IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-11052 _____________________

BRIAN KEITH ROBERSON,

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 (3:97-CV-1488) _________________________________________________________________ April 5, 2000

Before JOLLY, STEWART, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

I

Brian Keith Roberson applies for a certificate of

appealability on six claims of error by the district court.1

Specifically, he contends that (1) the district court erred by

denying a request for an evidentiary hearing; (2) the district

court erred by holding that certain evidence supporting his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Roberson’s motion to file an amended brief in support of his application for a certificate is granted. Our denial of the application is based on review of that amended brief. ineffective assistance of trial counsel claim to be procedurally

barred; (3) he was denied his Sixth Amendment right to effective

assistance of counsel at the punishment phase of his trial; (4) the

admission of a psychiatric report at the punishment phase violated

constitutional due process; and (5) and (6) the prosecutor’s

conduct violated his rights by striking all but one of the African-

American members of the venire and for striking for cause an

individual based on his views on the death penalty. We consider

each argument in turn and find no merit. Therefore, the

certificate is denied.

In the district court proceedings, the magistrate judge issued

“Findings, Conclusions and Recommendation” on Roberson’s habeas

action on June 10, 1999, recommending denial of relief. The

district court adopted that report. The district court thereafter

denied Roberson’s request for a certificate of appealability on the

ground that “Petitioner has failed to make a substantial showing of

the denial of a federal constitutional right,” citing Trevino v.

Johnson,

(5th Cir. 1999).

II

The Texas Court of Criminal Appeals stated the facts

supporting Roberson’s conviction and sentencing concisely.

The evidence at trial showed that at approximately 7:00 A.M. on August 30, 1996, [Roberson], who lived directly across from the Boots residence, knocked on their door. When Mr. Boots answered the door, [Roberson] gained entry into the house. He then stabbed both Mr. and Mrs. Boots to death with a knife. Before exiting the residence, [Roberson] ransacked the house and took a necklace. It

2 was found in his possession when he was arrested approximately one day later. [Roberson’s] bloody fingerprints were found inside the deceased’s home. [Roberson] gave a written confession to the police admitting he ransacked the house and stabbed both the occupants. The confession was admitted into evidence at trial.

III

A

We first address Roberson’s ineffective assistance of counsel

claim with respect to failure to produce sufficient witnesses at

the punishment phase.

The state habeas court rejected this argument without holding

a hearing. No hearing was held despite an alleged promise to

Roberson’s habeas attorney that a hearing would be held. Based on

that alleged promise, Roberson maintains that his habeas attorney

did not include in his filings in state court the affidavits of

four witnesses in support of his ineffective counsel claim.

Exhibit six in his current filing contains those four affidavits,

which counsel now claims demonstrate that there were other

witnesses trial counsel should have called at the sentencing phase

of the trial in mitigation of the death penalty.

The State of Texas, in its answer in the district court, had

this to say:

Roberson points to no motion for evidentiary hearing or order of the state habeas court that would lend support to counsel’s affidavit. Further, his state habeas application belies his assertion that he was waiting to present the affidavits at a hearing. There, he states, ‘As the attached affidavits show (Exhibit #5), there was a much more complete sympathetic aspect of this

3 behavior.’ Clearly, this language contemplates that support for his application would be submitted contemporaneously with its filing. The affidavits were made on August 28 and 30, 1995 and Roberson filed his application on August 31, 1995. Even though the state’s answer dated October 7, 1996, put Roberson on notice of this omission, Roberson did not submit the affidavits before the state court denied habeas relief on January 22, 1997. Roberson cannot credibly rely on a promise by the state habeas judge to excuse his failure to attach the exhibits to his application.

(Answer, Record on Appeal vol. 2, 200) (emphasis in original)

(citations omitted). Reviewing the counsel’s affidavit and the

state’s response, the magistrate judge concluded: “The reasons

advanced by Roberson’s State court habeas counsel for failing to

have presented the affidavits in the course of his State habeas

proceedings are insufficient to excuse his failure to include the

affidavits in the State proceeding and, therefore, relief on this

claim is procedurally barred.” We agree.

Furthermore, we take the occasion to observe that even if the

affidavits had been included as evidentiary exhibits, Roberson

would fare no better on the merits. We have reviewed these four

affidavits, which are from family members solely. From a

perspective most favorable to Roberson, we can surmise that

Roberson was a troubled youth, perhaps largely as a result of the

murder of his father. Sometime in adulthood, Roberson fell in with

a female drug dealer, became hooked on crack cocaine (admitting to

his mother “I’m on the pipe,” and going from a 28 waist size to a

size 21), and suffered delusional fits.

4 Affidavits from four more family members, which do no more

than give excuses for their relative’s behavior, would have been

repetitive of other testimony (twelve family members and friends

gave similar testimony during the punishment phase). Among the

four affidavits, the ones of his mother and aunt present Roberson

as thoroughly drug-addicted. These affidavits would likely have

been more harmful than helpful to Roberson’s cause. The other two

affidavits, from his grandmother and an uncle, provide no probative

evidence relating to mitigation of punishment. His grandmother

states: “I know the family tried to keep his troubles from me

because I loved him so and would have been upset. . . . I don’t

know anything about drugs, I just know that he was the best

grandson a woman could have.” His uncle states: “I didn’t know

anything about all the trouble Brian had been in and only saw him

occasionally. I really had nothing to offer in the way of

testimony other than the fact that he seemed to be a good boy

around me.” In short, even if the state habeas court had heard

testimony of these individuals, it would have added nothing to

Roberson’s ineffective counsel claim.2

B

2 In view of the fact that Roberson’s affidavits add nothing to his ineffective assistance of counsel claim, it follows that his arguments that he was prejudiced by the state habeas court’s failure to grant a hearing to present these witnesses, and that the district court erred in failing to grant an evidentiary hearing concerning the lack of a state court hearing are meritless.

5 We now turn to Roberson’s other ineffective assistance of

counsel claims. Roberson argues that he was denied his Sixth

Amendment right to effective assistance of counsel at the

sentencing phase of his trial on the following grounds: (1) that

counsel should have asked better questions of the witnesses; (2)

that counsel failed to pursue psychiatric claims; and (3) that

counsel failed to request an “afterthought” charge. Roberson’s

claim is judged under the Strickland standard, that is, whether

there was deficient performance and, if so, whether it was

prejudicial.

1

We have reviewed the list of witnesses Roberson’s trial

attorney put on on Roberson’s behalf. Roberson states: “Of the

witnesses called, trial counsel elicited the vaguest endorsements

of the Appellant’s character. Trial counsel was unable to

establish significant contact or social ties between most of the

witnesses and the Appellant.” With respect to counsel’s

questioning of these witnesses, Roberson states:

Trial counsel’s effort to rebut the onslaught of Prosecution witnesses whose testimony portrayed the Appellant as pitiless and immoral was feeble. . . . [Roberson’s] attorneys were aware of mitigating issues regarding the death of [Roberson’s] father and its effect on him, his struggle with drug abuse and drug dealers, and positive attributes despite these negative issues. However, they wholly failed to connect the testimony of the witnesses with these issues and witnesses that could have testified and made the connections were not called. It is not the witnesses or their knowledge but the questions asked and the selection of the witnesses by inexperienced trial counsel.

6 Roberson fails to offer anything except conclusory allegations

as to how the selection of witnesses or questioning of those

individuals called amounted to ineffective assistance of counsel

under Strickland. This claim is without merit.

2

Roberson also argues that his counsel was ineffective because,

despite his counsel’s knowledge that “he had been taking an

extraordinary amount of drugs and alcohol for at least two days

before the offense,” he did not have Roberson examined by a

psychiatrist and his examination of Roberson’s mental state,

limited to administering a MMPI test, was “feeble.”

In Strickland, the Court said:

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigation unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

466 U.S. at 691. Given that standard of deference, and with

Roberson’s inability to show any evidence that he had a mental

disease, counsel’s election not to pursue the path of a mental

illness defense was not unreasonable. Roberson cites Profitt v.

Waldron,

(5th Cir. 1987), for the

proposition that where an individual’s only defense is one of

mental health, failure to pursue an investigation of that health

constitutes deficient performance. Profitt, however, involved an

insane individual’s escape from a mental institution and subsequent

7 conviction for aggravated rape after that escape. Despite

knowledge that a state court had adjudged Profitt insane and had

him committed, his counsel did not investigate this obviously

available line of defense. The facts in this case, however,

presented no such situation.

3

Roberson argues that his counsel’s failure to request a jury

charge that his subsequent burglary of the home after he had killed

his victims was an “afterthought” constitutes ineffective

assistance of counsel. He refers to his confession:

I was walking home yesterday and I went up to the Boot’s front door. I knocked on the door, and he came to the door. He opened the door, and I pushed my way in. I started fighting with Mr. Boots. The lady came up from behind him. I started stabbing them. After I stabbed them, I went through the house and then I went out the front door.

Based solely on this confession, he argues that “[t]his statement,

introduced by the State, indicates that the theft from the home,

which constitutes the underlying offense of burglary, was an

afterthought, and that [Roberson] had no intention of committing a

burglary or theft when he entered the home.”

The State trial court said this:

This Court further finds that an afterthought defensive theory was not plausible with the amount of blood found in different areas of the home and the disheveled condition of the home. Blood from the victims and applicant’s own injuries was found at the scene of the murders and in the front bedroom, where applicant had placed the bloody murder weapon on the vanity and taken things from the jewelry box on that vanity. An additional knife with a bent blade was found in the

8 master bedroom, but no blood was found on that knife. Further, the drawers of the chest in the master bedroom were pulled out. The house appeared to be ransacked. The position of the victim’s bodies, the condition of the house, and the trail of blood throughout the house made an afterthought defensive theory incredible; applicant’s trial counsel tried instead to negate the aggravating element of burglary by asserting that applicant had entered the house with the effective consent of the victims. Applicant has therefore failed to rebut the presumption that his trial and appellate counsel performed in the furtherance of sound trial strategy.

(Findings of Fact, Conclusions of Law, and Order, 292nd Judicial

Dist., pp. 45-46.) Referring to Roberson’s confession, the

magistrate judge stated, “[t]here is nothing which indicates that

he committed theft at the decedent’s residence as an afterthought

after fatally stabbing them.” We agree. Because the state courts

held that he was not entitled to an afterthought charge, and this

decision is neither an unreasonable application of clearly

established federal law nor an unreasonable determination of the

facts in the light of the evidence presented, Roberson’s claim

fails. See § 2254(d)(1)-(2).

C

Roberson next argues that there was constitutional error in

the introduction of his psychiatric report from juvenile prison,

which had been prepared during his confinement there some six years

earlier. Over counsel’s objection, the trial judge allowed the

prosecution to introduce the psychiatric report.

The question is whether the introduction of the report

violated the standards set forth in Estelle v. Smith,

9 (1981). Estelle v. Smith held that the introduction of a

psychiatric examination prepared in the course of determining the

defendant’s mental competency for purposes of trial violated that

individual’s Fifth and Sixth Amendment rights. The examination was

made post-indictment and without the permission of Smith’s

attorney.

Estelle v. Smith does not apply on the facts of this case

because, at the time of Roberson’s evaluation in juvenile prison,

no Fifth or Sixth Amendment rights were implicated. He was

evaluated for the purpose of determining whether he should be

released. Because the evaluation did not implicate Fifth or Sixth

Amendment rights, its introduction is a question of propriety under

the Texas evidence code. That, in turn, is not a subject for

review by this court under habeas corpus grounds because it

presents no federal question.

D

Finally, Roberson argues errors in the jury selection process.

First, he contends that he was denied his constitutional rights

under the Equal Protection Clause of the Fourteenth Amendment and

the Due Process Clause of the Fifth Amendment in violation of

Batson v. Kentucky,

(1986), by the State’s use of a

racially motivated juror strike against Ms. Terri Jackson. The

prosecutor struck all but one of the African-American members of

the venire. Second, Roberson contends that his Eighth and

Fourteenth Amendment constitutional rights were violated by the

10 dismissal for cause of juror, Stanley Allen, because of his views

on the death penalty. This contention is essentially a claim under

Witherspoon v. Illinois,

(1968).

11 1

The prosecutor explained that he struck Ms. Jackson because of

her lack of education, her intelligence level, she knew someone

tried for murder by the same prosecutor, and because she could

impose the death penalty only if one of her family members had been

murdered.

Thus, even if Roberson made out a prima facie case of racial

discrimination against the prosecutor, ultimately, he can show no

violation of Batson because the reasons proffered by the prosecutor

for striking the black juror were racially neutral. See Hernandez

v. New York,

(1991). Given his racially neutral

explanation, it fell to the trial court to decide “whether the

opponent of the strike has proven purposeful discrimination.”

Purkett v. Elem,

(1995). The “evaluation of the

prosecutor’s state of mind based on demeanor and credibility lies

‘peculiarly within the trial judge’s province.” Hernandez,

. Furthermore, “[f]ederal habeas review of a state

conviction requires a reviewing federal court to accord a

presumption of correctness to the state court's factual findings,

and demands that the presumption be rebutted by clear and

convincing evidence.

(e)(1).” Thompson v. Cain,

(5th Cir. 1998). Adhering to that standard, we

will not disturb the state court’s finding that the prosecutor’s

strike of Ms. Jackson did not violate Batson.

2

12 Turning now to the second jury selection issue, we start with

the premise that a prospective juror may be excluded for cause

because of his views on capital punishment when “the juror’s views

would ‘prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his

oath.’” Wainwright v. Witt,

(1985) (quoting

Adams v. Texas,

(1980)).

Here, the trial court excused Mr. Allen on the basis of his

responses that to impose the death penalty would violate his

conscience. This was a matter of judgment, based to large extent

on a credibility determination. We will not second-guess that

determination. See, e.g., Corwin v. Johnson,

(5th Cir. 1998). Although Mr. Allen did say that he could impose

the death penalty if told to do so, he made statements suggesting

he wanted no part of that decisionmaking process. Similarly, he

suggested that his ability to do so would be substantially

impaired. The trial court’s excusal was not “an unreasonable

application of clearly established federal law as determined by the

Supreme Court of the United States.”

(d)(1); see

McFadden v. Johnson,

(5th Cir. 1999).

IV

Because Roberson is unable to demonstrate any merit to any one

of his assertions of error, his application for a certificate of

appealability is

D E N I E D.

13 14