Andrews v. Collins

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

_______________

No. 93-4151
_______________

MAURICE ANDREWS,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellee.

__________________________________________________

Appeal from the United States District Court
For the Eastern District of Texas
__________________________________________________

(May 13, 1994)

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Maurice Andrews was convicted by a jury of capital murder and

sentenced to death. His conviction and sentence were affirmed on

direct appeal. After his petition for habeas corpus relief in the

Texas Court of Criminal Appeals was denied, Andrews filed a

petition for habeas corpus relief in federal district court,

pursuant to 28 U.S.C. § 2254 (1988). The district court denied the

petition. Andrews now appeals the district court's decision,

presenting over twenty claims of error. We affirm.
 I

A

On April 8, 1982, two men robbed Granado's Jewelry Store in

Beaumont, Texas.1 During the robbery, Joe Granado, the store

owner, was shot once in the head by a small caliber pistol and once

with a .38 caliber pistol; Arturo Melindez, a store employee, also

was shot in the head and killed. Luisa Morales, an employee of the

business located next to the jewelry store, testified that, after

hearing gunshots, she saw two black men leaving the shop "real

fast."2 The only significant evidence police officers found at the

scene was a black cap decorated with a white Playboy bunny emblem.

Daisy May White, who lived at co-defendant Malcolm Davis'

house, testified that Andrews came to the residence on the morning

the murders occurred. Andrews wore a "dark brown" shirt and a

"black [cap] with a white Playboy bunny in the front." Andrews and

Davis, who wore a dark red baseball cap, left the house

approximately two hours before Granado and Melindez were killed.

Andrews, Davis, and Elliott Johnson returned to the house about

1
We present only the facts necessary for an understanding
of the issues presented on appeal. A more detailed review if the
facts may be found in the Texas Court of Criminal Appeals' opinion
affirming Andrews' conviction on direct appeal. Andrews v. State,
744 S.W.2d 40 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 871,
109 S. Ct. 182, 102 L. Ed. 2d 157 (1988).
2
Morales described one of the men as being slightly over
six feet tall and wearing a chocolate brown jacket, "like a type of
shirt." The second man was shorter and wore a red baseball cap.

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forty-five minutes after the robbery occurred.3 While at Davis'

residence, Andrews retrieved a bag, a towel, and some clothes from

Davis' car, which was parked in the garage. When Andrews reentered

the house, White observed that he had a "medium-sized" pistol))

which she had seen Andrews carry on previous occasions))tucked into

his pants. White also observed "lots of jewelry" wrapped up in the

towel that Andrews had retrieved from the car. Later, Davis gave

his wife the pistol he had been carrying, which was smaller than

Andrews' gun, and told her to clean it. Davis also told her that

"we had to shoot those guys or they would have killed us." Davis'

wife subsequently placed the pistol Andrews had been carrying,

several envelopes, and a red baseball cap in a storehouse located

in their backyard.

Gloria Mae Thomas testified that she accompanied Andrews))who

was wearing a black Playboy bunny cap))Davis, and a third man to

the residence of Charles Chapman in Houston two days before the

robbery-murders occurred. On that trip, Davis inquired whether

Chapman wanted to purchase or knew where he could fence "about

$20,000 worth of jewelry." When Chapman requested to see the

jewelry, Davis replied that he would let Chapman "see it later on."

3
Johnson was convicted of capital murder and sentenced to
death. See Johnson v. State, 691 S.W.2d 619 (Tex. Crim. App.
1984), cert. denied, 474 U.S. 865, 106 S. Ct. 184, 88 L. Ed. 2d 152
(1985). Malcolm Davis pled guilty to a charge of aggravated
robbery and was sentenced to life imprisonment. See Andrews, 744
S.W.2d at 41 n.1. The prosecution's theory in Andrews' trial was
that Andrews and Johnson were the triggermen and Davis drove the
getaway car. The defense's theory was that Davis and Johnson were
the triggermen.

-3-
Thomas also testified that Andrews often talked about committing

robberies and told her that "he wouldn't leave nobody around to

talk about it" if he ever "pulled a big robbery." Chapman's

testimony supported that given by Thomas. Additionally, Chapman

stated that Andrews carried a .38 caliber pistol while in Houston.

After Andrews and Davis were arrested,4 police officers

obtained a warrant to search Davis' residence. During the search,

they recovered a .38 caliber pistol, an envelope with "Granado

Jewelry" on it, the bill of a red baseball cap that had been

burned, and one ring. During a search of Andrews' residence, again

pursuant to a warrant, officers found a large amount of jewelry

hidden in the refrigerator. Tests demonstrated that the .38

caliber pistol recovered by police fired the shots that killed

Granado and Melindez. Lynn Baldwin, Granado's stepson, identified

the seized envelope as being of the same type used by Granado to

secure jewelry left at the store by customers. He further

identified one of the rings found in Andrews' residence as being

Granado's personal ring. Blain Coleman identified a second ring

found at Andrews' residence as being a ring that he left at

Granado's store for repairs prior to the robbery. Patricia Stine

4
When arrested, Andrews was wearing a black cap with a
white Playboy bunny on it. Andrews thus concludes that it could
not have been his cap that police found at the murder scene.
However, Mildred Mayon, an employee of the Super Bad Shop,
testified that Andrews had purchased such a cap on the afternoon of
the murders. The prosecution argued at trial that Andrews
purchased the second Playboy cap to "cover his tracks"))i.e.,
because he had lost his cap while fleeing from Granado's store.

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and Rolanda Russell testified that several items of jewelry seized

at Andrews' residence "matched up" with items that their companies

had delivered to Granado's Jewelry Store. Many of the items taken

from the store, however, were never recovered. A jury found

Andrews guilty of the capital murder of Joe Granado.

B

In accord with the capital sentencing statute then in effect,5

Andrews's jury was instructed at the punishment phase of his trial

that it was to answer three "special issues":

(1) whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with
the reasonable expectation that the death of the deceased
or another would result;

(2) whether there is a reasonable probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased.

Tex. Code Crim. Proc. Ann. art. 37.071(b) (Vernon 1981). Because

the jury unanimously answered each question in the affirmative, the

trial court sentenced Andrews to death. See id. art. 37.071(e).

The Texas Court of Criminal Appeals affirmed Andrews' conviction

and sentence. Andrews, 744 S.W.2d 40.

In November 1988, Andrews, represented by counsel, sought

postconviction relief in the Texas state courts. After an

5
Texas amended its capital punishment statute in 1991.
See Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon Supp. 1993).

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evidentiary hearing regarding six of Andrews' thirty-seven claims,6

the state habeas court, which also had been the trial court,

entered findings of fact and conclusions of law recommending that

relief be denied. The Court of Criminal Appeals, finding the trial

court's findings and conclusions to be supported by the record,

subsequently denied relief. Andrews then petitioned for a writ of

habeas corpus in federal district court pursuant to 28 U.S.C.

§ 2254, raising twenty-seven claims of error. The district court

denied relief and granted Andrews' petition for a certificate of

probable cause to appeal. Andrews now raises a plethora of claims

on appeal.

II

Andrews first levels a general challenge to the state court's

findings of fact, arguing that four of the exceptions to the

presumption of correctness enumerated in § 2254(d) are applicable.7

6
The state court heard evidence pertaining to Andrews'
claims that: (1) he was incompetent to stand trial; (2) the
prosecution discriminatorily exercised its peremptory challenges;
(3) the prosecution failed to disclose exculpatory and material
evidence; (4) his trial counsel rendered ineffective assistance
during the guilt-innocence phase of his trial; (5) his trial
counsel rendered ineffective assistance during the punishment phase
of his trial; and (6) imposition of the death penalty would be
cruel and unusual because he was mentally retarded.
7
28 U.S.C. § 2254, in relevant part, provides:

(d) In any proceeding instituted in a Federal court
by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in
a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties,

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Andrews' challenges can be grouped into two categories: those

based on the inadequacy of the procedures or other aspects of the

state hearing (exceptions under §§ 2254(d)(2), (3) and (6)) and

those based on the merits of the state court's findings (exceptions

under § 2254(d)(1)).

A

The first category of challenges requires us to determine

whether certain alleged procedural irregularities at the hearing

rendered the presumption inapplicable. E.g., Black v. Collins, 962

F.2d 394, 400 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct.

2983, 119 L. Ed. 2d 601 (1992). Andrews specifically contends that

the state court "refused to allow [him] to conduct any discovery

and also refused to provide [him] with the means to present all of

the evidence that supported [his] claims." Andrews, however, fails

to cite any authority supporting his contentions.8

evidenced by a written finding, written opinion, or other
reliable and adequate written indicia, shall be presumed
correct, unless the applicant shall establish or it shall
otherwise appear, or the respondent shall admit))
(1) that the merits of the factual dispute
were not resolved in the State court hearing;
(2) that the factfinding procedure employed
by the State court was not adequate to afford
a full and fair hearing;
(3) that the material facts were not
adequately developed at the State court
hearing;
. . . .
(6) that the applicant did not receive a
full, fair, and adequate hearing in the State
court proceeding . . . .
8
Andrews does cite Harris v. Nelson, 394 U.S. 286, 89 S.
Ct. 1082 (1969). Harris, however, merely held that a federal

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 Texas law leaves discovery decisions to the sound discretion

of the habeas court. See Tex. Code Crim. Pro. Ann. art.

11.07(2)(d) (West Supp. 1994) (stating that "the court may order

affidavits, depositions, interrogatories, and hearings, as well as

using personal recollection" to resolve "controverted, previously

unresolved facts") (emphasis added). In federal court,

"[d]iscovery decisions in habeas proceedings . . . [also] are left

entirely to the sound discretion of the district court." Duff-

Smith v. Collins, 973 F.2d 1175, 1180 (5th Cir. 1992), cert.

denied, ___ U.S. ___, 113 S. Ct. 1958, 123 L. Ed. 2d 661 (1993);

see also 28 U.S.C. § 2254, Rule 6 (governing the availability of

discovery in federal habeas proceedings); Willie v. Maggio, 737

F.2d 1372, 1395 (5th Cir.) (holding that the district court did not

abuse its discretion in denying motion for discovery), cert.

denied, 469 U.S. 1002, 105 S. Ct. 415, 83 L. Ed. 2d 342 (1984).

Moreover, Andrews wholly fails to explain how the state court

"refused to provide [him] with the means to present all of the

evidence." E.g., Smith v. Estelle, 711 F.2d 677 (5th Cir. 1983)

(noting that a habeas applicant need not be given the opportunity

to present live testimony), cert. denied, 466 U.S. 906, 104 S. Ct.

1685, 80 L. Ed. 2d 159 (1984). Finally, in reviewing the record,

we note that the state court allowed Andrews to present evidence

and witnesses, to fully cross-examine witnesses called by the

district court may authorize discovery if "it is necessary to do so
in order that a fair and meaningful evidentiary hearing may be
held." 394 U.S. at 300, 89 S. Ct. at 1091.

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state, and, after the hearing's conclusion, to submit affidavits

from two persons who did not appear at the hearing. Accordingly,

we conclude that Andrews received a full and fair hearing.

B

The second challenge raised by Andrews requires us to

determine whether the state court actually resolved the factual

issues presented by Andrews' petition. Andrews contends that

although he filed an amended petition "conform[ing] his allegations

to the evidence presented at the hearing," the state habeas court's

factual findings tracked the allegations raised in his original

state petition. Andrews neglects to mention, however, that the

state court refused to consider Andrews' "extremely belated"

amended petition because it found that Andrews had abused the

habeas corpus process by filing the petition. Moreover, Andrews

does not challenge that finding. Consequently, we conclude that

the state court actually resolved the merits of all disputed

factual issues presented by Andrews' habeas petition.9

9
Additionally, the only example cited by Andrews in
support of his contention that the state habeas court did not
resolve the merits of factual disputes relates to Andrews' claim
that his counsel was ineffective for failing to introduce in
evidence the results of DNA tests ran on a hair found in the black
Playboy cap left at the scene of the murders. Andrews original
state habeas petition alleged that the prosecution failed to inform
counsel of the test results. However, Andrews' trial counsel
testified at the evidentiary hearing that the prosecution had
produced the test results. Thus, the state habeas court rejected
Andrews' claim. Andrews' amended petition, which the state court
refused to consider, contended that trial counsel's failure to
inform the jury of the test results constituted ineffective
assistance. Because we determine whether counsel rendered
effective assistance based on the totality of the circumstances,

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 III

Andrews argues that the district court erred in presuming

correct the trial court's finding that he was competent to stand

trial because he did not receive a full and fair hearing and the

material facts were not adequately developed at the hearing that

was held. See 28 U.S.C. § 2254(d)(2), (3), (6). Accordingly,

Andrews urges us to reverse the judgment of the district court and

remand for a new evidentiary hearing.

The § 2254(d) presumption of correctness is not rendered

inapplicable merely because the state habeas court did not allow

Andrews to conduct discovery before it held the evidentiary

hearing. See part II.A. supra. Moreover, the record indicates

that the material facts pertaining to Andrews' incompetency claim

were adequately developed during the hearing.10 Consequently, we

conclude that the state habeas court afforded Andrews a full and

fair hearing, that the state court's finding that Andrews was

competent to stand trial was entitled to the presumption of

and because we do not presume correct the state court's
determination that counsel rendered effective assistance, Andrews
is not harmed by the state court's failure to address his amended
claim because we necessarily examine all evidence produced that
bears on the ineffective assistance claim. See part VI.A. infra.
10
Andrews presented testimony from two psychologists
suggesting that he is mildly mentally retarded. A psychiatrist for
the state, on the other hand, testified that Andrews was competent
to stand trial, and Andrews' trial attorneys both testified that
they had no reason to believe that Andrews was incompetent at the
time of trial. Finally, the state habeas court, relying on its
observation of Andrews throughout the trial, found that Andrews was
competent to stand trial.

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correctness, and that the district court was not required to

conduct a second evidentiary hearing.

IV

Andrews contends that the trial court erred by not reopening

voir dire after defense counsel learned that one of the jurors was

related to Joe Granado, the victim. Shortly before trial was to

begin, the prosecution informed defense counsel that juror Curtis

Tomplait's daughter had been married to the victim's grandson, who

was deceased at the time of trial.11 Defense counsel then moved for

a mistrial or, alternatively, to reopen voir dire and question

Tomplait as to his relationship to the victim. The trial court

denied both requests. Andrews argues that the trial court thus

"forced him to present his case before a juror with an apparent

bias against him, in violation of . . . the Sixth, Eighth, and

11
The prosecution further informed defense counsel that
Granado's grandson had been employed by the Jefferson County
Sheriff's Department. To the extent Andrews' argument rests on
Tomplait's "failure to disclose his relationship to a law
enforcement employee," the written questions provided to Tomplait
did not require him to disclose that his deceased son-in-law had
been employed by a law enforcement agency. See Baca v. Sullivan,
821 F.2d 1480, 1482-83 (10th Cir. 1987) (no new trial required when
juror failed to disclose that his brother was a retired police
officer because voir dire questions inquired only about relatives
presently in law enforcement); De la Rosa v. Texas, 743 F.2d 299,
306-07 (5th Cir. 1984) (no new trial required where voir dire
questions did not directly solicit the information upon which the
bias claim rested), cert. denied, 470 U.S. 1065, 105 S. Ct. 1781,
84 L. Ed. 2d 840 (1985). Moreover, we will not impute bias merely
because Tomplait's former son-in-law had worked for a law
enforcement agency. See Tinsley v. Borg, 895 F.2d 520, 529 (9th
Cir. 1990), cert. denied, 498 U.S. 1091, 111 S. Ct. 974, 112 L. Ed.
2d 1059 (1991).

-11-
Fourteenth Amendments." At bottom, Andrews' contention is that we

must, as a matter of law, impute bias to juror Tomplait.12

As an initial matter, we note that "[t]he Supreme Court has

never explicitly adopted or rejected the doctrine of implied bias."

Tinsley, 895 F.2d at 527. Moreover, the Court has not looked

favorably upon attempts to impute bias to jurors. E.g., Smith v.

Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)

(refusing to impute bias to a juror where the juror sought

employment with the prosecutor's office during trial); Remmer v.

United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954)

(attempted bribe of juror did not require a finding of implied

bias). However,

there are some extreme situations that would justify a
finding of implied bias. Some examples might include a
revelation that the juror is an actual employee of the
prosecuting agency, that the juror is a close relative of

12
Andrews does not contend on appeal that Tomplait was
actually biased:

[T]he only evidence necessary to support [the claim of
bias] is the undisputed fact that Juror Tomplait was
related to the victim and to a law enforcement
employee. . . . Andrews' position is based on the
undisputed fact that Juror Tomplait was related to the
victim and to a law enforcement employee, which gives
rise to "implied" or "presumed" bias under controlling
precedent. No further evidence was necessary. . . .
Andrews does not need an evidentiary hearing to develop
the material facts . . . [because] those facts are
undisputed.

Andrews' Rebuttal Brief at 8-9. Thus, Andrews has not presented
any evidence as to the length of the marriage between Tomplait's
daughter and Granado's grandson, when the marriage ended, the
relationship between Granado and his grandson or Tomplait and his
daughter, or even whether Granado and Tomplait had ever met.

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 one of the participants in the trial or the criminal
transaction, or that the juror was a witness or somehow
involved in the criminal transaction.

Smith, 455 U.S. at 222, 102 S. Ct. at 948 (O'Connor, J.,

concurring) (emphases added); see United States v. Scott, 854 F.2d

697, 699 (5th Cir. 1988) (same).

Based on the record before us, we do not believe that

Tomplait's presence on the jury deprived Andrews of his right to

present his case to an impartial jury. First, when asked during

individual voir dire whether he knew of "any reason [why he] could

not be a fair and impartial juror," Tomplait replied that he did

not. Second, Tomplait was not at any time directly related to the

victim, and his daughter's relationship with the victim's grandson

had ended prior to the time of trial. Third, Andrews does not

allege that the grandson was alive when the victim was killed.

Fourth, the record contains no evidence suggesting that Tomplait,

at the time of trial, even knew he had at one time been related to

Granado.13 Finally, there is absolutely no evidence suggesting that

Tomplait's "tenuous relationship"))as described by the state habeas

court))had any effect on the proceedings.14 Accordingly, we refuse

13
Andrews argues that the trial court's erroneous refusal
to reopen voir dire "effectively destroyed the only opportunity
defense counsel had to ask questions regarding Juror Tomplait's
relationship to the victim." However, because Andrews' arguments
pertaining to Tomplait were relevant to his ineffective assistance
claim, Andrews' current counsel had the opportunity to present
evidence regarding Tomplait))not limited to Tomplait's
testimony))during the evidentiary hearing but failed to do so.
14
In Scott, the prospective juror "consciously censored the
information" available to counsel, thereby giving rise to "a strong

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to impute bias to juror Tomplait. See Jones v. Butler, 864 F.2d

348, 362 (5th Cir. 1988) (trial court correctly denied a defense

challenge for cause to a prospective juror who "had lived near the

victim and knew her by sight, had visited the funeral home to view

her body, . . . , and had worked [ten] years earlier as a hospital

lab clerk for a doctor who testified for the State"), cert. denied,

___ U.S. ___, 112 S. Ct. 8, 115 L. Ed. 2d 1093 (1991); Howard v.

Davis, 815 F.2d 1429, 1431 (11th Cir.) (no new trial when trial

court refused to excuse juror who was a "close friend" of the

murder victim), cert. denied, 484 U.S. 864, 108 S. Ct. 184,, 98 L.

Ed. 2d 136 (1987).

V

Andrews complains that the prosecution utilized its peremptory

challenges in a racially discriminatory manner, violating Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).15

The record reflects that Andrews' counsel did not raise a Batson-

type objection at trial.16 Andrews' failure to timely object at

inference that [the juror] wanted to serve on [the] jury and
thought it unlikely that the court or defense counsel would permit
him to do so." 854 F.2d at 699. Here, on the other hand, Tomplait
answered all questions truthfully, and Andrews has failed to point
to any evidence contained in the record giving rise to such an
inference.
15
In Batson, the Supreme Court held that "[t]he Equal
Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race." 476 U.S. at 86, 106 S.
Ct. at 1719.
16
Andrews was convicted and sentenced in 1982, while Batson
was decided in 1986.

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trial to the prosecutor's use of his peremptory challenges is a

constitutional bar to his Batson challenge. Harris v. Collins, 990

F.2d 185, 187 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.

3069, 125 L. Ed. 2d 746 (1993); Wilkerson v. Collins, 950 F.2d

1054, 1063 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct.

3035, 125 L. Ed. 2d 779 (1993).

Andrews attempts to circumvent the federal contemporaneous-

objection rule by asserting that the rule "has no application to

the present case because the state [habeas] court conducted a full-

blown evidentiary hearing on the Batson claim." However, "the fact

that the state habeas court later considered on the merits the

prosecutor's alleged racial use of peremptory challenges does not

cure the defect, fatal to federal review, of failure to object

timely to the peremptory strike." Harris, 990 F.2d at 187; see

also Wilkerson, 950 F.2d at 1063; Jones, 864 F.2d at 369-70.

Accordingly, review of Andrews' Batson claim is barred and we need

not address the merits of the claim.

VI

Andrews asserts that he received ineffective assistance of

counsel during the guilt-innocence and punishment stages of his

trial and on direct appeal of his conviction, thereby violating his

Sixth Amendment right to counsel. We review a claim of ineffective

assistance under the standards announced by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). "First, a defendant must demonstrate that

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`counsel's representation fell below an objective standard of

reasonableness,' with reasonableness being judged under

professional norms prevailing at the time counsel rendered

assistance." Black, 962 F.2d at 401 (quoting Strickland, 466 U.S.

at 688, 104 S. Ct. at 2064). In reviewing an ineffective

assistance claim, we must "judge[] the conduct of the defense

according to the objective standard of the reasonable attorney,"

Kyles v. Whitley, 5 F.3d 806, 819 (5th Cir. 1993), petition for

cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 10, 1994) (No. 93-7927),

and "give great deference to counsel's assistance, strongly

presuming that counsel has exercised reasonable professional

judgment." Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.

1984). Accordingly, "strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on

investigation." Strickland, 466 U.S. at 690-91, 104 S. Ct. at

2066. Second, if counsel was ineffective, "[t]he 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. A reasonable probability is a probability sufficient to

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undermine confidence in the outcome."17 Id. at 694, 104 S. Ct. at

2068.

A

Andrews argues that his appointed counsel at trial))Walter

Sekaly and Harold Laine, Jr.))rendered ineffective assistance at

the guilt-innocence stage of his trial for several reasons. First,

Andrews contends that counsel should have put into evidence the

results of a forensic test administered to a hair found in the

black cap discovered at the murder scene; Andrews contends that

the results demonstrate that the Playboy cap did not belong to

Andrews, and, therefore, that he could not have left it at the

scene of the crime. Andrews' defense at trial was that Malcolm

Davis and Elliott Johnson were the triggermen, and it is undisputed

that Johnson was the shorter man wearing the red cap whom Morales

saw fleeing the scene. Andrews thus contended during closing

arguments that the taller man described by Morales was Malcolm

Davis. The results of the hair test, however, indicated that the

hair found in the cap matched neither that of Davis nor of Andrews.

Thus, while the test results may have provided some assistance to

Andrews, they also would have undermined his defense that it was

17
"[A] state court's ultimate conclusion that counsel
rendered effective assistance is not a fact finding to which a
federal habeas court must grant a presumption of correctness under
28 U.S.C. § 2254(d), but instead is a mixed question of law and
fact." Black, 962 F.2d at 401. "However, any subsidiary factual
findings made by a state court in the course of determining that
effective assistance was rendered is entitled to the § 2254(d)
presumption," absent some reason for not applying the presumption.
Id.

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Davis who murdered Granado. Consequently, counsel's decision not

to bring the test results to the attention of the jury was not

unreasonable.

Andrews next points to counsel's error in not using a police

report to attack Mayon's credibility regarding her identification

of Andrews as the purchaser of the new Playboy cap. Detective

Charles Little's report, however, would not have impeached Mayon

because it did not contradict any aspect of Mayon's testimony.

While the report states that the owner of the store could not

identify Andrews as the person who purchased the black cap on the

day of the murder, Mayon testified that it was the manager's wife))

not the owner of the store))who sold Andrews the cap. Thus,

whether the owner could or could not identify Andrews is

irrelevant.18

Andrews further argues that counsel erred by not attacking the

credibility of Morales. Andrews contends that her testimony could

have been impeached by two newspaper articles, one of which stated

that she told a reporter she did not see anyone leaving Granado's

store and the second of which reported that Beaumont Police

18
Andrews also claims counsel erred by not informing the
jury that Detective Little stopped two black men near the jewelry
store shortly after the robbery who had nothing to do with the
crime. However, the men stopped by Little bore no resemblance to
the suspects described by Morales other than the fact that one of
them wore a red cap. Moreover, assuming arguendo that counsel was
ineffective for failing to bring this fact to the attention of the
jury, Andrews has failed to demonstrate that there is a reasonable
probability that the result of his trial would have been different
had counsel introduced this evidence.

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Lieutenant Bruce Thomason said Morales saw two men wearing blue

jeans leaving the scene. Assuming arguendo that counsel was

ineffective, Andrews has failed to demonstrate that there is a

reasonable probability that, had counsel questioned Morales about

the articles, the result of the proceeding would have been

different.

Andrews next contends that counsel committed error of

constitutional dimension by failing to make a Batson-type objection

to the prosecution's use of its peremptory challenges to strike

blacks from the jury. In Swain v. Alabama, 380 U.S. 202, 220-26,

85 S. Ct. 824, 835-39, 13 L. Ed. 2d 759 (1965), the Supreme Court

held that the systematic use by prosecutors of peremptory

challenges to strike black jurors on account of race violated the

Equal Protection Clause.19 We previously have held that the

decision in Swain provided defendants with the tools to construct

a Batson claim prior to the decision in Batson. See Jones, 864

F.2d at 364. Pre-Batson Texas courts, however, routinely rejected

such claims. See, e.g., Evans v. State, 622 S.W.2d 866 (Tex. Crim.

App. 1981); Metters v. State, 695 S.W.2d 88, 89 (Tex. Ct.

App.))Houston [1st Dist.] 1985). Consequently, counsel was not

ineffective for failing to raise a claim that Texas courts

repeatedly had rejected. Cf. Ellis v. Lynaugh, 873 F.2d 830, 840

(5th Cir.) ("The Constitution does not require appellate counsel to

19
No Swain objection was made at trial and the record does
not contain any evidence supporting such an objection.

-19-
raise every nonfrivolous ground that might be pressed upon

appeal."), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed.

2d 384 (1989).

B

Andrews next submits that he was denied effective assistance

of counsel at the punishment stage of his trial because counsel

failed to investigate factors in his background that would have

produced "highly probative" mitigating evidence. Andrews asserts

that had counsel made such an investigation, they would have

discovered substantial mitigating evidence.20 Andrews further

contends that this failure to investigate and present mitigating

evidence renders the outcome of the punishment phase unreliable.

1

We initially address Andrews' claim that counsel failed to

conduct a reasonable investigation into his background and mental

condition. These allegations are not sufficient to demonstrate

that Andrews was denied the effective assistance of counsel. See

Wilkerson, 950 F.2d at 1064-65 (rejecting similar allegations).

"We must strongly presume that trial counsel rendered adequate

assistance and that the challenged conduct was the product of

20
The mitigating evidence Andrews now asserts was available
consists of: school records that reveal his mental retardation;
prison records that reveal his retardation and excellent
disciplinary history; employment history; his deprived family and
social history; testimony from relatives who could testify
regarding Andrews' good character and lack of dangerousness.

-20-
reasoned trial strategy."21 Id. at 1065. As the state habeas court

recognized, Andrews' trial counsel and their investigator contacted

at least 27 people, none of whom were able to provide information

or evidence useful to Andrews. Trial counsel also interviewed

Andrews, his wife, and his mother without discovering any helpful

evidence. Furthermore, trial counsel testified that they had no

reason to suspect that Andrews' mental capacity was "in any fashion

impaired." Id. Because counsel had no reason to believe that

pursuing further investigations into Andrews' mental capacity or

his background would be useful, "counsel's failure to pursue those

investigations may not . . . be challenged as unreasonable."

Burger v. Kemp, 483 U.S. 776, 795, 107 S. Ct. 3114, 3126, 97 L. Ed.

2d 638 (1987); see also Cantu v. Collins, 967 F.2d 1006, 1016 (5th

21
Andrews nevertheless contends that counsel made no
strategic choice in this case. As proof of this contention,
Andrews cites Laine's statement at the evidentiary hearing that he
did not hear of the term "mitigating evidence" until 1984. In
concluding that Andrews received effective assistance at trial, the
state habeas court apparently discredited much of Laine's
testimony, which it was entitled to do. See Stringer v. Jackson,
862 F.2d 1108, 1116 (5th Cir. 1988), reversed on other grounds, ___
U.S. ___, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), affirmed as
modified, 979 F.2d 38 (5th Cir. 1992). Moreover, the record
reflects that counsel, during the punishment stage, relied solely
upon what he believed to be the jury's residual doubts about the
evidence presented at the guilt phase of Andrews' trial. Such a
strategy "has been recognized as an extremely effective argument
for defendants in capital cases." Lockhart v. McCree, 476 U.S.
162, 181, 106 S. Ct. 1758, 1769, 90 L. Ed. 2d 137 (1986) (internal
quotation omitted); see also Stringer, 862 F.2d at 1116 (finding
that counsel's decision to rely on residual doubt did not
constitute ineffective assistance).

-21-
Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 3045, 125 L. Ed.

2d 730 (1993).22

Finally, assuming arguendo that counsel's performance was

deficient, Andrews has not demonstrated that presentation of the

allegedly mitigating evidence would have affected the outcome of

his trial. See Wilkerson, 950 F.2d at 1065 (noting that the

petitioner must affirmatively prove prejudice under Strickland).

In light of the evidence presented at trial,23 Andrews "has failed

to show evidence of sufficient quality and force to raise a

reasonable probability that, had it been presented to the jury, a

22
Compare Bouchillon v. Collins, 907 F.2d 589, 597-98 (5th
Cir. 1990) (finding that where the defendant apprised counsel of
his mental problems prior to a plea hearing, counsel's failure to
perform any investigation whatsoever for a possible insanity
defense violated Strickland).
23
See Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th Cir.
1986) (finding that the jury would not have rendered a different
verdict had mitigating evidence been offered because "[t]he murders
were calculated and cold-blooded" and "[t]he mental anguish endured
by the victims, leading up to and during their senseless murders,
. . . was exquisite"). For example, Officer Harrell Fowler
testified that Granado was not immediately killed))instead, he was
"gasping for air, making gurgling-type noises . . . as [the
ambulance attendants] were working on him." Moreover, the
pathologist who conducted Granado's autopsy testified that,
considering the point and angle of entry of the bullets, Andrews
stood over Granado and shot him directly in the forehead. A
firearms expert testified that the .38 caliber bullets used to kill
Granado and Melindez had been altered to cause "more devastation"
on impact. Moreover, during the punishment phase, one witness
testified that Andrews had robbed the store at which the witness
worked approximately one month before Granado was killed. Gloria
Mae Thomas testified that Andrews had robbed a second store shortly
before Granado's murder and had threatened to kill two Port Arthur,
Texas police officers. Detective Ron Robertson stated that
Andrews, when he was arrested, had in his possession a stolen check
made out to him.

-22-
life sentence would have resulted." Id.; see also Callins v.

Collins, 998 F.2d 269, 279 (5th Cir. 1993) (noting that the

circumstances of the murder and the defendant's other violent

conduct "would have overwhelmed the minimal mitigating evidence

that Callins how argues should have been introduced at the capital

sentencing phase"), cert. denied, ___ U.S. ___, 114 S. Ct. 1127

(1994). Because Andrews has failed to meet the prejudice prong of

the Strickland test, he is not entitled to relief.

2

We next address Andrews' complaint that his trial counsel

failed to adequately indicate to the jury the mitigating

circumstance of his low intelligence. At the evidentiary hearing

in the instant case, Andrews offered expert testimony suggesting

that his IQ was 68,24 on the upper borderline of mild retardation.

See Penry v. Lynaugh, 492 U.S. 302, 308 n.1, 109 S. Ct. 2934, 2941

n.1, 106 L. Ed. 2d 256 (1989) (noting that individuals with IQ

scores between 50 and 70 have "mild" retardation). A psychiatrist

testifying for the state expressed the view that Andrews "probably"

was in the borderline range of normal, with an IQ of between 70 and

80. Other evidence generally was consistent with the conclusion

offered by the state's psychiatrist, and the state habeas court

found that Andrews "most likely fell in the borderline area between

mild mental retardation and dull normal intelligence."

24
The psychologist testifying for Andrews administered only
a portion of the Wexler Adult Intelligence scale under what he
admitted were adverse, non-clinical conditions.

-23-
Consequently, Andrews' claim is without merit. See Smith v. Black,

904 F.2d 950, 977 (5th Cir. 1990) (finding that counsel was not

deficient in failing to alert the jury in a capital case to the

defendant's IQ of 70), vacated on other grounds, ___ U.S. ___, 112

S. Ct. 1463, 117 L. Ed. 2d 609, aff'd in relevant part, 970 F.2d

1383 (5th Cir. 1992).25

Finally,

[t]he likely impact of testimony regarding [Andrews']
intelligence . . . would have been tempered by his trial
strategy of insisting on his complete innocence . . . ,
a theory that also proved the linchpin of [his argument
for mitigation]. There is no suggestion that [Andrews']
alleged deficiencies were such [that would] alert defense
counsel to the inferiority of such a strategy.

Id. Accordingly, Andrews' "claim presents neither a sufficient

deficiency nor consequent prejudice to support a finding of

constitutionally ineffective assistance of counsel." Id. at 978;

see also Motley v. Collins, 3 F.3d 781, 786 (5th Cir. 1993) (noting

that "the failure to introduce evidence of [the defendant's

organic] brain damage would have been a reasonable strategic

decision; after all, such evidence is double-edged))in that it may

have militated in favor of a `yes' answer to the future

dangerousness special issue."); King v. Puckett, 1 F.3d 280, 285

(5th Cir. 1993) (concluding "that the failure to offer mitigating

25
Compare Jones v. Thigpen, 788 F.2d 1101, 1102-03 (5th
Cir. 1986) (finding that counsel rendered ineffective assistance by
failing to present any mitigation evidence because the habeas
proceedings demonstrated that the prosecution and defense agreed
that Jones was mentally retarded, with a tested full scale IQ of
less than 41), cert. denied, 479 U.S. 1087, 107 S. Ct. 1292, 94 L.
Ed. 2d 148 (1987).

-24-
evidence in the form of King's diminished mental capacity" did not

affect "the outcome of his sentencing"); Duhamel v. Collins, 955

F.2d 962, 966 (5th Cir. 1992) (finding that evidence of a

defendant's moderate retardation was "weak" mitigating evidence).

C

Andrews next contends that the representation provided by his

appellate counsel))also Sekaly and Laine))was constitutionally

deficient because they did not raise two issues on direct appeal.

Andrews first contends that had counsel raised the issue of

juror Tomplait's apparent bias against him on direct appeal, the

Texas Court of Criminal Appeals would have reversed his conviction.

Andrews bases his contention on Stockton v. State, 187 S.W.2d 86

(Tex. Crim. App. 1945). In Stockton, the defendant killed a prison

guard during an escape attempt. The trial court denied Stockton's

challenge for cause of a prospective juror who "was related to the

deceased's daughter by affinity in the third degree."26 187 S.W.2d

at 88. The Court of Criminal Appeals held that while "the trial

court should have sustained [Stockton's] challenge for cause, [it]

would not base a reversal hereof on this matter alone." Id.

Moreover, it is undisputed that Tomplait was not disqualified for

cause under Texas law. See Tex. Code Crim. Proc. Ann. art.

35.16(c)(1). Thus, Andrews, by relying on Stockton, has not shown

that counsel acted unreasonably or that there is a reasonable

26
The prospective juror's nephew was married to the
deceased's daughter.

-25-
probability that the result of his appeal would have been different

had counsel raised the issue of juror bias.

The second issue Andrews faults appellate counsel for failing

to raise))the Fourth Amendment claim, see part XIV. infra))was

addressed on the merits on state habeas review and found to be

without merit. Consequently, Andrews was not prejudiced by

counsel's failure to raise the claim on direct appeal.

VII

Andrews next argues that the prosecution withheld three pieces

of purportedly exculpatory evidence, in violation of his due

process rights.27 Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.

Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963), "the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or punishment." The prosecution also must disclose evidence useful

to the defendant for impeachment purposes. United States v.

Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481

(1985). Thus, to establish a valid Brady claim, a defendant must

27
Andrews first argues that the prosecution did not
disclose written statements given by witness Morales. Andrews next
argues that the prosecution did not disclose the fact that two
witnesses))Joy Moore and William Quimby))would have testified, and
gave statements to police indicating, that they saw Elliott Johnson
and a second unidentified black man standing in front of the
jewelry store shortly before it was robbed. Andrews finally points
out that Nancy Verzone testified by affidavit at the evidentiary
hearing that while she saw Elliott Johnson fleeing the crime scene,
she did not see anyone with him. She further averred that she
informed police of this shortly after identifying Johnson at a
line-up.

-26-
establish that (1) the state suppressed evidence that was both (2)

favorable to the accused and (3) material. Edmond v. Collins, 8

F.3d 290, 293 (5th Cir. 1993). "[E]vidence is material 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. A `reasonable probability' is a probability

sufficient to undermine confidence in the outcome." Bagley, 473

U.S. at 682, 105 S. Ct. at 3383.

Although Andrews has failed to demonstrate the existence of

any prior inconsistent statements made by Morales, and did not seek

their production at trial after Morales testified, he points to a

newspaper article paraphrasing Beaumont Police Lt. Bruce Thomason's

statement that "[t]he only description [Morales] could give police

was that one man was wearing a red cap and both were wearing blue

jeans." Because the record does not support a finding that Morales

made any such statements, see part VI.A. supra, Andrews has failed

to state a Brady claim. Moreover, "[a]lthough exculpatory and

impeachment evidence falls within the purview of Brady, neutral

evidence does not." United States v. Dillman, 15 F.3d 384, 390

(5th Cir. 1994). Consequently, the prosecution was under no duty

to disclose that Moore and Quimby could not identify Andrews as the

man they saw with Johnson.28 See Hughes v. Hopper, 629 F.2d 1036,

1040 (5th Cir. 1980) (holding that the prosecution has no duty

28
We also note that trial counsel interviewed Moore before
trial and did not discover anything that they thought would prove
helpful.

-27-
under Brady to disclose that a certain witness could not positively

identify the defendant), cert. denied, 450 U.S. 933, 101 S. Ct.

1396, 67 L. Ed. 2d 367 (1981); United States v. Rhodes, 569 F.2d

384, 388 (5th Cir.) (same), cert. denied, 439 U.S. 844, 99 S. Ct.

138, 58 L. Ed. 2d 143 (1978). Finally, any testimony that could

have been offered by Nancy Verzone was largely cumulative to that

of Detective Charles Little.29 See Edmond, 8 F.3d at 294. Finally,

in light of the entire record, we cannot conclude that the

suppressed evidence would, in reasonable probability, have moved

the jury to embrace the theory it otherwise discarded))that Malcolm

Davis was the taller triggerman. See Kyles, 5 F.3d at 815. The

jury was more than adequately exposed to the defense's theory that

Malcolm Davis was in fact the killer and that Andrews was not. The

jury, however, refused to infer reasonable doubt from that

possibility, and Andrews has "failed to undermine the overwhelming

evidence of guilt at trial." Id. at 817. Accordingly, "we are not

persuaded that it is reasonably probable that the jury would have

found in [Andrews'] favor if exposed to any or all of the

undisclosed materials." Id.

29
Verzone testified by affidavit at the evidentiary hearing
that as she exited a store "around the corner from where Granado's
Jewelry Store was," Elliott Johnson, who was running down the
street, bumped into her. She further stated that she did not see
anyone with Johnson and that she informed police of this shortly
after identifying Johnson at a line-up. Detective Little testified
at trial that Verzone identified Johnson as the man she saw shortly
after the robbery at a restaurant four blocks from Granado's store.
Andrews failed to call Verzone to testify at the evidentiary
hearing.

-28-
 VIII

A

Andrews asserts that the trial court improperly excused for

cause prospective juror Frank Landry. This error, he contends,

violated his rights under the Sixth and Fourteenth Amendments.

Under those amendments,

a sentence of death cannot be carried out if the jury
that imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general
objections to the death penalty or expressed
conscientious or religious scruples against its
infliction.

Witherspoon v. Illinois, 391 U.S. 510, 521-22, 88 S. Ct. 1770,

____, 20 L. Ed. 2d 776 (1968). However, a prospective juror may be

excused for cause if his "views would prevent or substantially

impair the performance of his duties as juror in accordance with

his instructions and his oath." Adams v. Texas, 448 U.S. 38, 45,

100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980); see also

Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841

(1985). The presumption of correctness conditionally required

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

regarding a challenge for cause because "such a finding is based

upon determinations of demeanor and credibility that are peculiarly

within a trial judge's province." Witt, 469 U.S. at 428, 430, 105

S. Ct. at 854, 855.

A review of Landry's voir dire examination indicates that

Landry stated several times that he did not believe in the death

penalty. Landry also stated that he could not impose the death

-29-
penalty under any circumstances, that he could not answer each of

the special issues affirmatively "no matter what" the evidence was,

and that he could not take the juror's oath because he could not

follow the law of Texas that provides for the death penalty. In

response to a question by defense counsel, Landry stated that he

would answer special issue number two "no" because he could not

predict the future. In response to subsequent questions by the

prosecutor, Landry reaffirmed both his belief that he could not

assess the death penalty under any circumstances and that he would

answer the special issues in such a way as to ensure that the

defendant would not receive the death penalty.30 Because the record

supports the conclusion of both the trial court and the Texas Court

of Criminal Appeals, on direct review, that prospective juror

Landry was excludable under Witherspoon, we presume that it is

correct. See Russell v. Collins, 998 F.2d 1287, 1293-94 (5th Cir.

1993), cert. denied, ___ U.S. ___, ___ S. Ct. ___ (1994); Drew v.

Collins, 964 F.2d 411, 417 (5th Cir. 1992), cert. denied, ___ U.S.

___, 113 S. Ct. 3044, 125 L. Ed. 2d 730 (1993). Moreover, Andrews

fails present "clear and convincing evidence overcoming this

presumption." Kelly v. Lynaugh, 862 F.2d 1126, 1134 (5th Cir.

1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3263, 106 L. Ed. 2d

608 (1989). Accordingly, Andrews' claim is without merit.

30
The transcript of the voir dire examination of Landry is
quoted more extensively in Andrews, 744 S.W.2d at 46-48.

-30-
 B

Andrews next contends that the trial court erred in excusing

prospective juror Anthony Crook for cause. The trial court excused

Crook pursuant to the prosection's motion because Crook testified

during voir dire that he could not consider imposing probation as

the sentence in a murder case, even though Texas law allows such a

sentence.31 Andrews argues that because probation is not a

sentencing option in capital murder cases and "there was not even

a remote possibility that a lesser included offense of murder [sic]

would be submitted to the jury," the trial court erred in excluding

Crook.

While, with the benefit of hindsight, it may be clear that the

evidence does not support a murder instruction, we conclude that it

was not apparent, at the time of jury selection, that the trial

court would not be required to submit such an instruction. Indeed,

Andrews' federal habeas petition contended that the trial court's

refusal to submit instructions regarding "the lesser included

offenses of murder, robbery, and theft" deprived Andrews of his

constitutional rights. Moreover, the parties during jury selection

appear to have been operating under the assumption that Andrews, if

convicted, may have been eligible to receive a sentence of

probation. See 5 Transcript of Individual Voir Dire at 590-611

31
The prosecution apparently was attempting to foreclose a
possible ground for reversal on appeal in the event the jury found
Andrews guilty of capital murder and the death penalty was
assessed.

-31-
(where the parties extensively question Crook about his views

regarding probation); see also Nethery v. State, 692 S.W.2d 686,

691 (Tex. Crim. App. 1985) (holding that the prosecution, in a

capital murder case, properly challenged for cause potential jurors

who "expressed a bias against the minimum punishment for the lesser

included offense of murder), cert. denied, 474 U.S. 1110, 106 S.

Ct. 897, 88 L. Ed. 2d 981 (1986). Consequently, the trial court

did not err in excusing Crook for cause.

C

Andrews argues that the trial court erred by refusing to

exclude for cause prospective jurors David Malcolm Simon and Jerry

Sessions.32 Andrews further contends that the district court erred

by according the § 2254 presumption of correctness to the trial

court's findings that Simon and Sessions were not excludable for

cause.33 We agree that there is sufficient evidence in the record

32
Andrews argues that Simon should have been excused
because he stated that "he saw no difference between the
culpability of a non-triggerman who anticipated that death would
occur during a robbery and the culpability of a non-triggerman who
did not anticipate that death would occur." Simon, however, also
testified that he could "follow the law and put [his] personal
feelings out of the picture.

Andrews next urges that Sessions should have been excused
because he "testified that he would invariably vote for the death
penalty in a murder case." After the attorneys explained the
sentencing procedure to Sessions, he stated that he could set aside
his personal feelings and apply the law, even if doing so would
result in a sentence less than death.
33
Andrews contends that the trial court did not make a
finding that Sessions was qualified to serve as a juror. We
disagree. See Jones, 864 F.2d at 362 (noting a finding that the
challenged juror was qualified is implicit in the court's refusal

-32-
supporting the trial court's decisions and, therefore, that the

district court did not err in presuming those findings to be

correct.

IX

Andrews challenges the prosecution's use of peremptory

challenges to exclude any juror who expressed "even the slightest

qualms about the death penalty," arguing that such use violates the

Sixth, Eighth, and Fourteenth Amendments. The district court held

this claim to be procedurally barred. Andrews contends that this

ruling was in error because the Texas Court of Criminal Appeals did

not clearly and expressly rely on a procedural bar and, even if it

did, any procedural default was the result of ineffective

assistance of counsel.

On application for the writ of habeas corpus, federal courts

will not review a state court's holding on a federal law claim if

that holding rests upon a state law ground that is both independent

of the merits of the federal claim and adequate to support the

state court's judgment. Sawyers v. Collins, 986 F.2d 1493 (5th

Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 2405, 124 L. Ed. 2d

300 (1993). Thus, "[w]hen a state-law default prevents the state

court from reaching the merits of a federal claim, that claim

cannot be reviewed in federal court." Ylst v. Nunnemaker, ___ U.S.

___, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991).

to excuse her for cause).

-33-
 Andrews argues that the Texas Court of Criminal Appeals did

not clearly and expressly rely on procedural default. We disagree.

The state habeas court found that Andrews' claim was barred because

he lodged no objection at the time of trial; the Court of Criminal

Appeals determined that this conclusion was "supported by the

record" and denied relief "on the basis of the trial court's

findings and conclusions." See Ylst, ___ U.S. at ___, 111 S. Ct.

at 2594 (holding that "where there has been one reasoned state

judgment rejecting a federal claim, later unexplained orders

upholding that judgment or rejecting the same claim rest upon the

same ground"). Consequently, Andrews' claim is barred by

procedural default.

Andrews attempts to avoid the procedural default rule by

arguing that counsel's failure to make an objection at trial to the

prosecution's use of peremptory challenges constitutes ineffective

assistance.34 However, "we have consistently held that in capital

cases peremptory challenges may be used to exclude those

[prospective jurors] who express hesitancy about imposing the death

penalty but whose exclusion for cause is forbidden by Witherspoon."

United States v. Leslie, 783 F.2d 541, 552 n.18 (5th Cir. 1986) (en

banc), vacated on other grounds, 479 U.S. 1074, 107 S. Ct. 1267, 94

L. Ed. 128 (1987), aff'd in relevant part, 813 F.2d 659 (5th Cir.

34
To overcome the procedural default bar, a petitioner must
demonstrate "cause" for the default and "prejudice." Wainwright v.
Sykes, 433 U.S. 72, 86-87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 894
(1987). Ineffective assistance of counsel may constitute "cause."
See Ellis v. Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989).

-34-
1987); see also Sonnier v. Maggio, 720 F.2d 401, 406-07 (5th Cir.

1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d

726 (1984); Jordan v. Watkins, 681 F.2d 1067, 1070 & n.2 (5th Cir.

1982). Failure to make an objection that we have explicitly

rejected does not constitute ineffective assistance of counsel.

Consequently, Andrews' claim remains barred by procedural default.

X

Andrews contends that the trial court erred in refusing to

instruct the jury in the guilt phase of his trial that it could

convict him of the lesser-included offenses of theft or robbery.

He asserts that this failure violated the Eighth Amendment and the

due process clause of the Fourteenth Amendment. See Beck v.

Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980).

In a capital trial, a defendant is constitutionally entitled to

instructions on lesser-included offenses only if a "rational juror,

given all the facts, [could acquit him] of capital murder and

convict[] him of a lesser included offense." Cordova v. Lynaugh,

838 F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.

Ct. 2832, 100 L. Ed. 2d 932 (1988). "This necessarily requires a

showing that the facts of the case and the laws of the State

warrant such an instruction." Hill v. Black, 920 F.2d 249, 252

(5th Cir. 1990) modified, 932 F.2d 369 (5th Cir. 1991). Because

Andrews had made no attempt on appeal to make such a showing, we

reject the argument that he was constitutionally entitled to

instructions regarding any lesser-included offenses. See id.

-35-
 XI

Andrews next contends that the Texas special issues did not

permit the jury to consider or give mitigating effect to evidence

of his good family relationship and low intelligence. Andrews

points out that this mitigating evidence was placed before the jury

when the prosecution introduced a letter written by Andrews and

sent to his wife that allegedly demonstrates his good family

relationship, low intelligence, and possible mental problems.35

The Supreme Court upheld the Texas capital sentencing scheme

in Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929

(1976), in part because the Texas Court of Criminal Appeals had

indicated that the special issues would be broadly interpreted to

allow a jury to consider any and all mitigating evidence introduced

by a defendant.36 However, in Penry v. Lynaugh, 492 U.S. 302, 109

S. Ct. 2934, the Court held that, in some cases, the Texas scheme

35
Andrews also argues that the jury could not give
mitigating effect to evidence that Andrews used drugs. However,
this claim lacks factual support because there is no evidence
suggesting that Andrews was on drugs at the time of the murder or
that he was permanently impaired as a result of prior drug use.
See Sawyers, 986 F.2d at 1501. Consequently, the district court
properly rejected that claim. Id.
36
The culpability principle found in the Eighth Amendment
requires that punishment be directly related to the personal
culpability of the criminal defendant. Eddings v. Oklahoma, 455
U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio,
438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (plurality
opinion). Thus, a state cannot, "consistent with the Eighth and
Fourteenth Amendments, prevent the sentencer from considering and
giving effect to evidence relevant to the defendant's background or
character or to the circumstances of the offense that mitigate
against imposing the death penalty." Penry, 492 U.S. at 318, 109
S. Ct. at 2946.

-36-
would not permit the jury to give effect to certain mitigating

evidence introduced by a defendant. Specifically, the Court found

that the special issues did not provide the jury with "a vehicle

for expressing its `reasoned moral response' to" evidence of mental

retardation and child abuse. Id. at 328, 109 S. Ct. at 2952. In

such situations, the jury must be instructed "that it could

consider and give effect to the mitigating evidence of . . . mental

retardation and abused background by declining to impose the death

penalty." Id. "The language of Penry, although arguably worded

broadly, has been interpreted narrowly." Motley, 3 F.3d at 788.

Consequently, some mitigating factors, such as circumstances of the

defendant's family background and positive character traits, are

adequately covered by the second special issue. Graham v. Collins,

___ U.S. ___, 113 S. Ct. 892, 902, 122 L. Ed. 2d 260 (1993). In

light of Graham, we conclude that the special issues provided the

jury with a vehicle to consider any allegedly mitigating evidence

regarding Andrews' family relationships.

Finally, although the letter cited by Andrews indicates that

he may have had a lower-than-average IQ, it does not demonstrate

that he is mentally retarded. See Penry, 492 U.S. at 328, 109 S.

Ct. at 2952 (holding that a jury in a capital case must be

permitted to "consider and give effect to the mitigating evidence

of [a defendant's] mental retardation") (emphasis added); Madden

v. Collins, No. 92-8575, slip op. at 3490 (5th Cir. Mar. 29, 1994)

(holding that evidence of a learning disability did not establish

-37-
a Penry claim because it was not "uniquely severe"). Because the

letter does not demonstrate that Andrews was mentally retarded, it

does not constitute mitigating evidence outside the scope of the

special issues. Thus, the trial court was not required to provide

the jury with a vehicle to consider it.

XII

Andrews argues that the "Texas death penalty statute

discourage[s] the discovery and penalize[s] the use of mitigating

evidence." Black specifically contends that the structure of the

death penalty scheme "chilled" his trial attorneys' investigation

and presentation of mitigating evidence, apparently evidence

pertaining to his mental condition and family history.

We have rejected almost identical claims in Black, 962 F.2d at

407, and May v. Collins, 948 F.2d 162, 167-68 (5th Cir. 1991),

cert. denied, ___ U.S. ___, 112 S. Ct. 907, 116 L. Ed. 2d 808

(1992). As in both Black and May, Andrews premises his argument on

the principle that "[t]he Texas sentencing procedure interferes

dramatically with the defendant's choice of whether and how to

present mental-health based evidence." Black, 962 F.2d at 394. We

concluded in those cases that a constitutional violation does not

result simply because the Texas death penalty scheme triggers

certain tactical choices on the part of counsel. Id.; May, 948

F.2d at 167-68. Accordingly, May and Black squarely address and

reject the argument presented by Andrews. See also Marquez v.

-38-
Collins, 11 F.3d 1241, 1248 (5th Cir. 1994); Wilkerson, 950 F.2d

at 1065.

XIII

Andrews asserts that the Texas special issues did not require

the jury to find that he "killed, attempted to kill, or was a major

participant in a crime who acted with reckless indifference for

human life." Andrews therefore concludes that the former Texas

death penalty statute is unconstitutional as applied to him because

he raised the factual defense that he was not the triggerman and

the jury could have sentenced him to death based solely upon his

participation in planning the robbery.37

In Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368,

3376, 73 L. Ed. 2d 1140 (1982), the Supreme Court held that the

Eighth Amendment forbids imposition of the death penalty on a

defendant "who aids and abets a felony in the course of which a

murder is committed by others but who does not himself kill,

attempt to kill, or intend that a killing take place or that lethal

force will be employed."38 In Skillern v. Estelle, 720 F.2d 839,

847-48 (5th Cir. 1983), cert. denied, 469 U.S. 873, 105 S. Ct. 224,

37
The trial court instructed the jury at the guilt-
innocence stage that it could find Andrews guilty of capital murder
if it first found that Andrews, "either acting alone or as a
party," intentionally caused the death of Granado in the course of
committing a robbery.
38
In Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676,
1688, 95 L. Ed. 2d 127 (1987), the Court found "major participation
in the felony committed, combined with reckless indifference to
human life, is sufficient to satisfy the Enmund culpability
requirement."

-39-
83 L. Ed. 2d 153 (1984), we held that a jury's affirmative answer

to the first special issue))"whether the conduct of the defendant

that caused the death of the deceased was committed deliberately

and with the reasonable expectation that the death of the deceased

or another would result"))satisfied the Enmund culpability

requirement. See also Johnson v. McCotter, 804 F.2d 300, 302 (5th

Cir. 1986) (following Skillern), cert. denied, 481 U.S. 1042, 107

S. Ct. 1988, 95 L. Ed. 2d 827 (1987).39 Here, the jury answered the

first special issue in the affirmative, finding beyond a reasonable

doubt that Andrews committed the acts that caused Granado's death

deliberately and with the reasonable expectation that Granado's

39
Andrews argues that Skillern is distinguishable from the
present case because Andrews' trial counsel objected to the jury
charge while defense counsel in that case failed to object. In
Skillern, however, we did not rely on procedural default in holding
that no Enmund violation occurred. Instead, we addressed the
merits of the defendant's argument and rejected it. See Skillern,
720 F.2d at 848 ("We cannot say that the sentencing instructions
themselves permitted the jury to find that the requisite deliberate
intent or contemplation to kill could be based solely upon [his
accomplice's] killing of the victim"); id. at 848 n.8 ("In the
case before us, the sentencing instructions as given did not invoke
Skillern's personal criminal responsibility for the acts of his
accomplice."). Consequently, we find Andrews' attempt to
distinguish Skillern unpersuasive.

-40-
death would result.40 Accordingly, Andrews' Enmund claim is without

merit.41

XIV

Andrews asserts that the district court erred in ruling that

his Fourth Amendment challenge to a search warrant used to gather

evidence against him was not cognizable on habeas review because

the state courts provided an opportunity for "full and fair"

litigation of that challenge. See Stone v. Powell, 428 U.S. 465,

494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976). Although the

state trial court initially held that Andrews waived the claim by

failing to raise it in a pretrial motion and refused to allow

40
Indeed, the Texas Court of Criminal Appeals, in
addressing Andrews' claim on direct appeal, stated,

the facts are overwhelming that the jury could have
easily found that [Andrews] himself intentionally caused
the death of Granado by shooting [Granado] in the head
with his pistol. There is also overwhelming evidence
that [Andrews], with others, planned the robbery, and,
lastly, there is overwhelming evidence that . . .
[Andrews] did not intend to leave any live witnesses
after the robbery had been committed. Thus, we find that
based upon the evidence a rational trier of fact could
have easily found that [Andrews] not only "caused the
death of the deceased deliberately and with the
reasonable expectation that the death of the deceased
would result in the course of the commission of the
aggravated robbery of Granado", [sic] but could have very
easily found that [Andrews'] conduct was deliberate.

744 F.2d at 52.
41
Andrews does not argue that the Texas capital punishment
scheme precluded the jury from giving mitigating effect to his
alleged non-triggerman status. See, e.g., Harris, 990 F.2d at 188
(rejecting a claim that the Texas special issues did not allow a
jury to give mitigating effect to the defendant's alleged non-
triggerman status).

-41-
Andrews an evidentiary hearing on the matter, the court allowed

Andrews to make a bill of exceptions to that ruling after trial.42

On post-conviction review, the state habeas court found that

although it erred at trial in determining that Andrews waived the

claim, the evidence developed with regard to the bill of exceptions

established that the search and seizure at issue was lawful.

We conclude that "the State has provided an opportunity for

full and fair litigation of [Andrews'] Fourth Amendment claim."

Id. After reviewing the record, we find that the material facts

were adequately developed in state court, and Andrews has not

alleged any "undeveloped evidence sufficient to call into question

the `reliability' of the state court's determination of [his]

federal claims." Streetman v. Lynaugh, 812 F.2d 950, 958 (5th Cir.

1987) (quoting Townsend v. Sain, 372 U.S. 293, 312-13, 83 S. Ct.

745, 747, 9 L. Ed. 2d 770 (1963)). Moreover, the Stone v. Powell

bar applies despite the trial court's initial decision to deny an

42
Andrews informed the trial court of his grounds for
claiming a Fourth Amendment violation))namely, that the affidavit
supporting the search warrant was insufficient as a matter of law
and that the search and seizure was outside the scope of the
warrant. The prosecution then presented the testimony of two
police officers, both of whom Andrews had the opportunity to cross-
examine. After the prosecution concluded its presentation, Andrews
declined the opportunity to present evidence.

-42-
evidentiary hearing.43 Accordingly, the district court correctly

held that Stone v. Powell bars Andrews' Fourth Amendment claim.

XV

Andrews argues that the trial court's failure to grant his

motion for a change of venue violated his due process right to a

fair trial before an impartial tribunal. Pointing to the "intense

and inflammatory pretrial publicity" in Jefferson County about

Granado's murder, Andrews contends that the pretrial publicity was

so prejudicial as to make a fair trial in Jefferson County

impossible. The district court found that because "[t]he publicity

concerning the [murder] was largely factual" and Andrews failed to

uncover any "deep or widespread prejudice" against him during voir

dire, the trial court did not err in denying a change of venue.

We agree with the district court's assessments. "The

Constitution does not require that jurors be completely unaware of

the facts and issues to be tried . . . ." Black, 962 F.2d at 409.

Moreover, the record reflects that Andrews did not sustain his

43
See Christian v. McKaskle, 731 F.2d 1196, 1199 (5th Cir.
1984) (holding that Stone v. Powell applies even though the state
habeas court erroneously held that petitioner's Fourth Amendment
claim had been adjudicated on direct review); Williams v. Brown,
609 F.2d 216, 220 (5th Cir. 1980) (holding that "in the absence of
allegations that the processes provided by a state to fully and
fairly litigate fourth amendment claims are routinely or
systematically applied in such a way as to prevent the actual
litigation of fourth amendment claims on their merits," Stone v.
Powell barred petitioner's claim even though the habeas court's
procedural mistakes thwarted the presentation of the claim);
Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir. 1978)
(holding that Stone v. Powell applies despite a state court error
in deciding the merits of petitioner's Fourth Amendment claim).

-43-
burden of demonstrating that the trial atmosphere was "utterly

corrupted by press coverage." Dobbert v. Florida, 432 U.S. 282,

302, 97 S. Ct. 2290, 2303, 53 L. Ed. 2d 344 (1977); see also

Black, 962 F.2d at 409. Accordingly, we reject Andrews' contention

that his due process rights were violated.

XVI

Andrews next argues that the Eighth Amendment prohibits his

execution because he is mentally retarded. Although the Supreme

Court has explicitly rejected the claim that the Eighth Amendment

prohibits the execution of mentally retarded persons, Penry, 492

U.S. at 334-35, 109 S. Ct. at 2955, Andrews argues that we should

adopt the conclusion rejected by Penry because "there is now an

emerging national consensus against executing mentally retarded

persons."44 However, the fact that three states, subsequent to

Penry, have prohibited executing the mentally retarded does not

provide evidence of a national consensus sufficient to override the

command of Penry. Consequently, Andrews' claim is without merit.

XVII

Andrews raises various other claims of error in his brief but

fails to argue the facts surrounding these issues or cite to

controlling law. See Fed. R. App. P. 28(a). Accordingly, we

consider those issues waived and will not address them. See

44
Andrews contends that a total of five states now prohibit
execution of a person who is mentally retarded. When the Supreme
Court decided Penry, two states prohibited such executions. See
492 U.S. at 334, 109 S. Ct. at 2955.

-44-
Edmond, 8 F.3d at 292 n.5; Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993).

XVIII

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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