IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 92-2720

JOSEPH BENNARD NICHOLS,

Petitioner-Appellee, Cross-Appellant,

versus

WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellant, Cross-Appellee.

Appeals from the United States District Court for the Southern District of Texas

November 20, 1995

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

GARWOOD, Circuit Judge:

Petitioner-appellee, cross-appellant Joseph Bennard Nichols

(Nichols) was convicted of capital murder and sentenced to death.

After exhausting his Texas state court remedies, Nichols sought a

writ of habeas corpus in the district court below and the court

granted relief. Respondent-appellant (Respondent), the director of

the Texas Department of Criminal Justice, now appeals to this

Court. Nichols cross-appeals the district court’s denial of certain of the remainder of his claims. We affirm in part and

reverse the district court’s grant of habeas corpus relief.

Facts and Proceedings Below

About 9:00 a.m. on the morning of October 13, 1980, Nichols,

Willie Ray Williams (Williams), Charlotte Parker (Parker), and

Evelyn Harvey (Harvey) drove to a spot in front of an apartment

building near Joseph’s Delicatessen and Grocery in Houston, Texas.

Nichols and Williams mutually intended to rob this establishment,

Nichols having suggested it as a target. Williams was armed with

a .380 semi-automatic pistol; Nichols had a snub-nosed .38

revolver. Parker parked the car and Nichols and Williams got out

and entered the deli. After entering, Nichols and Williams first

went to the back of the store, and then approached the counter.

Nichols got a corndog. Williams set a quart of beer on the counter

near the cash register. Behind the counter was deli employee

Claude Shaffer, Jr. (Shaffer). Nichols, and then Williams, each

drew their respective pistols and pointed them at Shaffer.

When Shaffer saw the guns he began to bend over or squat down.

Nichols then said something to the effect of “don’t go for the gun”

or “don’t be doing it.” Nichols then shot at Shaffer, and

immediately thereafter Williams pulled the trigger on his gun, but

it is unclear whether it then discharged.1 Shaffer then either

1 Nichols’ statement (Nichols did not testify) says “we”—he and Williams—then shot at Shaffer. Nichols’ and Williams’ statements were given October 17, 1980, after their arrests earlier that day. Williams’ statement mentions only Nichols shooting at this time. Williams’ testimony at Nichols’ trial is that Nichols drew his gun first, that Williams then drew his, each pointing them at Shaffer; that Nichols fired his gun; that Williams then pulled the trigger

2 fell or squatted down behind the counter. Nichols and Williams ran

to the door. Nichols exited. Williams either exited or partially

exited and then, according to his testimony at Nichols’ trial,

on his gun, but nothing happened and it did not discharge (Williams’ testimony at his own trial does not mention his pulling the trigger on his gun at this time). Williams testified at Nichols’ trial that Nichols fired only once and that “he [Nichols] was aiming at the man [Shaffer]” and “wasn’t aiming it behind him or somewhere else or aiming it at the floor or anything” but “was aiming at that man.” However, Williams testified that he thought Nichols missed Shaffer because Shaffer, who was squatting, did not go down and Williams saw no blood. Cindy Johnson (Johnson), one of the two other deli employees then on duty, testified that at this time Nichols shot first, but that Williams also then shot, and that in all three, or possibly two, shots were fired at that time. She said that after these shots Shaffer collapsed and there was blood on his head. James Rivera (Rivera), standing at a nearby bus stop, saw Nichols and Williams enter the deli, shortly thereafter heard two or three noises like “backfires,” turned, and then saw Nichols and Williams run out of the deli. Nichols’ statement says “We pulled our guns on the dude behind the cash register and told him to put the money in the sak [sic]. The man behind the counter started bending over behind the counter . . . and then he came up with a pistol . . . so we reacted and shot.” Williams’ testimony at Nichols’ trial was that after Nichols and he pulled their guns on Shaffer, Shaffer bent down and came up with a gun from under the counter, pointed it at Williams, whereupon Nichols fired; Shaffer, according to Williams’ testimony, never fired (and there is no evidence that he did). At his own trial, Williams testified that “before he [Shaffer] got it [the gun] all the way up, Joe [Nichols] fired” and then Shaffer “went down” in “a squatting position.” Johnson testified that she was watching Shaffer, who was looking at her, after Nichols and Williams had pointed their guns at him and that Shaffer never touched a gun and did not reach for a gun; she admitted, however, that in an earlier sworn statement she had said that after “one of the men pulled a gun” Shaffer, who kept a gun under the counter, “reached for his gun and both of the black men shot Claude.” Other evidence showed that the gun, a .45 semi-automatic pistol, belonged to another deli employee, and was found just after the robbery in its accustomed place on a shelf under the counter, with a fully- loaded clip in the handle but no shell in the chamber; there were no fingerprints on it (Williams testified that when he went back in and got the cash box, he looked for Shaffer’s gun but did not see it). No .45 caliber fired bullets or empty shell casings were found.

3 turned and fired once at Shaffer, who was still squatting behind

the counter. Williams testified that Shaffer fell back, that he

(Williams) went behind the counter to Shaffer, turned him over,

grabbed the deli’s cash box, and ran out of the deli, carrying his

gun and the cash box.2 He was picked up by Parker and Harvey, got

into the car with them, and they drove around the side of the deli

building where they saw Nichols, who then got in the car with them.

Harvey testified that Nichols told them “he had shot the man” and

“he thought he shot him in the chest,” and that Williams said he

had run back into the deli and shot the man. Parker testified that

Nichols said “I think I hit him in the chest,” and that Williams

said “he [Williams] shot the man in the shoulder.”3 A few days

later, Williams, Nichols, Parker, and Harvey were arrested.

The testimony of the Harris County Medical Examiner, Dr.

Espinola, established without contradiction that Shaffer died from

a single gunshot wound that entered his “left upper back about

seven and three fourths [inches] to the left of the midline and

three and one half inches below the top of the shoulder” and

2 At his trial Williams testified that when he and Nichols ran into each other exiting the deli: “I attempted to go out the door, coming behind Joe [Nichols], and he [Nichols] turned to me and said shoot—shoot.” Williams, being then asked “And what did you do, sir?”, replied “I just turned and shot.” 3 Rivera (see note 1, supra) testified that after he saw Nichols and Williams run out of the deli, Williams then, gun in hand, just in front of the deli door, “looked like he raised his hand and aimed the gun at me”; Rivera turned away in fright, and when he looked back both Nichols and Williams were gone; he then heard another shot and saw Williams run out of the deli with “a strong box” in his hand; Williams dropped the box, picked it up, and ran off.

4 exitedSQwithout hitting any bones or “hard objects” within the

bodySQ"on the right side of the chest, 18 and one half inches from

the right of the midline and 11 inches below the top of the

shoulder.” The wound would have caused “almost immediate

disability” or “collapse.” Shaffer also had a superficial two and

a quarter inch slanting laceration on the right side of his head,

which was “consistent with a grazing type of gunshot wound” and

“could also be consistent with a person that hit their head on the

corner of an object or anything like that in a fall.” The head

wound was not disabling. No bullet or bullet fragment was found in

or on Shaffer’s body. Two empty .380 cartridge cases—ejected from

Williams’ pistol—were found in the deli, as was also a whole .380

brass-jacketed projectile or bullet, which had been fired from

Williams’ weapon. A whole, unfired .380 brass-jacketed bullet and

cartridge (with firing pin indentation on the cartridge rim) was

found just outside the deli door. Lead bullet fragments were found

on the inside of the deli door and near there on the floor along

with brass jacket fragments. Also found in the deli—in a stack of

comic books behind the counter—was a whole lead bullet that had

been fired from a .38-caliber weapon. This was a revolver-type

bullet that had never been jacketed.4

In January 1981, Williams pleaded guilty to a charge of

4 Nichols’ gun was apparently never recovered. His statement says that after the robbery and before his arrest he had given it back to the individual—neither whose name nor address he knew—from whom he had borrowed it.

5 capital murder of Shaffer,5 and, accordingly, the trial court

directed the jury to return a verdict of guilty at the

guilt/innocence phase of his trial. As evidence of his guilt, the

state presented Williams’ written confession, as well as the

testimony of several witnesses including Dr. Espinola. Pursuant to

the court’s direction, the jury returned a verdict of guilty. At

the subsequent punishment phase of Williams’ trial, the defense

presented Williams’ testimony and the testimony of five witnesses

concerning Williams’ nonviolent character. The defense also called

Nichols during the punishment phase, but Nichols asserted his Fifth

Amendment privilege and declined to testify. The punishment charge

included no instruction respecting the law of parties. The jury

returned a verdict at the punishment phase of Williams’ trial

answering in the affirmative each of the three special issues then

provided for by Tex. Code Crim. Proc. art. 37.071(b).6 Pursuant to

5 The indictment alleged that Williams “did while in the course of committing and attempting to commit the robbery of Claude Shaffer, Jr., hereafter styled the Complainant, intentionally cause the death of the Complainant by shooting the Complainant with a gun.” 6 Article 37.071(b) then provided:

“(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(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 probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

6 art. 37.071(e), Williams was accordingly sentenced to death. His

conviction and sentence were affirmed on appeal. Williams v.

State,

(Tex. Crim. App. 1984).

Nichols was also indicted for the capital murder of Shaffer.7

In July 1981, Nichols was tried before a jury on his plea of not

guilty. Williams testified as a defense witness at the

guilt/innocence stage of this trial, and his testimony was

generally consistent with his prior testimony and statement.8 The

jury charge at the guilt/innocence stage included instructions on

the Texas law of parties.9 Based in large part on Williams’

(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.” 7 The indictment alleged that Nichols “did while in the course of committing and attempting to commit robbery, intentionally cause the death of Claude Shaffer, Jr., hereafter styled the Complainant, by shooting the Complainant with a gun.” 8 Williams' testimony at Nichols' first trial did not, however, include that referenced in note 2, supra. Nichols did not testify during either phase of the July 1981 trial. 9 Texas Penal Code art. 7.01 provides:

Ҥ 7.01. Parties to Offenses

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminal responsible, or by both.

(b) Each party to an offense may be charged with commission of the offense.

(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

Tex. Penal Code art. 7.02 provides:

7 testimony, the defense argued that the fatal shot was fired by

Williams from the deli door when he came back in and got the cash

box, and that Nichols was not guilty under the law of parties

because the planned robbery was over and Williams was acting

independently. The state argued that Williams’ testimony that he

shot Shaffer from the door when he came back in was not worthy of

belief “because he’s got to shoot through the cash register and all

Ҥ 7.02. Criminal Responsibility for Conduct of Another

(a) A person is criminally responsible for an offense committed by the conduct of another if:

. . .

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense;

. . .

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

Texas law has long recognized that the law of parties is applicable to a case and may be properly charged on if raised by the evidence even if not alleged in the indictment. Pitts v. State,

(Tex. Crim. App. 1978); Crank v. State,

(Tex. Crim. App. 1988); Montoya v. State,

(Tex. Crim. App.), cert. denied,

(1991). Indeed, this was the Texas law well prior to the enactment (in 1973) of arts. 7.01 and 7.02. See

; Frias v. State,

(Tex. Crim. App. 1964) (“‘The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense although it may not have actually been committed by him . . .’”).

8 that junk to get here.” The state also argued that Nichols told

Harvey that “he shot first, that he shot the man in the chest, in

the chest area, the body, not in the head, not in the leg, not in

the arm, but in the chest area, the body. That’s what the

defendant did.” However, the main thrust of the state’s argument

was that regardless of who fired the fatal shot, and regardless of

whether Williams’ testimony was credited, Nichols was guilty under

the law of parties. The jury returned a verdict finding Nichols

guilty of capital murder. The punishment stage of the trial then

ensued, testimony was presented by the state and the defense, and

the case was submitted to the jury on the three statutory special

issues (see note 6, supra). The punishment charge included no

instruction on the law of parties. After considerable

deliberation, the jury foreman announced that the jury had arrived

at a verdict on two of the special issues, and tendered to the

court a verdict form in which the first and third special issues

were each answered “yes,” and the second special issue (future

dangerousness) was not answered. The court ruled the verdict was

incomplete, refused to accept it, and returned the jury for further

deliberations. The jury eventually sent a note stating “the jury

is still unable to reach a verdict on the remaining special issue.”

Thereafter, defense counsel moved for a mistrial because the jury

could not reach a verdict. The court explained to Nichols

personally that if a mistrial were declared then the matter would

be retried before another jury. After ascertaining that Nichols

understood and that he personally requested and moved for a

9 mistrial, the court, on July 31, 1981, called the jury back in,

announced that a mistrial had been declared, and formally

discharged the jury.

The assistant district attorney trying the case thereafter

interviewed some of the jurors and, as the district court below

found, “learned from those jurors that whether or not Nichols was

the ‘triggerman’ had caused problems for the jury in considering

the death penalty.” Nichols v. Collins,

(S.D.

Tex. 1992).

In February 1982, Nichols was tried before another jury on the

same indictment. Generally the same evidence was presented as at

his first trial in July 1981. The prosecutor was the same as in

that first trial. In the guilt/innocence phase, Williams was

called as a defense witness but claimed his Fifth Amendment

privilege and refused to testify. The defense then put in evidence

Williams’ testimony as given at Nichols’ first trial.10 At the

close of the evidence on the guilt/innocence stage of the trial,

the trial court extensively instructed the jury on the Texas law of

parties (see note 9, supra) such that the jury could, depending on

what else it found, find Nichols guilty as charged either for

personally having fired the fatal shot or for the fatal shot fired

by Williams, if that was done pursuant to and in furtherance of

their conspiracy to rob the deli and should have been anticipated

10 Nichols did not testify at either stage of his February 1982 trial.

10 by Nichols as a result of carrying out the conspiracy.11 The

defense argued, as it had at Nichols’ first trial, that Williams

fired the fatal shot from the deli door as he exited and came back

in, and that this was, in the words of the charge, “the separate

act of Willie Ray Williams, acting independently,” for which

Nichols would not be responsible. The state primarily argued that

Nichols fired the fatal shot. But, it also argued extensively, in

the alternative, that even if Williams had fired the fatal shot,

Nichols was guilty of capital murder under the law of parties.12

11 The charge also submitted the lesser included offense of murder. 12 Thus, for example, the prosecutor argued:

“This lawsuit, if you really boil it down, concerns itself with parties, the law of parties given to you in number five and number six of this charge. Note that in parties to be guilty of capital murder as a party to it, a defendant does not have to fire the fatal shot that killed somebody.” (Emphasis added).

The prosecutor further argued:

“The Judge has instructed you to find the defendant guilty of capital murder if you believe from the evidence, number one, that he’s involved in a conspiracy to rob, number two, that at the time of the robbery he was doing something to help or make that robbery successful, that there was a murder and that somebody had the specific intent to kill somebody, either Jojo had it or Willie had it, either one. It doesn’t matter. That the murder was done in furtherance of the original plan of the robbery, to help it in some way or to get away, immediate flight therefrom. And you must believe that this murder was an offense that the defendant should have anticipated.

If you believe those five things from the evidence it will be your duty to find that man guilty of capital murder.” (Emphasis added).

Additionally, the prosecutor argued:

11 The jury returned its verdict finding Nichols guilty of capital

murder.

At the subsequent punishment phase the state submitted

evidence that Nichols had been convicted of theft in 1979, and had

pleaded guilty in May 1980 to an April 1980 robbery for which he

was sentenced in July 1980 to nine years' felony probation, which

he was serving when he committed the instant offense.

Additionally, it was shown that on August 13, 1980, Nichols

committed an armed robbery of a convenience store, shooting the

clerk in the shoulder when he did not respond speedily enough to

Nichols' demand for more money. Nichols continued to demand more

money as the clerk was bleeding from his wound. Further, on

October 11, 1980, two days before the present offense, Nichols

committed another robbery of a convenience store, aiming his pistol

“The defense is saying that what you really have here is a situation where there are cracks in the law and we want you to let Jojo Nichols slip through these cracks and get away. Well, the legislature thought about that. They’re not completely dumb up there. Somebody told them what to do. And they have the law of parties. It fills in the cracks. It’s like the mortar in a brick wall. You guys are all responsible when you go in there with loaded guns under certain conditions. Was there a conspiracy to rob, rob them of anything, money, guns, anything else. Was there a conspiracy to rob. The defense admits that, yes, there was. When the robbery occurred, was Jojo doing anything to promote or assist that robbery? The defense admits, yes, he was pointing a gun, telling you to put money in the sack and fired a gun. The defense admits it. He fired a gun before he ran out that door.

Was there a murder? You bet. And it doesn’t matter who killed him under our law, under this rule of parties. Was it reasonable to expect that this could happen? Of course.” (Emphasis added).

12 at the clerks. There was also evidence that when booked into jail

following his arrest for the instant offense, Nichols had stated he

would "shoot any deputy that got in his way." Finally, there was

evidence that in June 1981, while in jail awaiting trial, Nichols

conspired with others to engage in an escape involving the use of

a firearm and other weapons. The defense called fifteen witnesses.

Many testified they thought Nichols could be rehabilitated, that he

was nineteen at the time of the offense, and that at school he had

had average grades, had been an excellent athlete, and had

presented no disciplinary problems. His parents divorced when he

was seven, but both maintained a good relationship with him. He

married, and dropped out of school, at about age seventeen to

support his young child. His parents thought he had gotten into

trouble due to the pressure he was under to support his young child

and because he got in with a bad crowd.

The court submitted the three punishment special issues to the

jury (see note 6, supra). No instruction was given respecting the

law of parties. The defense argued, among other things, that the

fatal shot was fired by Williams, and that any shooting was in

reaction to Shaffer’s having grabbed his gun. Emphasis was put on

Nichols’ youth, his family, his character witnesses, and his

potential for rehabilitation. The state argued that Nichols fired

the fatal shot, but did not argue any of the special issues solely

on that theory.13 It stressed Nichols’ prior offenses and conduct

13 For example, in respect to the first special issue, dealing with deliberateness, the prosecutor argued:

13 in jail. Neither side argued that the verdict of guilty

established or meant that Nichols fired the fatal shot, or that any

of the special issues were to be answered by reference to

Williams’, rather than Nichols’, state of mind or conduct or the

like. On February 26, 1982, the jury returned its verdict

answering all three special issues in the affirmative, and the

court sentenced Nichols to death.

One of Nichols’ trial attorneys, E. Neil Lane (Lane), was

appointed to represent Nichols on direct appeal. After receiving

leave from the court, attorney Brian Wice was allowed to substitute

as Nichols' appellate counsel. Wice filed a supplemental brief

that raised twenty points of error. After considering each of the

issues raised in the original brief filed by Lane and each of the

issues raised in the Wice supplemental brief, the Texas Court of

Criminal Appeals affirmed the conviction and sentence. Nichols’

conviction became final on January 9, 1989, when the United States

Supreme Court denied certiorari. See Nichols v. State,

(Tex. Crim. App. 1988), cert. denied,

(1989).14

“Was his conduct deliberate. He doesn’t have to fire the fatal shot. But was his conduct deliberate. You bet it was deliberate. It was even more than that. He planned that robbery. He picked that store. It was a premeditated robbery. He thought about the fact that he’s going to need a gun when he went in there. You know that he meant to use it because it was loaded and you know he fired that gun into an innocent man.” (Emphasis added). 14 Affirmance by the Court of Criminal Appeals was unanimous except for one judge who noted, without elaboration, that he would have sustained Lane’s point of error concerning the trial court’s sua sponte excuse of a prospective juror; two judges concurred in the result without opinion.

14 In May 1989, Nichols, now represented by new counsel, two

attorneys of a leading Houston law firm, filed an 86-page

application for habeas corpus in the Texas trial court. Amended

applications were filed on June 9, 1989, January 8, 1990, and June

6, 1990, the latter being some 123 pages long. The state filed an

answer and amended answer supported by affidavits. On October 19

and November 2, 1990, the Texas trial court conducted an

evidentiary hearing on Nichols’ claims of ineffective assistance of

counsel and his statistical challenge to the Texas death penalty

statute as unconstitutional in its application. The trial court on

June 28, 1991, entered an order recommending denial of all relief

and adopting verbatim the state’s amended proposed findings of fact

and conclusions of law. On December 12, 1991, the Texas Court of

Criminal Appeals denied all relief in an order stating in relevant

part: “The trial court, after holding an evidentiary hearing, has

entered findings of fact and conclusions of law and recommended the

relief sought be denied. This Court has reviewed the record with

respect to the allegations now made by applicant and finds that the

findings and conclusions entered by the trial court are supported

by the record. The relief sought is denied.”

Nichols, represented by the same counsel who represented him

in his state habeas proceedings, in January 1992 filed the instant

petition under

in the district court below.

Nichols asserted numerous claims before the district court,

including (1) that the punishment special issues precluded the jury

from considering or giving effect to mitigating character evidence

15 and to evidence that Nichols did not kill Shaffer; (2) that the

prosecutor’s use of contradictory theories at the trials of

Williams and Nichols violated the doctrines of judicial estoppel,

collateral estoppel, due process, and the duty to seek justice; (3)

that Williams should have been compelled by the court to testify

for the defense because he waived his right to remain silent when

he testified at the first Nichols trial; (4) that retrial of

Nichols constituted double jeopardy; (5) that the prosecutor

knowingly failed to correct perjured testimony given by Parker

about her cooperation agreement with the state and created the

false impression in his summation that she was unaware of a promise

of leniency that her attorney received in exchange for her

testimony; (6) that the Texas death penalty statute and its

consistent interpretation by the Court of Criminal Appeals operated

to deny Nichols his rights under the Sixth, Eighth, and Fourteenth

Amendments; (7) that Nichols was denied effective assistance of

both trial and appellate counsel; (8) that Nichols was denied a

meaningful direct appeal; and (9) that various instances of claimed

prosecutorial misconduct occurred. The state answered and moved

for summary judgment.

The district court held an evidentiary hearing in March 1992.15

On August 31, 1992, the district court granted habeas relief and

15 On February 3, 1992, the district court had denied the state’s motion to dismiss on the basis that the scheduled evidentiary hearing embraced unexhausted claims.

16 ordered Nichols released or retried within 120 days.16 The district

court based its decision to grant relief on its conclusions that

(1) the major mitigating thrust of Nichols’ claimed nontriggerman

role in the offense was beyond the scope of any of the punishment

special issues; (2) by arguing that Nichols fired the shot that

killed Shaffer after obtaining a death sentence against Williams

for killing Shaffer, the state violated principles of

constitutional collateral estoppel; and (3) the foregoing two

conclusions, taken in combination with certain aspects of the state

habeas proceedings, resulted in denial of Nichols’ due process

rights. Nichols,

. The district court

determined, however, that the referenced aspects of the state

habeas proceeding did not preclude the state habeas court’s

findings from being accorded the presumption of correctness called

for by

(d), id. at 70, except the district court

declined to accord that presumption to the finding that “‘[t]he

jury was presented with overwhelming evidence that both applicant

[Nichols] and Williams shot Shaffer,’” “because the record, as a

whole, does not fairly support such factual determination” in that

“the only conclusion which the record supports is that both

Williams and Nichols shot at Shaffer but that either Williams or

Nichols actually shot Shaffer.” Id. at 75 (original emphasis).17

16 We subsequently stayed the district court's order pending this appeal. 17 We would agree with this latter conclusion of the district court had it said that “either Williams or Nichols actually fired the shot that killed Shaffer.” The record not only clearly shows, without contradiction, that both Nichols and Williams fired at

17 The district court denied the remainder of Nichols’ claims,18

except a claim, raised for the first time in briefing following the

March 1992 federal evidentiary hearing,19 concerning the state’s

alleged suppression of exculpatory evidence contrary to Brady v.

Maryland,

(1963), which Brady claim the district court

found unexhausted and “denied without prejudice to refiling after

ShafferSQindeed, the instant habeas petition avers that "it was undisputed that all of the shots were fired with intent to kill"SQbut also allows the reasonable inference that both hit him (though only one bullet, that which went through Shaffer's body, was fatal, while the other, the superficial, glancing wound on the side of his head, was neither fatal nor disabling). 18 The district court denied all the claims concerning: (1) improper prosecutorial voir dire and other statements and argument (apart from the argument that Nichols, rather than Williams, fired the fatal shot, which, as above noted, the court found improperly inconsistent with the prosecution position in Williams’ trial); (2) the prosecutor’s failure to correct Parker’s testimony about the agreement concerning her testimony and creating the false impression in argument that she was unaware of this; (3) Nichols’ denial of counsel at two line-ups; (4) all claims of denial of effective assistance of counsel, in preparation, at guilt/innocence, at sentencing, and on appeal; (5) the state court erroneously failing to compel Williams to testify at Nichols’ second trial; (6) that Nichols’ second trial violated double jeopardy, particularly as had the first trial concluded on or after August 31, 1981 (instead of July 31, 1981) the amended version of Tex. Code Crim. Proc. art. 37.071(e) would have been in effect under which the inability of the jury to answer any of the three punishment issues would have resulted in a sentence of life imprisonment; (7) the unconstitutionality of the Texas capital sentencing statutory provisions, both facially and as applied in this case (including the alleged inability of the jury to give mitigating effect to Nichols’ youth and character evidence and potential, but unpresented, evidence of drug and/or alcohol use, the failure to define both reasonable doubt and certain terms in the special issues, and the failure to adequately narrow the class of those exposed to the death penalty); and (8) excusing of certain potential jurors. Id. at 69-70, 75, 76-78. 19 The mentioned post-hearing briefing referred to the allegedly exculpatory information contained in “documents obtained just prior to the [March 1992] hearing.” Id. at 79.

18 exhausting state remedies.” Id. at 79.20

Respondent now appeals the district court’s grant of habeas

relief. Nichols cross-appeals the court’s denial of some (but not

all) of his other claims.

Discussion

I. Respondent's Appeal

A. Mitigating Effect of Nichols' Role in the Offense Beyond Scope of Special Issues

Respondent argues that the district court erred in concluding

that the mitigating effect of Nichols' claimed nontriggerman status

was beyond the scope of the special issues. Respondent asserts

that the district court's conclusion is contrary to Fifth Circuit

precedent and that, even if it were not, the court ignored a state

procedural bar based on Nichols' failure to object to the charge on

this basis or to request an anti-parties instruction at the

sentencing phase of his state trial.

The Court of Criminal Appeals on direct appeal rejected

Nichols' point of error complaining of the failure to give an

"anti-parties" charge at the punishment phase of the trial because

Nichols failed to request or object to the absence of such a

20 The district court for the same reason denied Nichols' motion “to expand the record in this cause or to reconvene the evidentiary hearing in order to consider evidence relating to this [Brady] issue.” Id. The motion to expand the record referred, inter alia, to an April 9, 1992, affidavit of Johnson stating, among other things, that just after Nichols shot at Shaffer she "saw the taller guy (Williams) lean across over the counter, and shoot his gun down at Mr. Shaffer. This is the shot that went through Mr. Shaffer's chest and killed him," that "I just stood there frozen until the men left the store," and that she then hid in the restroom and while there "heard someone come back into the store and then immediately leave again after firing another shot."

19 charge. Nichols,

. The Court recognized that

the law of parties did not apply at the punishment stage, but held

that the punishment special issues adequately covered the

requirements of Enmund v. Florida,

(1982),21 and

Green v. State,

(Tex. Crim. App. 1984), cert.

denied,

(1985).22 The Court found that

". . . appellant was not egregiously harmed by the lack of such a charge. Although the jury was charged on the law of parties at the guilt stage, it cannot be presumed that they considered the same during punishment. To the contrary, the careful trial court, while not having the benefit of the Green decision at the time of trial, voir dired the jury on the fact that the law of parties, while applicable at guilt, was not applicable to the punishment

21 In Enmund, the Court held that the Eighth Amendment prohibits imposition of the death penalty on one "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." Id. at 3376 (emphasis added). In Tison v. Arizona,

(1987), the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." See also Schad v. Arizona,

(1991). 22 In Green, the Court of Criminal Appeals affirmed the death sentence of a nontriggerman, but stated that the law of parties did not apply at sentencing to authorize affirmative answers to the special issues based on the state of mind or conduct of others, and overruled Wilder and Armour v. State,

(Tex. Crim. App. 1979), "as far as it is inconsistent with this opinion." Green at 287. Green further states that "[u]pon request by a capital murder defendant or the State, the jury is to be instructed at the punishment phase that only the conduct of the defendant can be considered at the punishment phase, and that the instructions pertaining to the law of parties given at the guilt stage cannot be considered. Appellant did not request any such charge in this case."

at 287 n.4. Wilder and Armour arguably, though neither expressly nor clearly, held that the law of parties could be applied in reviewing the sufficiency of the evidence to sustain affirmative answers to the punishment special issues (it did not involve or consider any instructional issue, and there is no indication that there was any instruction at the punishment phase concerning the law of parties).

20 special issues. Moreover, the special issues themselves incorporate the Enmund-Green requirements by directly focusing upon solely the defendant's culpability.

. . .

While a prophylactic 'anti-parties' instruction should be given at punishment, upon request, the absence of such an instruction in the instant case did not constitute egregious error or harm." Nichols at 199 (footnote omitted).

The state habeas court specifically rejected Nichols' claim

that the punishment special issues, combined with the failure to

give an "anti-parties" instruction at the punishment phase,

unconstitutionally prevented the jury from adequately considering

and giving favorable effect to his claimed nontriggerman status, on

the basis that such claim was procedurally barred by Nichols'

failure to object to the punishment charge on that basis or to

request an "anti-parties" or other special punishment instruction

in that respect.23 The Court of Criminal Appeals determined that

the state habeas court's findings were proper and denied relief on

that basis.

We conclude that Nichols has not shown cause for his

procedural default in this respect, and further has not

demonstrated prejudice, so his claim in this regard is procedurally

barred, as respondent asserted below. This holding is plainly

mandated by our holding in Buxton v. Collins,

(5th Cir.), cert. denied,

(1991), as well as by the

23 Alternatively, the court held that the jury was not precluded by the special issues and the absence of an anti-parties instruction from considering and giving favorable effect to Nichols' asserted nontriggerman status.

21 principles of Wainwright v. Sykes,

(1977), and Engle

v. Isaac,

(1982), and their progeny.24

Moreover, and apart from any procedural bar, Nichols' claim

fails on the merits. In Harris v. Collins,

(5th

Cir.), cert. denied,

(1993), a case where a capital

defendant's conviction may have rested on the law of parties, we

specifically held that if the jury believed the defendant did not

strike the fatal blow this was a matter they could consider as

favorable to a negative answer to both the first and second

punishment issues. See also Bridge v. Collins,

(5th Cir. 1992), and Drew v. Collins,

(5th Cir.

1992).25 Further, in Stewart v. Collins,

(5th

24 The district court did not address the procedural bar issue. Nichols argues that Selvage v. Collins,

(Tex. Crim. App. 1991), and Black v. State,

(Tex. Crim. App. 1991), demonstrate that Texas does not apply the procedural bar to certain Penry v. Lynaugh,

(1989), claims in cases tried before the Supreme Court's decision in Penry. However, the Court of Criminal Appeals decisions in Selvage and Black were handed down May 29, 1991, and the habeas procedural bar ruling by the state trial court in Nichols' case was rendered June 28, 1991, and that of the Court of Criminal Appeals applying the procedural bar was rendered December 12, 1991. Moreover, in Buxton we expressly declined to withhold decision awaiting the Court of Criminal Appeals decision in Selvage, noting the differences between the "nontriggerman" issue there and the type of Penry issue involved in Selvage. See

. That "cause" is not established as a matter of federal habeas law is also clear from Selvage v. Collins,

(5th Cir. 1992), cert. denied,

(1993). 25 In Bridge we stated: "If the jury members believed that Bridge's accomplice killed the victim, then they could have answered 'no' to the first question . . . . If the jury members believed that Bridge did not shoot the victim, then they could have concluded that Bridge would not be a future threat." Id. at 770. We quoted the above language with approval in Harris and likewise there pointed out that in both Bridge and Drew a law of parties charge had been given at the guilt/innocence stage.

.

22 Cir. 1992), cert. denied,

(1993), we held that the

jury at the punishment stage could adequately consider the

defendant's asserted "nontriggerman" role in the capital murder and

his lack of intent to kill as supportive of negative answers to

each of the first and second punishment special issues. More

recently, in Jacobs v. Scott,

, 1326 & n.13 (5th Cir.

1994), cert. denied,

(1995), we again held that the

first and second punishment special issues adequately allowed the

jury to give mitigating effect to claimed "nontriggerman" status,

notwithstanding the absence of an "anti-parties" instruction at

sentencing.26 See also, e.g., Skillern v. Estelle,

(5th Cir. 1983), cert. denied,

(1984); Johnson v.

McCotter,

(5th Cir. 1986), cert. denied,

(1987); Andrews v. Collins,

(5th Cir.

1994).

We further note that no law of parties instruction was given

at the punishment phase, and that neither the prosecution nor the

defense ever argued or asserted that the law of parties applied at

the punishment phase or that the finding of guilty meant that the

jury in answering any of the punishment issues had to assume that

Nichols fired the fatal shot or that Williams' conduct and state of

There is nothing to suggest that an "anti-parties" instruction was given at sentencing in either Bridge or Drew. An "anti-parties" charge was not given at sentencing in Harris. 26 We likewise held that this was so despite the failure to define "deliberately" in the first special issue.

at 1326 n.13. See also Nethery v. Collins,

, 1162 & n.28 (5th Cir. 1993), cert. denied,

(1994).

23 mind, rather than Nichols', was the relevant consideration in

answering any of the punishment issues. The defense stressed in

argument at the punishment phase that Williams, not Nichols, fired

the fatal shot. It is apparent, considering the entire record,

from voir dire through sentencing, that all concerned operated on

the assumption that the law of parties did not apply at sentencing.

Moreover, as the court below found, some jurors in Nichols' first

trial did take into account in voting for a negative answer to the

second special issue their belief that Nichols was not the

triggerman, notwithstanding that the law of parties was instructed

on at the guilt/innocence stage and no "anti-parties" instruction

was given at the punishment phase. We are convinced that there is

no "reasonable likelihood," Estelle v. McGuire,

(1991); Johnson v. Texas,

(1993), that the

punishment phase jury in Nichols' February 1982 trial applied or

understood the punishment phase instructions or special issues as

other than allowing them to consider Nichols' claimed

"nontriggerman" status as a factor that could favor a negative

answer to the first and second sentencing issues. The mitigating

aspect of the evidence of Nichols' claimed "nontriggerman" status

was "within 'the effective reach of the sentencer.'" Johnson at

2669 (quoting Graham v. Collins,

(1993)).

We hold that Nichols is entitled to no relief on his claim

that the instructions and special issues at the punishment phase

precluded the jury from adequately considering or giving mitigating

effect to his claimed nontriggerman status, and that the district

24 court erred in holding to the contrary.

B. EstoppelSQDue Process

Respondent next argues that the district court improperly

granted relief on the basis of its conclusion that the prosecutor

violated principles of estoppel and due process by arguing for and

obtaining a conviction and death sentence against two men for

firing a single bullet. Respondent contends that the district

court in this respect granted Nichols the benefit of a new rule not

compelled by existing precedent when Nichols' conviction became

final, contrary to Teague v. Lane,

(1989), and that

in any event the district court erred because collateral estoppel

is not applicable in criminal cases lacking common defendants, and

even if it were, the question of who fired the fatal bullet is not

an issue to which estoppel would apply.

The district court concluded that "the due process boundary

upon prosecutorial conduct and the appearance of basic fairness

derived from that boundary command[s] a determination that, in a

criminal prosecution, the State is constitutionally estopped from

obtaining a fact finding in one trial and seeking and obtaining an

inconsistent fact finding in another trial." Nichols,

(emphasis added). The court also noted that while "Williams

and Nichols can both be guilty of capital murder because the state

of Texas has determined, by law, that both are equally culpable

without regard to who fired the bullet which killed Shaffer. . . .

William and Nichols cannot both be guilty of firing the same bullet

25 because physics will not permit it."

(emphasis in original).

The district court did not conclude that Williams had in fact fired

the fatal bullet, or that any of the prosecutor's evidence and

argument in Nichols' trial was factually false. With respect to

the state's arguments in Nichols' second trial that Nichols fired

the fatal shot and its arguments in Williams' case that Williams

did, the court stated "this Court acknowledges the State's argument

that the above are merely different interpretations of the same

evidence,"

, and the court never suggested that this

characterization was factually inaccurate. Nor did the district

court with respect to what the evidence showed at any of the three

trials ever state anything in this respect more definite or precise

than "the only conclusion which the record supports is that both

Williams and Nichols shot at Shaffer but that either Williams or

Nichols actually shot Shaffer."

(original emphasis).27

What the district court did determine was that, regardless of what

the actual facts were or what the evidence showed, the Williams

trial legally or judicially established that Williams, not Nichols,

fired the fatal shot. Thus, the district court stated:

". . . the State argued, the jury found, and the court accepted the determination in the Williams trial that Williams was the triggerman, not just a party to the offense. That fact was established as the truth. This Court has also concluded that the prosecutor in charge of

27 As previously observed, we would agree with this assessment if "actually shot Shaffer" read "actually fired the shot that killed Shaffer" (see note 17, supra). The Court of Criminal Appeals was essentially correct in its statementSQnever disputed by the district courtSQthat "[i]t is factually unknowable and evidentiarily improvable who fired the fatal shot." Nichols v. State at 202, n.18.

26 Nichols II offered evidence and argued to the jury and court that Nichols was the triggerman. By prior judicial determination, the evidence submitted was necessarily false. Accordingly, this Court finds that the prosecutor in charge of Nichols II knowingly used false evidence to obtain the conviction and sentence in Nichols II." Id. at 75.

The district court, citing Rogers v. Lynaugh,

(5th Cir. 1988), noted that due process violations could either be

specific, where particular protections of the Bill of Rights

incorporated into the Fourteenth Amendment were transgressed, or

"generic." Nichols,

. As no particular Bill of

Rights provision was cited by the district court, it appears to

have relied on the concept of a "generic" due process violation.

But such a concept generally focuses on the reliability or fairness

of the fact finding process in the particular trial the result of

which is being challenged. Cf.

(noting that

prosecutor's injecting into the challenged trial "issues broader

than the guilt or innocence of the accused under the controlling

law" could constitute a generic due process violation). What

happened in Williams' trialSQwhich the Nichols defense team was

clearly aware ofSQdid not affect the reliability or fairness of the

fact finding process in either of Nichols' trials.

What the district court in substance did here was to hold that

the state was collaterally estopped from taking in Nichols' case a

different position as to who fired the fatal bullet than that which

it took in Williams' prosecution. As the Supreme Court observed in

Schiro v. Farley,

(1994):

"In Ashe v. Swenson,

,

,

(1970), we held that the Double Jeopardy

27 Clause incorporates the doctrine of collateral estoppel in criminal proceedings. . . . Collateral estoppel, or, in modern usage, issue preclusion, 'means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' Ashe,

,

." (Emphasis added).

It is apparent from this that Ashe, which was a state prosecution,

rests not on "generic" due process, but rather on the double

jeopardy clause of the Fifth Amendment, which Benton v. Maryland,

(1960), had previously held was incorporated into the

Fourteenth Amendment's due process clause. We have rejected

"attempts to erect a due process basis, independent of the double

jeopardy clause, for the application of collateral estoppel."

Showery v. Samaniego,

(5th Cir. 1987).28

Because Nichols was not in jeopardy in Williams' trial, the

results of that trial do not bind the state in its prosecution of

Nichols. Moreover, the rule of "collateral estoppel" described in

Ashe as having been applied in federal criminal cases for "more

than 50 years"SQand which it ultimately held mandated by the double

jeopardy clauseSQrequired that the two actions be between "the same

parties." Ashe,

. Thus, because Nichols was not

a party in Williams' trial, the result in that trial could not

collaterally estop the state in its prosecution of Nichols even

28 As we also stated in Showery, "Ashe thus makes it clear that collateral estoppel applies insofar as it is necessary to safeguard against the risk of double jeopardy."

Showery further points out that prior to Benton the Court in Hoag v. New Jersey,

(1958), in a factual setting almost identical to that of Ashe, had rejected a due process challenge to the defendant's second trial.

.

28 under the federal common law rule of collateral estoppel in

criminal cases. We have declined to apply collateral estoppel

against the United States in a criminal prosecution on the basis of

an earlier determination in the United States' criminal prosecution

of a different defendant. United States v. Mollier,

(5th Cir. 1988) (where defendants are different "collateral

estoppel has no application in criminal cases"); United States v.

Montes,

(5th Cir. 1992) (same), cert. denied,

(1993).

We recognize, as we did in Mollier and Montes, that in civil

cases collateral estoppel is now applied even where the parties are

not the same, so that if a suitor has fully and fairly litigated an

issue and it is determined against him in an action against one

party, then third parties unrelated to the original action can

generally bar that suitor from relitigating that same issue in a

subsequent action again them. See Mollier at 1175 n.7;

. However, as we pointed out in Mollier, citing Standefer v.

United States,

(1980), the "efficiency concerns that

drive the collateral estoppel policy on the civil side are not

nearly so important in criminal cases."

. We also

observe that even in the civil context the modern broad rule of

collateral estoppel is frequently not applied against the

government acting in its sovereign capacity. See United States v.

Mendoza,

(1984) (holding in an immigration context

that the government could not be collaterally estopped from

litigating a constitutional issue concerning its administration of

29 the Nationality Act, adjudicated against it in a prior action

brought by a different party). Moreover, we observe that "[u]ntil

relatively recently, however, the scope of collateral estoppel was

limited by the doctrine of mutuality of parties." Parklane Hosiery

Co., Inc. v. Shore,

(1979). See also Restatement

of Judgments § 93 (1942) ("[A] person who is not a party . . . is

not bound by or entitled to claim the benefits of an

adjudication"). Consequently, allowing persons to claim collateral

estoppel benefits of an adjudication to which they were strangers

can hardly be considered as mandated by historic concepts of

fundamental fairness or due process.

Moreover, the district court clearly erred in its conclusion

that in the Williams trial the jury found that Williams fired the

fatal shot. The jury made no such finding. Williams pleaded

guilty and the jury was instructed to return a verdict of guilty.

It did so, merely signing and returning the verdict form finding

Williams "guilty of the offense of capital murder, as charged in

the indictment." The jury charge said nothing about the elements

of the offense or about whether Williams fired the fatal bullet (or

personally killed Shaffer) or whether the jury had to so find.29

29 The court charged the Williams jury:

"The Defendant, WILLIE RAY WILLIAMS, stands charged by indictment with the offense of capital murder, alleged to have been committed in Harris County, Texas on or about the 13th day of October, 1980.

To this charge the defendant has pleaded 'guilty', and he has persisted in entering such plea, notwithstanding the Court, as required by law, has admonished him of the consequences of the same; and it

30 Nor is it relevant that the indictment (see note 5, supra) alleged

that Williams killed Shaffer by shooting him, for under Texas law

the indictment was clearly sufficient to support a conviction based

on the law of parties with the fatal shot being fired by Nichols

(see cases cited in the last paragraph of note 9, supra).

Moreover, the evidence at the guilt/innocence stage of Williams'

trial showed that both Williams and Nichols were acting together to

commit armed robbery of Shaffer, that both fired at Shaffer, and

that one of these shots was fatal, but it was not clearly

established which. While the evidence would support the conclusion

that Williams fired the fatal shot, a jury could have had a

reasonable doubt of this and still found Williams guilty as charged

under the law of parties. In any event, under Texas law when a

defendant pleads guilty before the jury, as Williams did, the plea

itself establishes his guilt and the evidence is unnecessary and

immaterial unless it affirmatively demonstrates his innocence.

Williams,

.30 And, the punishment phase

plainly appearing to the Court that the defendant is sane, and that he is not influenced to make this plea by any consideration of fear, nor by any persuasive or delusive hope of pardon prompting him to confess his guilt, said plea is by the Court received, and the jury are instructed to find the defendant guilty as charged in the indictment." (Emphasis added).

After the charge was read, the court instructed the jury: "You unanimously sign this verdict as I have instructed you and come back out, and we will receive the verdict." 30 See also, e.g., Darden v. State,

(Tex. Crim. App. 1968) ("a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt"); Miller v. State,

(Tex. Crim. App. 1967) (same); Anderson v. State,

(Tex. Crim. App.

31 verdict contained no finding that Williams fired the fatal shot.

Further, neither the form of the punishment issues, nor the court's

charge, nor the evidence, required such a finding in order to

return an affirmative answer to the three punishment special

issues.31 Although the Court of Criminal Appeals in reciting the

evidence on Williams' direct appeal stated that he fired the fatal

shot,

, nothing in its opinion suggests that this

was a necessary predicate for its affirmance of the sentence (or

the conviction). In finding the evidence sufficient to support the

affirmative answers to the punishment special issues, the Court of

1931) ("the entry of the plea, after due admonition, is conclusive of guilt, unless the evidence introduced upon the trial makes manifest the innocence of the accused"). 31 We note that Williams was twenty-four years old; during the three months prior to his arrest, he had committed five other robberies, two of which were after the instant offense. At sentencing, Williams' counsel argued that the evidence did not clearly show whether the fatal shot was that fired by Williams or that fired by Nichols:

"You had JoJo [Nichols], a man who suggested the place we are going to rob. The man who went up to the cash register first. The man who fired the first shot. And possibly, the fatal shot. We don't know. The District Attorney is going to come up with a lot of conjecture about where the casings and so forth were found. That's merely conjecture. We don't know which shot did it. They were both a party to it. You heard JoJo sit there and plead the Fifth Amendment."

However, defense counsel never argued that any of the issues could not be answered affirmatively unless the jury concluded that Williams fired the fatal shot. The main thrust of defense counsel's argument was that Williams shot without reflection in a frightened reaction to Shaffer's pointing a gun at him, so all three issues should be answered in the negative. The prosection argued that Williams' shot was the fatal shot, but never conceded that such a conclusion was necessary to answer any of the issues affirmatively.

32 Criminal Appeals in Williams relied on Smith v. State,

(1976), a case in which it sustained a death sentence for a

nontriggerman (there, the defendant's "gun misfired. The co-

defendant shot and killed the attendant").

. In

Nichols' case, the Court of Criminal Appeals held the evidence

sufficient to support the affirmative answers to the three special

issues although it concluded it was "factually unknown and

evidentiarily improvable who fired the fatal shot." Nichols,

n.18.32

In Dowling v. United States,

(1990), the

Court noted that the rule of Ashe was that "'when an issue of

ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same

parties in any future lawsuit.'"

(quoting

).

Dowling refused to give the defendant's prior acquittal in another

case preclusive effect because "the prior acquittal did not

determine an ultimate issue in the present case."

.

In Schiro, the Court rejected a claim of double jeopardy based on

the jury verdict in the defendant's first trial, because the

defendant "has not met his burden of establishing . . . that an

'issue of ultimate fact has once been determined' in his favor."

. Here Nichols has failed to demonstrate that

32 Nor is there any basis on which to conclude that the jury in the second Nichols trial, either in its verdict of guilty or in its answer to the punishment special issues, found that Nichols, rather than Williams, fired the fatal shot. See text accompanying note 11, supra, and notes 12 and 13, supra, and accompanying text. The verdicts and the judgments of conviction and sentences in Williams' and Nichols' cases are not inconsistent.

33 Williams' trial determined that Williams, rather than Nichols,

fired the fatal shot. Nichols has likewise failed to demonstrate

that whether Williams, rather than Nichols, fired the fatal shot

was an "ultimate issue" in either his own trial or in Williams'

trial. Hence Nichols fails to meet the requirements of collateral

estoppel on these additional bases, as well as because he was not

a party to the Williams case.

Nichols also contends in this connection that the state was

barred by the doctrine of judicial estoppel from taking a position

in his trial inconsistent with that it had taken in Williams', a

view which the district court appears to likewise have adopted.

Common law judicial estoppel has been referred to as an

"obscure doctrine," United States v. McCaskey,

(5th

Cir. 1993), cert. denied,

(1994); United States v.

Kattar,

, 129-130 n.7 (1st Cir. 1988), lacking "defined

principles" and subject to criticism as "basically an 'ad hoc'

decision in each case." Jackson Jordan, Inc. v. Plasser American

Corp.,

(Fed. Cir. 1984). See also Morris v.

State of California,

(9th Cir. 1991) ("the

doctrine of judicial estoppel 'is an equitable doctrine invoked by

the court at its discretion'"), cert. denied,

(1992).

"The doctrine has not been uniformly adopted by federal courts."

Bates v. Long Island Ry. Co.,

, 1037 (2d Cir.), cert.

denied,

(1993). "The Tenth Circuit, however, has

rejected the doctrine of judicial estoppel." United States v.

49.01 Acres of Land,

, 390 (10th Cir. 1986). In

34 Konstantindis v. Chen,

(D.C. Cir. 1980), the

court held that "the judicial estoppel doctrine has no validity in

this jurisdiction," referring to local District of Columbia law,

and stated that "judicial estoppel has not been followed by

anything approaching a majority of jurisdictions, nor is there a

discernible modern trend in that direction." In UMWA 1974 Pension

v. Pittston Co.,

(D.C. Cir.), cert. denied,

(1993), the Court observed "we have not previously embraced

the doctrine of judicial estoppel in this circuit and we decline to

do so in this case." Id. at 477 (footnote omitted). In Bates the

Second Circuit stated that judicial estoppel's "elements have never

been clearly defined in this Circuit." Id. at 1037 (footnote

omitted). See also

("Although this circuit has

adopted the doctrine of judicial estoppel, we have not yet

determined the circumstances under which it will be applied").

Two things, however, may be said about the rather amorphous

doctrine of judicial estoppel. First, there is no indication in

the authorities that it is constitutionally mandated. Second, it

has apparently never been applied against the government in a

criminal case. See

("an obscure doctrine that has

apparently never been applied in a criminal case"); Kattar at 129-

30 n.7 ("as far as we can tell, this obscure doctrine has never

been applied against the government in a criminal proceeding").

See also, e.g., State v. Abbott,

,

(App. Div. 1960) ("the application of estoppel against the

State is particularly inappropriate in areas such as criminal

35 prosecution"), rev'd on other grounds, aff'd in this respect,

,

(N.J. 1961); 28 Am.Jur.2d, Estoppel and

Waiver, § 126 at 788 (same). Cf. Office of Personnel Management v.

Richmond,

("we have reversed every finding of

estoppel [against the government] that we have reviewed"), 2471

("[w]e leave for another day whether an estoppel claim could ever

succeed against the Government") (1990).33

33 There is considerable authority that judicial estoppel does not apply in favor of one who was not a party to the prior proceeding in which the inconsistent position was taken. See, e.g., Colonial Refrigerated Transportation, Inc. v. Mitchell,

(5th Cir. 1968) (Rubin, J.) ("judicial estoppel may be invoked only by a party to the prior litigation or someone privy to a party"); Jackson Jordan, Inc. at 1579 ("No case is cited where the doctrine was applied in favor of a total stranger to the first phase of the dispute"); Reno v. Beckett,

(10th Cir. 1977) ("Kansas law is clear that a position taken by a party in one suit cannot be claimed as working an estoppel in another suit in favor of a party who was a stranger to the first suit"). See also Sinclair Refining Co. v. Jenkins Petroleum Process Co.,

(5th Cir. 1938), cert. denied,

(1939) ("The general rule is that one may not to the prejudice of the other deny any position taken in a prior judicial proceeding between the same parties or their privies involving the same subject matter, if successfully maintained"); Scarano v. Central Ry. Co. of New Jersey,

(3d Cir. 1953) ("A plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention"); Chemical Bank v. Aetna Insurance Company,

,

(N.Y. Sup. Ct. 1979) ("Defendant in this action, being a legal 'stranger' to the prior action, it may not avail itself of the defense of judicial estoppel based upon plaintiff's alleged inconsistent legal position in that action"); 28 Am. Jur. 2d, Estoppel and Waiver, § 70 at 698. Cf. Guidry v. Sheet Metal Workers,

, 716 (10th Cir. 1993) ("judicial estoppel . . . recognized by some circuits, prevents a party from relying on inconsistent arguments in successive stages of litigation when the party was victorious on the point in a prior phase of the case"); In re Double D Drilling Company,

, 469 (5th Cir. 1972) (Brown, C.J.) ("Our research discloses no case in this Circuit in which pleadings in identifiably separate actions were made the basis of such an estoppel. The consolidation order

36 In the present circumstances, to hold that the state was

constitutionally barred by any form of estoppelSQwhether under the

rubric of collateral estoppel or some variety of judicial or other

estoppelSQfrom taking the position in Nichols' case that the shot

he fired was the fatal shot because it had previously taken the

position in Williams' case, in which Williams received the death

sentence, that the fatal shot was the one fired by Williams, would

be to apply "a new rule" of constitutional law "not dictated by

precedent existing at the time" Nichols' "conviction became

final"SQJanuary 9, 1989SQcontrary to Teague v. Lane,

,

1070 (1989) (original emphasis). The two Teague exceptions are

inapplicable. The rule contended for by Nichols plainly is not one

which "places 'certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe.'" Teague at 1075. Certainly, Nichols was properly

eligible for the death penalty whether or not the shot he fired at

ShafferSQas opposed to that fired by his co-actor WilliamsSQwas the

of the District Court, however, created what is in essence a single lawsuit . . . and we hold that when identity of parties and a single transaction encompass both actions a party making such an allegation is bound by it"). There is also, however, authority that the party invoking the estoppel need not have been a party to the prior proceeding. See Allen v. Zurich Ins. Co.,

(4th Cir. 1982); 1B Moore's Federal Practice ¶ 0.405[8] at III-57 ("it is not always essential that the party asserting the estoppel have been a party to the litigation in which the first position was asserted"). Moreover, most courts refuse to invoke judicial estoppel where it is not shown that the prior inconsistent position was successfully maintained. See U.S. for Use of American Bank v. C.I.T. Const.,

, 258-59 (5th Cir. 1991) (described as "majority" position); Merrill Lynch v. Georgiadis,

(2d Cir. 1990); Sinclair Refining Co. at 13; Guidry at 716; 28 Am. Jur. 2d, Estoppel and Waiver, § 70 at 698.

37 cause of Shaffer's death. Nor is the other Teague exception

available here, as it applies only to rules "those new procedures

without which the likelihood of an accurate conviction is seriously

diminished." Id. at 1077 (emphasis added). What the prosecution

argued in the Williams case, and the result there, has nothing to

do with the likely accuracy of any determinations made in the

subsequent Nichols case.

As noted, a rule is "new" for Teague purposes unless

"dictated" by prior precedent. Id. at 1070 (original emphasis);

Butler v. McKellar,

(1990). The prior

precedent must be such that it would have "compelled" the result;

Saffle v. Parks,

(1990), and it is not enough

that the contended for rule merely "is within the 'logical compass'

of an earlier decision, or indeed that it is 'controlled' by a

prior decision."

. The authority relied on by

Nichols does not come even close to meeting this standard.34 Nor

34 Nichols cites no supporting Supreme Court or Fifth Circuit authority. He relies primarily on the concurring opinion of Judge T. Clark in Drake v. Kemp,

(11th Cir. 1985) (en banc). No other judge of the en banc Eleventh Circuit joined that opinion. We do not view it as compelling authority. Nichols also relies on Troedel v. Wainwright,

(S.D. Fla. 1986), aff'd

(11th Cir. 1987). In Troedel, the district court granted habeas corpus on several grounds, including that the prosecutor had put in evidence testimony by an expert "that, based upon the test analyses coupled with his education, training and experience, in his opinion, Troedel had fired the murder weapon," id. at 1458, but "the opinion Troedel had fired the weapon was known by the prosecution not to be based on the results of the neutron activation analysis tests, or on any scientific certainty or even probability. Thus, the subject testimony was not only misleading, but also was used by the State knowing it to be misleading." Id. at 1460. While the Troedel district court looked to the expert's testimony at a prior trial, it also relied on the expert's testimony at the federal habeas, in

38 can this result be avoided by invoking longstanding judicial

pronouncements that due process concerns itself with fundamental

fairness and similar concepts. Such "a level of generality . . .

is far too great to provide any meaningful guidance for purpose of

our Teague inquiry." Gilmore v. Taylor,

(1993). See also Sawyer v. Smith,

(1990)

(Teague "test would be meaningless if applied at this level of

generality").

In Jacobs v. Scott,

, 1326 (5th Cir. 1994), cert.

denied,

(1995), we held that a similar contention to

that advanced by Nichols here was barred by Teague.

We accordingly hold that the district court erred in granting

concluding that his testimony at Troedel's trial was factually misleading (and known by the prosecutor to be so). No form of estoppel or "constructive" falsity was involved. Troedel is plainly distinguishable and is in any event not controlling authority. Nichols also relies on Pettaway v. Plummer,

(9th Cir. 1991), cert. denied,

(1992). But Pettaway was decided after Nichols' conviction became final. It is not on point in any event. It held that an express jury special verdictSQmandated by state statuteSQthat the defendant did not personally fire the fatal shot prevented the state, on retrial of the same defendant, from taking the position that the defendant did personally fire the fatal shot. Pettaway relied on Ashe and Grady v. Corbin,

(1990SQsince overruled by United States v. Dixon,

(1993)SQand the panel there noted "[w]e must, however, emphasize the limits of our holding."

. Nichols' invocation of Miller v. Pate,

(1967), is wholly wide of the mark. Miller condemned a prosecutor's use of evidence and argument that stains on the defendant's undershorts were blood when they were in fact paint, as the prosecutor then well knew. That was a case of factual, actual falsity, not "constructive" falsity or falsity by estoppel as contended for here. To rely on Miller as an escape from Teague requires compelling pre-1989 authority both that falsity by estoppel is constitutionally the same as actual, factual falsity and also that constitutionally mandated estoppel applies here. There simply is no such authority in either respect.

39 Nichols relief on the basis that the state was in some manner

estopped or barred by its arguments and the result in the Williams

trial from taking the position in the subsequent Nichols trial that

the shot fired by Nichols was the fatal shot. Relief on any such

basis was barred by Teague.

C. Cumulative Due Process

The district court, relying on the panel opinion in Derden v.

McNeel,

(5th Cir. 1991),35 held that the combination

of the two above-noted grounds on which it granted reliefSQthat the

punishment issues did not allow mitigating consideration of

Nichols' alleged non-triggerman status and that the state was

estopped to argue that the shot fired by Nichols was the fatal

shotSQplus certain aspects of the state trial court's habeas

proceedings,36 amounted to "cumulative error" which "resulted in a

35 At the time of the district court's opinion, the panel opinion in Derden had been vacated for nearly a year and the case ordered reheard en banc. Derden v. McNeel,

(5th Cir. 1991). The en banc court subsequently reversed the panel decision and adopted a significantly narrower articulation of the habeas cumulative error doctrine. Derden v. McNeel,

(5th Cir. 1992), cert. denied,

(1993). 36 The district court made the following findings regarding Judge William Harmon, the state court judge to whom Nichols' habeas petition was assigned:

"1. The state judge to which Nichols' state habeas corpus petition was assigned, Judge William Harmon, was a state prosecutor before becoming a district judge. 2. Judge Harmon was, while a state prosecutor, in charge of prosecuting at least one offense against Nichols. 3. The offense which Judge Harmon prosecuted against Nichols was one of the extraneous offenses offered in connection with his conviction in the instant case. 4. Judge Harmon did not sua sponte recuse himself

40 denial of due process." Nichols,

. Our en

banc opinion in Derden states:

"federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors 'so infected the entire trial that the resulting conviction violates due process.'" Derden v. McNeel,

(5th Cir. 1992) (en banc) (quoting Cupp v. Naughten,

(1973)), cert. denied,

(1993).37

from Nichols['] state habeas corpus case. 5. Judge Harmon made certain remarks on the record after hearing evidence and argument during Nichols' state habeas corpus hearing. In response to a witness' suggestion that Nichols' counsel could obtain statistical data regarding habeas corpus cases by issuing a bench warrant to bring each Harris County inmate in for a hearing, Judge Harmon responded 'Could we arrange for a van to blow up the bus on the way down here?' 6. On June 28, 1991, Judge Harmon signed thirty- five pages of findings of fact and conclusions of law (hereinafter 'Court findings') which resolved the merits of Nichols' state habeas corpus petition. 7. Those 'Court findings,' actually entitled 'Respondent's Amended Proposed Findings of Fact, Conclusions of Law and Order,' are a verbatim adoption of the State's proposed findings and reflect no independent input from the state district judge." Nichols,

.

Judge Harmon did not preside over any part of either of Nichols' trials for Shaffer's murder, nor over Williams' trial. The district court concluded that notwithstanding his above findings, the state court's habeas findings were (with one exception unrelated to those district court findings) entitled to the presumption of correctness. Nichols,

. We agree with this conclusion for the reasons stated in the text infra in our discussion of Nichols' cross-appeal claim that the district court erred in this respect. 37 The en banc court further stated in Derden that "[t]he conduct of a trial judge can violate due process only if the judge so favors the prosecution that he appears to predispose the jury toward a finding of guilt or to take over the prosecutorial role."

at 1459 (citing United States v. Middlebrooks,

,

41 Since, as we have held, the jury was not unconstitutionally

prevented from taking into account Nichols' claimed non-triggerman

status in answering the punishment special issues, and the state

was not constitutionally barred or estopped from arguing that the

shot fired by Nichols was the fatal shot, therefore neither of

these matters can form the basis for a proper claim of

constitutional cumulative error. That leaves only the matter of

the state habeas proceedings. However, errors in a state habeas

proceeding cannot serve as a basis for setting aside a valid

original conviction. An attack on a state habeas proceeding does

not entitle the petitioner to habeas relief in respect to his

conviction, as it "is an attack on a proceeding collateral to the

detention and not the detention itself." Millard v. Lynaugh,

(5th Cir.), cert. denied,

(1987);

Duff-Smith v. Collins,

(5th Cir. 1992)

("infirmities in state habeas proceedings do not constitute grounds

for federal habeas relief"), cert. denied,

(1993);

Vail v. Procunier,

(5th Cir. 1984) (same). See also

Frazen v. Brinkman,

(9th Cir. 1989); Hopkinson v.

Shillinger,

(10th Cir. 1989); Bryant v.

State of Md.,

(4th Cir. 1988); Kirby v. Dutton,

(6th Cir. 1986); Williams v. Missouri,

(8th Cir.), cert. denied,

(1981).

Accordingly, the district court erred in its holding that

277 (5th Cir.), cert. denied,

(1980), and United States v. Sheldon,

(5th Cir. 1976)).

42 Nichols was entitled to relief on the court's cumulative error

theory.

Having rejected each of the bases on which the district court

granted habeas relief, we sustain the state's appeal and reverse

the judgment of the district court insofar as it granted Nichols

habeas relief. We turn now to consider Nichols' cross-appeal.

II. Nichols' Cross-Appeal

A. Presumption of Correctness of State Court Findings

Nichols complains that the district court erred in affording

the section 2254(d) presumption of correctness to the state habeas

court fact findings, contending that the following three

circumstances precluded application of the presumption, namely:

(1) the failure of the state habeas trial judgeSQJudge Harmon (who

did not preside at either of Nichols' trials)SQto sua sponte recuse

himself on account of having been the prosecuting attorney in

Nichols' May 1980 guilty plea conviction for robbery, which

conviction had been put in evidence by the state at the punishment

stage of Nichols' trial; (2) an inappropriate remark made by Judge

Harmon at the state habeas evidentiary hearing; (3) Judge Harmon's

having adopted verbatim the state's proposed findings of fact and

conclusions of law on the state habeas proceeding. While the

district court found that these matters had occurred (see note 36,

supra), it concluded that they did not justify denying the

presumption of correctness to the state court findings, and further

concluded that it would evaluate each state finding individually in

the light of the entire record, including that of the federal

43 habeas proceedings. Nichols,

.38 The only state

habeas fact finding which the district court ultimately determined

not to be entitled to the presumption of correctness was the

finding that "[t]he jury was presented with overwhelming evidence

that both the applicant and Williams shot Shaffer,"39 the district

court instead determining "that the only conclusion which the

record supports is that both Williams and Nichols shot at Shaffer

but that either Williams or Nichols actually shot Shaffer."

(original emphasis).40

Nichols has not demonstrated error in the district court's

failing to reject the other state court habeas factfindings. We

conclude that the above-mentioned three circumstances relied on by

Nichols do not, singly or collectively, mandate a contrary

determination. We consider these seriatim.

With respect to Judge Harmon's having been prosecutor in

38 The district court stated:

"This Court determines that the irregularities [cited by Nichols] neither fall within the statutory provisions which authorize this Court to disregard fact findings nor do they amount to convincing evidence that all fact findings were erroneous. Therefore, upon a review of the entire record, along with this Court's supplemental evidentiary hearing, the Court will evaluate each finding of fact individually to determine the proper application of the presumption of correctness."

39 The district court rejected this finding "because the record, as a whole, does not fairly support such factual determination and because Nichols has established by convincing evidence that . . . [it] was erroneous."

. 40 As previously observed (see note 17, supra), we conclude that the record allows the reasonable inference that bullets fired by both Williams and Nichols struck Shaffer, although only one was fatal (or disabling).

44 Nichols' May 1980 guilty plea to robbery, which prior conviction

had been put in evidence at the punishment stage of Nichols' trial,

we observe that neither the validity of that conviction (and the

related sentence) nor its use at Nichols' sentencing was in any way

at issue in either Nichols' trial (or direct appeal) or in his

state habeas proceeding (which commenced in 1989), or in this

federal habeas. As a matter of Texas law, Judge Harmon clearly was

not disqualified from serving as the habeas trial judge. See,

e.g., Hathorne v. State,

(Tex. Crim. App.

1970), cert. denied,

(1971).41 We have previously

indicated that in a comparable position, a federal judge would not

be disqualified under

. United States v. Outler,

(5th Cir. 1981), cert. denied,

(1982). See also Adams v. United States,

(5th

Cir. 1962). And, it is settled that "section 455 establishes a

statutory disqualification standard more demanding than that

required by the Due Process Clause." United States v. Crouch,

(5th Cir. 1990).

The complained of remark of Judge Harmon came at a portion of

the state habeas evidentiary hearing dealing with Nichols' effort

to mount a statistical challenge to the Texas capital sentencing

scheme, when "in response to a witness' suggestion that Nichols'

41 Construing Tex. Const. Art. V, § 11 ("No judge shall sit in any case wherein . . . he shall have been counsel in the case") and Tex. Code Crim. Proc. Art. 30.01 ("No judge . . . shall sit in any case . . . where he has been of counsel for the State or the accused"). See also Ex parte Miller,

(Tex. Crim. App. 1985) (these provisions not violated unless "the judge actually acted as counsel in the very case before him").

45 counsel could obtain statistical data regarding habeas corpus cases

by issuing a bench warrant to bring each Harris County inmate in

for a hearing, Judge Harmon responded 'Could we arrange for a van

to blow up the bus on the way down here?'" Nichols,

. We are unable to conclude that this clearly inappropriate

remark was anything more than an ill-considered, off-the-cuff

attempt to inject humor into the proceeding. Though the remark was

plainly tasteless and out of place, it does not establish bias and

prejudice. Certainly, there is no indication that Nichols or

either of his counsel so understood the remark at the time. Cf.

Lowenfield v. Phelps,

(1988). Moreover, these

remarks were made near the conclusion of a full evidentiary hearing

fairly and impartially conducted with due regard for Nichols'

rights. Cf. United States v. Wade,

(5th

Cir.), cert. denied,

(1991); Pomeroy v. Merit Plaza

Nursing Home,

(5th Cir. 1985). "[J]udicial

remarks during the course of a trial that are . . . disapproving

of, or even hostile to, . . . the parties, or their cases,

ordinarily do not support a bias or partiality challenge" unless

"they reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible." Liteky v. United States,

(1994). No such showing is even approached here.

As for the complaint that Judge Harmon adopted the state's

proposed findings and conclusions, that is fully answered by

Anderson v. City of Bessemer City, N.C.,

(1985) ("even when the trial judge adopts proposed findings

46 verbatim, the findings . . . may be reversed only if clearly

erroneous").

Section 2254(d) requires that state court findings be afforded

a presumption of correctness unless it is shown that one or more of

eight specified exceptions are applicable. The three circumstances

relied on by Nichols are potentially relevant only to the sixth and

seventh exceptions: "(6) that the applicant did not receive a

full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in

the State court proceedings; . . . ." The state habeas court

afforded NicholsSQrepresented by two competent lawyersSQevery

opportunity to present his contentions, allowing the filing of an

original and three amended habeas petitions over a period of more

than a year, and conducting an evidentiary hearing with full

opportunity to present evidence, even continuing the hearing in

order for Nichols' counsel to locate an additional witness.

Nichols clearly had a "fair" hearing,42 and was not denied due

process in connection with the state court habeas proceedings.43

We reject Nichols' contention that the district court erred by

42 The three matters Nichols points to have no meaningful relevance to whether the hearing was "full" or "adequate," as distinguished from "fair." In any event, we also conclude that the hearing was "full" and "adequate." 43 We also observe that the Court of Criminal Appeals on December 12, 1991, based on its own review of the record, determined that the habeas trial court's June 28, 1991, findings and conclusions were appropriate and denied relief on the basis thereof. No challenge has been made to the Court of Criminal Appeals habeas proceedings. Cf. Briddle v. Scott,

(5th Cir. 1995).

47 according the section 2254(d) presumption of correctness to the

state habeas factfindings.

B. Mitigating Effect of Nichols' Character Evidence Beyond Scope of Special Issues

Nichols argues that the district court erred by failing to

find that the punishment phase special issues (see note 6, supra)

did not allow the jury to give effect to Nichols' mitigating

character evidence. We reject this contention. At the least, the

second special issue concerning future dangerousness provided an

adequate vehicle for the jury to give effect to this mitigating

evidence, placing it within the effective reach of the sentencer,

and there is no reasonable likelihood that the jury would have

found itself foreclosed from thus considering it. The Supreme

Court and this Court have many times so held. See Johnson,

; Crank v. Collins,

(5th Cir.), cert.

denied,

(1994); James v. Collins,

(5th Cir.), cert. denied,

(1993); Barnard v.

Collins,

(5th Cir. 1992), cert. denied,

(1993); Graham v. Collins,

(5th Cir.

1992) (en banc), aff'd on other grounds,

(1993).

Cf. Jurek v. Texas,

(1976). No Penry-type

evidence was presented. See Penry v. Lynaugh,

(1989).

C. Complaints of the Prosecutor's Jury Argument

Nichols complains of various instances of allegedly improper

argument by the prosecution, mostly at sentencing, asserting that

he was thereby denied a fair trial and deprived of due process of

48 law. We reject this contention, and find no error in the district

court's denial of relief in this connection.

Where improper prosecutorial argument is asserted as a basis

for habeas relief, "'it is not enough that the prosecutors' remarks

were undesirable or even universally condemned,'" rather "[t]he

relevant question is whether the prosecutors' comments 'so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.'" Darden v. Wainwright,

(1986). In order to constitute a denial of due process "'the

acts complained of must be of such quality as necessarily prevent

a fair trial,'" Derden,

. Moreover, the burden is

on the habeas petitioner to also show a reasonable probability

"that but for these remarks" the result would have been different.

See Felde v. Blackburn,

(5th Cir. 1986).

Further, failure to object to an argumentSQwholly apart from

questions of procedural barSQis an indication that it was not

perceived as having a substantial adverse effect, Derden at 1458,

or would not naturally and necessarily be understood as advancing

improper considerations. Milton v. Procunier,

(5th Cir. 1984), cert. denied,

(1985). See also

Lowenfield,

.

We now turn to the specific instances complained of by

Nichols.

(i) Nichols initially complains that in argument at the

punishment stage the prosecutor improperly injected religion. No

objection was made to this argument, and on direct appeal the Court

49 of Criminal Appeals held that complaint in this respect was

accordingly waived. Nichols,

. The same

holding was made on the state habeas (together with the alternative

holding that on the merits relief was not warranted). No cause

being shown for the failure to object, the claim is procedurally

barred under the principles of Wainwright v. Sykes and Engle v.

Isaac and their progeny. See Andrews v. Collins,

(5th Cir. 1994), cert. denied,

(1993).44

Moreover, the claim is lacking in merit even if it were not

barred. At the punishment stage the defense introduced testimony

of a priest who, at Nichols' request, visited him several times

while he was in jail awaiting trial. The priest testified on

direct that he had "first met" Nichols ten years earlier, but had

never visited in his home or seen him at church, that while in jail

Nichols' attitude changed from one of depression to remorse and

contrition, and that if given a chance Nichols could become a

constructive citizen. On cross, he admitted that he did not know

what Nichols was doing in the some ten years after he first met him

and when he saw him in jail. The defense, near the end of its

punishment argument, called attention to the priest's testimony.

The now complained of prosecution argument45 was in response. The

44 As we have recognized many times, most recently in Amos v. Scott,

(5th Cir. 1995), the Texas contemporaneous objection rule is an adequate state procedural ground on which to base denial of federal habeas review of a claim denied under Texas law for failure to object. 45 "Well, better roll out the priest. A man he had not seen in ten years. All of a sudden we have a jailhouse Christian. I submit to you

50 natural understanding of the thrust of this argument is that the

jury could reasonably infer that the priest did not really know

Nichols and that Nichols' supposed change to remorse and contrition

was not genuine. Such a contention is essentially proper. There

is absolutely no reasonable likelihood that these brief passages of

argument (or anything else in the trial) created a meaningful risk

that the jury verdict was to any extent based on Nichols' religious

beliefs (or lack thereof, or on any inference in that regard from

the priest's failure to testify in regard thereto).

(ii) Complaint is also made of prosecution arguments at

sentencing concerning the victim's character, which are also

asserted to have been outside the record. Again, there was no

objection to these arguments, and the state habeas court held them

for that reason barred (and, alternatively, not to justify relief

on the merits). This claim is hence foreclosed by the procedural

bar.

It also fails on the merits. The prosecutor's reference to

the grief and loss of the victim's family and his asking the jury

to consider the victim were essentially within the range of

argument held not to offend the Eighth Amendment in Payne v.

Tennessee,

(1991). This is also the case with

that this Harris County jail has converted more sinners than all of the churches in Houston, Texas, right up until just after their trials. It's interesting for you to note that the priest never said one word to you about the sacrament of confession. He said not one word to you about conversion to Christianity."

51 respect to the brief reference to Shaffer's employment and being

killed while at work. There was no argument (or evidence) as to

"opinions of the victim's family about the crime, the defendant,

and the appropriate sentence."

(O'Connor, J.,

concurring). There was nothing so inflammatory about the argument

as to render the entire sentencing proceeding unfair.

(O'Connor, J., concurring), 2614 (Souter, J., concurring).

MoreoverSQand also dispositive of the contention that the argument

went beyond the evidence46SQdefense counsel in his argument had

already raised these matters, arguing that "my heart goes out to

his [Shaffer's] family" and "[t]hey [Shaffer's family] have had a

terrible tragedy in their family."47 Defense counsel further argued

"I doubt very seriously if the Shaffer family would get any

satisfaction from" imposition of the death sentence on Nichols, and

stated "I feel for them but taking Joe's life is not going to help

them a bit" but could "hurt a lot of other folks." Defense counsel

46 The part of the argument now so challenged was:

"You ought to be thankful that the State did not choose to show you the grief or misery of the other family involved in this. The Schaeffer [sic] family. We could have put Mrs. Schaeffer [sic] right there on the stand and let you watch her cry. We could have ask [sic] her what JoJo Nichols has done to her life forever . . . I could have asked . . . who is going to take care of you in your old age. Surely it's not going to be Joseph Nichols."

This was immediately followed by the statement "We chose to spare you that because it is our duty and your duty to look solely at the evidence and not cry for either side." 47 Similarly, a defense sentencing witness testified on direct "my heart goes out to the Shaffer family."

52 also referred in this connection to the testimony of a defense

sentencing witness who stated he was willing to do "whatever it

takes" (or "whatever needs to be done") for Shaffer. Suffering by

the Shaffer family was a premise the defense had already explicitly

raised and accepted in its sentencing phase argument. The

prosecutor reminded the jury "to look solely at the evidence and

not cry for either side." There was no deprivation of due process

or fundamental unfairness in the prosecution's response.48

(iii) Nichols next complains of two prosecutorial arguments

48 Complaint is also made that the following two sentencing arguments were not supported by the evidence: "And he'll gun you down if he gets the slightest opportunity," and "That's a lifestyle. Ever since the man has been able to walk he's been stealing and running wild." We note to begin with that no objection was made to either argument. No complaint was made on direct appeal or in the state habeas in regard thereto. It is clear that the Texas contemporaneous objection rule would bar relief on these claims, as it did on all Nichols' claims respecting unobjected to arguments which were raised in state court. Accordingly, these claims are subject to procedural bar in federal habeas. Teague,

. We also note that these claims were not raised in the federal habeas petition below, and, although the arguments were quoted in Nichols' post-evidentiary hearing brief below, Nichols never sought to amend his petition and these particular claims were not addressed by the district court. In any event, the claims are without merit. The first statement is a reasonable deduction from the evidence, which showed that Nichols shot at Shaffer, less than two months previously had shot a convenience store clerk who did not respond fast enough to his demand for money (which he then continued to demand as the clerk bled), and on being jailed for the present offense threatened to "shoot any deputy that got in his way." The second statementSQfacially obvious hyperbole not intended to be taken literallySQwas preceded by references to Nichols' February 1979 theft, his April 1980 robbery, his August 1980 robbery where he shot the clerk, his October 11, 1980, armed robbery, his instant October 13, 1980, offense, and his June 1981 planned armed jail break. The sentences immediately following the "since the man has been able to walk" comment are as follows: "That's almost three years [1979-1981]. It's not just a few bad months." It was clear what was intended, and that was entirely proper.

53 at the guilt/innocence stage of the trial which he contends were

"incorrect statements of the legal principles applicable." No

objection was made to either argument at trial, on direct appeal,

or in the state habeas proceedings. It is clear that the Texas

contemporaneous objection rule would bar relief in state court, and

the claims are accordingly procedurally barred on federal habeas.

Teague,

. See also Weaver v. McKaskle,

(5th Cir. 1984); Marks v. Estelle,

(5th Cir. 1982). Cf. Bates v. Blackburn,

, 574-

75 (5th Cir. 1986); Webb v. Blackburn,

(5th

Cir. 1985). We also note that these claims were not raised in the

federal habeas petition below, and, although the arguments were

quoted in Nichols' post-evidentiary hearing brief below, Nichols

never sought to amend his petition and these particular claims were

not addressed by the district court. See United States v. Smith,

(5th Cir. 1990).

In any event, these claims have no merit. The first

complained of argument49was a proper plea to the jury to use its

common sense in evaluating the defense's contentions as to what had

actually happened. See Williams v. Florida,

(1970) (jury trial calls for "the commonsense judgment of a group

of laymen"). Nichols' appellant's brief does not explain why he

49 This now complained of argument was:

"In our duty to answer the arguments of the defense attorney, I ask you, if you will, just take one step back from their defense and look at it, apply the law of common sense that you brought into this courtroom, that's why juries are chosen."

54 thinks this argument was improper nor cite any supporting

authority. We note that the prosecutor had explained at length to

the jury that they were obligated to follow the court's charge, as

did the charge itself. This contention is frivolous. The second

challenged argument50 was in substance a correct statement of the

law that, under the charge, Nichols could only be found guilty of

capital murder or of murder, or found not guilty. Moreover,

defense counsel did not request a charge on any form of robbery as

a lesser included offense, and no such charge was given. Yet

defense counsel had argued that Nichols was guilty of aggravated

robbery.51 The state's argument was a proper response and a correct

50 This now challenged argument was:

"Under our law he is either guilty of capital murder, he is guilty of murder, or he is not guilty of anything. He walks right out that door. We can never convict him of robbery or anything else . . . . The defense is saying that what you really have here is a situation where there are cracks in the law and we want you to let JoJo Nichols slip through these cracks and get away." 51 Defense counsel argued:

"You know, I'm going to say something that I very, very seldom say as a defense attorney. Joseph Bernard Nichols . . . . He's guilty of an aggravated robbery. And had the State charged him with aggravated robbery, you could have retired to the jury room based upon the facts that you heard from the witness stand and in about two minutes found him guilty of a first degree felony. But they elected to do something other than that. You know, they already had their pound of flesh.

. . . .

. . . So Joseph Bernard [sic] Nichols is guilty of aggravated robbery.

But when you look at this charge, you're not authorized to find him guilty of aggravated robbery

55 statement of the law. Nichols cites no authority in support of his

contention. We reject it as frivolous.

(iv) The next complained of argument is the state's reference

at sentencing to Nichols' having been indicted for the

unadjudicated offenses, evidence of which had been put before the

jury.52 On direct appeal this argument was challenged as being

outside the record (here it is challenged only as an improper

inference of guilt from an indictment), and the Court of Criminal

Appeals held that the contention was barred because no trial

objection to the argument had been made. Nichols,

. Hence this claim is procedurally barred. Moreover,

although this argument of the prosecutor was presented in Nichols'

post-evidentiary hearing brief below,53 it was never included in his

federal habeas petition or addressed by the district court.

In any event, the claim is without merit. The argument was in

response to defense counsel's argument criticizing the state for

not having taken action on the unadjudicated offenses, arguing

"there has been no action taken by any other group of individuals

or by the state."54 The state responded that another group of

because he is not charged with aggravated robbery. He is charged with capital murder. And in my estimation, the State misjudged . . . ." 52 The argument was: "Now they want you to pretend that all his other crimes are just fantasies, those really didn't happen. Grand juries have indicted them just as he was indicted in this case." 53 There Nichols contended that the argument went beyond the law and the facts and was hence improper under Texas law. 54 Defense counsel had argued:

56 individuals had acted, by indictment. Moreover, defense counsel

had previously expressly acknowledged in argument that Nichols had

been charged with attempted escape. The evidence as to the other

unadjudicated offensesSQthe August 13 and October 11, 1980, armed

robberiesSQwas undisputed, and substantial evidence was presented

as to the planned escape. There is no reasonable likelihood that

the jury was improperly influenced by this passing rebuttal remark

of the prosecution.55

(v) Three other prosecutorial arguments, two at the

guilt/innocence stage and one at sentencing, are attacked as having

"improperly struck at Nichols over the shoulders of his trial

counsel."56 Apart from this general and uninformative

". . . there was at some time later a robbery that he entered a plea of guilty on and was given probation. You know that fact. From that point on though, the only additional thing that you now know is that he is guilty of this offense because a jury has not had the opportunity to pass on those other issues even though those cases have been pending as the record shows for a long time. There has been no action taken by any other group of individuals or by the State that would help you resolve those issues. Never a motion to revoke been executed on him. It's never been revoked for that matter. None of the other cases have been brought to trial . . . ." 55 We also observe that defense counsel had argued at sentencing that under the law indictments were not evidence. At the guilt/innocence stage the court had instructed the jury, "A grand jury indictment is the means whereby a defendant is brought to trial in a felony prosecution. It is not evidence of guilt . . . ." 56 The complained of arguments at the guilt/innocence stage are: "If the defense wanted to play this game and would have been clever, they would have said this is the bullet that got him. But, no, they want to play the door game." And, "The defense wants you to believe Willie ejected that bullet right here in the front door. Uh huh. Physical evidence caught them again." The challenged

57 characterization, Nichols' appellant's brief does not explain the

basis for the challenge and contains no supporting argument. The

complaint is not adequately presented for review. Fed. R. App. P.

28(a)(6); United States v. Beaumont,

(5th Cir.

1992). Nor was it in the district court.57 In any event, the

complaints present no basis for relief. To begin with, no

objection was made at trial (or on appeal) to these arguments (and

they were not a grounds of complaint in the state habeas). They

are hence procedurally barred. Even if they were not, the present

no basis for relief. The brief references at the guilt/innocence

stage to "the door game" and "physical evidence caught them" are

nothing more than argument that the inferences as to what happened

urged by defense counsel were not consistent with the physical

evidence. The sentencing argument referred to the fact that at the

guilt/innocence stage defense counsel argued that Williams fired

sentencing argument is:

"You recall on the question of guilt he sincerely argued to you that the bullet came from the door. They had themselves twisted sideways just to where it would come from the door. Now they have shifted gears that you don't believe that and now they want the shot to come over here from the counter from Willie Ray Williams. Aren't you offended by that? Wouldn't you be offended for a State's attorney to stand up here and shift and twist and blatantly change the proof around? There is something very wrong with that. I submit to you that you should be offended by that. Does it ever end?" 57 The referenced guilt/innocence arguments were not complained of in the federal habeas petition, and the referenced sentencing argument was mentioned only in the portion of the petition dealing with the claim that the Williams trial estopped the state from arguing that Nichols fired the fatal shot. None of the challenged arguments were addressed by the district court.

58 the fatal shot from the door as he went back in, while at

sentencing defense counsel appeared to argue that Williams fired

the fatal shot from "in front of the counter." And, the

prosecution's argument was in response to defense counsel's

criticism of the prosecution for its asserted inconsistency in the

Williams and Nichols cases.58 These unobjected to prosecution

arguments did not deprive Nichols of due process or deny him a fair

trial or sentencing, and there is no reasonable likelihood that

they caused the verdict to be to any extent improperly based.

(vi) Quoting a single sentence from the state's argument at

each phase of his trial, Nichols asserts that each "improperly

injected the personal beliefs of the prosecutor into its argument."

Nichols' appellant's brief makes no argument in support of

this assertion, and the complained of sentences are not mentioned

in his federal habeas petition or in the district court's opinion.

Assuming the matter is properly before us, it is procedurally

barred as no objection was made at trial (or on appeal) to either

argument (and neither was raised as a ground for relief in the

state habeas proceeding).

In any event, neither argument presents a basis for relief on

58 Defense counsel had argued, among other things:

"You've obviously got the testimony of Willie Ray Williams. I think Willie Ray would have liked to have heard the testimony in this case before he was in the posture he was earlier where he got death for this same transaction because according to the argument in this case earlier, Willie didn't do anything. Willie couldn't have killed the man even though he said he did and even though his testimony was consistent with the injuries to the man."

59 the merits. The first statement Nichols challenges was made by the

prosecutor during the punishment phase of the trial. Referring to

James Paul Martin, an inmate at the Harris County Jail who

testified that he and Nichols had been involved in an escape plot

while in jail, the prosecutor stated: "I wouldn't come to court to

you and say convict a man on the word of a criminal without

corroboration." Although a prosecutor "may not express his

personal opinion as to the credibility of witnesses, or his own

belief regarding a defendant's guilt," United States v. Walker,

(5th Cir.), cert. denied,

(1980), he

may properly comment on the weight of the evidence. See Casel, 995

F.2d at 1309. Here, it is clear from the context in which the

statement was made that the prosecutor was not expressing his

personal opinion about the credibility of Martin. Rather, he was

directing the jury to look to other evidence that supported

Martin's testimony, which, because it was the testimony of a

convicted felon, would be suspect standing alone.59 This type of

argument "is permissible to the extent that it draws a conclusion

59 The now challenged statement closely followed the prosecutor's statements that at the guilt/innocence stage the jury had been instructed to require corroboration of accomplice testimony but had not been so instructed as to the punishment phase, and that the prosecutor nevertheless would not ask the jury to believe Martin absent corroboration, which the prosecutor urged was afforded by the testimony of the guard Garrett and the hidden gun and knife found in the area of Nichols' cell and Martin's prior statement. The prosecutor was also responding to defense counsel's argument that only Nichols and one other were charged in the escape, though more were involved. The prosecutor stated: "we only have corroboration as to two others. I wouldn't come to court to you and say convict a man on the word of a criminal without corroboration. We had corroboration as to two others."

60 based solely on the evidence presented." Id. (citing United States

v. Enstam,

(5th Cir. 1980), cert. denied,

(1981); United States v. Bright,

(5th

Cir. 1980), and United States v. Binker,

(5th

Cir. 1986)). Such is the case here.

The second statement which Nichols objects to was made during

the state's argument at the close of the guilt/innocence phase of

the trial. In arguing that Nichols fired the shot that killed

Shaffer, the prosecutor stated: "And I'll tell you it was his hand

that did the killing." Once again, however, Nichols gives an

incomplete picture. Immediately after the prosecutor made the

above-quoted statement, he asked "How do you know that?" and then

proceeded to summarize the evidence presented at trial which would

tend to support the theory that Nichols fired the fatal shot. In

United States v. Morris,

(5th Cir. 1978), this Court

explained that a prosecutor may state his own opinion or knowledge

of the case as long as he makes it clear that "the conclusions he

is urging are conclusions to be drawn from the evidence."

. Here, the prosecutor argued the admitted evidence in support

of the challenged statement. Hence, in the context of the

prosecution's argument the statement was not improper.

(vii) Lastly, Nichols asserts that at sentencing the

prosecution "improperly commented on Nichols' failure to call

witnesses or present evidence." Again, without citation to

authority or meaningful argument, Nichols quotes four sentences

which he contends are thus improper. First, during the state's

61 argument at the end of the punishment phase of the trial, the

prosecutor stated:

"Why is it that not one, not one employer except a family friend, Mr. Creal, came and sat here and told you what a nice worker he was. Not one. Not even a co-worker came here to verify to you that he actually worked or that he was a good worker, not one."

Later, the prosecutor commented that "Not one employer, not one co-

worker, not one school mate, not one neighbor has come here."

Again, these portions of the argument were not complained of

in Nichols' federal habeas petition. Moreover, they are

procedurally barred. No objection was made at trial (or on appeal)

to the first argument (and it was not raised as a ground for relief

in the state habeas proceedings). The second argument was objected

to at trial on the ground it was "not a correct statement of the

evidence."60 On direct appeal, Nichols complained that the

statement was improper as "comment on his failure to call

punishment witnesses," and the Court of Criminal Appeals held that

"[b]ecause the challenge on appeal does not comport with the

objection at trial, nothing is presented for review." Nichols,

.61

At all events, the claims lack merit. As a matter of Texas

law, the prosecutor may comment on "the defendant's failure to call

a material witness, and he may draw an inference from that failure

60 The trial court then ruled: "The jury will use their own recollection concerning the evidence. The objection is overruled." 61 The Court of Criminal Appeals also stated, "Further, any possible error raised by the trial objection was cured by the [trial] court's admonishment."

62 that the testimony would have been unfavorable." O'Bryan v.

Estelle,

(5th Cir. 1983), cert. denied,

(1984); see also O'Bryan v. State,

(Tex.

Crim. App. 1979) (en banc), cert. denied,

(1980).

Moreover, in federal trials, although a party's failure to call a

witness equally available to both sides may not be properly

commented on, if the defendant fails to call a witness peculiarly

within his control, the prosecutor may properly comment on that

failure. United States v. MMR Corp.,

(5th

Cir. 1990), cert. denied,

(1991). "That the

potential witness is . . . accessible to service of subpoena by the

court does not make the witness equally available to both parties."

Id. at 502. The relationship of the witness to a party may make

him or her more available to that party. Id. Such is the case sub

judice. Here, the prosecutor was commenting on Nichols' failure to

call certain types of witnesses during the punishment phase to

establish mitigating circumstances. These types of witnesses are

generally more available to the defense. And, because "the option

of producing and coming forward with mitigating circumstances is

upon the capital defendant," O'Bryan,

, they are

more likely to be called by the defense. The prosecutor's brief

comment on Nichols' failure to call certain types of good

character witnesses was not clearly improper; certainly it did not

render the sentencing fundamentally unfair or deprive Nichols of

due process.

Nichols asks that we view all the complained of prosecution

63 arguments together. However, even when all are viewed

cumulativelySQand even without considering that counsel did not

think the vast majority of them worth complaining of at trial, or

on appeal, or in any of the lengthy and frequently amended state

habeas petitions, or, for the most part, in the federal

petitionSQit is entirely clear to us that they did not operate to

deprive Nichols of a fundamentally fair trial at any stage of the

proceedings or to deny him due process, and that there is no

reasonable likelihood that the jury's verdict at either stage was

improperly affected thereby.

D. Ineffective Assistance of Counsel

Nichols complains of ineffective assistance of trial counsel,

listing in three pages of his brief nine different claims in this

respect. After evidentiary hearings in both the state habeas court

and the district court below, all claims of ineffective assistance

of counsel were rejected by the state habeas trial court, the Court

of Criminal Appeals, and the district court below.

Under Strickland v. Washington,

(1984), a

habeas petitioner claiming ineffective assistance of counsel has

the burden to demonstrate both deficient performance and prejudice.

. As to the former, judicial scrutiny of counsel's

conduct "must be highly deferential,"

, "the distorting

effect of hindsight" is to be avoided,

, and courts

must "indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance."

"It is not enough to show that some, or even most, defense lawyers

64 would have handled the case differently." Green v. Lynaugh,

(5th Cir.), cert. denied,

(1989). To

establish prejudice, "[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding," Strickland at 2067; rather, he must demonstrate a

"reasonable probability that, but for counsel's unprofessional

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

Id. at 2068. "A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Id.

Our examination of the record, including that of the habeas

proceedings, reflects that Nichols was represented vigorously and

effectively at trial by his two counsel Lane and Scott, each of

whom had likewise so represented him throughout his first trial.

These attorneys were familiar with the facts of the case, made and

procured hearings and rulings on appropriate pretrial motions and

motions to suppress, investigated and presented testimony, made

objections, presented appropriate jury arguments, and subjected the

state's case to rigorous adversarial testing and opposition at

trial. Many of the instances of alleged ineffectiveness which

Nichols raises on appeal were not adequately raised below, and

hence are not properly before us. United States v. Smith,

(5th Cir. 1990). But even considering all the claims of

ineffective assistance of counsel raised on appeal, we are

convinced that Nichols has neither overcome the strong presumption

that counsel's conduct fell within the wide range of reasonable

professional assistance nor demonstrated any reasonable probability

65 that but for the claimed deficiencies the result of the proceedings

would have been different. No such probability sufficient to

undermine confidence in the outcome has been shown. We now briefly

address the particular assertions of ineffectiveness raised by

Nichols on this appeal.

(i) Complaint is made that Nichols' attorneys failed to

attempt to delay entry of the July 31, 1981, mistrial order in

Nichols' first trial until August 31, 1981, when the 1981 amendment

to Tex. Code Crim. Proc. art. 37.071(e) came into effect providing

that if the jury is unable to answer any punishment special issue

the defendant shall be sentenced to life imprisonment. This

contention materially differs from the only claim made below

respecting this subject, which was that counsel was ineffective for

failing to ask the trial court "to set aside the interlocutory

order of mistrial and to sentence" Nichols to life imprisonment "in

accordance with" amended article 37.071(e). In any event, the

present contention, as well as that made below, is without merit,

and under neither theory has either deficient performance or

prejudice been demonstrated. On direct appeal, the Court of

Criminal Appeals specifically rejected Nichols' attempt to invoke

amended article 37.071(e), stating "[b]ecause appellant's first

trial was held prior to the effective date of the amendment to

subsection (e), the amendment has no application." Nichols,

. Nichols cites no authority and makes no meaningful

66 argument, in support of his contention on appeal.62 Nor are we

aware of any such authority. So far as we are able to ascertain,

nothing in Texas law would authorize the trial court to discharge

the jury without declaring a mistrial. And, it would be patently

unreasonable for defense counsel to have urged, or for the trial

court to have ordered, that the jury continue bound to the case for

another month.63 Moreover, continued deliberations would risk a

"yes" answer to the single special issue which the jury had not

then unanimously answered in the affirmative.

(ii) Nichols next complains that his counsel failed to

present Williams' testimony as given at his own trialSQinstead of

that given at Nichols' first trialSQand failed to utilize the

transcript of Williams' trial on cross-examination of Williams'

prosecutor to force the latter "to admit that Williams was

62 In support of his contention made in the district court, Nichols cited Rodriguez v. State,

(1993), which held that a trial court had authority to withdraw an order of mistrial. But that decisionSQrendered more than a decade after Nichols' second trialSQwas expressly predicated on the fact that the mistrial (which was declared out of the presence of the jury during the course of trial and before the case had been submitted to the jury) was promptly withdrawn before the jury was discharged and without the jury's ever having been informed of it. Here the jury was expressly informed of the mistrial and was completely discharged by the court on July 31, 1981. The state habeas court determinedSQand the Court of Criminal Appeals implicitly agreedSQthat "the trial court's declaration of a mistrial in the applicant's first trial is not an interlocutory order which the trial court could later withdraw in order to apply the subsequent amendment to Article 37.071(3)." Nothing presented suggests any basis for us to find this an incorrect statement of Texas law. 63 And, in light of the opinion of the Court of Criminal Appeals on direct appeal, it is at the best highly doubtful that amended article 37.071(e) would have applied even if the jury had not been discharged until September 1, 1981.

67 convicted as the lone triggerman." These contentions were not

raised below and are not properly before us. In any event, they

are wholly without merit. Williams' testimony at his own trial was

not more favorable to Nichols then his testimony at Nichols' first

trial. Indeed, Williams' testimony at his own trial indicated that

when he shot (or shot at) Shaffer from the door, he did so in

response to Nichols telling him "shoot-shoot" (see note 2, supra).

Williams did not mention this in his testimony at Nichols' first

trial. Had this testimony been before the jury, it would have

wholly undercut Nichols' defensive theory that he was not guilty

even under the law of parties because when Williams fired what the

defense contended was the fatal shot, Nichols had already

completely left and Williams' shot was "the separate act of Willie

Ray Williams, acting independently" for which, under the wording of

the court's jury charge, Nichols would not be responsible. As to

the cross-examination of Williams' prosecutor, what Williams was

convicted of was determinable from, and only from, the record in

that case. We have held that that does not reflect a determination

that Williams was "the lone triggerman." Nor is there any showing

that Williams' prosecutor could possibly shed any other light on

the matter. The jury had before it the undisputed fact of

Williams' conviction for Shaffer's murder, as well as his testimony

that he shot Shaffer from the door, causing him to fall back.

Nichols makes no showing of deficient performance or prejudice in

regard to these matters.

(iii) On the basis of April 1992 affidavits submitted after

68 the evidentiary hearing below to the district court with Nichols'

motion to expand the record, which the district court denied,

Nichols contends that defense counsel failed to interview witness

Teresa Ishman, a deli employee, and failed to examine deli employee

Johnson "on the 'triggerman' issue." This issue is not properly

before us. The affidavits are not a part of the record (and no

complaint has been made of the ruling denying the motion to expand

the record); and they were tendered to the district court in

respect to a Brady claim. Further, the issue was not adequately

raised below. The habeas petition only alleged in the most

conclusional form that "Counsel's overall performance, including

the general lack of any investigation, denied petitioner effective

assistance of counsel at both stages of the trial. Counsel's trial

strategy was unreasonable and it was not based on an adequate

investigation." There was no allegation concerning Johnson or

Ishman or the subject matter to which their affidavits are now

alleged to be relevant. These allegations in the petition are

plainly inadequate to raise a constitutional issue in the respect

now asserted on appeal. See Ross v. Estelle,

, 1111-

1112 (5th Cir. 1983); Alexander v. McCotter,

(5th Cir. 1985). The allegations may not be supplemented on

appeal.

.

Moreover, there is no adequate showing or allegation that

counsel was deficient in this respect. Present counsel, who had

been representing Nichols since sometime before May 1989, took the

position below that they did not find out the information in the

69 affidavits until early 1992. Nichols suggests no basis on which

trial counsel can be faulted for not producing this information

while excusing habeas counsel for not producing it in the state

habeas or earlier in the federal habeas. Cf. Keeney v. Tamayos-

Reyes,

(1992). Further, the Ishman affidavit states

that she initially told the police that she saw nothing.64 This was

consistent with Johnson's testimony that when Nichols and Williams

shot at Shaffer, the other deli employee thereSQIshman (then known

as McGee, which was not her true name)SQwas back in the kitchen or

bathroom and did not come out. As to Johnson, defense counsel had

already reviewedSQand at trial succeeded in getting before the

jurySQher written, sworn statement to the police, and there was

nothing to indicate that she had ever said anything else, much less

anything favorable to the defense. Nor do the April 1992

affidavits show a probability of a different result sufficient to

undermine confidence in the outcome. Johnson's affidavit reflects

that just after Nichols shot, and before either Nichols or Williams

left, she saw Williams "leaning across the counter and firing the

shot that killed Mr. Shaeffer (sic)." This entirely contradicts

the defense theory that the fatal shot was fired by Williams from

the door after Nichols left and was thus "the separate act of"

Williams "acting independently" for which under the charge Nichols

64 Her affidavit states that several days later she was interviewed by "someone from the district attorney's office" and told him what she did see and he took notes, but apparently no statement was presented to her to review or sign. She had been "in trouble with the law in Louisiana." Her affidavit indicates that not long after the offense she moved back to Louisiana, where she apparently had no telephone.

70 would not be responsible. Ishman's affidavit mentions only an

initial set of shots fired from the counter area (after which she

ran into the restroom, where Johnson "was already locked in").

Ishman does state Shaffer "went down and reached under the counter

for his gun," but this is just what Johnson's October 13, 1980,

statementSQwhich was before the jury without limitationSQsaid. In

Johnson's trial testimony, she admitted making the October 13,

1980, statement, but said that although Shaffer "went down in a

squat position" she "didn't see him reach for anything."65 Nichols'

statement and Williams' testimony, both before the jury, were that

Shaffer came up with a gun in his hand.

(iv) Nichols next complains of counsel's failure to object to

the trial court's grant to juror Pearson of an exemption from jury

service for child care under

(2).

Nichols does not explain why the exclusion was erroneous, but it

may possibly have been in that although Pearson had custody of her

two-year-old child, the statute speaks to exclusion for those

having custody of children under ten where the jury service

"requires leaving the child or children without adequate

supervision," and Pearson had said she had "a sitter." It is

questionable that constitutionally deficient performance is shown.

Whether a juror is desirable is inherently a matter of judgment,

particularly when, as in Pearson's case, a strong antipathy to

65 There is nothing to suggest that defense counsel knew or should have known that Johnson's testimony would (or would likely) deviate from this aspect of her statement.

71 service is expressed.66 In any event, prejudice is not

demonstrated. Although the state did not request or suggest

Pearson's exclusion, and Pearson clearly said she wanted the

exemption, Nichols asserts prejudice because Pearson had indicated

reluctance to impose the death penalty and the state eventually

used all its peremptory challenges. However, at the time Pearson

was excused, the state had used only two of its peremptory

challenges. It cannot be shown that but for her exclusion Pearson

would have served. And, nothing in the record tends to establish

"that, in the absence of defense counsel's errors, a different

factfinder . . . would have been reasonably likely to arrive at a

different outcome." Green v. Lynaugh,

(5th Cir.)

(original emphasis), cert. denied,

(1989). Moreover,

in United States v. Prati,

(5th Cir. 1988), we

concluded that the Supreme Court, in Ross v. Oklahoma,

(1988), "rejected 'the notion that the loss of a peremptory

challenge constitutes a violation of a constitutional right to an

impartial jury.'"

at 87 (quoting Ross,

).

Instead, "the pertinent inquiry is whether the jurors that actually

sat were impartial as required by the sixth amendment."

Because Nichols does not assert that his jury was not impartial, he

has failed to demonstrate that his counsel's failure to object to

the exclusion of Pearson was prejudicial.67

66 Pearson had stated "I really don't want to do this" (serve on the jury). 67 In a single sentence of his appellant's brief, Nichols also conclusorily asserts that defense counsel inadequately attempted to

72 (v) Complaint is next made of defense counsel's failure to

object to an allegedly "improper" shuffle of three venire members.

Nichols does not explain why or in what respect the "shuffle" was

improper and cites no authority indicating that it was. Hence,

nothing is presented for review. Fed. R. App. P. 28(a)(6);

. In any event, neither deficient performance nor

prejudice has been shown. Nichols claims that absent the shuffle

rehabilitate and failed to specifically object to limitations on voir dire and exclusion of veniremen Day and Joseph Lewis. No explanation, argument, or citation of authority is given, so nothing is presented for review. As to Lewis, counsel objected to his exclusion and to not being allowed to attempt to rehabilitate (as to which nothing suggests possible success), and the Court of Criminal Appeals on direct appeal fully reviewed Lewis's exclusion and found it proper, noting that "Lewis repeatedly stated that he could not follow the law of parties and find a nontriggerman guilty of capital murder, regardless of the evidence" and that after some interim confusion, which proper explanation by the trial court cleared up, "Lewis consistently stated that he could not find guilt in any case where the defendant did not pull the trigger." Nichols,

. Plainly, no constitutional error is presented by this ruling. See Wainwright v. Witt,

(1988). More to the point, however, there is no challenge to the underlying rulings and it is plain there was no failure on the part of trial counsel to preserve any claim of error in this respect. As to Day, no complaint was made on appeal regarding her exclusion, and the state habeas court held that was a procedural bar. Trial counsel "excepted" to the exclusionSQwhich was sufficient to preserve review as to LewisSQbut the state habeas trial court stated that was also insufficient. However, the state habeas court further held Day was properly excluded. We agree. Questioning by the state and then by the careful trial court clearly reflected that she unequivocally would not under any circumstances, and regardless of the evidence, consider the death penalty for a non-triggerman. Wainwright v. Witt. Neither deficient performance nor prejudice is established by defense counsel's not attempting rehabilitation. Nothing suggests rehabilitation would have had any reasonable likelihood of success. As to Lewis and Day, Nichols has not preserved in this Court any complaint and in any event has not shown either deficient performance or that but for the claimed deficiency there is a reasonable probability the outcome would have been different.

73 alternate juror Walker, "who would have been reluctant to impose

capital punishment," would have been the twelfth juror.68 However,

when the three jurors were shuffled, none of them, including

Walker, had been voir-dired, so the record reflects no basis on

which to conclude that defense counsel should have known or

believed that Walker would be favorable to the defense (or more so

than any other of the three). Additionally, Nichols' assertion

that, absent the shuffle, Walker would serve as the twelfth juror

rather than as an alternate is purely speculative and is

insufficient to establish prejudice.

(vi) Nichols next contends that trial counsel was inadequate

for failing to request an "anti-parties" instruction at the

punishment stage of trial. We reject this contention. At the time

of trial, it was not clearly established Texas or federal law that

such an instruction, if requested, was required.69 While the law

was not so clear that a request for such a charge could be said to

be plainly futile, this does not mean that counsel was

constitutionally deficient for failing to request such a charge.

See Smith v. Collins,

(5th Cir. 1992), cert.

denied,

(1993); Selvage v. Collins,

(5th

68 Nichols says nothing about the actual twelfth juror. We also note that at the time of the shuffle the state still had one peremptory strike left. 69 See notes 21 and 22, supra, and accompanying text. Trial here was completed in February 1982. Enmund v. Florida was not handed down until July 1982. Green v. State was decided in 1984. Indeed, Nichols argues that requesting an anti-parties instruction "would have been futile at the March [sic] 1982 Nichols II proceedings."

74 Cir. 1992), cert. denied,

(1993); Buxton. Moreover,

a law of parties instruction was not given at sentencing, and it

appears clear that all concerned operated on the assumption that

the law of parties did not apply at sentencing. We conclude that

under the circumstances counsel was not constitutionally deficient

for failing to request an affirmative "anti-parties" instruction at

sentencing. Further, for the reasons and authorities previously

recited in connection with the state's appeal (see Part IA, supra),

we also conclude that Nichols has failed to demonstrate prejudice

from the failure to give an anti-parties instruction. There is no

reasonable probability that the giving of such an instruction would

have altered the outcome. See also, e.g., Belyeu v. Scott,

F.3d , No. 94-50805, slip op. at 391 (5th Cir. Oct. 11, 1995).

Finally, this asserted ground of ineffective assistance of counsel

was not raised below.

(vii) Nichols next complains that counsel was deficient for

failing to request a "Penry-type" instruction concerning mitigating

evidence. This contention was not raised below. Moreover, it is

wholly without merit. The case was tried seven years before Penry.

In any event, the state habeas court did not apply the procedural

bar to this claim, but rather rejected it on the merits. And, we

have held that federal law did not entitle Nichols to such an

instruction (see part IIB, supra). Consequently, neither a

deficiency on the part of counsel nor prejudice is shown.

(viii) Complaint is made in general terms that "counsel

failed to object to repeated improper jury argument by the state,"

75 but the arguments in question are not identified other than by a

general reference to the section of Nichols' brief complaining of

improper argument, and which particular arguments were not objected

to is not identified. No authorities are cited and no explanation

or meaningful argument is made in the three brief sentences dealing

with this complaint. It is not properly presented to us.

Moreover, it was not raised below except as to those few instances

of prosecutorial argument as to which complaint was made below (see

Part IIC, supra). The other instances are not properly before us.

In any event, for the reasons stated in Part IIC above, the

arguments in question, singly and collectively, were not so

improper and prejudicial that the failure to object to any or all

of them can properly be characterized as constitutionally deficient

performance by counsel, or as rendering Nichols' trial as a whole

fundamentally unfair, or as giving rise to any reasonable

probability that had objections been made the result would have

been different. Nothing in connection with these complaints serves

to undermine confidence in the trial's outcome.

(ix) Lastly, Nichols makes the conclusory assertion that

trial counsel were ineffective in failing to move for a new trial

on the grounds of their own ineffectiveness at trial. This

contention is frivolous. No procedural bar has been prevented

Nichols from raising ineffectiveness of trial counsel. Moreover,

we have held, as did the district court and the state habeas court,

that Nichols was not denied the effective assistance of counsel at

trial.

76 In sum, we reject all Nichols' claims on appeal that the

district court erred in denying him relief on his claim of

ineffective assistance of trial counsel.

E. Cumulative Error

Nichols' sole remaining claim on appeal is a three-sentence

argument that the matters of which he complains on appeal (Part

IIA-D), plus those on which the district court granted him relief

and which are the subject of the state's appeal (Part IA-C), amount

to cumulative error under our decisions in Derden and Kirkpatrick

v. Whitley,

(5th Cir. 1993),70 and denied Nichols a

fair trial. For the reasons previously noted in addressing these

contentions severally, we find no merit in Nichols' argument.

Reviewing the entire record, we conclude that Nichols has not made

out a case of cumulative error under Derden, and that the matters

complained of did not, singly or in combination, operate to deny

him a fundamentally fair trial, deprive him of due process, or

undermine confidence in the outcome. We accordingly reject

Nichols' contention in this respect.

Having specifically addressed and rejected all of Nichols'

points in his cross-appeal, we reject Nichols' cross-appeal and

affirm so much of the district court's judgment as denies Nichols

habeas relief.

Conclusion

So far as it denied Nichols habeas relief, the district

70 We note that Kirkpatrick is wholly inapposite to this case.

77 court's judgment is affirmed. So far as the judgment below granted

Nichols habeas relief, it is reversed and the case is remanded with

instructions to enter judgment denying relief.

AFFIRMED in part; REVERSED in part.

78