Revised November 16, 1998

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 97-41256 ___________________________

TYRONE FULLER,

Plaintiff-Appellant,

VERSUS

GARY JOHNSON, DIRECTION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court for the Eastern District of Texas ___________________________________________________

October 27, 1998

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

Tyrone Fuller, a Texas death row inmate, appeals the district

court’s denial of his request for federal habeas relief. He raises

several claims in this appeal. We conclude that he has

procedurally defaulted on these claims. In the alternative, we

conclude that his claims are without merit. We therefore affirm

the dismissal of his petition for habeas relief.

I. Facts

Andrea Lea Duke’s body was discovered on her neighbor’s front

steps on January 20, 1988. She had died as a result of multiple stab wounds to her chest and heart. Before she died, Duke was

severely beaten, raped, and left for dead. She died as she

struggled to reach her neighbor’s house.

Duke was attacked during the burglary of her duplex by John

McGrew, Kenneth Harmon and Petitioner, Tyrone Fuller. The police

recovered a bloody sock print on the hallway tile floor that was

consistent with Fuller’s footprint, but not those of his

codefendants. Blood typing and genetic marker testing of seminal

stains found on Duke’s bed excluded the possibility that Duke’s

boyfriend or either of the codefendants was the donor, but did not

exclude Fuller. DNA testing of seminal stains and hairs recovered

from Duke’s body excluded the possibility that they came from the

codefendants or Duke’s boyfriend, but did not exclude Fuller.

Tyrone Fuller was indicted for the capital murder of Andrea

Lea Duke while in the course of committing and attempting to commit

the offenses of aggravated sexual assault, burglary, and robbery in

violation of TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 1991).

Fuller was convicted of capital murder in March of 1989. The

jurors answered two special sentencing issues in the affirmative,

and the trial court sentenced Fuller to death.

Fuller appealed his conviction and sentence to the Court of

Criminal Appeals of Texas, which affirmed the conviction. Fuller

v. State,

(Tex. Crim. App. 1992). Fuller’s petition

for a writ of certiorari was denied by the United States Supreme

Court in June of 1993. Fuller v. Texas,

,

,

(1993). The Supreme Court denied a

2 rehearing in August of 1993. Fuller v. Texas,

,

,

(1993).

Fuller filed a state habeas petition, to which the trial court

submitted findings of fact and conclusions of law recommending

denial of the requested relief. The Court of Criminal Appeals

adopted the trial court’s recommendations and denied relief in

January of 1996. Ex parte Fuller, No. 30,127-01. The Supreme

Court denied writs in June of 1996. Fuller v. Texas,

,

,

(1996).

Fuller filed his first federal habeas petition in April 1996

and then requested leave to file an amended petition. The request

was granted, and Fuller’s amended petition was timely filed in July

of 1996. The district court appointed a magistrate judge to

conduct a hearing and propose findings of fact and conclusions of

law on Fuller’s habeas claims. After conducting an evidentiary

hearing, the magistrate judge entered proposed findings and

conclusions rejecting habeas relief. The district court adopted

the magistrate judge’s findings and conclusions and dismissed the

habeas petition in August of 1997. The district court granted a

Certificate of Probable Cause. Fuller now appeals the district

court’s judgment.

II. Procedure

A. The AEDPA

Because Fuller filed his habeas petition prior to the passage

of the 1996 Antiterrorism and Effective Death Penalty Act, the

regime set forth in that act does not apply to this case. Lindh v.

3 Murphy,

,

,

(1997).

B. Procedural Default

Habeas relief will not be granted by a federal court “unless

it appears that the applicant has exhausted the remedies available

in the courts of the State.”

(1994). The Supreme

Court has held that any petition containing an unexhausted claim (a

“mixed petition”) must be dismissed without prejudice for failure

to exhaust state remedies. Rose v. Lundy,

,

,

(1982). Fuller's federal

habeas petition included some claims that were exhausted in state

court and some claims that were not. Fuller asked the district

court to dismiss his petition without prejudice so that he could

proceed in state court on his unexhausted claims. The district

court denied Fuller’s request because the unexhausted claims were

procedurally barred in state court and therefore the exhaustion

requirement was met.

Fuller argues that the district court erred in refusing his

request to dismiss the unexhausted claims without prejudice.

Fuller’s argument is without merit. The Supreme Court has held

that the exhaustion requirement only exists with respect to

remedies available at the time the federal petition is filed.

Therefore, the exhaustion requirement is satisfied if such claims

are procedurally barred under state law. Gray v. Netherland,

,

,

(1996).

See also Coleman v. Thompson,

, 735 n.1,

4 2546, 2557 n.1,

(1991); Engle v. Isaac,

, 125 n.28,

, 1570 n.28,

(1982).

Fuller did not raise the claims he asserts before us in his

state habeas petition. We conclude that he is now foreclosed from

bringing these claims in a second habeas petition because of

Texas’s abuse of the writ doctrine.1 Ex parte Carr,

(Tex. Crim. App. 1974); Coleman,

n.1,

n.1.

Fuller argues that Texas did not regularly apply the abuse of

writ doctrine when he filed his state habeas petition in May of

1995, and thus it would not serve as a procedural bar and fulfill

the exhaustion requirement. Although Fuller is correct that a

procedural rule that acts as a bar must be “firmly established and

regularly followed,” Ford v. Georgia,

,

,

(1991) (quoting James v. Kentucky,

,

,

(1984)), we

have previously determined that the abuse of writ doctrine was

strictly and regularly applied at the time Fuller filed his first

habeas petition. Emery v. Johnson,

(5th

Cir. 1997). See also Fearance v. Scott,

(5th Cir.

1995).

In Emery, this Court recognized that although the abuse of

writ doctrine historically had not been strictly and regularly

1 Although an abuse of the writ rule was added to the Texas Rules of Criminal Procedure in 1995, TEX. CODE CRIM. P. ANN. art. 11.071 § 5(c), the doctrine that preceded the adoption of this rule constitutes adequate grounds to decide this appeal.

5 applied, the irregularity was cured in 1994 when the Texas Court of

Criminal Appeals announced that the doctrine would thereafter be

strictly applied.

. This panel is bound by

Emery’s precedent. Narvaiz v. Johnson,

(5th Cir.

1998). We therefore reject petitioner’s claim that the abuse of

the writ doctrine was not strictly or regularly applied. Thus,

Fuller would have been precluded from asserting his unexhausted

claims in a successive habeas petition in Texas state court.

Because Fuller could not have sought relief on his claims in

state court, the district court correctly concluded that it need

not dismiss Fuller’s petition without prejudice to permit him to

exhaust these claims. Although Fuller could overcome this

procedural default by demonstrating cause and prejudice for his

failure to bring all claims in his initial state habeas petition,

he made no such argument either to the district court or to this

Court.

Petitioner also argues that the procedural bar cannot operate

to preclude federal review of his claims because he may present

these claims to the Texas Court of Criminal Appeals under that

court's original habeas jurisdiction regardless of any writ abuse.

In September 1995, Texas adopted Article 11.071 § 5(a) of the

Texas Code of Criminal Procedure, which precludes a state court

from considering the merits of claims presented in a successive

habeas application unless predicate facts for a statutory exception

are established.

In Ex parte Davis, the Texas Court of Criminal Appeals,

6 sitting en banc, considered whether it had habeas jurisdiction

separate and apart from that referred to in Article 11.

(Tex. Crim. App. 1997). A minority of the court answered this

question in the affirmative. We conclude that this minority view

of the Texas Court of Criminal Appeals that it may have the right

to consider a successive habeas petition despite Article 11 does

not demonstrate a change in the strict, regular application of the

abuse of writ doctrine by Texas courts.

Because the claims Fuller brings in this petition are

procedurally barred in state court, these claims are not cognizable

in federal habeas proceedings. In the alternative, however, we

address the merits of these claims.

III. Ineffective Assistance of Counsel

Fuller challenges the district court’s denial of his claim

that his attorney was ineffective. Even were Fuller's claim not

procedurally defaulted, it is meritless.

To demonstrate that his counsel was constitutionally

ineffective, Fuller must make two showings. First, he must show

that his counsel’s performance was deficient--that counsel was not

reasonably competent and counsel’s advice was not “within the range

of competence demanded of attorneys in criminal cases.” Strickland

v. Washington,

,

,

(1984). Second, Fuller must show that his defense was

prejudiced by his counsel’s incompetence.

A. Failure to Investigate Juror Boyce Lee Lindsay

Fuller first argues that his counsel was constitutionally

7 ineffective because both trial and appellate counsel failed to

raise the issue that one of his jurors had been legally accused of

theft. Juror Boyce Lee Lindsay was charged with theft at the time

he was selected to serve on Fuller's jury. The juror questionnaire

asked whether any juror was ever “charged, arrested, indicted,

convicted or received any type of probation or deferred

adjudication for any criminal offense above the level of a traffic

ticket.” Juror Lindsay replied “No” to this question.

In addition, during voir dire, the court instructed the panel

that if any panelist was under legal accusation for a felony or any

theft offense, the panelist must approach the bench. Juror Lindsay

heard this admonition, but remained silent. Juror Lindsay was

later selected as the twelfth member of the jury. Fuller argues

that had counsel conducted a thorough review of the jurors’

criminal records following the trial, they would have discovered

Lindsay's criminal charge and could have moved for and obtained a

new trial.

We decline to hold that counsel is ineffective under such

circumstances and none of the cases Fuller cites supports a

contrary conclusion. Competent counsel need not engage in such

searching investigations of jurors where no suspicion is raised

about the truthfulness of the juror's responses to questions.

In addition, Fuller has not satisfied the prejudice prong of

Strickland. Even were we to believe that Fuller has demonstrated

that his counsel was constitutionally deficient, Fuller has not

demonstrated how Juror Lindsay’s participation affected the

8 reliability or the fairness of his trial.

B. Grand Jury Testimony

Petitioner next asserts that his counsel was constitutionally

ineffective for failing to advise him not to testify before the

grand jury in April 1988. Fuller argues that he was reluctant to

testify, but his counsel advised that if he testified, he might

escape indictment for capital murder. Counsel further advised that

he would have no problems answering the prosecutor’s questions.

Fuller’s counsel stated in her affidavit that she and Fuller

discussed the pros and cons of testifying, and discussed the

possibility that he might be indicted for murder and not capital

murder. Counsel stated that she could not imagine that she told

Fuller that he would have no problems answering the prosecutor’s

questions. Counsel further stated that Fuller was convinced of his

ability to persuade the grand jury that he was not involved in this

case. Ultimately, Fuller made the decision to testify. Counsel

and the prosecutor stated in their affidavits that the information

regarding Fuller at the time of the grand jury testimony indicated

that he was the least culpable of the three potential perpetrators.

Counsel stated that she was negotiating a plea bargain at that

time. Indeed, it was only later, after forensic evidence was

discovered, that the prosecutor concluded that Fuller was the

primary participant.

The district court, after conducting an evidentiary hearing,

found that "the state habeas court's findings are consistent and

comport to the evidence adduced at the [federal] evidentiary

9 hearing." The district court then relied on the state court

findings that Fuller knowingly, voluntarily, and intelligently

waived his right not to testify before the grand jury. The state

court further found that Fuller insisted on testifying to the grand

jury, and that at the time of the grand jury testimony, he was

advising his attorneys that he was not involved in the murder or

sexual assault. The trial court also found that counsel did not

tell Petitioner that he would not be indicted for capital murder if

he testified, and did not advise him that he would have no problems

answering the prosecutor’s questions.

We agree with the district court that Fuller made an informed

choice to testify before the grand jury and that Fuller’s counsel

was not constitutionally ineffective for failing to advise Fuller

not to testify in these circumstances. We conclude that the

district court properly dismissed this claim as meritless.

IV. Sixth Amendment Right to Counsel

Fuller argues next that the state violated his Sixth Amendment

right to counsel by refusing to allow his counsel to be present

during the grand jury proceeding. In United States v. Mandujano,

the Supreme Court held that a witness has no constitutional right

to an attorney during grand jury proceedings when criminal

proceedings have not been instituted against the witness and

therefore the Sixth Amendment right to counsel has not attached.

,

,

(1976).

Because Fuller had not been indicted at the time of his grand jury

testimony, his Sixth Amendment right to counsel had not attached

10 and therefore could not have been violated.

V. Juror Lindsay’s Presence and Fuller’s Due Process of Law

Fuller argues finally that the presence of Boyce Lee Lindsay

on his jury deprived him of his rights to due process and a fair

trial. Fuller argues that because Texas law disqualified Lindsay

from service on a jury, the failure to follow such law rendered his

trial unconstitutional. This Court does not review violations of

state law on habeas unless the violation renders the trial as a

whole fundamentally unfair. Engle v. Isaac,

,

,

(1982). Fuller’s only showing

of unfairness is that the state law was violated. Fuller has not

shown that the failure to follow a state law regarding the

composition of a jury renders the entire trial fundamentally

unfair. Fuller has thus not asserted a claim cognizable in federal

habeas corpus proceedings.

, 102 S. Ct. at 1567.

Conclusion

In summary, we conclude that Fuller’s claims are not

cognizable on federal habeas because Fuller procedurally defaulted

on these claims in the state court. In the alternative, the claims

are without merit. We therefore affirm the judgment of the

district court dismissing Fuller’s habeas petition.

AFFIRMED.

11