Allridge v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 01-11243
JAMES VERNON ALLRIDGE,
Petitioner-Appellant,
versus
JANIE COCKRELL, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(96-CV-271)
--------------------
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
WIENER, CIRCUIT JUDGE.*
Having been convicted of capital murder in Texas and sentenced
to death, Petitioner James Vernon Allridge is before us by virtue
of a certificate of appealability (COA) granted by the district
court in connection with Allridge’s application for habeas corpus
relief under 28 U.S.C. § 2254. We deny all relief sought.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
BACKGROUND
In 1987, a Texas jury convicted Allridge of capital murder,
after which the trial court imposed a sentence of death. See
Allridge v. State, 850 S.W.2d 471, 475 (Tex. Crim. App. 1991). In
this § 2254 habeas action, the district court granted Allridge a
COA on two claims: “(1) Petitioner’s claim that the trial court
violated the Witherspoon [v. Illinois, 391 U.S. 510 (1968)]
doctrine when it granted the State’s challenge for cause against
prospective juror Martin Osborn, and (2) Petitioner’s ineffective-
assistance-of-counsel claim.” As Allridge’s appellate brief is
limited to these two claims, the following recitation of the
procedural history of this case is limited to issues relevant to
them.
A. Trial
1. Voir Dire
During voir dire, the State challenged venireman Martin Osborn
for cause on the ground that his doubts about the propriety of the
death penalty would “substantially impair” the performance of his
duties as a juror in accordance with the court’s instructions and
his oath. Although the trial court initially denied the State’s
motion, it eventually granted the motion after further testimony
from Osborn. This testimony will be discussed below at length in
addressing Allridge’s Witherspoon arguments.
2
2. Guilt/innocence phase
The trial evidence, as related by the Texas Court of Criminal
Appeals (“CCA”), may be summarized as follows: On the night of
February 3, 1985, Allridge and his older brother, Ronald, left
their Fort Worth apartment with the intention of robbing a Circle
K convenience store. Allridge, 850 S.W.2d at 476. Allridge was
carrying a semi-automatic pistol, and Ronald drove Allridge’s car.
Id. Allridge had previously worked at the Circle K, was familiar
with the store’s procedures, and knew where the combination to the
safe was kept. Id. He also knew the clerk on duty, Brian
Clendennen, having worked with him before. Id. At about midnight,
Ronald dropped Allridge off around the corner from the targeted
store. Id. Clendennen had already closed the store, but admitted
Allridge when he asked for change to use the phone. Id.Clendennen made change, and Allridge “pretended to use the phone
and left to rejoin Ronald.” Id. Ronald accused Allridge of
“chickening out” and dropped Allridge off at the store again. Id.Clendennen again let Allridge into the store, but this time
Allridge pulled his gun and forced Clendennen into the storeroom.
Id. After tying Clendennen’s hands behind his back, Allridge
emptied the safe. Id. Allridge heard sounds coming from the
storeroom and discovered that Clendennen had moved. Id. He made
Clendennen “get back on his knees,” then shot him twice in the back
of the head. Id. Allridge and Ronald left, and Clendennen died
from the gunshot wounds the next day. Id.3
3. Punishment phase
At the punishment phase, the State sought an affirmative
finding on the “second special issue,” which addressed “future
dangerousness” or whether the defendant would commit criminal acts
of violence that would constitute a continuing threat to society.
Id. at 487 (citing TEX. CODE CRIM. PROC. art. 37.071). The State
presented evidence of several armed robberies committed by Allridge
and Ronald in the two months following after their robbery of the
Circle K and murder of Clendennen. See id. at 487-88. In his
defense, Allridge attempted to show that, since childhood, he had
been intimidated and dominated by Ronald. Id. at 488. In support,
he called a psychologist, Dr. Richard Schmitt, to testify that
Allridge was intelligent and competent and not psychotic or
sociopathic. Id. The jury made affirmative findings as to both
special issues, and the court sentenced Allridge to death.
B. Direct appeal
On direct appeal, Allridge raised 21 points of error. See
Allridge, 850 S.W.2d at 476. In his first point, Allridge
contended that the trial court had violated the doctrine of
Witherspoon v. Illinois, 391 U.S. 510 (1968), by excluding
venireman Osborn for cause on the ground that his views on the
death penalty would adversely affect his impartiality. Id. at 477.
Allridge argued that Osborn’s answers during voir dire reflected
that he could follow the law and not be controlled by his feelings
about the death penalty. Id. After recounting Osborn’s testimony,
4
the CCA determined that “it appear[ed] that Osborn was torn between
the obligation to honestly comply with his oath as a juror and his
strong feelings in opposition to the death penalty.” Id. at 478.
That court concluded:
Osborn’s answers that those feelings would
influence his assessment of the evidence at
punishment and affect his ability to comply with
his oath support the trial court’s determination
that Osborn was substantially impaired in his
ability to perform his duties as a capital juror in
accordance with his instructions and oath.
Id. The CCA affirmed Allridge’s conviction and sentence, id. at
497, and the United States Supreme Court denied Allridge’s
application for a writ of certiorari. Allridge v. Texas, 510 U.S.
831 (1993).
C. State postconviction proceedings
In 1994, represented by a new attorney, Allridge filed a state
postconviction application, raising a newly-discovered-evidence
claim. He argued that the “new” evidence consisted of statistical
studies showing a strong correlation between the Jehovah’s
Witnesses religion, of which Allridge was a practitioner, and the
commission of crimes. Alternatively, Allridge contended that his
trial counsel had performed ineffectively by failing to develop
this exculpatory and mitigating evidence at trial. Allridge also
filed first and second amended applications raising additional
arguments. One was that the State had made improper jury arguments
when it stated that Allridge’s counsel had acted unethically by
5
having Dr. Schmitt testify about Allridge without having conducted
written psychological tests in person.
The next fall, the state trial court issued findings of fact
and conclusions of law recommending that Allridge’s claims be
rejected. A month later, the CCA denied Allridge’s application
without a written order. Later that year, the federal district
court stayed Allridge’s execution so that an attorney could be
appointed for his § 2254 habeas proceedings.
D. Federal habeas corpus proceedings
Following his appointment, newly appointed federal habeas
counsel filed Allridge’s § 2254 petition. In it Allridge contended
that (1) the trial court violated the Witherspoon rule when it
granted the State’s challenge to venireman Osborn for cause; (2)
the court violated Allridge’s due process rights when it overruled
his challenges for cause to three veniremen who allegedly would
refuse to consider particular kinds of mitigating evidence at the
punishment phase; and (3) his trial counsel had performed
ineffectively at the punishment phase by (a) failing to present
expert testimony about the nexus between Allridge’s so-called
indoctrination in the Jehovah’s Witnesses (which he refers to as
cult-like), and his criminal behavior, and (b) allowing his
psychological expert, Dr. Schmitt, to base his testimony on the
results of written tests that Allridge filled out in his jail cell
without observation or supervision.
6
The State filed an answer, contending that all of Allridge’s
claims were meritless. Id. The State also argued that Allridge’s
second ineffective-assistance claim had not been exhausted in the
state courts and was thus procedurally defaulted. Allridge did not
address procedural default in reply.
The magistrate judge issued a report recommending that
Allridge’s § 2254 petition be denied, concluding that, by upholding
the State’s challenge to venireman Osborn, the trial court
implicitly found that his ability to act as a juror would be
substantially impaired by his qualms about capital punishment.
This finding was entitled to a presumption of correctness, which
Allridge had failed to rebut by clear and convincing evidence. The
magistrate judge also concluded that Allridge’s claim that trial
counsel performed ineffectively by failing to ensure that the
written psychological tests were supervised by Dr. Schmitt had not
been developed in state court and was thus procedurally defaulted;
and that Allridge had not shown cause and prejudice to excuse this
default. The magistrate judge concluded that, in any event, the
ineffectiveness claim was meritless because Allridge could not
demonstrate prejudice: There was no evidence that anyone other
than Allridge had completed the tests and there was extensive
additional evidence of Allridge’s future dangerousness. The
magistrate judge also recommended that Allridge’s other claims be
denied as meritless.
7
Allridge filed lengthy objections to this report and
recommendation. In a footnote, Allridge argued that the second
ineffectiveness claim was exhausted because the CCA adopted the
state habeas trial court’s finding that defense counsel had made
reasonable strategic choices about how to present all possible
mitigating factors in consultation with Dr. Schmitt and rendered
effective assistance under the totality of the circumstances. The
State filed a responding brief that addressed these objections.
The district court adopted the magistrate judge’s findings and
conclusions and denied Allridge’s § 2254 petition. The court
issued its own findings and conclusions, which closely resembled
those of the magistrate judge.
Within 10 days following the entry of judgment, Allridge filed
a FED. R. CIV. P. 59(e) motion to alter or amend the judgment. He
continued to maintain that his ineffective-assistance claim
regarding the written tests had been exhausted because, in his
state application, he had included a general allegation that
counsel was ineffective in presenting psychiatric mitigating
evidence. The court denied Allridge’s Rule 59(e) motion, stressing
that even if the claim at issue were not procedurally defaulted, it
was meritless.
Allridge timely filed a notice of appeal, which also
functioned as a motion for a certificate of appealability (“COA”).
As noted, the district court granted Allridge a COA on his
Witherspoon claim regarding venireman Osborn and on his claim of
8
ineffective assistance of counsel. As to that latter claim, the
district court did not specify that it was granting COA as to both
of Allridge’s ineffective assistance claims or that the question of
procedural default remained at issue.
II
ANALYSIS
Under 28 U.S.C. § 2253(c)(2), our review is limited to the
issues on which the district court granted COA. Kiser v. Johnson,
163 F.3d 326, 327 (5th Cir. 1999). Although a habeas appellant may
obtain review of issues not certified by the district court if he
expressly requests from us, and we grant, a COA on such issues, see
Ott v. Johnson, 192 F.3d 510, 512 n.6 (5th Cir. 1999), Allridge
does not seek review of non-certified issues. Furthermore,
Allridge has abandoned his claim that counsel performed
ineffectively by failing to present statistical evidence regarding
Jehovah’s Witnesses and crime; he does not brief this issue on
appeal. See Dowthitt v. Johnson, 230 F.3d 733, 742 n.6 (5th Cir.
2000).
Allridge filed his § 2254 petition on April 15, 1996, just
before the April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Consequently, the AEDPA’s
amended standards of review do not apply to his claims. Lockett v.
Anderson, 230 F.3d 695, 699 (5th Cir. 2000); Lindh v. Murphy, 521
U.S. 320, 336 (1997). Under the pre-AEDPA standards, we review the
9
district court’s legal conclusions de novo and the state courts’
findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d
588, 592 (5th Cir. 2002) (en banc). Under the applicable version
of § 2254(d), we must accord a presumption of correctness to all
findings of fact if they are supported by the record. Id.;
see former § 2254(d)(1)-(d)(8) (listing eight exceptions to this
rule). The pre-AEDPA standards do not require a federal court to
defer to the state courts’ legal conclusions. See Valdez v.
Cockrell, 274 F.3d 941, 949 (5th Cir. 2001), cert. denied, 123 S.
Ct. 106 (2002).
A. Exclusion of venireman Osborn
Allridge contends that venireman Osborn’s dismissal was
improper under Adams v. Texas, 448 U.S. 38 (1980), because the CCA
relied on impermissible reasons for upholding the dismissal.
Allridge argues that, in its opinion on direct appeal, the CCA made
“implicit” findings of fact that Osborn’s testimony that his
feelings about the death penalty would “temper” his views of the
evidence meant that those feelings would “influence” and “affect”
his assessment of the evidence. Allridge insists that we must
defer to those appellate findings of fact because they are
supported by the record, even if we believe that the trial court
gave the word “temper” a different meaning and based its ruling on
a different ground. Allridge urges that, under Adams, the findings
of the CCA that Osborn’s feelings would merely “influence” and
“affect” his view of the evidence were constitutionally
10
insufficient to support his dismissal. Allridge argues that the
Adams violation is clear, emphasizing that Osborn never said that
he could not participate in returning a verdict that would require
the judge to impose the death penalty.
Allridge acknowledges that the CCA and the federal district
court cited other grounds for disqualification that might have been
supported by the record. He maintains, however, that these other
grounds cannot be used to uphold the exclusion of Osborn because
they are based on facts that did not constitutionally authorize the
exclusion.
The State counters that Allridge is improperly raising his
contention regarding the state appellate court’s implied findings
of fact for the first time. The State also denies that the CCA
made its own factual findings, asserting that in actuality that
court deferred to the trial court’s implied finding that Osborn’s
feelings about the death penalty “substantially impaired” his
ability to perform his duties as a capital juror. The State
maintains that, under Wainwright v. Witt, 469 U.S. 412 (1985), the
§ 2254(d) standard of review should be applied specifically to the
trial court’s findings.
1. The applicable law
In Witherspoon, a direct appeal from a criminal conviction,
the Supreme Court held that a death sentence cannot be carried out
if it followed the exclusion of a venireman soley because he voiced
general objections to the death penalty or expressed conscientious
11
or religious scruples against its infliction. Witherspoon, 391
U.S. at 521-22. Witherspoon concerned (1) an Illinois capital-
sentencing system in which the jury had broad discretion to impose
the death penalty, and (2) an Illinois statute that permitted the
prosecution to challenge for cause any venireman who had
“conscientious scruples against capital punishment.” See id. at
512, 519.
In Adams, also a direct appeal, the Supreme Court held that a
venireman may be excused if his “views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Adams, 448 U.S. at
45 (emphasis added). In Adams, the court addressed a Witherspoon
claim in the context of Texas’s capital-sentencing system, under
which jurors did not directly impose the death penalty but instead
answered three special issues. Id. at 40. At that time, TEX. PENAL
CODE ANN. § 12.31(b) stated that:
Prospective jurors shall be informed that a
sentence of life imprisonment or death is mandatory
on conviction of a capital felony. A prospective
juror shall be disqualified from serving as a juror
unless he states under oath that the mandatory
penalty of death or imprisonment for life will not
affect his deliberations on any issue of fact.
Id. at 42 (emphasis added).
The Supreme Court in Adams concluded that this oath was
applied to exclude prospective jurors on grounds impermissible
under Witherspoon. Id. at 49. The Court reasoned that “it is
apparent that a Texas juror’s views about the death penalty might
12
influence the manner in which he performs his role without
exceeding the ‘guided jury discretion,’ . . . permitted him under
Texas law.” Id. at 46-47 (emphasis added). The provision
improperly excluded potential jurors “who stated that they would be
‘affected’ by the possibility of the death penalty, but who
apparently meant only that the potentially lethal consequences of
their decision would invest their deliberations with greater
seriousness and gravity or would involve them emotionally.” Id. at
49. “[N]either nervousness, emotional involvement, nor inability
to deny or confirm any effect whatsoever is equivalent to an
unwillingness or an inability on the part of the jurors to follow
the court’s instructions and obey their oaths[.]” Id. at 50.
“[T]o exclude all jurors who would be in the slightest way affected
by the prospect of the death penalty or by their views about such
a penalty would . . . deprive the defendant of [an] impartial jury”
under the Sixth Amendment. Id. (emphasis added). A State may,
however, “bar from jury service those whose beliefs about capital
punishment would lead them to ignore the law or violate their
oaths.” Id.
In the context of a § 2254 habeas proceeding, the Supreme
Court in Witt reiterated the holding of Adams that “[t]he proper
standard for determining when a prospective juror may be excluded
for cause because of his or her views on capital punishment . . .
is whether the juror’s views would ‘prevent or substantially impair
the performance of his duties as a juror in accordance with his
13
instructions and his oath.’” Witt, 469 U.S. at 424 (quoting Adams,
448 U.S. at 45). The Court in Witt emphasized that, in a habeas
context, the question of a challenge for juror bias is a “factual
issue” covered by the standard of review in the former 28 U.S.C. §
2254(d), under which the finding of the trial judge is “presumed
correct” unless one of the reasons enumerated in the statute is
present. Id. at 426-27, 430, 431. “[W]here the record does not
indicate the [constitutional] standard applied by a state trial
judge, he is presumed to have applied the correct one.” Id. at
431; see McFadden v. Johnson, 166 F.3d 757, 758 (5th Cir. 1999).
To rebut this presumption, the petitioner must adduce “clear and
convincing evidence that the factual determination by the State
court was erroneous.” Witt, 469 U.S. at 435; Kelly v. Lynaugh, 862
F.2d 1126, 1134 (5th Cir. 1988).
In Witt, the Supreme Court made a number of observations about
the trial judge’s duties in addressing a challenge for cause for
bias and the very nature of that function.
[D]eterminations of juror bias cannot be reduced to
question-and-answer sessions which obtain results
in the manner of a catechism . . . . [M]any
veniremen simply cannot be asked enough questions
to reach the point where their bias has been made
‘unmistakably clear’. . . . Despite this lack of
clarity in the printed record, however, there will
be situations where the trial judge is left with
the definite impression that a prospective juror
would be unable to faithfully and impartially apply
the law.
Witt, 469 U.S. at 424-26. The trial judge’s “predominant function
in determining juror bias involves credibility findings whose basis
14
cannot be easily discerned from the appellate record.” Id. at 429.
Accordingly, the trial judge is not required to “write out in a
separate memorandum his specific findings on each juror excused,”
nor is he “required to announce for the record his conclusion that
[the dismissed] juror was biased, or his reasoning.” Id. at 430.
2. Pre-AEDPA applicability of § 2254(d) to state appellate
court findings
In the face of Witt’s deliberative explication of the
deference to be afforded a trial judge’s decision in this context,
Allridge nevertheless contends that we are bound to defer solely to
the CCA’s “implied” findings of fact that Osborn’s answers showed
that his feelings would “influence his assessment of the evidence
at punishment and affect his ability to comply with his oath.”2 See
Allridge, 850 S.W.2d at 478 (emphasis added). His contention is
that, under Adams, such findings are not sufficient to support the
dismissal of Osborn for cause. Pretermitting the question whether
the CCA’s reference to Osborn’s feelings having “affected” and
“influenced” him even constituted “factual findings” within the
meaning of § 2254(d), we address Allridge’s contention below and
conclude that its basic premise is flawed.
2
The State’s position that this matter is impermissibly
raised for the first time on appeal is not well taken. Even if, in
the district court, Allridge did not explicitly make the contention
regarding deference to the CCA’s “implied factual findings,” he did
argue in his § 2254 petition that the CCA erred when it stated that
Osborn’s feelings would “influence” and “affect” his abilities as
a juror, that these findings contradicted the Supreme Court’s
admonitions in Adams, and that this “finding of fact” was not
entitled to a presumption of correctness under § 2254(d).
15
Allridge does not cite a single Supreme Court or Fifth Circuit
decision holding that, in a Witherspoon habeas challenge, a federal
court should defer solely to a state appellate court’s “factual
determination” to the exclusion of addressing what happened in the
trial court. He cites Sumner v. Mata, 449 U.S. 539 (1981), and
Wainwright v. Goode, 464 U.S. 78 (1983), for the proposition that
we are required to defer exclusively to the CCA’s “factual finding”
that Osborn’s feelings would merely “affect” and “influence” his
duties. As noted by the State, though, Mata was a habeas case in
which the constitutional claim at issue had not even been raised in
the trial court and was advanced for the first time before the
state appellate court. See Mata, 449 U.S. at 541-42. The
appellate court’s findings in Mata were thus the only findings of
fact available for review under § 2254(d). See id. at 545-46. The
Supreme Court emphasized that the state appellate court had even
held a “hearing,” within the meaning of § 2254(d), on the claim.
Id. at 546. Mata thus offers no guidance in the circumstances of
Allridge’s case.
Neither does Goode offer such guidance. In Goode, a habeas
petitioner had argued —— for the first time in a state
postconviction application before the Florida Supreme Court —— that
trial counsel had performed ineffectively by failing to challenge
the trial court’s alleged reliance on a nonstatutory aggravating
circumstance in imposing a death sentence. See Goode, 464 U.S. at
82. The Florida Supreme Court reviewed the record of the
16
sentencing hearing and determined that the trial court had not
relied on the impermissible factor in the first place. Id. In
Goode’s subsequent § 2254 proceedings, the Eleventh Circuit Court
of Appeals assumed arguendo that the Florida Supreme Court’s
finding (that the sentencing court had not relied on an
impermissible factor) was entitled to a presumption of correctness
under § 2254(d), but concluded that the state-court finding was
“not fairly supported by the record as a whole.” Id. at 83. The
United States Supreme Court held that the Eleventh Circuit had
erred in its finding, as the Florida Supreme Court’s determination
“f[ou]nd fair support in the record.” Id. at 85. In Goode as in
Mata, there were no state trial court factual findings to which the
§ 2254(d) standard of review could have been applied.
We pause here to note that Allridge fails to compare his own
case with the circumstances of Witt, wherein the Supreme Court
closely scrutinized the state trial court’s resolution of a
Witherspoon challenge in applying the § 2254(d) standard. The
petitioner in Witt had raised a Witherspoon challenge in his direct
appeal to the Florida Supreme Court, see Witt, 469 U.S. at 415, yet
the United States Supreme Court apparently saw no reason to address
the Florida Supreme Court’s “findings” as to the
Witherspoon challenge when the record included a detailed voir dire
transcript and a decision by the state trial court itself.
Allridge has cited no legal authority to suggest why his case
should be treated any differently.
17
We shall, therefore, review the state trial court’s decision
to exclude Osborn. In so doing, we shall apply the § 2254(d)
standard of review.3
3. Voir dire and the dismissal of Osborn
When, during the voir dire questioning, Osborn was asked
whether anything in his background would lead him to believe that
he could not serve as a juror in Allridge’s case, Osborn answered,
“Nothing specific. I have a problem with the death penalty.” He
then explained that he had “spent time in Vietnam as a contractor
and saw enough of that, that I don’t know that I could make that
decision, in all honesty.” Osborn described his feelings as
“strong” and stated that, “even though we are not as a jury
directly saying yes [with respect to the decision to impose the
death penalty], it’s going to be the death penalty; indirectly,
because of the questions and the answers, we are the responsible
group, and I don’t know that I could, in all honesty, make that
kind of a decision.”
3
Even if we were to credit Allridge’s arguments that we
should defer to the CCA’s “implied” findings of fact, we would see
that Allridge has somewhat misrepresented those findings. It is
true that the CCA stated that Osborn’s feelings would “influence”
his assessment of the evidence and “affect” his ability to comply
with his oath. See Allridge, 850 S.W.2d at 478. The court was
merely explaining, however, that these findings “support[ed]” the
trial court’s determination that Osborn was “substantially
impaired” in his performance in his duties as a juror; it did not
state that these factors, standing alone, supported the trial
court’s finding. Id. Moreover, the CCA’s ultimate “factual
finding” was that Osborn was “substantially impaired,” the key
phrase from Adams.
18
The following exchange then occurred:
Q.: . . . Let me ask you this: Do you think that
your feelings are so strong, or you classified them
as strong, do you think these strong feelings would
substantially impair your ability as a juror to
follow the oath that you would take?
A. It would tend to bias my opinion, I think.
Q. . . .
Let me ask you, Mr. Osborn, if -- say you were on
this jury and as the foreperson, say you were
elected foreman, could you sign a verdict that
sentenced James Vernon Allridge to death?
A. I don’t think I could. Honestly.
Q. . . . Would you say that you had conscientious
scruples against the infliction of punishment that
resulted in death?
A. I don’t know if it would be conscientious or
not, but [indicating] -- it is a gut feeling that I
don’t know whether I could or not.
The prosecutor then pointed out that jurors were required to take
an oath to render a true verdict according to the law and the
evidence and asked Osborn whether he could “assess the death
penalty.” Osborn answered, “I honestly don’t think I could” and
that to take the oath would “create an awful lot of internal
conflict.” He also stated that he would feel “very uncomfortable”
making a sentencing decision if he were the last undecided juror.
Osborn then answered several questions from Allridge’s
attorney about the general civic responsibilities of jurors, after
which the prosecutor asked a specific question of Osborn:
Q. . . . [I]f you were selected as a juror in this
case, would you be able to follow your civic duty
19
and sit down, set your feelings aside -- I am not
saying ignore them, I am not saying deny their
existence -- but sit down and give fair
consideration to the evidence and then answer the
questions from the evidence as your oath requires?
A. I can make that decision, you know; whether I
could actually sign to do what was necessary, I
don’t know.
Osborn subsequently stated that he “would answer them as honestly
as I possibly could, but they are always going to be tempered by my
basic instincts that I think it’s wrong for one person to take
another person’s life.” After a short argument session, the trial
court denied the prosecutor’s challenge to Osborn for cause.
The prosecutor then resumed his questioning of Osborn. Noting
that the State was required to prove the special sentencing issues
beyond a reasonable doubt, the prosecutor asked Osborn, “Before you
could vote yes to any one of those questions, would you require
there to be absolutely no doubt in your mind at all?” Osborn
replied, “I think I would have to have, you know, little or no
doubt,” but then stated, “[n]ot having been put in that position
before, I don’t know.” The prosecutor also asked Osborn whether he
could “in [his] own mind imagine evidence that could be brought to
[him] that could convince [him] that the answer to [special issue]
number two should be yes[.]” Osborn initially answered, “I don’t
know if I can quantify that,” but when a nearly identical question
was posed to him, he answered, “I can’t honestly think of anything,
you know, that would make me make that decision.” The prosecutor
20
next asked, “None whatsoever?” to which Osborn replied, “I don’t
know.”
Several minutes later, the following exchanged occurred:
Q. Are your feelings -- are your strong feelings
about the death penalty such that you are more
inclined to be biased for Mr. Allridge as we start
this case in that you know we are seeking the death
penalty?
A. I think it is going to temper any decision that
I make. It’s got to bias it. I can’t say that
it’s -- that I am starting off with a preconceived
concept of guilt or innocence, but that has got to
be, you know -- I mean, had I not known it
beforehand, it would have come out eventually, but
. . . .
Q. Yes.
A. Yeah. It does tend to bias me, you know . . . .
Q. Against the death penalty and for the
saving of a life?
A. Basically, yes.
The prosecutor also asked whether Osborn’s assertion that his
decision would be “temper[ed]” by his feelings “would substantially
impair [him] from sitting as a juror in this particular case” or
“in any capital murder case.” Osborn replied, “I think it would be
a consideration. I mean -- like I said, I don’t know. But I think
it would, here again, tend to temper my decisions in how I perceive
the evidence knowing what the consequences could be.”
Again asking Osborn about the oath to render a “true verdict
according to the law of Texas” and whether he could “honestly take
that oath and then not do violence to [his] strong feelings” about
21
the death penalty, Osborn stated, “I don’t think I could.” Then
this final exchange occurred:
Q. Is it fair to say that any verdict you reached
at the second phase of this trial might not be
based solely on the law from the Judge and the
facts that you’ve heard; might it be tempered by
your strong feelings about the death penalty?
A. That’s entirely possible.
Q. Might that -- those strong feelings change how
you might view the evidence knowing what the
result, the severe consequences of yes votes?
A. I think so.
At this point, the prosecutor resubmitted the challenge, and the
trial court granted it.
The court nevertheless allowed Allridge’s counsel to ask
Osborn a few more questions. Defense counsel asked Osborn whether
he could listen to the evidence at the guilt phase and decide
whether the case had been proven beyond a reasonable doubt. Osborn
stated, “I could make that decision, yes, but knowing the possible
consequences, here again, that decision is also going to be
tempered by the possible consequences later on.” Finally:
Q. Well, I guess I have some trouble with
temper. That is probably true for everybody.
It may be tempered the other way for some
jurors.
Could you listen to the evidence presented both at
the first stage and second stage, having found
somebody guilty based on the evidence, and answer
those questions under your oath and answer them
based on what you thought the evidence showed?
A. Not without involving my feelings for what I
was doing.
22
At this point the trial court cut off the questioning, stating,
“The Court has listened to the answers of Mr. Osborn and observed
his demeanor and his manner in answering the questions. I think
that I have made the determination in that regard, so I will grant
the State’s challenge[.]”
We conclude that, under the standards of review set forth by
the Supreme Court in Witt, Osborn’s testimony supported the trial
court’s sustaining of the State’s challenge for cause.4 As there
is nothing in the record to suggest that the trial court applied
any particular constitutional standard, it must be presumed that it
applied the correct one. Witt, 469 U.S. at 431. That standard, as
noted above, is whether the juror’s views would “substantially
impair the performance of his duties as a juror and in accordance
with his instructions and his oath.” Id. at 424.
As the Court noted in Witt, “there will be situations where
the trial judge is left with the definite impression that a
4
In arguing at length that we must defer to the CCA’s
“implied findings of fact” that Osborn’s feelings would only
“affect” and “influence” his performance, Allridge has essentially
ignored the standards of review set forth in Witt. In § 2254
actions involving Witherspoon challenges, we have repeatedly
applied those standards since the issuance of Witt. See, e.g.,
Soria v. Johnson, 207 F.3d 232, 245-47 (5th Cir. 2000); McFadden,
166 F.3d at 758-61; Fuller v. Johnson, 114 F.3d 491, 498-501 (5th
Cir. 1997); Mann v. Scott, 41 F.3d 968, 980-82 (5th Cir. 1994);
Nethery v. Collins, 993 F.2d 1154, 1159-60 (5th Cir. 1993); Drew v.
Collins, 964 F.2d 411, 416-17 (5th Cir. 1992); Granviel v. Lynaugh,
881 F.2d 185, 187-89 (5th Cir. 1989); Ellis v. Lynaugh, 873 F.2d
830, 832-37 (5th Cir. 1989); Kelly, 862 F.2d at 1133-35; Bell v.
Lynaugh, 828 F.2d 1085, 1092-93 (5th Cir. 1987); Riles v. McCotter,
799 F.2d 947, 949-50 (5th Cir. 1986); Smith v. McCotter, 798 F.2d
129, 132-34 (5th Cir. 1986).
23
prospective juror would be unable to faithfully and impartially
apply the law,” even when there is a “lack of clarity” in the
record. Witt, 469 U.S. at 425-26. The juror’s bias need not be
“proved with unmistakable clarity.” Id. at 424. In addition,
Osborn’s failure to state explicitly that his feelings about the
death penalty would “substantially impair” his performance is not
dispositive, because “[r]elevant voir dire questions . . . need not
be framed exclusively in the language of” Adams. Id. at 433-34.
Allridge has not adduced clear and convincing evidence that
the trial court’s sustaining of the prosecution’s challenge to
Osborn for cause was erroneous. “[T]he question is not whether a
reviewing court might disagree with the trial court’s findings, but
whether those findings are fairly supported by the record.” Witt,
469 U.S. at 434 (citing Marshall v. Lonberger, 459 U.S. 422, 432
(1983)). Osborn made a number of statements that support the trial
court’s finding. He twice suggested that in following his oath as
a juror, his feelings would bias his opinion. He repeatedly
expressed uncertainty and even doubt about whether he could make
decisions that would result in imposition of the death penalty. He
indicated that he could not think of anything that would cause him
to vote “yes” as to the special issues. Finally, Osborn conceded
that he did not think that he could take the oath and not do
violence to his strong feelings, and that it was entirely possible
that a verdict he reached at the close of the punishment phase
24
might not be based solely on the law from the Judge and the facts
that he had heard.
We acknowledge that the record in this case is not as clear-
cut as those in other cases in which we have rejected habeas
claims under Witt.5 Still, a trial court’s findings on a
Witherspoon challenge are based on “determinations of demeanor and
credibility that are peculiarly within a trial judge’s province.”
Witt, 469 U.S. at 428. The trial court in Allridge’s case
initially denied the State’s challenge for cause with respect to
Osborn; however, after hearing additional testimony, the court
sustained the challenge. The court emphasized that it had
“listened to the answers of Mr. Osborn and observed his demeanor
and his manner in answering his questions.” In the final analysis,
5
Cf. McFadden, 166 F.3d at 759-60 (venireman agreed that he
would “automatically” vote against the death penalty “[r]egardless
of the facts and circumstances of the case”); Mann, 41 F.3d at980-81 & n.9 (veniremans flatly stated that they could not take
“oath” to base answers to punishment-phase issues solely on
evidence); Nethery, 993 F.2d at 1160 (at least one venireman would
vote “no” on special issues, regardless of the evidence); Drew, 964
F.2d at 416-17 (one venireman would hold State to burden of proof
higher than reasonable-doubt standard, and another would vote “no”
as to future-dangerousness special issue unless evidence showed
that defendant would commit future murders); Ellis, 873 F.2d at
834-36 (venireman could not take oath if it required him to answer
“yes” to both special issues); Kelly, 862 F.2d at 1134 & n.15
(venireman would answer “no” to both special issues “[n]o matter
what the evidence is”); Bell, 828 F.2d at 1092 (venireman
repeatedly stated that she could not impose death penalty “under
any circumstances”); Smith, 798 F.2d at 133 (venireman would
“ignore the law” or “violate [his] oath” in certain circumstances).
But see Riles, 799 F.2d at 949 & n.2 (rejecting Witt challenge to
venireman whose feelings about the death penalty would “influence”
his “way of thinking” and who, if he had a “choice,” would “choose
something less than death”).
25
we are satisfied that the district court’s ruling on Allridge’s
Witherspoon claim was correct and free of reversible error. We
therefore affirm the court’s ruling based largely on the standards
of Witt.6
B. Ineffective assistance of counsel
Allridge only briefly sets forth his claim that his trial
attorney performed ineffectively by failing to supervise personally
a psychological test that was given to Allridge at jail.7 He
emphasizes that at the punishment phase, his psychological expert,
6
We need not specifically address Allridge’s complaints that
the CCA and the federal district court relied on “other grounds” to
support Osborn’s exclusion. As noted above, the former § 2254(d),
as discussed in Witt, does not require us to address alternative
grounds that might have been cited by reviewing courts.
In any event, Allridge’s grievances regarding these
alternative grounds are without merit. He complains, for instance,
that the prosecution asked Osborn questions about whether, as a
jury foreman, he could sign a verdict that would result in the
defendant’s execution, when Texas law states that any juror can
refuse to serve as jury foreman. It is true that whether a
venireman could impartially sign a verdict is “immaterial to jury
service under Witherspoon.” See Alderman v. Austin, 663 F.2d 558,
563-64 (5th Cir. 1981). Aside from answers to the questions
regarding their abilities as foremen, however, the excluded
veniremen in Alderman had “evidenced no ‘unambiguous’ intent to
oppose capital punishment either in principle or in the trial.”
Id. at 563. In contrast, the record of Osborn’s voir dire is not
nearly so clear.
7
There are minor inconsistencies in Allridge’s
categorization of this claim at different times. Although he
refers to trial counsel’s own failure to supervise the
psychological test, we perceive the gravamen of Allridge’s
inadequate investigation claim to be that counsel should have
discovered before trial that his psychological expert, who gave the
tests, had not remained present while the written protions were
being completed; and that this led to the expert’s being
discredited on cross-examination.
26
Dr. Schmitt,8 testified that: (1) Allridge had engaged in a crime
spree with his brother Ronald, a classic sociopath, because Ronald
had dominated him; (2) Allridge believed that his brother would
kill him if he did not participate in the crimes; and (3) Allridge
would not be violent in prison if removed from Ronald’s influence.
Allridge asserts that this testimony was based in part on written
psychological tests administered to Allridge, which, as revealed in
the State’s cross-examination of Dr. Schmitt, Allridge completed by
himself, without Dr. Schmitt’s presence or supervision. Allridge
contends that Dr. Schmitt’s mitigation testimony was thus
discredited and made virtually useless. He blames this failure on
counsel’s abrogation of his duty to investigate and maintains that
prejudice resulted because the failure doomed any chance of
persuading the jury that Allridge did not present a future danger
to society.
1. Procedural default
Allridge does not address the State’s contention, and the
district court’s conclusion, that this particular ineffective-
assistance claim was procedurally defaulted when Allridge failed to
raise it in the state courts. Before we address the question of
procedural default, however, we must first determine whether the
issue is even properly before us.
8
Dr. Schmitt’s name appears as “Schmidt” in the trial
transcript and in some other pleadings, but is spelled “Schmitt” in
his affidavit.
27
The district court granted Allridge a COA on his ineffective
assistance of counsel claim without elaborating further. At least
two circuits have held that, “[a]bsent an explicit statement by the
district court, in cases where a district court grants a COA with
respect to the merits of a constitutional claim but the COA is
silent with respect to procedural claims that must be resolved if
the panel is to reach the merits, [the court of appeals] will
assume that the COA also encompasses any procedural claims that
must be addressed on appeal.” Jones v. Smith, 231 F.3d 1227, 1231
(9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1248 (11th
Cir. 2001) (quoting Jones), cert. denied, 536 U.S. 906 (2002). We
agree with this analysis and conclude that, under this standard, we
should address the district court’s procedural-default ruling.
The procedural default doctrine precludes federal habeas
review when the last reasoned state-court opinion addressing a
claim explicitly rejects it on a state procedural ground. Ylst v.
Nunnemaker, 501 U.S. 797, 801, 803 (1991). When the state court
has relied on an independent and adequate state procedural rule,
federal habeas review is precluded unless the petitioner
demonstrates either (1) cause and prejudice or (2) that a failure
to address the claim will result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Ordinarily, a habeas petition must be dismissed if any issue
has not been exhausted in the state courts. Rose v. Lundy, 455
U.S. 509, 513-19 (1982). “When . . . state remedies are rendered
28
unavailable by the petitioner’s own procedural default, federal
courts are barred from reviewing those claims.” Sones v. Hargett,
61 F.3d 410, 416 (5th Cir. 1995). “‘[I]f the petitioner failed to
exhaust state remedies and the court to which petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, . . .
[then] there is procedural default for the purposes of federal
habeas. . . .’” Id. (quoting Coleman, 501 U.S. at 735 n.1). A
second state postconviction application by Allridge would almost
certainly be barred by Texas courts as an abuse of the writ, and
this bar would operate as an adequate and independent state
procedural ground for procedural-default purposes. Finley v.
Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
In the district court, Allridge denied that this particular
ineffectiveness claim was unexhausted. He argued that the CCA had
adopted the state habeas trial court’s finding that defense counsel
made reasonable strategic choices about how to present all possible
mitigating factors in consultation with Dr. Schmitt and thereby
rendered effective assistance under the totality of the
circumstances (citing Vela v. Estelle, 708 F.2d 954, 959 (5th Cir.
1983)). Although it has not disputed that he did not raise an
ineffective-assistance claim specifically addressing his trial
counsel’s failure personally to supervise the psychological test
given to Allridge or to discover that the expert had failed to do
so; neither has Allridge claimed that the Texas courts did not
29
address this specific claim. Instead, the state habeas court did
express the general conclusion that, after a thorough investigation
into all possible mitigating factors available to counsel at time
of trial and in consultation with Dr. Schmitt, the defense made a
reasoned, strategic, and effective presentation based on their
professional assessment of those factors.
To exhaust, a petitioner “must have fairly presented the
substance of his claim to the state courts.” Nobles v. Johnson,
127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404
U.S. 270, 275-76 (1971)). “‘It is not enough that all the facts
necessary to support the federal claim were before the state courts
or that a somewhat similar state-law claim was made.’” Wilder v.
Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting Anderson v.
Harless, 459 U.S. 4, 6 (1982)).
Allridge cites Vela for the proposition that he successfully
exhausted his current ineffective-assistance claim. In Vela, the
petitioner asserted three errors in his state habeas petition as
grounds for a finding that counsel was ineffective, and later in
his federal petition he urged several additional grounds supporting
his claim. Vela, 708 F.2d at 957-58. We determined that Vela’s
state habeas petition asserted ineffective assistance on the basis
of counsel’s entire performance and that Vela’s three assertions of
error were merely “singling out for comment certain strikingly
prejudicial errors.” Id. at 959. We determined further that the
state court conducted its own independent analysis of counsel’s
30
performance based on a review of the record as a whole. Id.Concluding that “[c]haracterizing these allegations as ‘unexhausted
claims’ would require us to find that the state habeas court failed
in its duty to evaluate counsel’s performance on the basis of the
record as a whole[,]” we held that Vela had exhausted his state
remedies. Id. at 960.
In Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990),
however, the petitioner asserted ineffective assistance of counsel
in the state court, arguing specifically that his appellate counsel
failed to notify him timely of his right to petition for
discretionary review. Id. In federal court, the petitioner
presented an entirely new claim regarding his counsel’s
ineffectiveness, arguing that counsel failed to assert on appeal a
claim that the trial judge had failed to comply with TEX. CODE. CRIM.
PROC. art. 1.15. Id. The petitioner suggested that exhaustion was
met because his case was similar to Vela. Id. at 334-35. We
distinguished Vela, determining that the “record does not support
a finding that the state court ever reviewed counsel’s performance
in light of the Article 1.15 violation.” Id. at 335. We thus
affirmed the district court’s dismissal for failure to exhaust.
Id.The circumstances of Allridge’s postconviction proceeding
approximate those in Thomas more closely than they approximate
those in Vela. Allridge did not raise a claim that counsel’s
entire performance was ineffective. Neither is there any
31
indication that the state trial court conducted an independent
review of the record as a whole. Although we conclude that the
district court’s order granting COA included a certification
regarding the question of procedural default, we also conclude that
(1) Allridge’s particular ineffective-assistance claim was
unexhausted and thus was procedurally defaulted, and (2) Allridge
has not shown cause or prejudice to excuse the default. We
nevertheless address the merits of that claim in the alternative.
2. Merits of ineffective-assistance claim
It is universally recognized that, to prevail on a claim of
ineffective assistance of counsel, a petitioner must show (1) that
his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) that the deficient
performance prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 689-94 (1984). When we assess whether an attorney’s
performance was deficient, we “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689; Andrews v. Collins, 21 F.3d
612, 621 (5th Cir. 1994). To show Strickland prejudice, a
petitioner must demonstrate that counsel’s errors were so serious
as to “render[ ] the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 369 (1993). “In the context of a claim that counsel rendered
ineffective assistance by failing to present evidence at the
punishment phase of a capital murder trial, the inquiry is whether
32
there is a reasonable probability that, had the evidence been
presented, it would have altered the punishment verdict.” Harris
v. Cockrell, 313 F.3d 238, 243 (5th Cir. 2002), petition for cert.
filed, (U.S. Mar. 17, 2003) (No. 02-1433). Failure to establish
either deficient performance or prejudice defeats the claim.
Strickland, 466 U.S. at 697.
To the extent that Allridge classifies his ineffective-
assistance claims as one involving a failure to investigate, “[a]
defense counsel’s failure to engage in an appropriate
investigation of potential mitigating evidence in the punishment
phase can support a claim of ineffective assistance of counsel.”
Smith v. Cockrell, 311 F.3d 661, 668-69 (5th Cir. 2002) (citing
Williams v. Taylor, 529 U.S. 362, 390 (2000)). “[W]e focus on
whether the investigation supporting counsel’s decision ... was
itself reasonable.” Wiggins v. Smith, 2003 WL 21467222 *8 (U.S.)
(emphasis in original). “‘A defendant who alleges a failure to
investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome of the trial.’” Moawad v. Anderson, 143 F.3d
942, 948 (5th Cir. 1998) (citation omitted).
At the punishment phase, trial counsel for Allridge called
clinical psychologist Dr. Schmitt as an expert witness. Dr.
Schmitt had conducted a two-hour clinical interview of Allridge at
the jail and had administered and explained some psychological
tests, which he left with Allridge and which were returned to Dr.
33
Schmitt after Allridge had completed them.9 Dr. Schmitt had also
interviewed Allridge’s parents and examined Allridge’s artwork.
Dr. Schmitt testified that the results of all the tests showed that
Allridge was not a sociopath, that he had demonstrated the ability
to maintain relationships and to exhibit loyalty to other persons,
and that he is an individual who exhibits remorse. Dr. Schmitt
expressed the opinion that Allridge’s brother, Ronald, has a
classic sociopathic personality, and testified that Allridge had
been picked on, physically intimidated, and beaten on a regular
basis by Ronald. Dr. Schmitt maintained that, aside from his
relationship with Ronald, Allridge is basically a non-violent
person.
Dr. Schmitt admittedly was not present when the written tests
were completed and did not have personal knowledge that they were
in fact filled out by Allridge himself. Dr. Schmitt nevertheless
testified that he had every reason to believe that the tests were
filled out by Allridge, and that the handwriting on the Sentence
Completion portion was very similar to the handwriting on
Allridge’s artwork. Dr. Schmitt also confirmed that everything
that he told the jury about Ronald was based on information related
to him by either Allridge or his parents.
9
The tests consisted of the Minnesota Multiphasic
Personality Inventory (“MMPI”), a “commonly used personality test,”
and a Sentence Completion Test, a test that permits the
psychologist to determine people’s attitudes and ways of thinking
about a wide variety of different subjects.
34
Allridge has shown neither cause (deficient performance) nor
prejudice. Although the cross-examination of Dr. Schmitt confirmed
that he did not remain in the presence of Allridge after submitting
the written tests to him, the State presented no evidence to
suggest that any one other than Allridge had completed them. In
addition, Dr. Schmitt’s testimony about Allridge was based not
merely on the written test results but also on his two-hour
interview with Allridge, his interviews with Allridge’s parents,
and his analysis of Allridge’s artwork. Allridge exaggerates when
he contends that his attorney’s failure personally to supervise the
written tests, or to investigate and determine before trial that
Dr. Schmitt had not done so either, “destroyed the defense’s case
in the sentencing phase.” The record confirms that counsel’s
investigation in regard to Dr. Schmitt was itself reasonable and
that it was sufficient to support counsel’s decision to put on this
mitigating evidence. See Wiggins v. Smith, 2003 WL 21467222 *8
(U.S.). He has not overcome Strickland’s presumption that
counsel’s performance fell “within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689.
Counsel’s investigation was more than adequate to support the
factual decision to have Dr. Schmitt testify; and doing so was not
deficient.
Neither has Allridge demonstrated Strickland prejudice. On
direct appeal, Allridge challenged the sufficiency of the evidence
to support the jury’s affirmative finding on the second special
35
issue. See Allridge, 850 S.W.2d at 487. In rejecting Allridge’s
challenge, the CCA emphasized that, when Allridge, Ronald, and two
accomplices drove around Tarrant County committing robberies on the
night of March 24, 1985, Allridge personally committed three
robberies while the other three men waited in the car; and that the
evening culminated with Ronald’s shooting and killing a customer at
a Whataburger restaurant while Allridge waited in the car. That
court also stressed that, during the period of two months following
the instant Circle K robbery-murder, Allridge personally committed
several armed robberies in which Ronald was not involved at all;
that the morning after the Whataburger robbery-murder, Allridge
apparently used the proceeds of the prior evening’s robberies to
pay his rent and to pay his attorney in a matter unrelated to the
armed robberies; that the facts of the Circle K robbery-murder
showed Allridge’s cool calculation; and that the robberies
afterwards showed his “remorselessness.” Id. at 487-89. The CCA
noted Dr. Schmitt’s testimony regarding Ronald’s dominance of
Allridge, but did not even mention his discussion of the written
tests. Id. at 488, 489. The court discounted the testimony
regarding Ronald’s domination on the ground that Allridge had
committed several armed robberies in which Ronald was not involved.
Id. at 489.
The evidence supporting a finding of Allridge’s future
dangerousness was quite strong, and no evidence offered by the
State suggested that the written psychological tests were performed
36
by anyone other than Allridge. We conclude that Allridge has not
established a reasonable probability that counsel’s failure to
oversee Allridge’s completion of the tests or to ensure that Dr.
Schmitt personally administered the tests altered or affected the
punishment verdict in any way.
III
CONCLUSION
Based on the foregoing analysis, we are convinced that
Allridge suffered no constitutional deprivation from his trial
court’s exclusion of venireman Osborn from the jury and that no
reversible error was committed by the trial or appellate courts of
Texas in that regard. We are likewise convinced that Allridge
procedurally defaulted his claim of ineffective assistance of
counsel; and, alternatively, that on the merits of that claim, he
has not demonstrated either cause or prejudice under the test of
Strickland, the failure to demonstrate either being fatal to such
a claim. We therefore affirm the district court’s denial of habeas
corpus relief to Petitioner Allridge and dismissal of his § 2254
petition.
PETITION DENIED.
37