UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-60136 __________________

SAMMY HARRIS,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, Superintendent, Mississippi State Penitentiary,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (1:94-CV-259-D-D) ______________________________________________ December 6, 1996 Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Sammy Harris, a Mississippi state prisoner, appeals the denial

of his federal habeas petition. We affirm.

I. PROCEDURAL HISTORY

A jury convicted Harris of robbery in Mississippi state court.

After a hearing during which the state court found Harris to be an

habitual offender for purposes of

, the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. court sentenced Harris to a 15-year term of imprisonment in the

Mississippi Department of Corrections. Harris filed a motion for

new trial which the court denied. Harris appealed the judgment of

conviction and sentence, and the Mississippi Supreme Court

affirmed. Harris v. State,

(Miss. 1994).

Harris subsequently filed a petition for a writ of habeas

corpus pursuant to

in federal district court,

raising the same issues that he had argued on direct appeal to the

Mississippi Supreme Court. The district court, over Harris'

objections, adopted the report and recommendation of the magistrate

judge and dismissed Harris' § 2254 petition. On February 29, 1996,

the court granted Harris a certificate of probable cause (CPC) to

appeal.

II. CERTIFICATE OF APPEALABILITY

Final judgment and the grant of CPC, as well as Harris' notice

of appeal, were entered prior to April 24, 1996, the date on which

the President signed the Antiterrorism and Effective Death Penalty

Act of 1996 (the Act),

Stat. 1214 (1996).

The Act amended

to require the issuance of a

"certificate of appealability" (COA) by a circuit justice or judge

before an appeal may proceed in a § 2254 action. The Act at § 102.

Agreeing with the Tenth Circuit,1 this Court recently

determined that the standard for obtaining a CPC is the same as the

standard for obtaining a COA, and thus, application of § 102 of the

1 Lennox v. Evans,

(10th Cir. 1996).

2 AEDPA to cases pending on appeal would not constitute retroactive

application of a statute under Landgraf v. USI Film Products,

,

(1994). Drinkard v. Johnson,

(5th Cir. 1996). We also noted that there was a discrepancy

between the amended version of § 2253 and the amended version of

Rule 22(b) of the Federal Rules of Appellate Procedure. Section

2253 now authorizes either a circuit justice or judge to issue a

COA, while the amended version of Fed. R. App. P. 22(b) authorizes

a COA to be issued by a either a circuit or district judge. The

Act at § 103. Thus, it appears that under § 2253, a district court

may not have the authority to grant a COA. In Drinkard, we did not

have to address the apparent discrepancy because of the procedural

posture of the case, i.e., the district court had not granted a CPC

or a COA. Here, as stated above, the district court has granted a

CPC. Of course, at the time it granted a CPC, the court certainly

had the authority to do so.

In any event, because neither party has raised this issue,

and, as discussed below, Harris is not entitled to relief whether

or not the district court was authorized to issue a COA, we decline

to reach this issue. Cf. Martin v. Maxey, WL 596420 (5th Cir. Nov.

1, 1996) (noting that because neither side argued whether new law

applies retroactively to appeal and outcome not changed, issue of

retroactivity not reached).2 In other words, assuming the district

2 We note the district courts have come to different conclusions regarding their authority to issue a COA. See e.g., Parker v. Norris,

(E.D. Ark. 1996) (concluding that it did

3 court now has the power to grant a COA, we would treat the prior

grant of CPC as a grant of COA and affirm the district court's

denial of habeas relief. If, however, the district court is not

imbued with the authority to issue a COA, and the Act operates so

as to strip us of our power to hear this case in the absence of a

COA notwithstanding that the CPC was valid when granted, then we

must conclude that Harris has not made a substantial showing of the

denial of a constitutional right and deny a COA.3

III. SUFFICIENCY OF THE EVIDENCE

Harris argues that the evidence was insufficient to support

his robbery conviction. More specifically, he argues that even if

the State proved at trial that he was in possession of stolen

property or trying to pass forged checks, the evidence did not

support his robbery conviction.

The standard for testing the sufficiency of the evidence in a

federal habeas review of a state-court conviction is whether,

"`after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

not have authority to rule on motion for a COA); Houchin v. Zavaras,

(D.Colo. 1996) (holding that Rule 22(b) authorized it to issue a COA). Obviously, neither of these two cases involved a situation where, as here, a CPC had been granted by the district court prior to the effective date of the Act. 3 The amended version of Rule 22(b) provides that "[i]f no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals." Thus, if the CPC signed by the district court became ineffective after the Act was enacted, we would treat Harris' notice of appeal as a request for a COA.

4 essential elements of the crime beyond a reasonable doubt.’"

Guzman v. Lensing,

(5th Cir. 1991) (quoting Jackson

v. Virginia,

(1979)). Under Mississippi law, a

person commits robbery if he "feloniously take[s] the personal

property of another, in his presence or from his person and against

his will, by violence to his person or by putting such person in

fear of some immediate injury to his person."

.

Harris does not dispute that the victim was robbed; instead,

he argues that there is insufficient evidence to prove that he

committed the robbery. The victim had poor eyesight and was unable

to visually identify Harris. She testified that she did not look

at his face during the robbery. She did testify that the

perpetrator was approximately six feet tall, heavy, about 200

pounds, and with "afro hair style." The victim also positively

identified Harris' voice as that of the perpetrator. Three

employees from two different stores testified that Harris attempted

to cash the victim's checks. The police seized the following items

from Harris' residence: gloves that matched the description given

by the victim; the stolen flashlight that contained batteries that

bore the fingerprints of the victim's son; and clothes identical to

the ones worn by the man who attempted to cash the victim's checks.

Viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of robbery under Mississippi law beyond a

5 reasonable doubt. See Guzman,

. Therefore, the

district court did not err in denying habeas relief on this ground.

IV. FATAL VARIANCE

Harris argues that a fatal variance existed between the proof

offered at trial and the indictment. He argues that the indictment

charged that he committed robbery on February 6, 1987, but that the

proof offered at trial suggested that the robbery occurred on

February 26, 1987. He argues that the trial court should have

corrected the error in the indictment. Harris' argument is without

merit.

At trial, the state successfully moved, without objection, to

amend the indictment to conform to the proof offered at trial to

reflect that the alleged robbery occurred on February 26, 1987, and

the jury instructions reflect the February 26, 1987, date. The

district court did not err in denying habeas relief on this ground

because Harris' argument is factually misplaced. Further, any

variance between the original indictment and the proof offered at

trial has not been shown to be fatal. Johnson v. Estelle,

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

(1984).

V. EVIDENTIARY RULING

Harris argues that a tape recording of the victim identifying

his voice was so suggestive as to result in the denial of a fair

trial even under "a plain error standard of review." The tape was

made outside the presence of the jury and, at defense counsel's

request, was submitted into evidence. Because Harris' counsel

6 sought the admission into evidence of the voice-identification

testimony at trial, the error, if any, would have been invited.

See United States v. Puig-Infante,

(5th Cir.),

cert. denied,

(1994) (applying doctrine of invited

error on direct criminal appeal). In any event, because the taped

testimony was offered to reveal the victim's initial uncertainty

regarding her recognition of Harris' voice, there could be no error

of constitutional dimension. See Jernigan v. Collins,

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

(1993)

(evidentiary rulings reviewed to determine whether denial of

fundamental fairness).

VI. SENTENCING

Harris argues that the state court erred, during his habitual

offender hearing, by referring to his testimony during the trial

and using that testimony to prove that he was an habitual offender

under

.

,4

"requires proof that the defendant had been twice previously

4 Section 99-19-81 provides that:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

7 convicted of a felony in [Mississippi] or another [state]." Lacy

v. State,

(Miss. 1993). Under Mississippi law,

certified copies of commitment papers are competent evidence of

previous convictions for purposes of proving that a defendant is an

habitual offender. See Estelle v. State,

(Miss.

1990) (

).

At sentencing, the State introduced evidence of Harris' prior

convictions in the form of certified copies of Harris' two prior

convictions for touching a child for lustful purposes for which he

sentenced to a suspended ten-year term of imprisonment and for

uttering forgery for which he was sentenced to a twelve-year term

of imprisonment. Although Harris also stated at sentencing that he

recalled testifying at trial that he had two or three prior felony

convictions, the court relied on the certified copies of the

convictions in determining that Harris was an habitual offender.

Thus, as the district court held, this argument lacks merit.

Harris also argues that the state court violated his due

process rights during the habitual-offender hearing because the

trial court failed to give him an opportunity to rebut the State’s

evidence of the prior convictions. As the district court

determined, Harris received a bifurcated trial, consisting of a

trial to determine his guilt and a hearing on the habitual-offender

charge at which Harris was given the opportunity to rebut the

state’s evidence of the prior felony convictions. See Seely v.

State,

(Miss. 1984). Harris' counsel offered

8 no objections to the habitual-offender evidence. The district

court did not err in denying habeas relief on this ground.

VII. INEFFECTIVE ASSISTANCE OF COUNSEL

To prevail on an ineffective assistance of counsel claim,

Harris must show that his counsel's performance was deficient and

that the deficiency prejudiced his defense. Strickland v.

Washington,

,

(1984).

Harris argues that his counsel was ineffective for failing to

object to the admission into evidence of the suggestive voice

identification. However, as referenced above, Harris' counsel

sought the admission into evidence of the tape of the voice

identification testimony as a part of his trial strategy.

Although the victim testified before the jury regarding her

positive identification of Harris' voice, she also testified

regarding her inability to identify Harris by appearance; further,

the jury heard the tape of the victim indicating that she was

uncertain, at least initially, that Harris' voice was the voice of

the man who robbed her. The jury also heard on the tape that it

was only after Harris repeated the statements several times that

the victim identified Harris' voice. Harris failed to demonstrate

ineffective assistance of counsel with respect to this claim

because counsel's strategy was a reasonable trial strategy.

Harris argues that his counsel was ineffective during the

habitual-offender hearing for allowing the court to refer to his

admission during trial of his prior felony convictions. As

9 discussed above, the court relied on certified copies of Harris'

prior convictions in determining that he was an habitual offender.

Harris also suggests that his counsel was ineffective for

failing to object to the purported violation of his due process

rights during the habitual-offender hearing and for failing to

object to the admission at trial of the flashlight and batteries

found during a search of Harris' residence. Harris fails to show

either deficient performance or prejudice with respect to such

claims.

AFFIRMED.

10