                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 7, 2004
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 03-41131                         Clerk
                       _____________________

RICHARD CARTWRIGHT,

                                           Petitioner - Appellant,

                              versus

DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. C-01-CV-474
_________________________________________________________________

Before JOLLY, JONES, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

     Richard Cartwright was convicted of capital murder in Texas

and sentenced to death. He requests a certificate of appealability

(“COA”) to appeal the district court’s denial of federal habeas

relief on his claims that his trial counsel rendered ineffective

assistance, and that he was denied a fair and impartial jury and

due process.   Because Cartwright has failed to make a substantial

showing of the denial of a constitutional right, we DENY a COA for

each of his claims.

                                  I

     1
      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this opinion should not be published and is not precedent except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.
     Cartwright and two other men were indicted for the capital

murder of a man they lured to the waterfront area of Corpus

Christi, Texas, by posing as homosexuals.        After robbing the

victim, one of the other men stabbed him and cut his throat, and

then Cartwright shot him in the back.        The medical examiner

testified that the knife wounds were not fatal, and that the

gunshot wound was the cause of death.       The prosecution relied

heavily on the testimony of Cartwright’s accomplices, corroborated

by other circumstantial evidence of his guilt.

     The Texas Court of Criminal Appeals affirmed Cartwright’s

conviction and sentence on direct appeal. Cartwright v. State, No.

72,786 (Tex. Crim. App. May 5, 1999) (unpublished).       The Supreme

Court denied certiorari. Cartwright v. Texas, 528 U.S. 972 (1999).

Cartwright filed an application for state habeas relief on July 16,

1998.    The Texas Court of Criminal Appeals adopted the trial

court’s findings and conclusions and denied relief on October 3,

2001.    Ex parte Cartwright, No. 49,598-01 (Tex. Crim. App. 2001).

     Cartwright filed a federal habeas petition on September 26,

2002.    The district court denied relief without a hearing and

denied Cartwright’s request for a COA on July 14, 2003.    Cartwright

filed a timely notice of appeal and requested a COA from this

court.




                                  2
                                        II

     To obtain a COA, Cartwright must make “a substantial showing

of the denial of a constitutional right.”             28 U.S.C. § 2253(c)(2);

Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003); Slack v.

McDaniel, 529 U.S. 473, 483 (2000).               To make such a showing, he

must demonstrate that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at

1039 (quoting Slack, 529 U.S. at 484).             Because the district court

denied relief on the merits, rather than on procedural grounds,

Cartwright “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong.”      Slack, 529 U.S. at 484.            In determining whether to

grant a COA, our examination is limited “to a threshold inquiry

into the underlying merit of [Cartwright’s] claims.”                Miller-El,

123 S.Ct. at 1034.       “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims.”     Id. at 1039.     Instead, the determination is based on

“an overview of the claims in the habeas petition and a general

assessment of their merits.”        Id.      “Any doubt regarding whether to

grant a COA is resolved in favor of the petitioner, and the

severity   of    the    penalty   may       be   considered   in   making   this

determination.”        Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.

2003).

                                        3
                                     III

      Cartwright requests a COA for his claims that his trial

counsel rendered ineffective assistance, that he was denied a fair

and impartial jury, and that he was deprived of due process.                We

discuss each claim in turn.

                                      A

                     Ineffective Assistance of Counsel

      Cartwright requests a COA for his claims that his trial

counsel rendered ineffective assistance by (1) failing to use all

peremptory strikes during jury selection, (2) failing to object to

the selection of jurors in Cartwright’s absence, (3) failing to

object to the prosecutor’s improper attack on the honesty of

defense counsel, and striking at Cartwright over the shoulders of

defense counsel,2 and (4) failing to object to the prosecutor’s

improper argument at the sentencing phase of trial.

      To     prove   ineffective   assistance    of   counsel,     a    habeas

petitioner must show that his lawyer’s performance was deficient

and   that    the    deficient   performance    prejudiced   his       defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984).                To prove

deficient performance, the petitioner must show that counsel’s

actions “fell below an objective standard of reasonableness.”              Id.

      2
      In Texas, “[w]hen a prosecutor makes uninvited and
unsubstantiated accusations of improper conduct directed toward a
defendant’s attorney, in an attempt to prejudice the jury against
the defendant, courts refer to this as striking a defendant over
the shoulders of his counsel.” Phillips v. State, 130 S.W.3d 343,
355 (Tex. App. -- Houston 2004).

                                      4
at 688.    “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.”        Id. at 690.        To demonstrate

prejudice, the petitioner “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”            Id. at 694.

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”       Id.

                                      1

                           Peremptory Strikes

     Cartwright’s trial counsel used only six of the fifteen

peremptory strikes allowed under state law. Cartwright argues that

this constitutes ineffective assistance, because it resulted in the

waiver of his claim that the trial court improperly denied his

challenge for cause to prospective juror Quiroz, who was removed

with a peremptory strike.       He also contends that counsel rendered

ineffective assistance by failing to use a peremptory strike to

remove juror Brown, because of his “pro-death” beliefs.            Finally,

he argues that counsel’s use of so few peremptory strikes resulted

in the denial of an impartial jury.

     Cartwright’s lead trial counsel submitted an affidavit in the

state     habeas   proceeding   and   testified   at   the    state   habeas

evidentiary hearing.      He stated that he used peremptory strikes

only when he felt that a juror was unacceptable, because he had no

ability to weigh the acceptability of the remaining veniremembers

                                      5
against the one being examined, and did not want to risk having to

accept an unfavorable juror after his strikes were exhausted.                          He

stated that Cartwright had consistently expressed the desire to

receive either an acquittal or a death sentence.                      Therefore, his

primary focus in jury selection was choosing jurors who indicated

that they would be skeptical of accomplice testimony.                        He stated

that Brown satisfied that criterion, and also was open-minded and

receptive to the concept of reasonable doubt.

      The   state      habeas    court       found     that   trial       counsel    used

peremptory strikes to remove unacceptable jurors and concluded that

counsel did not render ineffective assistance by failing to use all

of the peremptory strikes before the jury was selected.

      The district court held that the state court’s decision was

not   contrary    to,     or    an    unreasonable       application        of    clearly

established federal law.             The district court observed that the use

of a peremptory strike remedied any harm from the trial court’s

failure to remove Quiroz for cause.                It also stated that counsel’s

decision    not   to    strike       Brown   was     based    on   legitimate       trial

strategy, because it was consistent with counsel’s stated intention

of selecting jurors who would be skeptical of accomplice testimony.

Even assuming that defense counsel should have removed Brown with

a peremptory strike, the district court noted that Cartwright could

not identify      eight    other       jurors    who    should     have    been     struck

peremptorily.     Therefore, Cartwright was not deprived of his right



                                             6
to an impartial jury as the result of his counsel’s failure to

exhaust the peremptory strikes.

       Reasonable   jurists    would   not   find   the   district   court’s

assessment of this claim debatable or wrong.          We therefore deny a

COA.

                                       2

              Selection of Jurors in Cartwright’s Absence

       On the fourth day of individual voir dire, after six jurors

had    been   selected,   defense    counsel   informed     the   court   that

Cartwright wanted to waive his right to be present because he was

in pain after having had a tooth extracted.          When the court asked

Cartwright if he objected to the court proceeding in his absence,

Cartwright     shook   his   head   negatively.      When   the   prosecutor

questioned whether there was an affirmative waiver on the record,

the court asked Cartwright again whether he had any objection to

the court proceeding in his absence, and Cartwright replied, “No,

I don’t, Your Honor.”        Four prospective jurors were questioned in

his absence, two of whom were selected to serve on the jury (one of

them as foreperson).

       Cartwright argues that counsel rendered ineffective assistance

by failing to object to the selection of jurors in his absence.             He

claims that this prejudiced him because the prosecutor commented

unfavorably on his absence during voir dire.          He also argues that

his appellate counsel rendered ineffective assistance by failing to



                                       7
argue on appeal that this violated his non-waivable right, under

state law, to be present during jury selection.

     Cartwright    submitted    an   affidavit        in   the   state   habeas

proceeding   in   which   he   stated    that   he    went   along   with   his

attorney’s request because he did not know what else to do, but

that he thought that only one prospective juror would be questioned

in his absence, and that he did not agree for the others to be

questioned and selected while he was not present.                Cartwright’s

counsel stated in his affidavit that Cartwright asked to be excused

and did not wish to delay the voir dire.             Counsel stated that the

next day, when he discussed with Cartwright the two jurors selected

while he was absent, Cartwright did not seem to have any problem

with those jurors or with the number of jurors selected.                 At the

state habeas evidentiary hearing, counsel testified that he would

have asked for a continuance if Cartwright had requested it.

     The state habeas court found that defense counsel did not

pressure Cartwright to refrain from requesting a recess; that

three3 jurors were selected in Cartwright’s absence; and that

Cartwright did not request that Strong and Bowers (the two jurors

selected in his absence) be re-examined.             The state habeas court

concluded that Cartwright did not knowingly waive his right to be


     3
      Finzel, identified by the state habeas court as the third
juror selected in Cartwright’s absence, was actually selected the
day before Cartwright asked to be excused.     Our review of the
record confirms that only two jurors -- Bowers and Strong -- were
selected while Cartwright was not present.

                                     8
present during the voir dire; that he had not shown that his

opportunity to defend was impaired or diminished by his absence;

and that defense counsel did not render ineffective assistance by

consenting to his absence.

     The district court noted that Cartwright did not allege that

he would not have selected those same jurors had he been present;

that he did not point to anything that would make those two jurors

objectionable; and that he testified in the state evidentiary

hearing that he did not have a problem with anything that they

said, but only objected to the fact that they were selected while

he was absent from the courtroom.    The district court held that

Cartwright’s failure to allege any actual harm from the selection

of jurors in his absence was fatal to his ineffective assistance

claim.   The district court also held that Cartwright failed to

demonstrate prejudice from appellate counsel’s failure to raise the

claim on appeal.

     Reasonable jurists would not find debatable or wrong the

district court’s conclusion that Cartwright failed to allege, much

less demonstrate, prejudice.    We therefore deny a COA for this

claim.

                                3

                     Prosecutorial Misconduct

     By way of background, there was evidence that Cartwright’s

accomplices, Hagood and Overstreet, had known each other for

several years prior to the murder, but they first met Cartwright

                                9
less than a week before the murder.   There was also evidence that

the gun belonged to either Hagood or Overstreet, but the State’s

theory was that Overstreet stabbed the victim and Cartwright shot

him, while Hagood searched the victim’s car. Cartwright called Dr.

Rupp as a witness during the guilt-innocence phase of the trial.

Rupp, who previously had served as a medical examiner, testified

that he had reviewed the autopsy reports and photographs of the

crime scene; that he had not reviewed all of the police reports and

witness statements; that in his opinion, one person stabbed the

victim and another person shot him; that of the three persons

involved and the two weapons involved, the two people who knew each

other were probably the assailants; and that usually the owner of

a gun does the shooting.

     During closing argument at the guilt-innocence phase, the

prosecutor argued, without objection by defense counsel:

          ... Dr. Rupp would change his mind any time
          you asked him a different way, the question.
          I mean, isn’t it kind of funny how the defense
          lawyer says, Dr. Rupp, I wanna bring you up
          here as an expert, and here I’m giving you the
          autopsy report and the pictures, and the
          defense neglects to give him any other
          information? Not one scrap of evidence. Not
          one statement from a police officer or report
          from a police officer or identification
          officer, not one statement from a witness, not
          even what happened in court. Remember I said,
          “Dr. Rupp, if you heard that somebody said
          that they heard this defendant admit to the
          crime, would that change your mind,” he goes,
          “Sure it would change my mind. Sure it would
          change my mind.” The defense lawyer is trying
          to blindside you by putting on this so-called
          expert on human behavior with not enough

                                10
           information -- not enough information.    And
           every time I talked to Dr. Rupp, he kept
           saying, I wasn’t asked that. I wasn’t asked
           that. I was only asked this. Well, don’t you
           think that’s kind of important, Dr. Rupp, to
           know the whole story? You folks got the whole
           story.   How come he didn’t?    How come the
           defense lawyer didn’t give him -- have the
           courtesy to give him all the information? A
           little sneaky, isn’t it? Little sneaky.

     Cartwright argues that his trial counsel rendered ineffective

assistance by failing to object to the above-quoted argument

attacking the veracity of defense counsel.

     In his affidavit presented to the state habeas court, defense

counsel   stated   that,   although    he   felt   that   the   prosecutor’s

comments about him being “a little sneaky” were improper, he did

not feel that they were sufficiently damaging to object.             He also

did not want to object and thereby call the remarks to the

attention of the jury.

     The state habeas court found that the prosecutor’s reference

to defense counsel as being “sneaky” was improper, but that the

comment did not harm Cartwright’s defense, and that counsel’s

decision not to object was reasonable trial strategy.

     The district court held that the state court’s findings were

presumptively correct and that Cartwright had not rebutted them

with clear and convincing evidence. The district court agreed that

the prosecutor’s comment about defense counsel being “sneaky” was

improper, but concluded that counsel made a legitimate strategic




                                      11
decision not to object, and that the comment did not infect the

entire trial with undue unfairness.

     Reasonable   jurists   would   not     conclude   that   the    district

court’s   assessment   of   this    claim    was   debatable    or    wrong.

Accordingly, we deny a COA.

                                    4

                       Prosecutorial Argument

     During the punishment phase of trial, the prosecutor argued,

without objection by defense counsel:

          Imagine what [the victim] was thinking.
          First, he’s -- the weapons are pulled on him
          and then he is searched for his valuable
          possessions, then Kelly Overstreet, behind
          him, slits his neck. We don’t know exactly
          what happened. We can maybe guess he tried to
          get away and Kelly stabs him in the back. The
          medical evidence was that those probably
          weren’t, you know, all that great of a blow.
          It wasn’t a fatal blow. So you can imagine,
          he’s probably in a lot of pain, he’s
          suffering, but he is not down for the count
          right then.     You can imagine his mind’s
          probably still working and imagine the fear
          that he felt. Then when he’s doing his best
          just to survive the situation, then he’s shot
          in the back.       That’s the consideration
          [Cartwright] and his two buddies gave to [the
          victim]. I want you to consider these special
          issues, remember the type of consideration he
          gave [the victim].

     Cartwright argues that counsel rendered ineffective assistance

by failing to object to this argument, which he characterizes as

urging the jury to disregard the special issues in favor of giving

Cartwright the same type of consideration he gave the victim --



                                    12
telling the jury to take Cartwright’s life because he took the life

of the victim.

     The   state   habeas     court       did   not   agree   with   Cartwright’s

interpretation of the prosecutor’s argument.                  Instead, it found

that the prosecutor did not urge the jurors to disregard the

special issues. It therefore concluded that counsel did not render

ineffective assistance by failing to object to the argument.

     The   district       court    held    that   the   state   habeas    court’s

rejection of this claim was not contrary to or an unreasonable

application of federal law, because Cartwright failed to show that

the comments encouraged the jury to set aside the special issues

and, therefore, counsel did not render deficient performance by

failing    to   object.      The    district      court   concluded      that   the

prosecutor did not urge the jurors to disregard the special issues,

but instead focused the jury’s attention on a traditional factor

for determining future dangerousness -- the vicious and heartless

attitude of the killers and their lack of concern for the victim.

     Reasonable jurists would not find debatable or wrong the

district court’s interpretation of the prosecutor’s argument and

its conclusion that Cartwright’s counsel did not render ineffective

assistance by failing to object to the argument. We therefore deny

a COA for this claim.




                                          13
                                      B

                             Jury Selection

      Cartwright requests a COA for his claim that he was denied a

fair and impartial jury by the trial court’s improper granting of

the   State’s   challenge   for   cause         to   prospective    juror   Luis.

Cartwright argues that the State failed to establish that Luis was

unwilling to set aside his own beliefs temporarily in deference to

the rule of law.    According to Cartwright, Luis never stated that

his personal or religious beliefs regarding the death penalty would

interfere with his sitting as a juror.               The most he said was “I

don’t think I could do it,” or “I wish I could tell you I could do

it, but I don’t think I could.”            In response to the prosecutor’s

question, “would you have a hard time answering those questions

that way, knowing that he’s gonna get a death sentence,” Luis

responded, “Probably will.” Cartwright therefore contends that the

State failed to establish that Luis’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).

      The State argues that Luis’s answers to questions on voir dire

demonstrate that his views would have impaired or substantially

prevented   him    from   answering       the    special   punishment       issues

truthfully.     Although Luis agreed with the death penalty in the

abstract, he could not personally assess death as punishment for a

capital office. Questions about his ability to follow the law were

                                      14
answered with “might” and “maybe.”             At times when he indicated he

could follow the law and answer the special issues truthfully, he

followed his answers with qualifiers such as “but,” “still,” “I

think,” and “probably.”        When asked by defense counsel whether he

would lie and answer the special issues in such a way that would

prevent Cartwright from getting the death penalty, his answer was

a qualified, “I don’t think so.”               The trial court noted Luis’s

ambivalence in granting the State’s challenge for cause.

      The state habeas court concluded that, even if the trial court

erred    in   granting   the   State’s       challenge     for    cause   to   Luis,

Cartwright failed to show that the error deprived him of a lawfully

constituted jury.

      The district court held that the record supported the trial

court’s finding that Luis would be unable to answer the special

issues truthfully        because   of   his    inability     to    set    aside   his

personal and religious beliefs.          The district court observed that,

although some of Luis’s statements indicated that he could answer

the     special   issues    truthfully        based   on    the     evidence,     he

consistently used qualifiers and his testimony, as a whole, was

equivocal. The district court pointed to Luis’s testimony that his

religious beliefs prevented his involvement in a process that would

take a human life; that his participation in such a process would

cause him mental and physical stress; that he had already been

taking medication for ulcers he suffered from the stress of jury

selection; and that he was worried that his religious convictions

                                        15
would disrupt the jury deliberations. The district court concluded

that, as a whole, Luis’s statements showed that his religious

convictions would substantially impair his ability to answer the

special issues.     The district court therefore concluded that the

state court’s decision was not contrary to, or an unreasonable

application of, clearly established federal law.

       Reasonable   jurists   would    not   find   the   district   court’s

assessment of this claim debatable or wrong.          We therefore deny a

COA.

                                      C

                               Due Process

       Cartwright seeks a COA for his claims that the trial court

denied him due process by (1) allowing two jurors to be selected in

his absence, (2) allowing the prosecutor to improperly attack the

honesty of defense counsel and to improperly strike at him over the

shoulders of defense counsel, (3) allowing the prosecutor to

improperly urge the jurors to disregard the death penalty special

issues, and (4) denying his requested jury instruction regarding

parole eligibility.

                                      1

              Jury Selection, Prosecutorial Misconduct

       The first three due process sub-claims have already been

discussed, in connection with Cartwright’s request for a COA on his




                                      16
ineffective assistance claims.4       We deny a COA for these due

process claims for essentially the same reasons.        Reasonable

jurists would not find debatable the district court’s conclusion

that Cartwright failed to demonstrate that he did not get a fair

trial as a result of the selection of two jurors while he was

absent from the courtroom, or as a result of the prosecutor’s

closing arguments regarding the honesty of defense counsel and the

special issues.

                                  2

                  Parole Eligibility Instruction

     During deliberations in the sentencing phase, the jury sent a

note to the trial judge asking, “What does ‘life in prison’ mean.

Is parole possible?”   The trial judge responded that the jury had

received all of the instructions applicable to the case and denied

Cartwright’s request to instruct the jury that he would not be

eligible for parole until after he had served forty years in

prison.

     Cartwright argues that the trial judge’s refusal to instruct

the jury on parole eligibility prevented the jury from having an

accurate understanding of Texas law and violated his right to equal

protection.   He contends that, if the trial judge had allowed the

instruction, he could have provided evidence that he would not be

     4
      The State’s argument that Cartwright’s due process claim of
prosecutorial misconduct was not raised in the district court is
belied by the district court’s opinion addressing and rejecting
that claim.

                                17
a future danger to society if released on parole at age 66.            He

contends further that his equal protection rights were violated

because of the Texas practice of instructing jurors on parole in

non-capital cases, but not in capital cases.

       On direct appeal, the Texas Court of Criminal Appeals rejected

Cartwright’s argument that the trial court violated due process by

failing to instruct the jury on parole eligibility.            The court

noted that, at the hearing on Cartwright’s motion for new trial,

seven of the twelve jurors were questioned regarding parole.          Each

of them testified that, although there was an initial curiosity as

to the length of a life sentence, once the trial court responded to

their note, there was no further mention of the topic; each stated

that the jury answered the special issues based solely on the

evidence before them; and no juror testified that he or she would

have   answered   the   special   issues   differently   had   they   been

instructed on parole law.    The state habeas court denied relief on

this claim because the issues raised by it were addressed on direct

appeal and Cartwright made no claim of new facts relating to the

claim.

       The district court held that, because this claim is foreclosed

by clear precedent, the state court’s rejection of it was not

contrary to or an unreasonable application of federal law.             See

Ramdass v. Angelone, 530 U.S. 156, 169 (2000) (parole eligibility

instruction required “only ... [in] instances where, as a legal

matter, there is no possibility of parole if the jury decides the

                                    18
appropriate sentence is life in prison”); see also Elizalde v.

Dretke, 362 F.3d 323, 332-33 (5th Cir. 2004) (collecting cases

holding that Constitution does not require Texas trial courts to

instruct juries as to the meaning of life in prison because the

defendant   would   not,    if   sentenced   to   life   imprisonment,   be

ineligible for parole).

     In the light of this clear precedent, reasonable jurists would

not find the district court’s assessment of this claim debatable or

wrong.   Accordingly, Cartwright is not entitled to a COA.

                                    III

     With respect to each of his claims, Cartwright has not made “a

substantial showing of the denial of a constitutional right.”            28

U.S.C. § 2253(c)(2).       We therefore DENY his request for a COA to

appeal the district court’s denial of federal habeas relief.

                                                              COA DENIED.




                                     19
