Drew v. Collins

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-2744

_____________________

ROBERT NELSON DREW,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director, Texas Department,
of Corrections, Institutional Division

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(June 18, 1992)

Before KING, JOLLY, and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Robert Nelson Drew appeals the district court's denial of

his petition for a writ of habeas corpus on several grounds.

Finding no error, we affirm the district court's denial of the

writ.

I. BACKGROUND

The recitation of facts is taken in large part from the

opinion of the Texas Court of Criminal Appeals. Drew v. State,

743 S.W.2d 207 (Tex. Crim. App. 1987).

In February 1983, seventeen-year-old Jeffrey Leon Mays, who

was not getting along with his parents, decided to run away from
home. He decided to leave his home in Praco, Alabama with his

high school friend, Bee Landrum. Both young men had experienced

family conflict because of their difficulties with alcohol and

drugs. They left Alabama in Landrum's car with eight dollars,

some food, and Landrum's buck knife.

Mays and Landrum picked up a number of hitchhikers to obtain

gas money. At the suggestion of one, John Sly, they spent the

night at the Salvation Army in Lafayette, Louisiana. There they

met Drew, who was in the company of a man named Frank. Mays and

Landrum agreed to give Drew and Frank a ride to Franklin,

Louisiana, thirty miles east of Lafayette, in exchange for money

and gas. When they arrived in Franklin, Frank bought pizza and

beer for everyone, filled Landrum's car with gas, and gave Drew

sixty-five dollars. Mays and Landrum agreed to take Drew to

Houston in exchange for more gas money. Mays, Landrum, and Drew

left Frank in Franklin and traveled back west toward Lafayette.

While passing through Lafayette, they saw John Sly

hitchhiking and picked him up again. Shortly after leaving

Lafayette, the group picked up another hitchhiker, Ernest

Puralewski. Everyone was drinking beer except Mays, who was

driving. At least one marijuana cigarette was passed around,

which everyone smoked except Mays. Drew and Puralewski engaged

in conversation. Puralewski stated that he was on the run and

that he had been in prison with Charles Manson in California.

Mays, apparently unnerved by this conversation, told the

group he wanted to stop and make a telephone call to his parents.

2
After appearing to make the call, he returned to the car and

stated that his father was gravely ill and that he had to return

to Alabama. Drew was upset that Mays was not going to take him

to Houston as planned. He believed that Mays had lied about his

father in an attempt to abandon the hitchhikers. He punched Mays

in the face and held a knife to Landrum's throat. Drew

threatened Landrum and Sly that he ought to cut their throats.

Drew then wrapped his arm around Mays' neck and, holding a knife

to his neck, ordered him to stop the car.

Puralewski, armed with the buck knife he had borrowed from

Landrum earlier, pulled Sly out of the car and robbed him. Drew

prevented Landrum from leaving the car, telling him "if you try

anything you are dead." Drew ordered Landrum to the front seat

and moved Mays to the back seat. He began to punch Mays in the

face while calling him a punk, accusing him of lying about the

telephone call to his parents, and threatening Mays that he was

going to die. Mays did not resist this attack.

According to Landrum, Puralewski told Drew to take Mays'

watch and wallet if he planned to kill him, so that Mays would

not have any identification. Drew took these items. Mays

muttered something to the effect that Drew "would not get away

with this." Both Drew and Puralewski decided to kill Mays. They

ordered Landrum to pull the car to the side of an access road on

I-10, where they pulled Mays out of the right side of the car.

Watching through the rear-view mirror, Landrum saw Drew pull

Mays' head back and make a slashing motion across his throat.

3
Puralewski stabbed Mays at the same time. The two men rolled

Mays' body into a ditch and ordered Landrum to continue the drive

to Houston. After leaving Puralewski at a bar in Houston, Drew

and Landrum were stopped by the police at 3:30 A.M. for speeding.

After an investigation, Drew was charged with capital murder.

On December 3, 1983, Drew was convicted of capital murder

and received a death sentence. On March 7, 1984, Puralewski

pleaded guilty to one count of capital murder and was sentenced

to a sixty-year term of imprisonment. On March 24, 1984, Drew

moved for a new trial based on newly discovered evidence. This

motion was based in part on an affidavit prepared by Puralewski,

who declared that he acted alone in killing Mays. The state

trial court denied this motion on April 13, 1984.

On May 9, 1984, Drew moved the Texas Court of Criminal

Appeals for leave to file for a writ of mandamus or for abatement

and requested a hearing. The Court of Criminal Appeals denied

this motion on May 14, 1984. On September 30, 1987, the Court of

Criminal Appeals affirmed Drew's conviction and sentence. Drew

v. State, 743 S.W.2d 207 (Tex. Crim. App. 1987).

Drew filed a state habeas petition on April 28, 1988. The

state trial court recommended denial of the writ. The Court of

Criminal Appeals adopted the trial court's findings of fact and

conclusions of law and denied the writ. Ex parte Drew, No.

13,998-02 (Tex. Crim. App. June 14, 1988). On the same day the

Court of Criminal Appeals denied his petition, Drew filed a

4
motion for stay of execution and a habeas petition in federal

district court.

The district court granted Drew a stay of execution on June

14, 1988. It denied Drew habeas relief on February 20, 1991.

Drew appealed this decision and requested the issuance of a

Certificate of Probable Cause (CPC). The district court granted

CPC on July 31, 1991.

II. DISCUSSION

Drew argues that he should receive habeas relief because (1)

the jury's consideration of the possibility of parole violated

his rights under the Sixth, Eighth, and Fourteenth Amendments to

the Constitution; (2) the wrongful dismissal of two prospective

jurors violated his Sixth and Fourteenth Amendment rights; (3)

prosecutorial misconduct during trial violated his Fourteenth

Amendment rights; (4) the application of the Texas capital

sentencing statute in his case unconstitutionally prevented the

jury from giving full mitigating effect to the evidence of his

troubled childhood, his drinking problem, and the fact that he

had consumed drugs and alcohol at the time of the crime; (5)

Texas' thirty-day limit for new trial motions precluded the

consideration of newly discovered evidence showing Drew's

innocence in violation of his Eighth and Fourteenth Amendment

rights; and (6) he received ineffective assistance of counsel.

We address each of these claims separately below.

A. Jury's Consideration of the Possibility of Parole

5
 During the jury's deliberations at the punishment phase of

trial, Drew contends, jurors speculated that a life sentence

would probably result in parole for Drew and agreed that Drew

should never be paroled. Drew submitted an affidavit to the

state habeas court in support of this claim. The affidavit,

executed by Peter Fleury, a private investigator assisting Drew's

attorney, related the content of a telephone conversation Fleury

had with Alvin Eisenberg, the foreman of the jury. Fleury

averred that Eisenberg told him that the jury felt that Drew

should never be paroled and agreed that they did not want Drew

"roaming our streets."

Drew argues that his sentence violated his Sixth, Eighth,

and Fourteenth Amendment rights because jurors discussed whether

Drew would be eligible for parole should they sentence him to

life imprisonment. Drew asserts that had the jurors not made

this impermissible consideration, they would have returned a

sentence of life imprisonment rather than death.

We directly considered whether a Texas jury improperly

considered parole law during capital sentencing deliberations in

De La Rosa v. Texas, 743 F.2d 299 (5th Cir. 1984), cert. denied,

470 U.S. 1065 (1985). We indicated that while the mention of

parole law amounts to misconduct, "[o]nly jury misconduct that

deprives the defendant of a fair and impartial trial warrants

granting of a new trial." Id. at 306, cited in Monroe v.

Collins, 951 F.2d 49, 52 (5th Cir. 1992). In Monroe, we relied

on California v. Ramos, 463 U.S. 992 (1983), to hold that,

6
 [b]ecause it is not repugnant to the federal
constitution for a state to accurately
instruct the jury on parole procedures, it
follows that a state trial juror's accurate
comments about parole law do not offend the
federal constitutional rights of the
defendant.

Id. at 53. Furthermore,

we have distinguished between jury panels
tainted by outside influence, such as
publicity or direct appeals from third
parties, and panels on which one or more of
the jurors themselves have violated an
instruction of the court. In the former
case, "a presumption of prejudice arises when
the outside influence is brought to the
attention of the trial court, and it is
incumbent upon the Government to rebut that
presumption at a hearing."

United States v. Webster, 750 F.2d 307, 338 (5th Cir. 1984)

(citations omitted) (quoting United States v. Chiantese, 582 F.2d

974, 978 (5th Cir. 1978), cert. denied, 441 U.S. 922 (1979)),

cert. denied, 471 U.S. 1106 (1985). In the latter case, however,

no such presumption arises, and the defendant must demonstrate

that jury misconduct prejudiced his constitutional right to a

fair trial.1 See id. at 338-39. Since Drew does not allege any

outside influence on the jury, he cannot avail himself of the

presumption of prejudice.

1
Drew's contention falls into this category. For this
reason, United States v. Luffred, 911 F.2d 1011 (5th Cir. 1990),
which Drew urges us to apply, is inapposite. In Luffred, we
addressed the jury's consideration of a chart used by the
Government as a trial aid during its closing argument but
excluded from evidence by the district court. Under those
circumstances, we held that a presumption of prejudice arose.
Id. at 1014.

7
 In response to Fleury's affidavit, the State furnished the

state habeas court with an affidavit executed personally by

Eisenberg. In his affidavit, Eisenberg stated that "[t]he fact

that Drew might or might not one day receive parole if he

received a life sentence did not influence our answers." Based

on this evidence and the record, the state habeas court found

that "[a]lthough the jury was generally aware that a life

sentence might result in eventual parole for [Drew], the jury's

answers to the special issues were based solely on the evidence

and the jury's belief that there was, beyond a reasonable doubt,

a probability that [Drew] would commit criminal acts of violence

that would constitute a continuing threat to society." Ex parte

Drew, No. 13,998-02, at 411. The court also found that "[t]he

evidence presented does not demonstrate that there was a

misstatement of law, asserted as a fact by one professing to know

the law that was relied upon by other jurors who, for that

reason, changed their vote to a harsher punishment for [Drew]."

Id.2 Because the record fairly supports these findings, we

accord them a presumption of correctness pursuant to 28 U.S.C. §

2254(d). See Marshall v. Lonberger, 459 U.S. 422, 432 (1983);

Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir. 1990). Drew does

2
This finding tracks the five-part test employed by Texas
courts to determine whether a jury's discussion of parole law
requires reversal. See Monroe v. Collins, 951 F.2d 49, 52 n.7
(citing Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App.
1984)) (defendant must show "(1) a misstatement of law, (2)
asserted as a fact, (3) by one professing to know the law, (4)
which is relied upon by other jurors, (5) who for that reason
changed their vote to a harsher punishment").

8
not present evidence to support his allegation of jury prejudice.

As such, he fails to show a constitutional violation on this

ground.

B. Wrongful Dismissal of Prospective Jurors

Drew asserts that the trial court improperly excused for

cause prospective jurors Grover Smith and Archie Cotton. This

error, he contends, violated his Sixth and Fourteenth Amendment

rights as recognized in Wainwright v. Witt, 469 U.S. 412 (1985).

In a capital case, a prospective juror may not be excluded

for cause unless the juror's views "would prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and oath." Adams v. Texas, 448

U.S. 38 (1980); accord Witt, 469 U.S. at 424. Witt also

explained that the presumption of correctness conditionally

required under § 2254(d) applies to the trial court's

determination of a challenge for bias. 469 U.S. at 430. "[S]uch

a finding is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge's province."

Id. at 428 (footnote omitted). The trial court need not detail

its reasoning or explicitly conclude that a prospective juror is

biased, so long as it is evident from the record. Id. at 430.

A review of Grover Smith's voir dire examination reveals

that he stated on several occasions that he would hold the State

to a higher burden of proof than the "reasonable doubt" standard

in a capital case. Drew portrays Smith's statements as

indicating not that he would hold the state to a higher burden of

9
proof, but that Smith would permit the capital nature of the case

to influence his perception of what constitutes proof beyond a

reasonable doubt. Drew contends that Adams prohibits dismissal

of a prospective juror on this ground. In Adams, the Court held

that the Constitution did not permit exclusion of jurors

from the penalty phase of a Texas murder
trial if they aver that they will honestly
find the facts and answer the questions in
the affirmative if they are convinced beyond
reasonable doubt, but not otherwise, yet who
frankly concede that the prospects of the
death penalty may affect what their honest
judgment of the facts will be or what they
may deem to be a reasonable doubt. Such
assessments and judgments by jurors are
inherent in the jury system, and to 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
be to deprive the defendant of the impartial
jury to which he or she is entitled under the
law.

448 U.S. at 50. Here, however, prospective juror Smith did not

merely state that he might apply the reasonable doubt standard

differently in a capital case. He stated on numerous occasions

during voir dire questioning that he would apply a standard

higher than what he understood as the reasonable doubt standard.

The trial court could correctly determine that Smith's insistence

on such a high burden of proof would substantially impair his

performance as a juror.

Archie Cotton's definition of "continuing threat to society"

under the second special issue3 prompted the trial court to

3
Tex. Code Crim. Proc. art. 37.071(b)(2) asks the jury to
determine "whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a

10
dismiss him for cause. Cotton explained that he understood this

question as requiring the State to prove the probability that the

defendant would commit future murders. He indicated that he

would answer the question affirmatively only if the evidence

convinced him that the defendant was likely to murder again.

Based on Smith's responses, the trial court could correctly

conclude that this restrictive definition of "future acts of

violence" would prevent or substantially impair the performance

of Cotton's duties as a juror by requiring a more stringent

burden of proof than the law requires. Because the record

supports the conclusions of the trial court concerning

prospective jurors Smith and Cotton, we presume that it is

correct. Drew's arguments fail to overcome this presumption.

Accordingly, we conclude that this claim lacks merit.

C. Prosecutorial Misconduct

1. Improper argument

Drew argues that the prosecution engaged in persistent and

repeated acts of misconduct, depriving him of the right to a fair

trial under the Fourteenth Amendment. Drew specifically objects

to the prosecution's (1) appeal for swift return of the verdict

to avoid insulting the victim's family; (2) what Drew

characterizes as its misstatement of the law of capital murder as

allowing conviction if the jury finds an ongoing robbery,

including robbery of an individual other than the victim; (3)

improper reference to the trial judge; (4) bolstering and

continuing threat to society."

11
personally vouching for witnesses; and (5) inflammatory language

referring to Drew. In addressing this claim, "[t]he relevant

question is whether the prosecutors' comments 'so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974));

accord Bell v. Lynaugh, 828 F.2d 1085, 1095 (5th Cir.), cert.

denied, 484 U.S. 933 (1987). The district court concluded that

the prosecutor's actions "did not rise to the dimension of

constitutional error necessary to sustain Drew's petition for

writ of habeas corpus."

After reviewing the argument in the context of the trial as

a whole, we agree with the district court's assessment. First,

although the prosecutor's request for a swift verdict on behalf

of the victim's family was improper, it was brief.4 In view of

the strength of the evidence pointing toward Drew's guilt, we

conclude that this remark did not leave an unconstitutional taint

4
The prosecutor argued:

The only question is was a robbery going on and was the
defendant the one who did it. That doesn't take long. To
take a long time is unfair. It's an insult to what this has
been about. It is an insult to people here--to the victim's
family and to Bee.

The trial court overruled defense counsel's objection to this
comment. In closing, the prosecutor concluded:

I am going to sit down and ask that you come to a swift
verdict and the only verdict that is applicable under the
law that of [sic] this defendant being guilty of capital
murder.

12
on the proceeding. See United States v. Ellender, 947 F.2d 748,

758 (5th Cir. 1991) (analysis of whether a prosecutor's argument

deprived a defendant of a fair trial involves consideration of

(1) the magnitude of the prejudicial effect of the statements;

(2) the efficacy of any cautionary instruction; and (3) the

strength of the evidence of the defendant's guilt); see also

United States v. De La Rosa, 911 F.2d 985, 991 (5th Cir. 1991)

(same test employed in plain error analysis), cert. denied, 111

S. Ct. 2275 (1991).

Second, we disagree with Drew that the record clearly

reflects that the prosecutor misstated the law of capital murder

in Drew's case. In context, the prosecutor's statements can be

read to remind the jury of its ability to draw reasonable

inferences from the evidence.5 The record does not show that the

prosecutor argued that the jury could convict Drew for capital

murder if it found that he robbed someone other than the victim.

We do not find that this portion of the prosecutor's argument

resulted in a denial of Drew's right to due process. See Boyde

v. California, 110 S. Ct. 1190, 1200 (1990).

Third, Drew contends that the prosecutor improperly argued

that the trial judge was telling the jury that it had to find

Drew guilty of capital murder.6 The thrust of the prosecutor's

5
The thrust of the prosecutor's argument was that the
evidence showed that there was an ongoing robbery. Based on this
showing, the prosecutor argued, the jury could infer that Drew
killed Mays in the course of committing a robbery.
6
At one point, the prosecutor stated:

13
argument was that the definitions contained in the charge

required the jury to find Drew guilty. We "should not lightly

infer that a prosecutor intends an ambiguous remark to have its

most damaging meaning or that a jury, sitting through lengthy

exhortation, will draw that meaning from the plethora of less

damaging interpretations." Donnelly v. DeChristoforo, 416 U.S.

637, 647 (1974), quoted in Boyde, 110 S. Ct. at 1200. We

therefore hold that this remark did not violate Drew's due

process rights.

Fourth, Drew argues that the prosecutor improperly vouched

for the credibility of Landrum and Sly. The prosecutor told the

jury that he had not told Landrum or any other witness what to

say, stated that he thought "Landrum was trying to do what was

right," and declared that Sly was credible because Mays' killing

"shocks his conscience, too." The Court of Criminal Appeals

rejected Drew's argument on direct appeal, finding that the

argument in rehabilitation of these witnesses, in response to the

I ask you to look at the facts and realize that based upon
those facts that there is no other conclusion than that
there was a robbery going on, an all day robbery. You had a
rolling chamber of torture, a chamber of execution in that
car. That's what that rolling party became that this
defendant--guilty, guilty, more guilty than Mike
[Puralewski] of this offense. And I think you can see that
the only way to come to this conclusion safely is by looking
at the charge. The Judge needs you to do that. Realize
that most of its definitions you have heard before and the
Judge is telling you that you have to find him guilty.

At another point, the prosecutor argued to the jury:

Keep in mind what that evidence is and keep in mind the
Court is not telling you what to do. The Court cannot do
that."

14
defense's attack during its closing argument, was a reasonable

deduction from the evidence. Drew v. State, 743 S.W.2d at 218.

Prosecutors "may not assert [their] own credibility as a

foundation for that of [their] witnesses." United States v.

Garza, 608 F.2d 659, 664 (5th Cir. 1985). Here, while the

phrasing may have been improper, the prosecutor's comments did

not bolster the credibility of the witnesses based solely on the

prosecutor's own credibility. The prosecutor's comments were

grounded in evidence presented to the jury and did not infect the

trial with unfairness so as to violate Drew's due process rights.

Finally, Drew argues that the prosecutor engaged in verbal

abuse and inflammatory rhetoric, referring to Drew as a "sadistic

killer," a "macho man," and referring to the trip from Louisiana

to Texas as a "rolling torture chamber" and a "chamber of

execution." Although we agree that the prosecutor used

inflammatory language, his comments referred to specific evidence

in the record. In this context, we do not find that these

arguable errors resulted in a violation of Drew's due process

rights.

2. Brady claim

Drew also argues that the prosecution's failure to reveal

the existence of a taped police interview with Bee Landrum, in

which Landrum stated he did not see the murder, amounted to a

violation of his due process rights. He asserts that the oral

statement would have provided significantly more effective

impeachment evidence against Landrum than the written statement

15
provided, which was prepared based on an interview conducted

approximately six hours later.7

The state habeas court found that Landrum's recorded

statement was generally consistent with his later written

statement, and that "defense counsel was able to effectively

cross-examine Bee Landrum concerning his observations of the

stabbing utilizing Landrum's written statement." The district

court also concluded that the prosecutor's inadvertent failure to

provide Drew's counsel with the recorded statement did not amount

to a Brady violation.

Brady v. Maryland, 373 U.S. 83 (1963), requires that the

prosecutor produce evidence that is useful for impeachment, as

well as exculpatory material. United States v. Bagley, 473 U.S.

667, 676 (1985). To prevail on a Brady claim, a defendant must

show (1) the prosecution suppressed evidence that was (2)

favorable to the accused and (3) material to either guilt or

punishment. Cordova v. Collins, 953 F.2d 167, 171 (5th Cir.

1992). The prosecutor's failure to respond fully to a specific

7
Drew refers to the following exchange in the taped
interview:

[Landrum] I don't know. OK, so we pulled over and they took
the keys out of the car. Lock my door and says if I move I
am a dead man. They take Jeff outside and hear them hit him
a few times and then I hear him cutting him. You know,
stabbing him.

[Interviewer] Did you look over and see them stabbing him?

[Landrum] I'd seen them throwing him on the ground and I
seen them bending over and then when I heard the sounds I
shut my eyes and turned away.

16
request for evidence favorable to the accused amounts to a

constitutional violation "only if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different." Bagley,

473 U.S. at 682.

We agree with the district court that Drew does not

establish a Brady claim. Drew argues that had he been given the

recorded statement, the prosecutor could not have rehabilitated

Landrum by arguing that Landrum was more fatigued when he

prepared the written statement, or that the typist transcribing

Landrum's statement could have written it down inaccurately. We

defer to the state court finding that these statements were

generally consistent with each other. While the prosecutor

failed to provide Drew with Landrum's recorded statement, any

incremental impeachment value Drew would receive from the minor

inconsistencies between the statements does not raise a

reasonable probability that, had the statement been disclosed to

Drew's counsel, the outcome of the proceeding would have been

different. Drew therefore cannot prevail on this claim.

D. Penry Claim

Drew asserts that the Texas sentencing statute precluded the

jury from fully considering and giving effect to relevant

mitigating evidence. As a result, he contends, his sentence

violates the Sixth, Eighth, and Fourteenth Amendments as

recognized in Penry v. Lynaugh, 492 U.S. 302 (1989). Drew's

uncle, Donald Martelle, testified during the punishment phase of

17
trial that Drew had a troubled childhood and a severe drinking

problem. Other evidence in the record included Drew's

comparative youth at the time the crime was committed, the fact

that he did not strike the blow that killed May, and the fact

that Drew had consumed alcohol and marijuana before becoming

involved in the crime.

The district court concluded that this claim was

procedurally barred because Drew did not present it to the trial

court by objecting to the statute, objecting to the charge, or

requesting a special jury instruction. Since the district

court's decision, the Court of Criminal Appeals has held that

failure to object does not waive a petitioner's right to assert a

Penry claim. See Selvage v. Collins, 816 S.W.2d 390, 392 (Tex.

Crim. App. 1991). Therefore, we consider the merits of this

claim.

In Penry, the Supreme Court held that when certain

mitigation evidence is presented, the Texas capital sentencing

scheme must be supplemented with special instructions so that

Texas juries can give full mitigating effect to this evidence.

492 at 328. This court recently addressed the scope of Penry in

Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992), cert. granted,

___ S. Ct. ___, 1992 WL 52201 (U.S. June 8, 1992). We concluded

that special jury instructions are required only when the "major

mitigating thrust of the evidence is beyond the scope of all of

the special issues." Id. at 1027. Penry disability evidence

18
"can reduce culpability where it is inferred that the crime is

attributable to the disability." Id. at 1033.

Drew maintains that the jury could not give full effect to

(1) evidence of his troubled childhood,8 (2) evidence of his

drinking problem, (3) evidence that Drew was under the influence

of alcohol and marijuana at the time he committed the crime, (4)

his comparative youth at the time of the killing (Drew was

twenty-three years old when he committed the crime), and (5)

evidence that Drew did not strike the fatal blow.

In Graham, we noted that evidence of the adverse effects of

a troubled childhood might well raise a Penry claim. Id. Like

Graham, however, Drew presented "no evidence of any effect this

had on [him], or of any reaction on his part to it, and no

attempt was made even to explore the subject." Id. As a result,

we conclude, as we did in Graham, that the Texas special issues

adequately addressed the evidence of Drew's childhood problems.

With regard to Drew's drinking problem, the state habeas

court found that "[a]lthough counsel placed evidence of [Drew's]

drinking problem before the jury, counsel refrained from giving

that issue too much evidence since (1) the evidence clearly did

not support a temporary insanity defense; and (2) counsel

reasonably believed that such evidence would not be perceived by

the jury as mitigating evidence." In view of the meager evidence

8
Martelle testified that Drew's early childhood was marred
by repeated fights between his parents. Drew's parents divorced
and abandoned him when he was very young, leaving him to be
raised by his grandparents.

19
in the record of Drew's drinking problem, we conclude, under

Graham, that its major mitigating thrust was substantially within

the scope of the Texas special issues.

Whatever the point at which age can no longer be considered

as youth for mitigation purposes, Graham expressly forecloses

Drew's argument on this ground:

[W]hatever is mitigating about youth tends to
lend support to a "no" answer to the second
special issue, and its tendency to do so is
essentially proportional to the degree to
which the jury concludes such factors were
influential in the defendant's criminal
conduct. The greater the role such
attributes of youth are found to have played
in the defendant's criminal conduct, the
stronger the inference that, as his youth
passes, he will no longer be a danger to
society.

950 F.2d at 1031. The Texas capital sentencing scheme allowed

the jury sufficiently to consider youth as a mitigating

circumstance. Furthermore, as to Drew's evidence that he was

under the influence of alcohol and marijuana at the time of the

crime, we rejected a nearly identical contention in Cordova,

concluding that "voluntary intoxication is not the kind of

'uniquely severe permanent handicap[] with which the defendant

was burdened through no fault of his own' that requires a special

instruction to ensure that the mitigating effect of such evidence

finds expression in the jury's sentencing decision." Cordova,

953 F.2d at 170 (quoting Graham, 950 F.2d at 1029). Finally, the

first special issue9 squarely addresses the evidence that Drew

9
The first special issue asks the jury: "Was the conduct of
the defendant that caused the death of the deceased committed

20
did not actually kill the deceased. See Johnson v. McCotter, 804

F.2d 300, 302 (5th Cir. 1986), cert. denied, 479 U.S. 1071

(1987). Accordingly, this claim is without merit.

E. Thirty-Day Rule

Several months after Drew was sentenced, Puralewski recanted

his earlier statements faulting Drew for Mays' killing. On March

28, 1984, Puralewski executed an affidavit taking sole

responsibility for Mays' death. Based in part on Puralewski's

recantation, Drew moved the trial court for a new trial. The

trial court rejected the motion on the ground that it lacked

jurisdiction to consider claims filed after the thirty-day time

limit imposed by Texas Code of Criminal Procedure Article 40.05.

On direct appeal, the Court of Criminal Appeals held that Article

40.05 created a jurisdictional bar to Drew's untimely motion.

Drew argues that the version of Article 40.05 in effect at the

time of his trial10 precluded the consideration of crucial

evidence of his innocence of the capital crime in violation of

his Eighth and Fourteenth Amendment rights.

In addition to its jurisdictional holding, the Court of

Criminal Appeals thoroughly considered the factual allegations

supporting Drew's motion for new trial.11 See Drew v. State, 743

deliberately and with the reasonable expectation that the death
of the deceased would result?" Tex. Code Crim. Proc. Ann. art
37.071(b)(1).
10
Tex. Code Crim. Proc. Ann. art 40.05 (Vernon 1981)
(repealed effective September 1, 1986).
11
The court made this inquiry in response to Drew's
alternative argument on direct appeal that state law required the

21
S.W.2d at 226-29. The Court of Criminal Appeals observed that

Puralewski's recantation was totally inconsistent with the bulk

of the testimony presented at Drew's trial. The Court of

Criminal Appeals found, moreover, that Puralewski's recantation

contradicted "his previous statements given which implicate the

appellant in the murder and which are generally consistent with

the trial testimony." Id. at 228. The Court of Criminal Appeals

further noted that the statement was not contrary to Puralewski's

penal interest, since he had already been sentenced to sixty

years' imprisonment based on his guilty plea when he made the

statement. Based on these findings, the Court of Criminal

Appeals implicitly determined that Puralewski's recantation

lacked credibility and concluded that the trial court did not

abuse its discretion in determining that Drew's newly discovered

evidence was not "such as would probably bring about different

results upon a new trial." Id. at 229 (citing United States v.

Vergara, 714 F.2d 21, 23 (5th Cir. 1983) (district court may deny

new trial, even without an evidentiary hearing, if it determines

that a previously silent accomplice's willingness after

conviction to exculpate his convicted co-conspirator is not

credible or would not be sufficient to produce a different

result)).

trial court to consider his motion because "where an accused's
constitutional rights are in conflict with a valid procedural
rule of law the procedural rule must yield to the superior
constitutional right." Drew v. State, 743 S.W.2d at 224 (citing
Whitmore v. State, 570 S.W.2d 889, 898 (Tex. Crim. App. 1977).

22
 Drew contends that he was entitled to have the merits of his

motion for a new trial considered and that his constitutional

rights were violated because the state did not provide a

procedural vehicle for such a consideration. We will assume,

arguendo, that Drew's contention is cognizable under § 2254. In

view of the extensive state court findings, Drew's claim is

distinguishable from that raised in Herrera v. Collins, No. 91-

7146 (cert. granted Feb. 19, 1992). In Herrera, no state court

confronted the petitioner's evidence of innocence. See Herrera

v. Collins, 954 F.2d 1029, 1034 (5th Cir. 1992). Here, in

contrast, the Court of Criminal Appeals made specific findings

relating to the evidence supporting Drew's motion for new trial

and rejected the motion on the merits. Whatever the ultimate

determination in Herrera may be, the statutory thirty-day

deadline on motions for new trial did not foreclose consideration

of Drew's newly discovered evidence. Therefore, we conclude that

this claim lacks merit.

F. Ineffective Assistance of Counsel

Drew cites several instances to demonstrate that his trial

counsel rendered constitutionally ineffective assistance. We

review ineffective assistance of counsel claims under the two-

prong standard set forth in Strickland v. Washington, 466 U.S.

668 (1984). See, e.g., Wilkerson v. Collins, 950 F.2d 1054 (5th

Cir. 1992). To meet this standard, a defendant must show:

First . . . that counsel's performance was
deficient. This requires showing that
counsel made errors so serious that counsel
was not functioning as the "counsel"

23
 guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show
that the deficient performance prejudiced the
defense. This requires showing that
counsel's errors were so serious as to
deprive the defendant of a fair trial, a
trial whose result is reliable. Unless a
defendant makes both showings, it cannot be
said that the conviction or death sentence
resulted from a breakdown in the adversarial
process that renders the result unreliable.

Strickland, 466 U.S. at 687.

Courts must evaluate attorney performance from the

circumstances of the challenged conduct and from counsel's

perspective at the time to assess whether the representation

"fell below an objective standard of reasonableness." Id. at

688-89. Further, courts "must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Id. at 689 (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A defendant

demonstrates prejudice by showing 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.

In the capital sentencing context, courts inquire into "whether

there is a reasonable probability that, absent the errors, the

sentencer--including the appellate court, to the extent it

independently reweighs the evidence--would have concluded that

the balance of aggravating and mitigating circumstances did not

warrant death." Id. at 695.

24
 Drew first contends that he was deprived of his Sixth

Amendment rights because his trial counsel failed to interview

and subpoena witnesses who could provide valuable mitigating

evidence. "[F]ailure to present mitigating evidence 'if based on

an informed and reasoned practical judgment, is well within the

range of practical choices not to be second-guessed'" under

Strickland. Wilkerson, 950 F.2d at 1065 (quoting Mattheson v.

King, 751 F.2d 1432, 1441 (5th Cir. 1985)). The state habeas

court found that Drew either failed to inform counsel of the

existence of the three witnesses or Drew personally contacted

them and they would not testify. This finding is amply supported

by the record, and thus is entitled to a presumption of

correctness pursuant to § 2254(d).12

Second, Drew asserts his counsel was ineffective for failing

to request a psychiatric interview even though counsel knew that

Drew had a serious drinking problem and a troubled childhood.

The state habeas court found that counsel made reasonable

inquiries into Drew's mental state, inquiring into whether Drew

had any past psychological problems or mental illness, and

whether he had ever been admitted to a mental hospital or

12
"Although the ultimate question of whether or not
counsel's performance was deficient is a mixed question of law
and fact, state court findings made in the course of deciding an
ineffectiveness claim are subject to the deference requirement of
section 2254(d)." Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.
1990). A state court need not conduct a live evidentiary hearing
to be entitled to this presumption; it can evaluate an
ineffective assistance of counsel claim based on the affidavits
of the petitioner and the attorney. Carter v. Collins, 918 F.2d
1198, 1202 (5th Cir. 1990).

25
drug/alcohol rehabilitation center. Counsel also observed that

Drew appeared to understand the charges against him and assisted

in the preparation of his own defense. The record shows that

counsel was not unreasonable for failing to conduct further

investigation concerning Drew's psychological status. We find no

merit to Drew's claim.

Third, Drew argues that his counsel misunderstood and

misstated the law of capital murder. The state habeas court

found that "the final argument made by defense counsel

demonstrates that counsel had more than an adequate understanding

of the law of capital murder." Although counsel may have made

ambiguous statements about the law, the record as a whole

supports the finding of the state habeas court. We therefore

reject this contention.

Fourth, Drew maintains that counsel's failure to object to

the prosecutor's inflammatory closing argument constituted

ineffective assistance. A decision not to object to a closing

argument is a matter of trial strategy. We will not disturb the

state habeas court's conclusion that defense counsel's failure to

object at closing "did not deny [Drew] reasonably effective

assistance of counsel as guaranteed by the Sixth Amendment . . .

."

Fifth, Drew contends that his counsel's failure to use due

diligence in obtaining the testimony of Puralewski deprived him

of his right to effective assistance of counsel. The state

habeas court found that counsel made efforts to speak with

26
Puralewski, but that Puralewski refused to speak with him, and

informed Drew's counsel that he would invoke his Fifth Amendment

privilege against self-incrimination if he were called to testify

at Drew's trial. The habeas court also found that Puralewski had

given statements to law authorities denying any involvement in

the crime. Drew concedes that Puralewski would have invoked the

Fifth Amendment if he had been called to testify at Drew's trial.

We agree with the district court that Drew does not demonstrate

that he received ineffective assistance of counsel on this

ground.

Finally, Drew argues that his counsel provided ineffective

assistance by failing to conduct post-trial interviews with the

jurors. The district court observed that while defense counsel

did not conduct extensive interviews, the record shows that

counsel did interview the jurors after trial and failed to

discover any misconduct. We agree with the district court that

counsel's actions did not fall below an objective standard of

reasonableness. Nor, for reasons explained above, does Drew

demonstrate any prejudice resulting from counsel's failure to

discover that the jurors had discussed parole law. As a result,

we conclude that this claim lacks merit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

denial of Drew's petition for a writ of habeas corpus.

27