                     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this opinion should not be published and is not precedent except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, 168 F.3d 173, 177 (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,   831    F.2d   1245,   1248-49     (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, 451 U.S. 454




                                           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, 476 U.S. 79 (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, 391 U.S. 510 (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, 500 U.S. 352, 360 (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, 514 U.S. 765, 767 (1995).             The “evaluation of the

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

‘peculiarly within the trial judge’s province.”                 Hernandez, 500

U.S. at 365.       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.          28 U.S.C. S 2254(e)(1).”      Thompson v. Cain,

161 F.3d 802, 811 (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, 469 U.S. 412, 424 (1985) (quoting

Adams v. Texas, 448 U.S. 38, 45 (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, 150 F.3d 467, 475

(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.”           28 U.S.C. § 2254(d)(1); see

McFadden v. Johnson, 166 F.3d 757, 761 (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
