UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10343

CORNELIUS A. GOSS,

Petitioner - Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of Texas (3:95-CV-51)

October 20, 1999 Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:*

Petitioner Cornelius A. Goss, an inmate of the Texas

Department of Criminal Justice, seeks a certificate of

appealability from the district court’s refusal to grant him a writ

of habeas corpus. We grant COA and deny relief.

Goss was convicted of capital murder and sentenced to death by

lethal injection. The sentence was affirmed on direct appeal. See

Goss v. State,

(Tex. Cr. App. 1992), cert. denied,

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

,

(1993). His petition for habeas

corpus in state court was denied, and that denial was affirmed on

appeal. He subsequently filed a petition for habeas corpus in

federal district court, which was likewise denied. Goss only

challenges his death sentence -- he does not challenge the

underlying conviction -- so we need not repeat the details of the

murder.

We address each of Goss’ claims in turn.

I.

Goss contends that he had ineffective assistance of counsel at

trial, based on his lawyers’ failure to conduct an investigation

into his background or to have a mental health exam performed on

him, and based on their failure to examine the state’s star expert

witness on voir dire.

A two-pronged cause and prejudice test governs ineffective

assistance claims: “First, the defendant must show that counsel’s

performance was deficient. . . . Second, the defendant must show

that the deficient performance prejudiced the defense.” Strickland

v. Washington,

,

(1984). To

demonstrate “cause,” Goss must show “that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.”

To

establish “prejudice,” Goss must show “that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.”

-2- A.

Goss complains that his counsel rendered ineffective

assistance by failing to conduct a background investigation or a

mental health exam to uncover potentially mitigating evidence. He

claims that such an investigation should have been triggered by his

lawyers’ knowledge that he was intoxicated at the time of the

offense. He therefore reasons that a mental health exam was

necessary to determine whether his conduct was due to a substance

abuse disorder or a cognitive impairment. If his lawyers had made

such an investigation, Goss contends that his history of

psychoactive substance abuse would have been discovered, and the

state would not have been able to make the argument it did to the

jury: that there was no medical explanation for Goss’ offense.

If nothing alerted defense counsel to the potential for

mitigating evidence arising from a psychiatric examination, the

failure to obtain such an examination is not ineffective assistance

of counsel. See Wiley v. Puckett,

(5th Cir.

1992). A history of substance abuse alone is not sufficient to

trigger a duty to conduct such an examination. See

To support

his claim that his lawyers should have known that an exam was

necessary, Goss points to the testimony of his defense expert Dr.

William R. Hester, Jr. Dr. Hester’s trial testimony did indeed

indicate that an examination of Goss for a possible mental

impairment was necessary. However, this comment was elicited at

trial during the course of an attempt to discredit an opinion of

the state’s expert witness, and the record contains no evidence

-3- indicating that counsel for Goss had the benefit of this particular

opinion prior to trial.

Furthermore, Goss was not prejudiced. The benefit of this

information would not have affected the defense theory at trial,

which was to dismiss the state’s evidence of Goss’ anti-social

personality as “psycho mumbo jumbo.” Since drugs were not related

to this offense, the reasons for Goss’ drug abuse would not have

affected sentencing.

In light of the lack of evidence that counsel had been alerted

before trial to information which should have prompted a full

mental exam, and considering counsel’s reasonable professional

decision to pursue a strategy of attacking the methodology used by

the state’s experts to reach conclusions about Goss’ future

dangerousness, we conclude that the failure to conduct such an exam

was not objectively unreasonable.

B.

Goss also complains of his counsel’s failure to object to the

trial court’s refusal to allow voir dire of the state’s expert, Dr.

Sigel, who testified that a hypothetical person with Goss’ history

would suffer from “long term chronic anti-social personality” which

is untreatable and cannot improve with age. Dr. Sigel opined that

such a person “will commit further acts of violence.” Although

defense counsel had been led to believe that voir dire would be

permitted outside the presence of the jury as permitted by Tex. R.

Crim. Evid. 705(e), the trial court reversed its position at the

-4- time the state called its expert. Counsel failed to object despite

the fact that Texas law clearly provides the right to conduct a

voir dire examination in this circumstance. Goss contends that he

was prejudiced because after the right to voir dire was lost, his

counsel could not have effectively cross-examined the expert.

The district court ruled that Goss had not demonstrated that

the state court’s failure to follow Tex. R. Crim. Evid. 705(e)

constituted a violation of due process or equal protection, and

concluded that a writ of habeas corpus should not issue to remedy

a failure to take advantage of a state rule of procedure. For the

purposes of the ineffective assistance claim, however, it matters

not that the underlying attorney conduct related to state

procedures which are not constitutionally mandated. The right to

effective counsel itself is a right assured by the Constitution,

see U.S. Const. amends. VI & XIV; see also Powell v. Alabama,

,

(1932), and the failure to provide

effective assistance of counsel, albeit with respect to the

competent use of state procedure, can be remedied by a writ of

habeas corpus from a federal court.

Still, even were we to assume arguendo that the failure to

enter a contemporaneous objection constituted a deprivation of

counsel for the purpose of the Sixth and Fourteenth Amendments, the

writ cannot issue because Goss was not prejudiced. Despite the

lack of voir dire, Dr. Sigel was vigorously cross-examined by Goss’

attorney. Moreover, Dr. Sigel’s conclusions were directly attacked

by two defense experts. We conclude that the opportunity to

-5- conduct a voir dire examination of Dr. Sigel outside the presence

of the jury before cross-examination did not significantly affect

the ability of Goss’ lawyer to conduct a cross-examination. Any

doubts concerning the basis for Dr. Sigel’s opinion could be

clarified on cross-examination just as easily as on voir dire. We

thus conclude that Goss was not prejudiced because a voir dire

examination of Dr. Sigel likely would not have altered the result

of the sentencing proceeding.

II.

Goss argues that the trial court’s disallowance of a voir dire

examination of Dr. Sigel caused his trial to be fundamentally

unfair and thereby violated his right to due process. Here, we may

rest on procedural default. As previously noted, counsel for Goss

failed to make a contemporaneous objection. A contemporaneous

objection is required for the preservation of error in Texas

courts, see Tex. R. App. P. 33.1, and the rule is well-established

and consistently applied. See Hogue v. Johnson,

(5th Cir. 1997), cert. denied,

(1998). Having

waived his objection by failing to make it at trial, Goss must

demonstrate cause and prejudice to overcome his procedural default.

See Wainwright v. Sykes,

,

(1977); see generally 17A Charles Alan Wright et al., Federal

Practice and Procedure § 4266.1 (2d ed. 1988). The only reason

given by Goss for his failure to object, mistake by counsel, does

not constitute cause unless it rises to the level of ineffective

-6- assistance of counsel. See Murray v. Carrier,

, 486-

88,

(1986). We have already rejected that

possibility, see supra Part II. Additionally, as already noted,

see id., Goss was not prejudiced by his lawyer’s inability to

conduct the voir dire examination.

III.

In Texas, the capital sentencing procedure requires jurors to

determine “whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a continuing

threat to society.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1)

(Vernon 1981). The jury answered this special issue in the

affirmative. Goss challenges his sentence based on the trial

judge’s failure to instruct the jury about the meaning of the term

“criminal acts of violence” and based on the sufficiency of the

evidence to support the jury’s verdict.

A.

First, we consider the trial judge’s failure to define

“criminal acts of violence.” During the jury voir dire, most of

the eventual jury members were told by the presiding judge that

“criminal acts of violence” are “crimes against persons, or crimes

against property involving violence to persons.” A different judge

presided over Goss’ trial, and over objections by the defense he

declined to instruct the jury about the meaning of the phrase.

During deliberations, the jury sent the judge a handwritten note

-7- which asked whether “criminal acts of violence” are “against

property or persons or both.” The jury also asked for “a copy of

the legal definition of ‘criminal act of violence.’” The judge

declined to provide the requested definition.

Goss contends that “criminal acts of violence” should have

been defined due to the confusion that was caused when some but not

all jurors heard a definition early in the proceedings. According

to Goss, the mid-deliberation handwritten note demonstrates juror

confusion on this issue, and the trial judge erred by refusing to

provide a definition.

The district court concluded that this complaint is barred by

the rule in Teague v. Lane,

,

(1989),

and we agree. Under Teague, a federal court is powerless to grant

habeas relief based on a “new rule” of constitutional law. On June

28, 1993, the date the Supreme Court denied certiorari in the

direct appeal of Goss’ conviction, the law in Texas plainly

provided that the failure to define “criminal acts of violence” was

not error. See, e.g., James v. Collins,

(5th Cir. 1993). To rule otherwise now would require the

application of a “new rule.” Neither of the narrow Teague

exceptions applies, so we cannot grant relief based on the failure

of the trial court to provide the jury a definition of “criminal

acts of violence.”

-8- B.

-9- Goss also challenges the sufficiency of the evidence to

support the jury’s verdict on this special issue. We need not

reach the merits of the argument because Goss failed to pursue the

issue on direct appeal. The state habeas court denied the writ,

reasoning that Goss confronts a procedural bar because Texas does

not permit collateral challenges to sufficiency of the evidence;

such claims must be asserted in a direct appeal. The district

court likewise denied the writ based on the state court’s

disposition on that independent and adequate state procedural

ground.

We tend to agree, but we base our decision on even simpler

principles concerning waiver. The Supreme Court recently ruled:

Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.

. . . .

Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.

O’Sullivan v. Boerckel,

(1999). According to

a well-established and consistently applied rule, the appellate

review process in Texas requires challenges to sufficiency of the

evidence to be raised on direct appeal, not in collateral

proceedings. See, e.g., Ex parte Brown,

(Tex.

-10- Cr. App. 1988); Ex parte Williams,

(Tex. Cr.

App. 1986) (“It has long been the general rule that the sufficiency

of the evidence cannot be attacked collaterally.”); Ex parte McKay,

(Tex. Cr. App. 1917) (“It is a general and

well-established rule that, when a court has jurisdiction to enter

a particular order or render a given judgment, and in the exercise

of this jurisdiction enters an order or judgment regular on its

face, its validity is conclusively presumed unless set aside or

annulled in a direct proceeding.”); cf. Sutherland v. De Leon,

(1846) (“We are not now, however, to inquire into the

irregularities of the judgment on the attachment; if not void, it

cannot be treated as a nullity, although error may be very apparent

on the record; until reversed, it is conclusive of the

subject-matter, unless successfully impeached for fraud.”). Goss

has failed to do so, and the opportunity to raise this complaint on

direct review is long passed. Thus Goss’ failure to present this

error to the Texas Court of Criminal Appeals on direct appeal and

in a timely fashion has resulted in a procedural default of those

claims. See Coleman v. Thompson,

,

(1991); Engle v. Isaac,

, 125-26 n.28,

, 1571 n.28 (1982).

IV.

Goss contends that he is entitled to relief based on the

prosecution’s violation of the rule in Brady v. Maryland,

,

(1963), requiring the disclosure of exculpatory

-11- evidence to the defense. He contends that the prosecution failed

to disclose the identity of a taxi driver hired by Goss after the

murder, and the fact that it had promised to dismiss charges

against one of the witnesses in exchange for her testimony.

Goss contends that the taxi driver may have testified that he

(Goss) was intoxicated immediately after the crime, thereby

negating the mens rea element of the crime. But there is no

evidence in the record to suggest that the taxi driver observed

Goss to be intoxicated. Thus no Brady relief is available because

Goss has not shown that the evidence is material, i.e., that “there

is a reasonable likelihood that the testimony could have affected

the judgment of the trier of fact.” United States v. Bagley,

,

(1985).

Goss also contends that the prosecution suppressed the fact

that criminal charges against one of the state’s witnesses were

dropped in exchange for testimony. The state habeas court

determined that there was no such deal. That factual finding is

presumed to be correct. See

(d)(2). Goss points

to no evidence which overcomes this presumption, and we are

therefore powerless to grant relief.

V.

Finally, relying on various newspaper articles and statistics,

Goss complains that he was the victim of racially discriminatory

prosecution policies at the Dallas County District Attorney’s

Office. He makes no effort to prove purposeful discrimination

-12- against him or a discriminatory effect on him, as are required to

make such a claim under McClesky v. Kemp,

,

(1987). In light of this fundamental failing, we

cannot grant relief.

VI.

We grant the certificate of appealability requested by Goss.

For the aforementioned reasons, we affirm the district court’s

denial of the writ, largely for the same reasons expressed by the

district court.

AFFIRMED.

-13-