IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50803
CLIFTON EUGENE BELYEU,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(October 11, 1995)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Clifton Eugene Belyeu appeals the dismissal of his federal
habeas petition seeking relief from a death sentence imposed
following a Waco, Texas jury verdict returned on August 8, 1986.
The Texas jury convicted Belyeu of robbing and killing Melody
Bolton at her home near the town of West, Texas on December 10,
1985. We affirm.
I
The Texas Court of Criminal Appeals affirmed Belyeu’s
conviction and sentence. Belyeu v. State, 791 S.W.2d 66 (Tex.
Crim. App. 1989). The United States Supreme Court denied
certiorari on March 18, 1991. 499 U.S. 931 (1991). Belyeu then
filed his state habeas petition. The state trial judge, and the
Texas Court of Criminal Appeals in turn, denied relief without an
evidentiary hearing. Ex Parte Belyeu, No. 22, 887-01 (Tex. Crim.
App. 1992), unpublished. Belyeu then filed his petition for a
writ of habeas corpus under 28 U.S.C. § 2254 in the United States
District Court for the Western District of Texas, Waco Division.
The petition asserted numerous claims, but only two remain in
contention before this court:
(1) whether Belyeu received effective assistance of counsel;
(2) whether Belyeu was deprived of an individualized
sentencing determination by misconduct of the prosecutor and the
trial court’s failure to instruct the jury that the law of parties
does not apply at the punishment phase of the trial.
The district court rejected all asserted grounds for relief
except the claims of ineffective assistance of counsel. It
ordered an evidentiary hearing, limited to whether counsel met the
standard of objective reasonableness, the first prong of Strickland
v. Washington, 466 U.S. 668 (1984), on three assertions of
ineffective assistance:
(1) failing to investigate or present evidence in mitigation
of psychiatric or neurological disorders;
(2) failing to object to testimony regarding blood patterns
and the use of "photogrammetry";
2
(3) failing to investigate the basis of expert testimony
offered by the state and to offer testimony challenging it.
The district court sustained the first assertion, rejected the
second and third, and ordered a hearing on the remaining question
of prejudice resulting from trial counsel's failure to develop this
possible mitigating evidence. After considering additional
submissions of the parties, the district court found that Belyeu
had not demonstrated the level of prejudice required under
Strickland and dismissed the petition in its entirety.
II
The district court’s careful treatment of this case produced
a succinct statement of the fact matrix of the crime and the
evidence of Belyeu’s guilt at the sentencing phase of the trial:
At about 9:00 or 9:30 a.m. on the morning of
December 10, 1985, Belyeu and Ernest Moore (Belyeu's
accomplice who pled guilty to murder and was assessed a
life sentence) stopped at Betty Birdwell's Hillsboro home
to look at a Corvette she had for sale. They were
driving a small light-colored pickup with a camper on it.
At about 10:20 or 10:30 a.m., Mary Frances Kolar, who
lived one or two miles from the Boltons, saw a small red
and white pickup with a camper shell on it come down her
driveway, stop, and then back out of her driveway. She
noticed two persons were in the truck, but she could not
identify them. Two other witnesses, Laura Fry and Molly
Brenner, testified to seeing a small red and white pickup
truck with a camper shell on it in front of the Bolton
residence on the morning of December 10, 1985. The
witnesses stated that the pickup was there from at least
10:30 a.m. to at least 10:40 a.m., and it was parked
behind Mrs. Bolton's car.
After being called at work by a friend of Mrs.
Bolton's, Mr. Bolton came home around 12:00 p.m. on
December 10, 1985. He noticed that some cabinets were
open in the garage and the phone was off the hook. He
went to get one of his guns, and noticed that they were
missing. He then proceeded towards the master bedroom,
3
and found his wife's body lying on the bed. Her hands
were tied behind her back, her feet were hanging off the
bed, and it appeared that she was fatally injured.
These witnesses stated that Belyeu was wearing jeans
and a western shirt, and Moore was wearing jeans and a
white t-shirt. One man was wearing boots, and the other,
high-top tennis shoes, but the witnesses could not
remember which man was wearing which. After conversing
20 to 30 minutes, Belyeu and Moore went next door; a few
minutes later, a Cadillac jumped a bar ditch and headed
out into the pasture. While the witnesses were unable to
see who was driving the Cadillac, they noticed that it
was following the pickup truck driven by Belyeu.
Pamela and Richard Goddard testified that the red
and white pickup with camper shell was the same vehicle
Belyeu was trying to purchase from them. Belyeu had been
given two keys to the truck, one of which was copper or
brass.
When the sheriff's department arrested Belyeu and
Moore, the truck and trailer were searched. The search
of the truck revealed a knife with a large amount of
blood on the blade, a jeans jacket, and a vest with five
shotgun shells in the pocket. On the following day, the
sheriffs department searched the area in which tire
tracks had been found and discovered some gun bags, a
pine jewelry box, and a sawed-off shotgun. There were
blood splatters and brain fragments on the gun. A brass
key to the Ford Courier was also found in the pine
jewelry box. Three other guns were found in the area, as
well as additional shotgun shells in the jewelry box.
The autopsy of Mrs. Bolton revealed that she had
died of a shotgun blast to the head and multiple stab
wounds to her back. After extensive analysis of blood
stains, blood types, and splatter patterns, the State
concluded that the stains on Belyeu's clothing were
consistent with the pattern throughout the master
bedroom. Expert testimony also revealed that the shotgun
pellets that killed Mrs. Bolton were the same type found
in the sawed-off shotgun, and the shotgun barrel and
stock found in Belyeu's home were consistent with those
that would have originally been found on the sawed-off
shotgun. The buck knife found in the Ford Courier was
consistent with the stab wounds on the deceased. The
footprints found in the home were consistent with the
tennis shoes found in Belyeu's home.
Mr. Bolton identified the three additional guns and
the buck knife as belonging to him, and the jewelry box
as belonging to the deceased. The sawed-off shotgun was
stolen from Michael Wise's home on November 25, 1985.
III
4
Strickland v. Washington, 466 U.S. 686 (1984), requires that
a claim of ineffective assistance of counsel meet a two-prong test.
A petitioner must both demonstrate that counsel’s performance was
deficient and that the errors were so serious as to "deprive the
defendant of a fair trial, a trial whose result is reliable." Id.
at 687. When the sentence is challenged, "the question is whether
there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death."
Id. at 695. The measure of performance is highly deferential,
calibrated to escape "the distorting effect of hindsight." Id. At
697. We must "indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance"
and that the “challenged action might be considered sound trial
strategy.” Id. at 689 (citation and internal quotation marks
omitted).
IV
Belyeu contends, in the first two parts of his three part
attack upon the effectiveness of his trial counsel, that the
federal district court erred in concluding that trial counsel’s
“failure to conduct any investigation of the State’s blood spatter
evidence was a strategic decision and thus did not constitute
deficient performance” and that this failure did not prejudice him
at the punishment phase of the trial. The line of attack is that
the decision could not have been strategic because counsel
5
conducted no investigation and “a truly strategic decision cannot
be made in a vacuum.” The argument continues that the failure to
investigate was prejudicial because the evidence of the blood
spatters was the only evidence tending to prove that Belyeu was the
trigger man.
The state called Sgt. Rod Englert as an expert witness in the
guilt phase of the trial. Englert expressed the opinion that blood
on a denim jacket found in Belyeu’s truck was consistent with the
blood pattern of the shooter.
It is true that Englert was an expert of considerable
experience in this field. The relevant opinion Belyeu claims his
counsel failed to counter, however, was straightforward and
uncomplicated, drawing little upon Englert's range of experience.
Englert's opinion about the match of the jacket and jeans was
little more than an observation about undisputed physical facts.
The victim was seated on a bed with her hands tied behind her. She
was stabbed repeatedly with a Buck knife later found under the seat
of Belyeu’s truck. She was shot in the head at close range with a
sawed off shotgun, virtually decapitating her. Belyeu’s jeans were
splattered with blood on the left side while the clothes of Moore,
his accomplice, was splattered on his right side. Sgt. Englert
explained this evidence as follows:
Important is the fact that [the blood] is on the same
side, on the left side, in a prolongation of those
droplets on the sleeve and so possibly that side of the
body was facing the victim when shot. That being the
left side of the hip on the jeans and the left side on
the Jean jacket down the left sleeve.... The blue jeans
of the Defendant would be more consistent with the jacket
because it is on the left side, and as I stated
6
previously in a prolongation of the left sleeve down on
the left side of the body.
The trial counsel, Ables, testified at the first federal
evidentiary hearing that he did not recall whether he had consulted
with experts, and that his trial strategy aimed for a "no" answer
to the question of deliberateness, the first question in the
sentencing phase. His cross examination was calculated to leave
both Belyeu and Moore as possible shooters. Ables testified that
he understood the “blow-back“ of gunshot wounds that could put
blood on the shooter, and that he didn’t hire an expert because he
could get the answers he wanted on cross-examination without paying
the price of his own expert validating the state’s expert on other
points. Finally, Ables in his testimony made the point that
“[t]here is no great deal of magic to [blood spatter evidence],
it’s simply the application of physics, and the physical laws
generally follow pretty strict lines.” The district court
concluded that trial counsel “rendered effective legal assistance
with respect to blood spatter and photogrammetry evidence. . . .
Counsel had strategic reasons not to call defense experts with
respect to photogrammetry and blood spatter analysis.”
We are not persuaded that any credibility choices of the
district judge were clearly erroneous. We review afresh the
ultimate conclusion that the decisions by Ables were strategic and
objectively reasonable. Our independent reading of the record
leads us to the same conclusion as the district court's concerning
the strategic character of the decisions behind the defense to the
blood spattering evidence. Sgt. Englert’s expertise brought little
7
to the table concerning the identity of the shooter that was not
self-evident.
The parts of the shotgun left behind when its stock and barrel
were sawed off were found in Belyeu’s trailer home along with
shells with similar loads. Other unrefuted evidence showed that
Belyeu owned the shotgun and had sawed off its barrel and stock.
The buck knife belonging to Melody Bolton's husband was found under
the seat of Belyeu's truck. Trial counsel faced the task of
convincing the jury that there was reasonable doubt that Belyeu
welded neither the shotgun nor the knife, since both dealt lethal
blows. A brief cross-examination that accepted the reality that
both Moore and Belyeu were splattered with blood might perpetuate
whatever uncertainty over Belyeu’s role inhered in the facts with
which counsel was stuck. Trial counsel did that, developing on
cross examination that blood on Moore’s jeans and Melody’s Bolton’s
blood were the same type. As we will explain later in discussing
Beleu’s claims regarding the “law of parties,” there was no
constitutional requirement that the state prove that Belyeu was the
actual shooter or that he stabbed Melody Bolton. The state had
only to show “major participation in the felony committed, combined
with reckless indifference to human life.” Tison v. Arizona, 431
U.S. 137,158 (1987). The prosecution’s closing argument was geared
to this reality. He argued to the jury that, “the blue jeans, I
held them up for you the other day, side by side, blood on both of
them--Partners in crime. Was his conduct deliberate? Yes, it was.
Yes, it was. Whether Ernest Moore pulled the trigger, whether
8
Clifton Belyeu pulled the triggerr makes no difference. The conduct
was deliberate.” The fact that the prosecutor hedged with this
contention reflects the effectivness of the cross examination on
the certainty of whether Moore or Beleu was the shooter. The
state would have preferred to put the gun or knife in Belyeu’s
hand, but it was unwilling to allow the case to rise or fall on the
issue. That is the reality that we must not lose sight of, lest we
fall prey to the seductive call of hindsight. A reading of this
record makes plain the objective reasonableness of Able’s
decisions. We reject this point of error.
Nor are we persuaded, in any event, that Belyeu has shown the
requisite prejudice to sustain his attack on the guilt phase of the
trial. He offered expert testimony at the federal habeas hearings
questioning Sgt. Englert’s methods, but that expert declined to
express the opinion that the evidence, when analyzed under his own
methodology, did not support Sgt. Englert's conclusions. Rather,
Belyeu's expert stopped short of that critical defining point,
explaining he would have to do more work to arrive at any such
opinions. This stop halfway up the hill leaves wholly speculative
the assertion that calling this or any other expert would have
mattered. It suggests that Belyeu's trial counsel might have been
able to secure expert testimony questioning Englert's methods --
but the blood on the jacket and jeans would not change locations.
Even after trial with the advantages of hindsight, Belyeu has not
offered proof that might have made that location exculpatory.
9
Relatedly, we reject the contention that by these strategic
decisions Belyeu suffered the prejudice demanded by Strickland at
the sentencing phase. As we will explain, the state offered
evidence at the sentencing phase of Belyeu’s violent nature. It is
difficult to believe that any residual doubt concerning Belyeu’s
participation with reckless indifference to life that may have
remained in the jury's minds after the guilt phase survived this
potent evidence.
V
The federal district judge held that Belyeu’s trial counsel
failed to deliver constitutionally adequate service in the
sentencing phase of the trial. The court found that trial counsel
did not consult with mental health professionals to determine if
Belyeu suffered from psychiatric or organic disorders and thus did
not discover or present evidence of Belyeu's alleged brain
impairments. The district court concluded, however, that this
failure did not prejudice Belyeu. Belyeu challenges the latter
conclusion.
-1-
We review de novo the district court’s determination of
prejudice. "[B]oth the performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact."
Strickland, 466 U.S. at 698. We ask if there is a “reasonable
probability that, but for counsel's unprofessional errors, the
10
result of the proceeding would have been different." Id. at 694.
Strickland explained that “[t]he result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the
evidence to have determined the outcome.” Id.
-2-
We turn to the evidence presented to the jury at the
sentencing phase before returning to the challenges to the
competence of trial counsel’s performance in that part of the
trial. The state relied upon a history of violence. Belyeu now
contends that evidence of head injuries, his abuse as a child, and
his “significant” impairment of mental acuity, coupled with
evidence of organic impairment of brain function from use of drugs
and alcohol, would have at least taken the edge from the state’s
evidence of his violent disposition.
The state offered evidence at the sentencing phase that Belyeu
had been convicted in 1979 of robbery and that he had burglarized
a residence and had stolen property on at least two additional
occasions. Two state witnesses described Belyeu’s abuse of his
wife, Donna. They testified that Belyeu frequently beat Donna,
leaving her with black eyes and other injuries so severe that on
one occasion she could barely walk. He administered similar abuse
to Shirley Kay Carver, his girlfriend, beating and kicking her. On
one occasion he attempted to strangle her while she was asleep in
bed. When she attempted to escape, he ripped off all her clothes,
dragged her outside, and, while holding her by the hair with his
11
knee in her back, made her “eat the dirt.” Her face was “busted
up” and she was bleeding. She managed to climb a tree where, still
naked, she remained until Belyeu fell asleep. Carver testified
that he slapped her while she was holding her two year-old
daughter. When the baby began screaming, he hung the baby by the
hair from the second floor of a two-story house. When Carver
grabbed for her, Belyeu released the child but Carver managed to
catch her “by the hands of God.” Carver also told the jury that
while driving in Texas, Carver had a pet parakeet in a cage in
their truck. When she asked Belyeu not to drive so fast, he seized
the bird, ripped its head from its body, threw the bird’s body from
the truck, and made Carver finish the trip with the bird’s head in
her lap. She explained that she was afraid to leave Belyeu because
he threatened to kill her and her family if she did.
Two of Belyeu's sisters testified that he was one of eight
children raised by their mother with welfare money and that the
father went to prison for raping one of his sisters. They also
testified that he mowed yards, washed dishes, and waited tables at
the restaurant where their mother worked, that he was willing to
work, and that he was a good drywaller. The sisters denied having
seen Belyeu hit anyone and stated that he had a good relationship
with siblings.
-3-
The federal district court held:
Mr. Ables and Mr. Horner did not provide
representation consistent with prevailing professional
norms and an objective standard of reasonableness in this
particular case in [that] they did not investigate
12
Petitioner’s mental health background after Dr. Gordon
raised the possibility that Mr. Belyeu had a
“neurological impairment” or after they became aware that
(1) Mr. Belyeu’s family had a history of mental
disorders, (2) Mr. Belyeu had medical problems as a child
and an adult, (3) Mr. Belyeu had suffered numerous head
injuries, (4) Mr. Belyeu had a noticeable scar on his
head, (5) Mr. Belyeu had a troubled family history, was
possibly the victim of physical abuse as a child, and
that his father had raped Mr. Belyeu’s sister, (6) Mr
Belyeu had attempted suicide while in jail, (7) Belyeu
had told acquaintances he was possessed by demons, and
(8) Mr. Belyeu had a history of past violence and anger,
especially when he was under the influence of narcotics
or alcohol.” ( Conclusion of law 3/28/94)
Belyeu offered evidence of his claimed brain impairment at the
second federal habeas hearing through the testimony of two experts,
Dr. Robert Geffner, a clinical psychologist, and Paula Lundberg-
Love, a licensed chemical dependency counselor. Geffner testified
that Belyeu suffers from mild neuropsychological impairment
attributable to closed head injuries or polysubstance abuse, or
both, and that at the time of the murder Belyeu was “probably”
suffering from moderate neuropsychological impairment. Lundberg-
Love testified that a high probability existed that Belyeu suffered
from “significant” brain damage and behavioral impairment.
However, she used the word significant only in the statistical
sense. That is, she used a mathematical term that was of little
relevance. The state countered with Dr. Hom, a licensed
psychologist, who concluded that Belyeu does not currently suffer
from mild neuropsychological impairment and did not at the time of
the murder. He expressed the view that the opinions of Geffener
and Lundberg-Love were based on improper procedures, inaccurate
scoring, and over-interpretation. The district court found that
13
there was “no evidence to corroborate closed head injuries
resulting in any mild organic brain disorder, or mild organic brain
disorder brought about by substance abuse.” Belyeu attacks this
conclusion as irrelevant. He argues that it was not the role of
the federal habeas court to resolve the dispute among the experts
and decide as an ultimate fact the extent of any impairment Belyeu
may have suffered. Rather, he contends, the evidence supports his
contention that the proceedings were made unreliable by the failure
of trial counsel to adduce this evidence before the jury at the
sentencing phase because this evidence went directly to whether
Belyeu committed the murder with deliberateness.
-4-
We agree with Belyeu’s criticism of the federal habeas court’s
finding or, more precisely, the use of the finding, but we agree
only in part. It is true that it was not the district court’s task
to resolve the dispute. The court's task was to see what evidence
might have been adduced and to gauge any prejudice resulting from
trial counsel's failure to present it. The rejection of the
evidence is relevant because it casts doubt on its persuasiveness
and hence its force before the jury.
We do not, however, rest on this conclusion alone. Trial
counsel expressed his judgment that the jury would be skeptical of
such opinions in the context of this trial. He explained that
Belyeu was articulate and helpful in the preparation of the
defense. The experts would have been forced to concede that Belyeu
knew what he was doing. Even if the jury had credited the experts'
14
opinions, itself a large assumption, it could only have concluded
that Belyeu had some impairment, described as mild or moderate, not
significant in the ordinary sense of that word. How this evidence
might have played to Belyeu's advantage on the question of
deliberateness is difficult to comprehend. If the jury believed
Belyeu fired the shotgun, used the knife, or otherwise participated
with reckless indifference to the taking of Melody Bolton’s life
for no reason except to eliminate the helpless woman as a witness,
we are not persuaded that the asserted failure of trial counsel to
adduce the evidence garnered later would have made any difference.
No other reason for the slaying is offered. This evidence shed no
light on the identity of the shooter, at least any that was
exculpatory.
The state made the powerful point that Melody Bolton did not
become a victim because she was the happenstance witness to
burglary. Belyeu and Moore blocked Melody Bolton's car in the
driveway by parking the truck immediately behind it when the garage
door opened. That is, Belyeu and Moore could have waited until her
departure and then entered the Bolton house. They did not do so,
electing instead to take her hostage. There was also evidence,
including a swing set and other toys, that Belyeu must have known
that Melody was the mother of small children. The prosecution
pointed this evidence out to the jury in the photographs taken at
the crime scene. In short, we cannot say that Belyeu's trial
counsel's failure to present the mitigating evidence now advanced
undermines the reliability of the jury's sentence.
15
VI
Belyeu contends that the state trial court committed
constitutional error in refusing his request to instruct the jury
that the “law of parties” does not apply at the sentencing phase of
the trial. The contention is that the jury was allowed to answer
"yes" to the two questions posed at the sentencing hearing without
finding that Belyeu did more than aid and abet the murder.
Pointing to colloquy in voir dire and to the state’s final
argument, he contends that trial rulings deprived him of the
individualized sentencing decisions due under the Eighth Amendment
because the jury was not cabined in its deliberations to Belyeu’s
“personal responsibility and moral guilt” as required by Enmund v.
Florida, 458 U.S. 782, 801 (1982). Tison v. Arizona, 431 U.S. 137,
158 (1987), makes plain that "major participation in the felony
committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement."
Counsel objected to the failure to instruct the jury at the
punishment phase “that only the conduct of the Defendant can be
considered in determining the answer to said [the first] issue, and
that the instructions pertaining to the law of the parties at the
guilt/innocence phase cannot be considered.” The objection was
overruled. The Texas Court of Criminal Appeals found no error in
refusing this instruction, concluding that, viewing the charge as
a whole in light of the evidence, there was no danger the jury was
misled. Belyeu, 791 S.W.2d at 74. That court also found that if
there was any error, Belyeu suffered no actual harm. The federal
16
district court agreed, pointing out that the “first special issue
focuses the jury’s attention on the individual defendant by asking
if ‘the conduct of the defendant was committed deliberately and
with the expectation that death would result.’ It includes the
required Enmund finding of individual culpability.” The federal
district judge continued that “in light of the fact that Belyeu’s
counsel clearly articulated to the jury that the law of the parties
does not apply at the punishment phase,” there was no fundamental
error.
We agree with the two courts below that have considered and
rejected this contention. We are not persuaded that the voir dire
questioning, the final arguments, or the court’s charge to the jury
carried a risk of misleading the jury that it could answer
affirmatively the questions put to it in the punishment phase even
if it harbored a reasonable doubt as to whether Belyeu’s
participation evidenced the reckless indifference to life required
by Enmund and Tison. Belyeu’s contention is made at a level of
generality about the law of parties that frees it from the
difficulties of confronting the facts of this case. Much of the
effort at trial would have been baffling to a jury who labored
under the delusion that it was not necessary to find that Belyeu's
role, as shooter, as the stabber, or as assistant to Moore who did
both, was not at the least coupled with reckless indifference to
the killing of Melody Bolton. The point is that the lines of
engagement at trial, the arguments of counsel, and the court’s
instruction, give a sure answer to this final contention by Belyeu.
17
The instruction given to the jury included the following:
The mere presence of the defendant, Clifton Eugene
Belyeu, at the scene of the offense charged, if any would
not constitute him a party to the offense charged, and if
you should find from the evidence beyond reasonable doubt
that Ernest Ray Moore did then and there intentionally
kill Melodie Bolton, as alleged in the indictment
aforesaid and that he was then and there in the course of
committing or attempting to commit Robbery, as alleged,
of the said Melodie Bolton, but you further find or
believe from the evidence, or you have a reasonable doubt
thereof, that the defendant, Clifton Eugene Belyeu, did
not act with intent to promote or assist the commission
of said offense of murder by shooting or stabbing Melodie
Bolton while in the commission of robbing or attempting
to rob her, if any, by encouraging, soliciting,
directing, aiding, or attempting to aid Ernest Ray Moore
in the commission of the offense, then you will find the
defendant, Clifton Eugene Belyeu, not guilty of capital
murder.
There was more:
Now, if you believe from the evidence beyond a reasonable
doubt that on or about the 10th day of December, 1985, in
McLennan County, Texas, the defendant, Clifton Eugene Belyeu,
acting alone or together with Ernest Ray Moore as a party
intentionally caused the death of an individual, Melodie
Bolton, by stabbing her with a knife or shooting her with a
firearm and that the said Clifton Belyeu was in the course of
committing or attempting to commit Robbery, of the said
Melodie Bolton, then you will find Clifton Eugene Belyeu
guilty of Capital Murder as charged in the indictment.
Unless you find from the evidence beyond a reasonable
doubt thereof, you will acquit the defendant.
We reject each of Belyeu's contentions and affirm the district
court's dismissal of his petition for habeas corpus.
AFFIRMED.
18