IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50455

CHRISTOPHER BLACK, SR., Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent - Appellee.

Appeal from the United States District Court For the Western District of Texas, Waco

January 15, 2003 ON PETITION FOR REHEARING (Opinion December 11, 2002, 5th Cir., 2002,____F.3d___)

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

The petition for rehearing for Christopher Black is GRANTED in

part and DISMISSED in part.

I

The opinion will be modified to reflect that John R. Duer was

counsel of record in the direct appeal in state court.

II Petitioner reurges his claim of error in disqualifying Wilma

McKenney Bonds, a prospective member of the venire, outside the

presence of all counsel. Specifically, he argues that the

disqualification came at trial and not at a stage preliminary to

voir dire in the case at which the general qualifications of

persons to serve as a juror was decided. We again reject his

contention.

The record reflects that Bonds was summoned to appear at 9:00

a.m, for Bell County jury service. As we have explained, she did

not appear until the noon recess when the trial judge excused her

outside the presence of counsel. Before Bonds arrived, the trial

judge spent the morning deciding “exemptions or disqualifications,”

a culling process of those who did report timely, leading to a list

of venire persons he certified as meeting the legal requirements

for jury service.

Judge Carroll then gave the members of the certified venire

general instructions about jury service and ordered them to again

report to the courthouse four days later. Only on the return of

the venire did the focus turn to qualification to serve in this

case and only then was the venire introduced to the case. That is,

this is when voir dire began, a phase transcribed as “individual

voir dire proceedings,” four days after the exemptions and

qualification stage at which Judge Carroll had excused Bonds.

In sum, the jury in this case was the product of two distinct

phases. At the exemption and disqualification stage Judge Carroll

2 explained the general qualifications for jury service, including

inquiry into whether any person had committed a felony, was over

the age of 70, or had other hardships. Ms. Bonds arrived at the

courthouse at noon at the end of this phase. She was never

certified as part of the venire from which the petit jury would be

selected.

We do not gainsay the centrality of voir dire in the trial of

a criminal case nor a defendant’s right to counsel at that

juncture. Whether a preliminary inquiry into general

qualifications for jury service leading to a venire certified to

meet statutory qualifications to serve on any jury is such a

component of trial such as to trigger the right to be present with

counsel is uncertain. It has not been established by decisions of

this court or the United States Supreme Court. Its procrustean fit

across the myriad means throughout the country of gathering

citizens to form a venire aside, we are not persuaded that such a

rule of Constitution law is dictated by precedent. We cannot then

announce such a rule in a habeas case.

3