Wilson v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 17, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 02-41084

MARVIN LEE WILSON,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

--------------------
Appeal from the United States District Court
for the Eastern District of Texas
(6:01-CV-186)
--------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Marvin Lee Wilson, a Texas death row

inmate, is before us seeking a certificate of appealability (COA)

to contest the district court’s grant of summary judgment

dismissing his federal habeas corpus petition filed pursuant to 28

U.S.C. § 2254. We deny COA.

*
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this opinion should not be published and is not precedent except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

FACTS AND PROCEEDINGS

Wilson was convicted and sentenced to death for the murder of

Jerry Williams during the course of a kidnaping. See Wilson v.

State, 938 S.W.2d 57, 58 (Tex. Crim. App. 1996). On direct appeal,

the Texas Court of Criminal Appeals (CCA) reversed because of

improper jury arguments by the prosecutor and remanded for a new

trial. Id. at 58-62.

Following remand, Wilson was retried and was again convicted

and sentenced to death. Wilson v. State, 7 S.W.3d 136, 139 (Tex.

Crim. App. 1999). The discrete facts of Wilson’s crime as

reflected by the evidence were summarized by the state appellate

court on direct appeal. Id. at 139-41. Wilson’s conviction and

sentence were affirmed on direct appeal, id. at 141-48, and he

filed a state habeas application, which the CCA denied on the basis

of the trial court’s findings.

After exhausting his state remedies, Wilson filed the instant

§ 2254 petition in which he argued that (1) the trial court erred

in failing to instruct the jury that if he were sentenced to life

in prison, he would not be eligible for parole until he had served

35 years; (2) the statutory definition of kidnaping contained in

the Texas capital murder statute is unconstitutional and overly

broad; (3) the prosecutor exercised peremptory strikes in a

racially discriminatory manner (“Batson claim”); (4) the State

2
violated his right to be free from an unreasonable search and

seizure by introducing evidence seized pursuant to an invalid

search warrant; and (5) counsel provided ineffective assistance at

both the trial and appellate level (“ineffective assistance

claim”). The state filed a motion for summary judgment, arguing

that Wilson’s claims were procedurally barred or were otherwise

without merit.

The district court concluded that all of Wilson’s claims were

without merit, granted the state’s motion for summary judgment, and

dismissed Wilson’s § 2254 petition. Wilson timely filed notices of

appeal and a request for COA, which the district court denied.

II

ANALYSIS

A. AEDPA Review

To obtain a COA, Wilson must make a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When,

as here, the district court’s dismissal is on the merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Determination whether to issue a COA does not involve full

consideration of the merits of the habeas claims; instead, it

“requires an overview of the claims in the habeas petition and a

general assessment of their merits.” Miller-El v. Cockrell, 123 S.

3
Ct. 1029, 1039 (2003). A petitioner must prove “something more

than the absence of frivolity or the existence of mere good faith,”

but he is not required to show that he would succeed on appeal.

Id. at 1040 (quotation marks and citation omitted). We review the

district court’s application of the AEDPA to the petitioner’s

constitutional claims and ask whether the district court’s

resolution of those claims was debatable among jurists of reason.

Id. at 1039.

The AEDPA provides a scheme of deference to be used in

reviewing claims in a state prisoner’s habeas corpus petition that

were adjudicated on the merits in state-court proceedings. See 28

U.S.C. § 2254(d); see also Hill v. Johnson, 210 F.3d 481, 484-85

(5th Cir. 2000). The AEDPA’s scheme of deference for claims thus

adjudicated requires a federal court to defer to the state court’s

resolution of both pure questions of law and mixed questions of law

and fact unless the state court’s determination was “contrary to”

or an “unreasonable application” of clearly established federal law

as determined by the Supreme Court. See Hill, 210 F.3d at 485

(internal quotation marks omitted); see also § 2254(d)(1). A state

court’s decision is contrary to clearly established federal law if

it “applies a rule that contradicts the governing law set forth” in

Supreme Court cases or “if the state court confronts a set of facts

that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from

[the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06

4
(2000). A state court’s decision involves an unreasonable

application of clearly established federal law if the state court

“correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.” Id. at

407-08. Factual findings by the state court are presumed to be

correct in the absence of clear and convincing evidence to the

contrary. See 28 U.S.C. § 2254(e)(1).

Here, the district court found that the state habeas court’s

findings and conclusions were not entitled to deference under the

AEDPA because the judge who presided over Wilson’s habeas

proceeding had not presided over his trial. Nevertheless, in

addressing Wilson’s Batson claim, the court did defer to the trial

court’s findings.

In cases governed by pre-AEDPA law, we have held that factual

findings following a paper hearing by a judge other than the one

who presided at trial are not entitled to the presumption of

correctness. See Salazar v. Johnson, 96 F.3d 789, 792 (5th Cir.

1996)(because the state habeas judge was not the judge at the state

trial, the paper hearing was not an adequate and fair hearing);

Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996) (same, but

noting that a “paper hearing” conducted in a habeas proceeding by

a judge other than the trial judge was not automatically prevented

from receiving the presumption of correctness); Nethery v. Collins,

993 F.2d 1154, 1157 n.8 (5th Cir. 1993). We have not, however,

addressed in a precedential post-AEDPA opinion, the treatment to be

5
afforded a state court’s factual findings when, as here, they were

based on a paper record with conflicting affidavits and different

judges.1 We need not do so here because the resolution of that

issue is not determinative of the outcome in this case: The state

habeas court’s factual findings are supported by the remainder of

the record and Wilson cannot rebut them. Even if we were to review

Wilson’s claims de novo, we would not conclude that he has made a

substantial showing of the denial of a constitutional right in

connection with any of the claims we consider today.

In seeking a COA from us, Wilson has briefed only two of the

claims he made in the district court, viz., the Batson claim, and

the ineffective assistance claim. In so doing, Wilson has

abandoned all other claims previously advanced. To be preserved,

arguments must be briefed, Yohey v. Collins, 985 F.2d 222, 225 (5th

Cir. 1993), and claims not adequately argued in the body of the

brief are deemed abandoned on appeal. Id. at 224-25. Wilson is

deemed to have abandoned all claims not briefed on appeal,

preserving only his Batson claim and his ineffective assistance

claim.

B. Batson Claim

Wilson argues that the prosecutor exercised peremptory strikes

in a racially discriminatory manner. The Equal Protection Clause

forbids a prosecutor to challenge potential jurors solely on

1
We granted a COA on this issue in Bass v. Cockrell, No. 02-
20289. The case is now in the briefing stages.

6
account of their race. Batson v. Kentucky, 476 U.S. 79, 89

(1986). In Batson, the Supreme Court outlined a three-step process

for evaluating defense claims that a prosecutor used peremptory

challenges in a manner violative of the Equal Protection Clause:

(1) A defendant must make a prima facie showing that the prosecutor

has exercised his peremptory challenges on the basis of race; (2)

the burden then shifts to the prosecutor to articulate race-neutral

reasons for striking the veniremen in question; and (3) the trial

court must determine whether the defendant has carried his burden

of proving purposeful discrimination. Hernandez v. New York, 500

U.S. 352, 358-59 (1991), citing Batson, 476 U.S. at 96-98.

A defendant may establish a prima facie case of discrimination

solely on the basis of evidence concerning the prosecutor's

exercise of peremptory challenges. Batson, 476 U.S. at 96. To do

so, the defendant must show that he is a member of a cognizable

racial group and that the prosecutor exercised peremptory

challenges to veniremen of that group. The defendant must also

demonstrate that “these facts and any other relevant circumstances

raise an inference that the prosecutor used [peremptory challenges]

to exclude” the veniremen on account of race. Id.; accord, United

States v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991).

The trial court should consider all relevant circumstances in

determining whether the defendant has established a prima facie

case. Factors to be considered by the trial court include a

“pattern” of strikes against veniremen of the challenged racial

7
group and the prosecutor’s questions and statements during voir

dire and in exercising challenges. The Supreme Court expressed

confidence in the ability of trial courts to supervise voir dire

and determine whether the circumstances create an inference of

discrimination. Batson, 476 U.S. at 96-97.

Wilson contends that the prosecution used peremptory

challenges to eliminate black veniremen but accepted non-black

veniremen who possessed the same characteristics as the eliminated

Blacks. Accordingly, he insists the race-neutral reasons offered

by the prosecutor for excusing prospective black jurors were

pretextual.

In Miller-El, a case involving a Batson claim and the standard

for the issuance of a COA, the Supreme Court held that “[s]ince

Miller-El’s claim rest[ed] on a Batson violation, resolution of his

COA application require[d] a preliminary, though not definitive,

consideration of the three-step framework mandated by Batson.”

Miller-El, 123 S. Ct. at 1040. In Miller-El, the State conceded

that Miller-El had established a prima facie showing of

discrimination, and Miller-El acknowledged that the State proceeded

through step two of the Batson analysis by proffering facially

neutral explanations for the strikes. Id. Thus, the third step

presented the determinative question, i.e., whether Miller-El had

carried his burden of showing purposeful discrimination. Id.

The Supreme Court held that “[i]n the context of the threshold

examination [of a] Batson claim the issuance of a COA can be

8
supported by any evidence demonstrating that, despite the neutral

explanation of the prosecution, the peremptory strikes in the final

analysis were race based,” id. at 1041, and stated that “[i]t goes

without saying that this includes the facts and circumstances that

were adduced in support of the prima facie case.” Id. The Court

held that “[o]nly after a COA is granted will a reviewing court

determine whether the trial court’s determination of the

prosecutor’s neutrality with respect to race was objectively

unreasonable and ha[d] been rebutted by clear and convincing

evidence to the contrary.” Id. The Court also held that

“[w]hether a comparative juror analysis would demonstrate the

prosecutors’ rationales to have been pretexts for discrimination is

an unnecessary determination at this stage” of the appeal process.

Id. at 1043. Rather, explained the Supreme Court, “[a]t this

stage, . . . we only ask whether the District Court’s application

of AEDPA deference, as stated in §§ 2254(d)(2) and (e)(1), to the

petitioner’s Batson claim was debatable amongst jurists of reason.”

Id. at 1041-42.

The Supreme Court concluded in Miller-El that the district

court erred when it “accepted without question” the fact-findings

made by the state trial court and when it failed to give full

consideration to the substantial evidence the petitioner put forth

in support of his prima facie case, id. at 1042, and that we had

evaluated the petitioner’s application for a COA in the same way.

Id. The Court held that such analysis was error because it

9
required the petitioner to meet the requirements for actual habeas

corpus relief, rather than those needed for the issuance of a COA.

Id. The Court further reasoned that rather than deciding the

merits of the appeal, we should only have inquired whether a

“substantial showing” of the denial of a constitutional right had

been proved. Id.

When read in isolation, portions of the Court’s language in

Miller-El might suggest that an appellate court lacks jurisdiction

to deny a COA to a petitioner based on the merits of the petition;

yet the court in Miller-El also stated that the primary

consideration at the COA stage is “the debatability of the

underlying constitutional claim, not the resolution of that

debate.” Id. Further, the Court said that the “issuance of a COA

must not be pro forma or a matter of course,” and that a petitioner

seeking a COA must prove “something more than the absence of

frivolity[.]” Id. at 1040 (quoting Barefoot v. Estelle, 463 U.S.

800, 893 (1983)). Thus, the Supreme Court left open the

possibility that COA may be denied if there can be no debate

regarding the underlying constitutional claim under the facts as

advanced by the petitioner.

In the instant case, Wilson and the State appear to agree that

Wilson established a prima facie case of discrimination, and that

the State presented race-neutral explanations to rebut that prima

facie case. Therefore, we turn to the third step of Batson. We

10
examine whether Wilson has made a substantial showing that the

State engaged in purposeful discrimination when it exercised

various peremptory challenges.

Wilson first contends that the prosecution improperly struck

Euraline Andrus because (1) “[s]he was extremely weak on the death

penalty;” and (2) she had two sons who, she believed, were treated

unfairly by the criminal justice system. We consider the latter

justification first.

Wilson claims that this second explanation for striking Andrus

was a pretext for discrimination. In support of this contention,

Wilson argues that the State failed to exclude two similarly-

situated jurors: John Murphy, who also felt betrayed by the legal

system, and Lisa Ann Phillips, who had friends and family who were

serving time.

Contrary to Wilson’s contentions, Andrus (who was stricken),

Murphy, and Phillips (who were not) did not have the same or

similar attitudes about the criminal justice system. Murphy felt

“betrayed” by it, not because he or someone else he knew had been

treated unfairly, but because “[l]ife in prison” did not mean

“life” but some lesser sentence (“15, 20 years; and then they get

paroled”). Murphy related that when he sat on a jury previously,

the jurors were under the impression that the defendant was to be

sentenced to life, only to find out later that he would probably

receive a lesser sentence. He stated that he and the other jurors

felt “betrayed.”

11
 Phillips admitted that she had friends and family in the

penitentiary; however, unlike Andrus, Phillips expressed no

animosity towards the justice system or the prosecutors who

participated in their cases; whereas Andrus felt that her sons had

been treated unfairly by the arresting officer and the district

attorney’s office.

Wilson has failed to demonstrate that Andrus, Murphy and

Phillips were similarly situated. As a result, it seems clear that

the State’s second asserted justification for excluding Andrus (her

attitude toward the criminal justice system) was a legitimate,

race-neutral explanation. Therefore, without even examining the

State’s other justification for striking Andrus (her attitude

toward the death penalty), we can conclude that Wilson has not made

a substantial showing that the exclusion of Andrus was

discriminatory. See Moore v. Keller Indus., 948 F.2d 199, 202 (5th

Cir. 1991) (concluding that “because multiple reasons led [the

defense] counsel to strike [two jurors] the existence of other

jurors with some of their individual characteristics does not

demonstrate that the reasons assigned were pretextual”); see also

Alverio v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 941 (7th Cir.

2001) (“[W]here a party gives multiple reasons for striking a

juror, it is not enough for the other side to assert that the

empaneled juror shares one attribute with the struck juror.”).

12
 Wilson next contends that the State violated Batson when it

struck Tammy Ruffin because she was too anxious to serve on the

jury, but failed to strike Kellie Meaux, Robert Huckaby, Viole

Willis, Jack Oliver, Clifford Tomplait, Christine Thompson, or

Michael McFarland, each of whom expressed a desire to serve on the

jury. Our review of the record satisfies us that Ruffin did not

have the same or similar attitude toward serving as did the other

seven identified by Wilson.

Ruffin, who was stricken, acknowledged that she did not

believe in the death penalty, but went on to explain that she

wanted to serve on the jury because she was a “starting paralegal”

and that she was “trying to learn certain things.” In contrast,

Meaux, who professed a belief in the death penalty, stated that she

did not “have a problem with being on the jury.” Likewise,

Huckaby, who also expressed a belief in the death penalty, said

that although he did not particularly want to serve on the jury, he

understood that it was his “duty to serve” and that he “believe[d]

in that.” And, Willis, another acknowledged believer in the death

penalty, declined the opportunity to be excused on account of his

age, explaining that he believed that it was his “civic duty” to

serve on a jury and that “anytime that you’re asked to serve your

community that you should do so.” Oliver, another proponent of the

death penalty, explained that the reason he wanted to serve on the

jury was that he thought more people “ought to try to serve on a

jury instead of trying to avoid it” and that he had the “time and

13
know-how to do it.” Thompson, who considered the death penalty to

be warranted in certain cases (“if a person messes with a child,

that, to me, deserves a death penalty”), was asked whether she

wanted to serve on the jury, to which she responded somewhat

equivocally, “I think so.”

Tomplait, yet another death penalty proponent, stated that he

was willing to serve on the jury if he were needed because he is

“retired” and “available,” in contrast to some others for whom “it

would be a hardship on them.” He explained further that he was an

“American and [that] we have a jury system and the jury system is

made up of citizens.” Tomplait also ventured the belief that it

was his responsibility to serve and that he “always tried to be a

responsible person.” McFarland, too conceded a belief in the death

penalty, relating that he was willing to serve on the jury “more so

than not” and explaining that he had never served on a jury before

and that he would not take jury service lightly because a “man’s

life [was] at stake.” Although McFarland said that he did not

necessarily want to participate in a process that could result in

the death of another individual, he understood that it was his

civic duty and he was willing to do that.

Regarding Ruffin, Wilson appears to confuse the desire to sit

on the jury for her own purposes, i.e., to learn about the law,

14
with the desires of the other seven veniremen to fulfill their

civic duties. Ruffin is not comparable to these other veniremen.2

In Wilson’s next Batson claim he asserts that the State

committed a violation when it struck Cynthia Robertson because she

was equivocal about the death penalty and her job exposed her to

“fact situations that causes inmates to go to the penitentiary,”

but failed to strike Lattell Guidry whose answers on the jury form

were equivocal with regard to the death penalty and whose drug

counseling clients often went to prison. We do not view these two

potential jurors as being sufficiently similar for purpose of a

Batson comparison.

Robertson and Guidry did not have similar beliefs about the

death penalty. Although both said that they believed in the death

penalty, only Robertson stated that she did not want to have any

part in the death-penalty process and did not want to be on the

jury. Even though Guidry initially said that she did not want to

be a part of the trial process, she ultimately decided that she

could participate and fulfill her civic duty. It is true that both

2
Furthermore, the State offered two additional reasons for
striking Ruffin: She does not believe that a first degree felony
is a serious crime, and she appeared to be “too immature mentally
to understand the seriousness of this trial.” Wilson does not
suggest that these additional reasons are pretextual; in fact, both
age and the prosecutor’s belief that a juror would have trouble
understanding the complexities of the case have been recognized as
legitimate reasons for peremptorily striking a potential juror.
Clemons, 941 F.2d at 325 (age); United States v. Hinojosa, 958 F.2d
624, 632 (5th Cir. 1992)(trouble understanding the complexities of
the case).

15
hold jobs that bring them in contact with the criminal element, but

Robertson works in the prison system whereas Guidry is a drug

counselor. Accordingly, Wilson’s attempt to compare Guidry and

Robertson in support of his Batson claim fails.

Wilson next contends that the State violated Batson when it

offered an additional reason for striking Robertson, i.e. for not

knowing that the trial consisted of two phases (the guilt/innocence

and punishment phases), but failed to strike Dianna Kasper, who was

also unaware of the different phases. Wilson’s attempt to compare

Kasper and Robertson fails to provide support for his Batson claim.

Even after being questioned by the State and defense counsel,

Robertson still exhibited a lack of sufficient understanding of the

murder trial process. For example, Robertson was initially unaware

of the fact that the jury could convict Wilson of the lesser-

included offense of kidnaping, and the rule that the defendant

never has the burden of proof. Robertson also indicated that,

notwithstanding a defendant’s constitutional right not to testify,

she would like to hear from the defendant during trial.

In contrast, Kasper had a much more sophisticated

understanding of the trial process. She said that she was aware

that Wilson could be convicted of the lesser-included offense of

kidnaping and that she did not expect the defendant to testify. It

is apparent from the record that the State’s decision to strike

Robertson, but not Kasper, does not constitute evidence of

discrimination. The prosecutor’s belief that Robertson had trouble

16
understanding the complexities of the case is a race-neutral reason

for removing her from the jury. Hinojosa, 958 F.2d at 632.

Continuing, Wilson next asserts that the State improperly

struck Joseph Tackwood because (1) he did not understand the

difference between guilt beyond a reasonable doubt and guilt beyond

all doubt, (2) he wore dark sunglasses, and (3) he had never

thought about serving on the jury, even after the general voir

dire. Wilson claims that first reason given by the State was a

pretext for discrimination. Wilson relies on the fact that the

State did not strike Xuan Duong and Viole Willis, non-African-

American veniremen, who (according to Wilson) also expressed

confusion about the concept of guilt beyond a reasonable doubt.

We need not determine whether Tackwood, Duong, and Willis had

similar difficulties understanding the State’s burden of proof. As

we have seen, the State had alternative reasons for striking

Tackwood from the jury. Tackwood’s appearance (wearing dark

sunglasses) and the prosecutor’s inability to make eye contact (“I

couldn’t see his eyes”) are legitimate, race-neutral grounds for a

peremptory strike. See United States v. Bentley-Smith, 2 F.3d

1368, 1374 (5th Cir. 1993)(challenges may be based on subjective

factors such as lack of eye contact); Clemons, 941 F.2d at 324-25

(juror’s physical appearance is a legitimate basis for a peremptory

strike). Wilson does not contend that these rationales applied to

any other juror. Because the State clearly had a race-neutral

17
rational for striking Tackwood, Wilson cannot make a substantial

showing that the exclusion of Tackwood was racially discriminatory.

See Moore, 948 F.2d at 202.

Although Wilson next complains about the striking of Lois

Hayward, who is black, he concedes that she was struck for medical

reasons. Wilson likewise contests the State’s proffered reasons

for striking Alfred Thomas: that he did not believe in the death

penalty and that he knew Wilson’s wife and considered her to be

truthful. And Wilson complains of the State’s striking Mary Nixon

for refusing to say where her husband worked, for being combative

and abrupt with both State and defense counsel, and for displaying

an attitude that was not conducive to working with 11 other people.

Wilson does not now contend, however, that the use of these

peremptory strikes violated Batson; neither does he attempt to draw

any similarities between Thomas and Nixon on the one hand and, on

the other hand, the veniremen who were not stricken.

Wilson does insist that the State violated Batson when it

struck Fay Gabriel for having served on a hung jury, yet failed to

strike Dianna Kasper who also had served on a hung jury. The

prosecutor explained the difference: Gabriel was stricken because

she appeared to be “very proud of the fact that she hung that jury

up.” Contrary to Wilson’s contention, Gabriel and Kasper did not

exhibit the same or similar attitude. Gabriel volunteered that in

her prior jury service, she had “held out” for a not guilty

18
verdict, causing the judge to declare a mistrial. Kasper, in

contrast, did not claim to be the juror whose vote produced the

hung jury. Moreover, a prosecutor’s perception of a venireman as

strong-willed and obstinate, and the prosecutor’s belief that a

venireman might not engage in meaningful deliberations, are

legitimate grounds for a peremptory strike. Washington v. Johnson,

90 F.3d 945, 954 (5th Cir. 1996).

In sum, Wilson has failed to make a substantial showing of the

denial of a constitutional right with regard to his Batson claim.

Accordingly, COA is denied on it.

C. Ineffective Assistance Claim: Trial Counsel

To demonstrate that he received ineffective assistance at

trial, a defendant must show, under the two-prong test enunciated

in Strickland v. Washington, 466 U.S. 668, 687 (1984), that

counsel’s assistance was deficient and that the deficiency

prejudiced his defense. A failure to establish either deficient

performance or resulting prejudice defeats the claim. Id. at 697.

To demonstrate a deficient performance, a defendant must show that

“counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 687. To demonstrate prejudice, a defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different, id. at 694, and that counsel’s errors were so serious

19
that they rendered the proceedings unfair or the result unreliable.

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). As claims of

ineffective assistance of counsel involve mixed questions of law

and fact, they are governed by the standards set forth in §

2254(d)(1). See Briseno v. Cockrell, 274 F.3d 204, 206-08 (5th

Cir. 2001).

Wilson argues first that his trial counsel was ineffective for

failing “to gather the probable cause affidavits that were a matter

of public record.” He insists that in one of the probable cause

affidavits, there is a reference to an individual named “Gun.”

Wilson contends that “Gun” was a member of a gang called the

Bloods.

This claim is at best conclusional. Wilson fails entirely to

explain how counsel’s failure to gather the affidavits and to

ascertain that one or more of them contained references to “Gun”

would have altered the outcome of trial. Conclusional allegations

of ineffective assistance of counsel are insufficient to establish

habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.

2000). Here the defense was well aware of “Gun,” knew that the

search warrant referenced someone with the nickname “Gun,” and knew

that “Gun” was, or might have been, a member of the Bloods. This

claim is without merit.

Wilson next advances a one-sentence argument that his trial

counsel was ineffective for failing to request a charge on the

lesser-included offense of murder. In a capital case, the jury

20
must be permitted to consider a verdict of guilt of a noncapital

offense when the evidence presented would support such a verdict.

Beck v. Alabama, 447 U.S. 625, 634-38 (1980). Accordingly, a

“defendant is entitled to an instruction on a lesser included

offense if the evidence would permit a jury rationally to find him

guilty of the lesser offense and acquit him of the greater.” Id.

at 635 (citations omitted); see Cordova v. Lynaugh, 838 F.2d 764,

767 (5th Cir. 1988). In Beck, the Court reasoned that precluding

the jury from convicting a defendant of a non-capital offense,

thereby forcing either conviction of a capital offense or

acquittal, undermines the reliability of the jury’s verdict. Beck,

447 U.S. at 637, 642-43. The mandatory instruction on a lesser

included noncapital offense provides a third option as a safeguard

against the risk of an “all or nothing” jury verdict on the capital

offense. Id.; see also Spaziano v. Florida, 468 U.S. 447, 455

(1984).

We have held that when a claim turns on application of state

law rather than federal law, a jury instruction on lesser included

offenses is mandated if, under state law as applied to the facts of

the case, a rational juror could vote to convict the defendant of

the lesser offense and to acquit on the greater. Hill v. Black,

932 F.2d 369, 374 (5th Cir. 1991). In Texas, murder is a lesser

included offense of capital murder. TEX. PENAL CODE ANN. § 19.03(c).

Nonetheless, Wilson has failed to direct our attention to any

evidence in the record that would support a verdict of murder.

21
Wilson’s bald assertion that a lesser-offense instruction was

warranted is insufficient to earn him habeas relief. See Koch v.

Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (conclusional

allegations insufficient to warrant § 2254 relief). As Wilson

cannot show that he was entitled to a lesser-included-offense

instruction, he fails to demonstrate that counsel was ineffective

for failing to request such an instruction.

Furthermore, a lesser-included-offense instruction for murder

would have been inconsistent with the defense theory that Wilson

did not murder Jerry Williams; that instead he was killed by “Gun”

or someone else at “Gun’s” direction. Thus, in addition to lack of

entitlement, the failure of counsel to request a murder instruction

was a legitimate strategic choice, on its own sufficient to eschew

deficient performance. See Turner v. Johnson, 106 F.3d 1178, 1187

& n.40 (5th Cir. 1997).

Wilson’s next ineffective-assistance claim is that trial

counsel performed deficiently when he “showed up at jail and

improperly pressured a material witness to change his story.”

Wilson contends that this “evidence was repeatedly argued by the

State during its closing arguments.” Wilson confusingly argues

that the “fact that the jury was to consider future dangerousness

when coupled with these jailhouse visits, surely prejudiced” his

rights.

Following the homicide, the material witness, Lavergne,

identified Lewis in a photographic line-up and told law enforcement

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agents that the man he identified in the photo was the “‘helper’”

rather than the “primary actor.” Wilson, 7 S.W.3d at 140.

According to Lavergne, the other man, who Lavergne described as

having a “‘gerry curl,’” made the threats and conducted most of the

beatings. When the same photograph of Lewis was shown to Lavergne

at trial, however, he testified that the person pictured was the

one with the gerry curl and hence the primary actor, even though

Lavergne had identified Lewis as the “helper” rather than the

primary actor when he was shown the picture of Lewis at Wilson’s

first trial.

This contradiction in Lavergne’s testimony prompted further

questioning which eventually revealed that defense counsel had

visited Lavergne three times while he was in jail on an unrelated

offense. This revelation allowed the State to suggest that defense

counsel had pressured Lavergne to change his testimony with regard

to who was the primary actor. The State was also able to elicit

the facts that (1) outside the presence of the prosecutor, defense

counsel had shown Lavergne a photographic line-up; and (2) Wilson

was present on this occasion and asked Lavergne for his father’s

name and whether he had a new baby. Lavergne testified that

Wilson’s questions scared and intimidated him “[a] little bit.”

Defense counsel’s meetings with Lavergne were reiterated during the

State’s closing arguments.

Even if we assume that Wilson’s trial counsel had attempted to

alter Lavergne’s testimony, Wilson does not argue that, but for

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counsel’s engaging in such behavior, he (Wilson) would not have

been found guilty of capital murder or, even if found guilty, he

would not have been sentenced to death. All that Wilson asserts

is the bald conclusion that his “rights” were “prejudiced.” In

addition, Wilson’s argument —— that counsel’s jailhouse visits,

when coupled with the issue of future dangerousness, established

prejudice —— is nonsensical. Again, conclusional allegations of

prejudice are insufficient to establish ineffective assistance of

counsel. See Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir.

1998).

Wilson next insists that the “biggest error occurred when

defense counsel performed an in-court comparison” of Wilson and

“Gun.” Trial counsel had “Gun” stand next to Wilson, apparently to

show how similar they looked and to suggest that “Gun,” not Wilson,

had killed Williams. This ploy appears to have backfired when the

State proved that “Gun” had been in jail at the time of the murder

and obviously could not have killed Williams.

It also appears, however, that defense counsel was aware that

“Gun” was in jail at the time of the shooting yet, for whatever

reason, made the tactical decision to conduct the in-court

comparison. “We will not find inadequate representation merely

because, with the benefit of hindsight, we disagree with counsel’s

strategic choices.” Green v. Johnson, 116 F.3d 1115, 1122 (5th

Cir. 1997). Accordingly, this claim fails to establish the

deficient-performance prong of Strickland.

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 Finally, Wilson claims that, cumulatively, the sum of trial

counsel’s errors rendered his conviction and sentence

constitutionally unreliable. As reflected by the foregoing

analysis, however, Wilson has failed to demonstrate either

deficiency or prejudice with regard to any of trial counsel’s

professional assistance; and absent specific deficiency and

prejudicial performance, there can be no cumulative ineffective

assistance of counsel.

We deny COA on Wilson’s claim of ineffective assistance of

trial counsel claim.

D. Ineffective Assistance Claim: Appellate Counsel

The Strickland standard also applies to claims of ineffective

assistance of appellate counsel, and Wilson must show both that his

appellate attorney’s errors constituted deficient performance and

that his case was prejudiced as a result. See Williams v. Collins,

16 F.3d 626, 635 (5th Cir. 1994). Wilson argues that counsel was

ineffective for failing to raise the Batson claim on appeal. To

show prejudice, Wilson must show a reasonable probability that, but

for his appellate counsel’s error, the outcome of his appeal would

have been different. Pitts v. Anderson, 122 F.3d 275, 279 (5th

Cir. 1997).

As we have determined that Wilson’s Batson claim is without

merit, appellate counsel cannot be found ineffective for having

failed to raise it; prejudice cannot result from counsel’s failure

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to assert a meritless claim or make a meritless argument. See

United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

We deny COA on the issue of ineffective assistance of

appellate counsel.

III

CONCLUSION

Wilson has failed to make a substantial showing that he was

denied a constitutional right or that jurists of reason could

debate the correctness of the denial of his habeas claims.

Miller-El, 123 S. Ct. at 1040; Slack, 529 U.S. at 484; 28 U.S.C.

§ 2253(c)(2). Wilson is therefore not entitled to a COA.

COA DENIED.

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