17
 We shall, therefore, review the state trial court’s decision

to exclude Osborn. In so doing, we shall apply the § 2254(d)

standard of review.3

3. Voir dire and the dismissal of Osborn

When, during the voir dire questioning, Osborn was asked

whether anything in his background would lead him to believe that

he could not serve as a juror in Allridge’s case, Osborn answered,

“Nothing specific. I have a problem with the death penalty.” He

then explained that he had “spent time in Vietnam as a contractor

and saw enough of that, that I don’t know that I could make that

decision, in all honesty.” Osborn described his feelings as

“strong” and stated that, “even though we are not as a jury

directly saying yes [with respect to the decision to impose the

death penalty], it’s going to be the death penalty; indirectly,

because of the questions and the answers, we are the responsible

group, and I don’t know that I could, in all honesty, make that

kind of a decision.”

3
Even if we were to credit Allridge’s arguments that we
should defer to the CCA’s “implied” findings of fact, we would see
that Allridge has somewhat misrepresented those findings. It is
true that the CCA stated that Osborn’s feelings would “influence”
his assessment of the evidence and “affect” his ability to comply
with his oath. See Allridge, 850 S.W.2d at 478. The court was
merely explaining, however, that these findings “support[ed]” the
trial court’s determination that Osborn was “substantially
impaired” in his performance in his duties as a juror; it did not
state that these factors, standing alone, supported the trial
court’s finding. Id. Moreover, the CCA’s ultimate “factual
finding” was that Osborn was “substantially impaired,” the key
phrase from Adams.

18
 The following exchange then occurred:

Q.: . . . Let me ask you this: Do you think that
your feelings are so strong, or you classified them
as strong, do you think these strong feelings would
substantially impair your ability as a juror to
follow the oath that you would take?

A. It would tend to bias my opinion, I think.

Q. . . .

Let me ask you, Mr. Osborn, if -- say you were on
this jury and as the foreperson, say you were
elected foreman, could you sign a verdict that
sentenced James Vernon Allridge to death?

A. I don’t think I could. Honestly.

Q. . . . Would you say that you had conscientious
scruples against the infliction of punishment that
resulted in death?

A. I don’t know if it would be conscientious or
not, but [indicating] -- it is a gut feeling that I
don’t know whether I could or not.

The prosecutor then pointed out that jurors were required to take

an oath to render a true verdict according to the law and the

evidence and asked Osborn whether he could “assess the death

penalty.” Osborn answered, “I honestly don’t think I could” and

that to take the oath would “create an awful lot of internal

conflict.” He also stated that he would feel “very uncomfortable”

making a sentencing decision if he were the last undecided juror.

Osborn then answered several questions from Allridge’s

attorney about the general civic responsibilities of jurors, after

which the prosecutor asked a specific question of Osborn:

Q. . . . [I]f you were selected as a juror in this
case, would you be able to follow your civic duty

19
 and sit down, set your feelings aside -- I am not
saying ignore them, I am not saying deny their
existence -- but sit down and give fair
consideration to the evidence and then answer the
questions from the evidence as your oath requires?

A. I can make that decision, you know; whether I
could actually sign to do what was necessary, I
don’t know.

Osborn subsequently stated that he “would answer them as honestly

as I possibly could, but they are always going to be tempered by my

basic instincts that I think it’s wrong for one person to take

another person’s life.” After a short argument session, the trial

court denied the prosecutor’s challenge to Osborn for cause.

The prosecutor then resumed his questioning of Osborn. Noting

that the State was required to prove the special sentencing issues

beyond a reasonable doubt, the prosecutor asked Osborn, “Before you

could vote yes to any one of those questions, would you require

there to be absolutely no doubt in your mind at all?” Osborn

replied, “I think I would have to have, you know, little or no

doubt,” but then stated, “[n]ot having been put in that position

before, I don’t know.” The prosecutor also asked Osborn whether he

could “in [his] own mind imagine evidence that could be brought to

[him] that could convince [him] that the answer to [special issue]

number two should be yes[.]” Osborn initially answered, “I don’t

know if I can quantify that,” but when a nearly identical question

was posed to him, he answered, “I can’t honestly think of anything,

you know, that would make me make that decision.” The prosecutor

20
next asked, “None whatsoever?” to which Osborn replied, “I don’t

know.”

Several minutes later, the following exchanged occurred:

Q. Are your feelings -- are your strong feelings
about the death penalty such that you are more
inclined to be biased for Mr. Allridge as we start
this case in that you know we are seeking the death
penalty?

A. I think it is going to temper any decision that
I make. It’s got to bias it. I can’t say that
it’s -- that I am starting off with a preconceived
concept of guilt or innocence, but that has got to
be, you know -- I mean, had I not known it
beforehand, it would have come out eventually, but
. . . .

Q. Yes.

A. Yeah. It does tend to bias me, you know . . . .

Q. Against the death penalty and for the
saving of a life?

A. Basically, yes.

The prosecutor also asked whether Osborn’s assertion that his

decision would be “temper[ed]” by his feelings “would substantially

impair [him] from sitting as a juror in this particular case” or

“in any capital murder case.” Osborn replied, “I think it would be

a consideration. I mean -- like I said, I don’t know. But I think

it would, here again, tend to temper my decisions in how I perceive

the evidence knowing what the consequences could be.”

Again asking Osborn about the oath to render a “true verdict

according to the law of Texas” and whether he could “honestly take

that oath and then not do violence to [his] strong feelings” about

21
the death penalty, Osborn stated, “I don’t think I could.” Then

this final exchange occurred:

Q. Is it fair to say that any verdict you reached
at the second phase of this trial might not be
based solely on the law from the Judge and the
facts that you’ve heard; might it be tempered by
your strong feelings about the death penalty?

A. That’s entirely possible.

Q. Might that -- those strong feelings change how
you might view the evidence knowing what the
result, the severe consequences of yes votes?

A. I think so.

At this point, the prosecutor resubmitted the challenge, and the

trial court granted it.

The court nevertheless allowed Allridge’s counsel to ask

Osborn a few more questions. Defense counsel asked Osborn whether

he could listen to the evidence at the guilt phase and decide

whether the case had been proven beyond a reasonable doubt. Osborn

stated, “I could make that decision, yes, but knowing the possible

consequences, here again, that decision is also going to be

tempered by the possible consequences later on.” Finally:

Q. Well, I guess I have some trouble with
temper. That is probably true for everybody.
It may be tempered the other way for some
jurors.

Could you listen to the evidence presented both at
the first stage and second stage, having found
somebody guilty based on the evidence, and answer
those questions under your oath and answer them
based on what you thought the evidence showed?

A. Not without involving my feelings for what I
was doing.

22
At this point the trial court cut off the questioning, stating,

“The Court has listened to the answers of Mr. Osborn and observed

his demeanor and his manner in answering the questions. I think

that I have made the determination in that regard, so I will grant

the State’s challenge[.]”

We conclude that, under the standards of review set forth by

the Supreme Court in Witt, Osborn’s testimony supported the trial

court’s sustaining of the State’s challenge for cause.4 As there

is nothing in the record to suggest that the trial court applied

any particular constitutional standard, it must be presumed that it

applied the correct one. Witt, 469 U.S. at 431. That standard, as

noted above, is whether the juror’s views would “substantially

impair the performance of his duties as a juror and in accordance

with his instructions and his oath.” Id. at 424.

As the Court noted in Witt, “there will be situations where

the trial judge is left with the definite impression that a

4
In arguing at length that we must defer to the CCA’s
“implied findings of fact” that Osborn’s feelings would only
“affect” and “influence” his performance, Allridge has essentially
ignored the standards of review set forth in Witt. In § 2254
actions involving Witherspoon challenges, we have repeatedly
applied those standards since the issuance of Witt. See, e.g.,
Soria v. Johnson, 207 F.3d 232, 245-47 (5th Cir. 2000); McFadden,
166 F.3d at 758-61; Fuller v. Johnson, 114 F.3d 491, 498-501 (5th
Cir. 1997); Mann v. Scott, 41 F.3d 968, 980-82 (5th Cir. 1994);
Nethery v. Collins, 993 F.2d 1154, 1159-60 (5th Cir. 1993); Drew v.
Collins, 964 F.2d 411, 416-17 (5th Cir. 1992); Granviel v. Lynaugh,
881 F.2d 185, 187-89 (5th Cir. 1989); Ellis v. Lynaugh, 873 F.2d
830, 832-37 (5th Cir. 1989); Kelly, 862 F.2d at 1133-35; Bell v.
Lynaugh, 828 F.2d 1085, 1092-93 (5th Cir. 1987); Riles v. McCotter,
799 F.2d 947, 949-50 (5th Cir. 1986); Smith v. McCotter, 798 F.2d
129, 132-34 (5th Cir. 1986).

23
prospective juror would be unable to faithfully and impartially

apply the law,” even when there is a “lack of clarity” in the

record. Witt, 469 U.S. at 425-26. The juror’s bias need not be

“proved with unmistakable clarity.” Id. at 424. In addition,

Osborn’s failure to state explicitly that his feelings about the

death penalty would “substantially impair” his performance is not

dispositive, because “[r]elevant voir dire questions . . . need not

be framed exclusively in the language of” Adams. Id. at 433-34.

Allridge has not adduced clear and convincing evidence that

the trial court’s sustaining of the prosecution’s challenge to

Osborn for cause was erroneous. “[T]he question is not whether a

reviewing court might disagree with the trial court’s findings, but

whether those findings are fairly supported by the record.” Witt,

469 U.S. at 434 (citing Marshall v. Lonberger, 459 U.S. 422, 432

(1983)). Osborn made a number of statements that support the trial

court’s finding. He twice suggested that in following his oath as

a juror, his feelings would bias his opinion. He repeatedly

expressed uncertainty and even doubt about whether he could make

decisions that would result in imposition of the death penalty. He

indicated that he could not think of anything that would cause him

to vote “yes” as to the special issues. Finally, Osborn conceded

that he did not think that he could take the oath and not do

violence to his strong feelings, and that it was entirely possible

that a verdict he reached at the close of the punishment phase

24
might not be based solely on the law from the Judge and the facts

that he had heard.

We acknowledge that the record in this case is not as clear-

cut as those in other cases in which we have rejected habeas

claims under Witt.5 Still, a trial court’s findings on a

Witherspoon challenge are based on “determinations of demeanor and

credibility that are peculiarly within a trial judge’s province.”

Witt, 469 U.S. at 428. The trial court in Allridge’s case

initially denied the State’s challenge for cause with respect to

Osborn; however, after hearing additional testimony, the court

sustained the challenge. The court emphasized that it had

“listened to the answers of Mr. Osborn and observed his demeanor

and his manner in answering his questions.” In the final analysis,

5
Cf. McFadden, 166 F.3d at 759-60 (venireman agreed that he
would “automatically” vote against the death penalty “[r]egardless
of the facts and circumstances of the case”); Mann, 41 F.3d at
980-81 & n.9 (veniremans flatly stated that they could not take
“oath” to base answers to punishment-phase issues solely on
evidence); Nethery, 993 F.2d at 1160 (at least one venireman would
vote “no” on special issues, regardless of the evidence); Drew, 964
F.2d at 416-17 (one venireman would hold State to burden of proof
higher than reasonable-doubt standard, and another would vote “no”
as to future-dangerousness special issue unless evidence showed
that defendant would commit future murders); Ellis, 873 F.2d at
834-36 (venireman could not take oath if it required him to answer
“yes” to both special issues); Kelly, 862 F.2d at 1134 & n.15
(venireman would answer “no” to both special issues “[n]o matter
what the evidence is”); Bell, 828 F.2d at 1092 (venireman
repeatedly stated that she could not impose death penalty “under
any circumstances”); Smith, 798 F.2d at 133 (venireman would
“ignore the law” or “violate [his] oath” in certain circumstances).
But see Riles, 799 F.2d at 949 & n.2 (rejecting Witt challenge to
venireman whose feelings about the death penalty would “influence”
his “way of thinking” and who, if he had a “choice,” would “choose
something less than death”).

25
we are satisfied that the district court’s ruling on Allridge’s

Witherspoon claim was correct and free of reversible error. We

therefore affirm the court’s ruling based largely on the standards

of Witt.6

B. Ineffective assistance of counsel

Allridge only briefly sets forth his claim that his trial

attorney performed ineffectively by failing to supervise personally

a psychological test that was given to Allridge at jail.7 He

emphasizes that at the punishment phase, his psychological expert,

6
We need not specifically address Allridge’s complaints that
the CCA and the federal district court relied on “other grounds” to
support Osborn’s exclusion. As noted above, the former § 2254(d),
as discussed in Witt, does not require us to address alternative
grounds that might have been cited by reviewing courts.
In any event, Allridge’s grievances regarding these
alternative grounds are without merit. He complains, for instance,
that the prosecution asked Osborn questions about whether, as a
jury foreman, he could sign a verdict that would result in the
defendant’s execution, when Texas law states that any juror can
refuse to serve as jury foreman. It is true that whether a
venireman could impartially sign a verdict is “immaterial to jury
service under Witherspoon.” See Alderman v. Austin, 663 F.2d 558,
563-64 (5th Cir. 1981). Aside from answers to the questions
regarding their abilities as foremen, however, the excluded
veniremen in Alderman had “evidenced no ‘unambiguous’ intent to
oppose capital punishment either in principle or in the trial.”
Id. at 563. In contrast, the record of Osborn’s voir dire is not
nearly so clear.
7
There are minor inconsistencies in Allridge’s
categorization of this claim at different times. Although he
refers to trial counsel’s own failure to supervise the
psychological test, we perceive the gravamen of Allridge’s
inadequate investigation claim to be that counsel should have
discovered before trial that his psychological expert, who gave the
tests, had not remained present while the written protions were
being completed; and that this led to the expert’s being
discredited on cross-examination.

26
Dr. Schmitt,8 testified that: (1) Allridge had engaged in a crime

spree with his brother Ronald, a classic sociopath, because Ronald

had dominated him; (2) Allridge believed that his brother would

kill him if he did not participate in the crimes; and (3) Allridge

would not be violent in prison if removed from Ronald’s influence.

Allridge asserts that this testimony was based in part on written

psychological tests administered to Allridge, which, as revealed in

the State’s cross-examination of Dr. Schmitt, Allridge completed by

himself, without Dr. Schmitt’s presence or supervision. Allridge

contends that Dr. Schmitt’s mitigation testimony was thus

discredited and made virtually useless. He blames this failure on

counsel’s abrogation of his duty to investigate and maintains that

prejudice resulted because the failure doomed any chance of

persuading the jury that Allridge did not present a future danger

to society.

1. Procedural default

Allridge does not address the State’s contention, and the

district court’s conclusion, that this particular ineffective-

assistance claim was procedurally defaulted when Allridge failed to

raise it in the state courts. Before we address the question of

procedural default, however, we must first determine whether the

issue is even properly before us.

8
Dr. Schmitt’s name appears as “Schmidt” in the trial
transcript and in some other pleadings, but is spelled “Schmitt” in
his affidavit.

27
 The district court granted Allridge a COA on his ineffective

assistance of counsel claim without elaborating further. At least

two circuits have held that, “[a]bsent an explicit statement by the

district court, in cases where a district court grants a COA with

respect to the merits of a constitutional claim but the COA is

silent with respect to procedural claims that must be resolved if

the panel is to reach the merits, [the court of appeals] will

assume that the COA also encompasses any procedural claims that

must be addressed on appeal.” Jones v. Smith, 231 F.3d 1227, 1231

(9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1248 (11th

Cir. 2001) (quoting Jones), cert. denied, 536 U.S. 906 (2002). We

agree with this analysis and conclude that, under this standard, we

should address the district court’s procedural-default ruling.

The procedural default doctrine precludes federal habeas

review when the last reasoned state-court opinion addressing a

claim explicitly rejects it on a state procedural ground. Ylst v.

Nunnemaker, 501 U.S. 797, 801, 803 (1991). When the state court

has relied on an independent and adequate state procedural rule,

federal habeas review is precluded unless the petitioner

demonstrates either (1) cause and prejudice or (2) that a failure

to address the claim will result in a fundamental miscarriage of

justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Ordinarily, a habeas petition must be dismissed if any issue

has not been exhausted in the state courts. Rose v. Lundy, 455

U.S. 509, 513-19 (1982). “When . . . state remedies are rendered

28
unavailable by the petitioner’s own procedural default, federal

courts are barred from reviewing those claims.” Sones v. Hargett,

61 F.3d 410, 416 (5th Cir. 1995). “‘[I]f the petitioner failed to

exhaust state remedies and the court to which petitioner would be

required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred, . . .

[then] there is procedural default for the purposes of federal

habeas. . . .’” Id. (quoting Coleman, 501 U.S. at 735 n.1). A

second state postconviction application by Allridge would almost

certainly be barred by Texas courts as an abuse of the writ, and

this bar would operate as an adequate and independent state

procedural ground for procedural-default purposes. Finley v.

Johnson, 243 F.3d 215, 219 (5th Cir. 2001).

In the district court, Allridge denied that this particular

ineffectiveness claim was unexhausted. He argued that the CCA had

adopted the state habeas trial court’s finding that defense counsel

made reasonable strategic choices about how to present all possible

mitigating factors in consultation with Dr. Schmitt and thereby

rendered effective assistance under the totality of the

circumstances (citing Vela v. Estelle, 708 F.2d 954, 959 (5th Cir.

1983)). Although it has not disputed that he did not raise an

ineffective-assistance claim specifically addressing his trial

counsel’s failure personally to supervise the psychological test

given to Allridge or to discover that the expert had failed to do

so; neither has Allridge claimed that the Texas courts did not

29
address this specific claim. Instead, the state habeas court did

express the general conclusion that, after a thorough investigation

into all possible mitigating factors available to counsel at time

of trial and in consultation with Dr. Schmitt, the defense made a

reasoned, strategic, and effective presentation based on their

professional assessment of those factors.

To exhaust, a petitioner “must have fairly presented the

substance of his claim to the state courts.” Nobles v. Johnson,

127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404

U.S. 270, 275-76 (1971)). “‘It is not enough that all the facts

necessary to support the federal claim were before the state courts

or that a somewhat similar state-law claim was made.’” Wilder v.

Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting Anderson v.

Harless, 459 U.S. 4, 6 (1982)).

Allridge cites Vela for the proposition that he successfully

exhausted his current ineffective-assistance claim. In Vela, the

petitioner asserted three errors in his state habeas petition as

grounds for a finding that counsel was ineffective, and later in

his federal petition he urged several additional grounds supporting

his claim. Vela, 708 F.2d at 957-58. We determined that Vela’s

state habeas petition asserted ineffective assistance on the basis

of counsel’s entire performance and that Vela’s three assertions of

error were merely “singling out for comment certain strikingly

prejudicial errors.” Id. at 959. We determined further that the

state court conducted its own independent analysis of counsel’s

30
performance based on a review of the record as a whole. Id.

Concluding that “[c]haracterizing these allegations as ‘unexhausted

claims’ would require us to find that the state habeas court failed

in its duty to evaluate counsel’s performance on the basis of the

record as a whole[,]” we held that Vela had exhausted his state

remedies. Id. at 960.

In Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990),

however, the petitioner asserted ineffective assistance of counsel

in the state court, arguing specifically that his appellate counsel

failed to notify him timely of his right to petition for

discretionary review. Id. In federal court, the petitioner

presented an entirely new claim regarding his counsel’s

ineffectiveness, arguing that counsel failed to assert on appeal a

claim that the trial judge had failed to comply with TEX. CODE. CRIM.

PROC. art. 1.15. Id. The petitioner suggested that exhaustion was

met because his case was similar to Vela. Id. at 334-35. We

distinguished Vela, determining that the “record does not support

a finding that the state court ever reviewed counsel’s performance

in light of the Article 1.15 violation.” Id. at 335. We thus

affirmed the district court’s dismissal for failure to exhaust.

Id.

The circumstances of Allridge’s postconviction proceeding

approximate those in Thomas more closely than they approximate

those in Vela. Allridge did not raise a claim that counsel’s

entire performance was ineffective. Neither is there any

31
indication that the state trial court conducted an independent

review of the record as a whole. Although we conclude that the

district court’s order granting COA included a certification

regarding the question of procedural default, we also conclude that

(1) Allridge’s particular ineffective-assistance claim was

unexhausted and thus was procedurally defaulted, and (2) Allridge

has not shown cause or prejudice to excuse the default. We

nevertheless address the merits of that claim in the alternative.

2. Merits of ineffective-assistance claim

It is universally recognized that, to prevail on a claim of

ineffective assistance of counsel, a petitioner must show (1) that

his counsel’s performance was deficient in that it fell below an

objective standard of reasonableness and (2) that the deficient

performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 689-94 (1984). When we assess whether an attorney’s

performance was deficient, we “must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689; Andrews v. Collins, 21 F.3d

612, 621 (5th Cir. 1994). To show Strickland prejudice, a

petitioner must demonstrate that counsel’s errors were so serious

as to “render[ ] the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.

364, 369 (1993). “In the context of a claim that counsel rendered

ineffective assistance by failing to present evidence at the

punishment phase of a capital murder trial, the inquiry is whether

32
there is a reasonable probability that, had the evidence been

presented, it would have altered the punishment verdict.” Harris

v. Cockrell, 313 F.3d 238, 243 (5th Cir. 2002), petition for cert.

filed, (U.S. Mar. 17, 2003) (No. 02-1433). Failure to establish

either deficient performance or prejudice defeats the claim.

Strickland, 466 U.S. at 697.

To the extent that Allridge classifies his ineffective-

assistance claims as one involving a failure to investigate, “[a]

defense counsel’s failure to engage in an appropriate

investigation of potential mitigating evidence in the punishment

phase can support a claim of ineffective assistance of counsel.”

Smith v. Cockrell, 311 F.3d 661, 668-69 (5th Cir. 2002) (citing

Williams v. Taylor, 529 U.S. 362, 390 (2000)). “[W]e focus on

whether the investigation supporting counsel’s decision ... was

itself reasonable.” Wiggins v. Smith, 2003 WL 21467222 *8 (U.S.)

(emphasis in original). “‘A defendant who alleges a failure to

investigate on the part of his counsel must allege with specificity

what the investigation would have revealed and how it would have

altered the outcome of the trial.’” Moawad v. Anderson, 143 F.3d

942, 948 (5th Cir. 1998) (citation omitted).

At the punishment phase, trial counsel for Allridge called

clinical psychologist Dr. Schmitt as an expert witness. Dr.

Schmitt had conducted a two-hour clinical interview of Allridge at

the jail and had administered and explained some psychological

tests, which he left with Allridge and which were returned to Dr.

33
Schmitt after Allridge had completed them.9 Dr. Schmitt had also

interviewed Allridge’s parents and examined Allridge’s artwork.

Dr. Schmitt testified that the results of all the tests showed that

Allridge was not a sociopath, that he had demonstrated the ability

to maintain relationships and to exhibit loyalty to other persons,

and that he is an individual who exhibits remorse. Dr. Schmitt

expressed the opinion that Allridge’s brother, Ronald, has a

classic sociopathic personality, and testified that Allridge had

been picked on, physically intimidated, and beaten on a regular

basis by Ronald. Dr. Schmitt maintained that, aside from his

relationship with Ronald, Allridge is basically a non-violent

person.

Dr. Schmitt admittedly was not present when the written tests

were completed and did not have personal knowledge that they were

in fact filled out by Allridge himself. Dr. Schmitt nevertheless

testified that he had every reason to believe that the tests were

filled out by Allridge, and that the handwriting on the Sentence

Completion portion was very similar to the handwriting on

Allridge’s artwork. Dr. Schmitt also confirmed that everything

that he told the jury about Ronald was based on information related

to him by either Allridge or his parents.

9
The tests consisted of the Minnesota Multiphasic
Personality Inventory (“MMPI”), a “commonly used personality test,”
and a Sentence Completion Test, a test that permits the
psychologist to determine people’s attitudes and ways of thinking
about a wide variety of different subjects.

34
 Allridge has shown neither cause (deficient performance) nor

prejudice. Although the cross-examination of Dr. Schmitt confirmed

that he did not remain in the presence of Allridge after submitting

the written tests to him, the State presented no evidence to

suggest that any one other than Allridge had completed them. In

addition, Dr. Schmitt’s testimony about Allridge was based not

merely on the written test results but also on his two-hour

interview with Allridge, his interviews with Allridge’s parents,

and his analysis of Allridge’s artwork. Allridge exaggerates when

he contends that his attorney’s failure personally to supervise the

written tests, or to investigate and determine before trial that

Dr. Schmitt had not done so either, “destroyed the defense’s case

in the sentencing phase.” The record confirms that counsel’s

investigation in regard to Dr. Schmitt was itself reasonable and

that it was sufficient to support counsel’s decision to put on this

mitigating evidence. See Wiggins v. Smith, 2003 WL 21467222 *8

(U.S.). He has not overcome Strickland’s presumption that

counsel’s performance fell “within the wide range of reasonable

professional assistance.” See Strickland, 466 U.S. at 689.

Counsel’s investigation was more than adequate to support the

factual decision to have Dr. Schmitt testify; and doing so was not

deficient.

Neither has Allridge demonstrated Strickland prejudice. On

direct appeal, Allridge challenged the sufficiency of the evidence

to support the jury’s affirmative finding on the second special

35
issue. See Allridge, 850 S.W.2d at 487. In rejecting Allridge’s

challenge, the CCA emphasized that, when Allridge, Ronald, and two

accomplices drove around Tarrant County committing robberies on the

night of March 24, 1985, Allridge personally committed three

robberies while the other three men waited in the car; and that the

evening culminated with Ronald’s shooting and killing a customer at

a Whataburger restaurant while Allridge waited in the car. That

court also stressed that, during the period of two months following

the instant Circle K robbery-murder, Allridge personally committed

several armed robberies in which Ronald was not involved at all;

that the morning after the Whataburger robbery-murder, Allridge

apparently used the proceeds of the prior evening’s robberies to

pay his rent and to pay his attorney in a matter unrelated to the

armed robberies; that the facts of the Circle K robbery-murder

showed Allridge’s cool calculation; and that the robberies

afterwards showed his “remorselessness.” Id. at 487-89. The CCA

noted Dr. Schmitt’s testimony regarding Ronald’s dominance of

Allridge, but did not even mention his discussion of the written

tests. Id. at 488, 489. The court discounted the testimony

regarding Ronald’s domination on the ground that Allridge had

committed several armed robberies in which Ronald was not involved.

Id. at 489.

The evidence supporting a finding of Allridge’s future

dangerousness was quite strong, and no evidence offered by the

State suggested that the written psychological tests were performed

36
by anyone other than Allridge. We conclude that Allridge has not

established a reasonable probability that counsel’s failure to

oversee Allridge’s completion of the tests or to ensure that Dr.

Schmitt personally administered the tests altered or affected the

punishment verdict in any way.

III

CONCLUSION

Based on the foregoing analysis, we are convinced that

Allridge suffered no constitutional deprivation from his trial

court’s exclusion of venireman Osborn from the jury and that no

reversible error was committed by the trial or appellate courts of

Texas in that regard. We are likewise convinced that Allridge

procedurally defaulted his claim of ineffective assistance of

counsel; and, alternatively, that on the merits of that claim, he

has not demonstrated either cause or prejudice under the test of

Strickland, the failure to demonstrate either being fatal to such

a claim. We therefore affirm the district court’s denial of habeas

corpus relief to Petitioner Allridge and dismissal of his § 2254

petition.

PETITION DENIED.

37