             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 99-10652
                                           _______________

                                JAMES DAVIS RICHARDSON,
                                                               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-2528)
                                  _________________________

                                           November 22, 1999

Before SMITH, WIENER, and EMILIO M.                   173, 177 (5th Cir.), cert. denied, 120 S. Ct.
  GARZA, Circuit Judges.                              203 (1999). Under AEDPA, a COA “may
                                                      issue . . . only if the applicant has made a
JERRY E. SMITH, Circuit Judge:*                       substantial showing of the denial of a
                                                      constitutional right.” 28 U.S.C. § 2253(c)(2).
    James Richardson requests a certificate of        Even if the requisite showing is made, courts
appealability (“COA”) as required under               may exercise their discretion whether to issue
28 U.S.C. § 2253, as recently amended by the          a COA. Id.
Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Pub. L. No. 104-132,2 so               Richardson claims he was denied the
he can appeal the denial of his petition for writ     effective assistance of counsel during his state
of habeas corpus. The COA requirement is              trial, in violation of his constitutional rights
jurisdictional. Trevino v. Johnson, 168 F.3d          under the Sixth and Fourteenth Amendments.
                                                      See Strickland v. Washington, 466 U.S. 668
                                                      (1984). Ineffective assistance claims raise
      *
       Pursuant to 5TH CIR. R. 47.5, the court has    mixed quest ions of law and fact. Lamb v.
determined that this opinion should not be            Johnson, 179 F.3d 352, 356 (5th Cir. 1999),
published and is not precedent except under the       cert. denied, 1999 U.S. LEXIS 7673 (U.S.
limited circumstances set forth in 5TH CIR. R.        Nov. 15, 1999) (No. 99-6272).
47.5.4.
                                                         Under 28 U.S.C. § 2254(d)(1), the
  2
    The AEDPA applies because Richardson filed        applicable standard of habeas review
his motion for a writ of habeas corpus on             governing state court determinations of mixed
February 17, 1998, after the Act’s April 24, 1996,    questions of law and fact is for reasonableness.
effective date. See Lindh v. Murphy, 521 U.S. 320     See Drinkard v. Johnson, 97 F.3d 751, 767-68
(1997).
(5th Cir. 1996), overruled on other grounds,              but for counsel’s unprofessional errors, the
Lindh v. Murphy, 521 U.S. 320 (1997).                     result of the proceeding would have been
Indeed, habeas relief is granted only if                  different.” Id. at 694 (emphasis added).
“reasonable jurists considering the question
would be of one view that the state court                    Richardson articulates three theories to
ruling was incorrect.” Id. at 769. Concluding             establish that his trial counsel was
that Richardson has failed to show any denial             unconstitutionally ineffective and that the
of a constitutional right, let alone any chance           errors were not harmless. Each theory fails
that this court might reverse the denial of               one or both of the two prongs required by
habeas writ in light of the broad deference               Washington.4
given to state court determinations of
ineffective assistance of counsel, we deny the
application for a COA.

                       I.
   Richardson was convicted in state court of
murder and sentenced to die. The Texas
Court of Criminal Appeals reversed and
ordered a new trial because the court reporter
had misplaced a portion of the transcript. On
remand, Richardson again was convicted of
capital murder and sentenced to death. His
current challenge consists of alleging defects in
the performance of retrial counsel, raised first
in but rejected by the state courts on appeal.3

   To establish unconstitutionally ineffective
assistance of counsel, Richardson must do two
things. First, he must show that “counsel
made errors so serious that he was not
functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”
Washington, 466 U.S. at 687. “[T]he proper
standard for attorney performance is that of
reasonably effective assistance.” Id. “Judicial
scrutiny of counsel’s performance must be
highly deferential.” Id. at 689.

    Second, Richardson must show that
“counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. Although Richardson
need not show that counsel’s errors were                    4
dispositiveSSthat without the errors, he would                Richardson additionally claims that the district
have been acquittedSShe must demonstrate                  court looked to sufficiency of the evidence absent
“that there is a reasonable probability that,             counsel error, rather than requiring merely a
                                                          reasonable probability that the proceeding would
                                                          have been different absent error, to determine
                                                          whether he was unconstitutionally harmed by
    3
     See Richardson v. State, No. 70,743 (Tex.            ineffective counsel. Whether the district court did
Crim. App. Dec. 1, 1993) (direct appeal); Ex parte        so, we nonetheless conclude that Richardson failed
Richardson, No. 18,337-02 (Tex. Crim. App.                to satisfy the correct rule for unconstitutional harm
September 24, 1997) (state habeas appeal).                under Washington.

                                                      2
                       A.                                  want to get up there and tell you people
    Richardson asserts that counsel failed to              it wasn’t me.”
object with sufficient frequency when, during
closing argument at the penalty phase, the              He continued:
prosecutor improperly commented on his
failure to talk to police or to take the stand             Do you believe that [defense counsel]
during the guilt phase. Two levels of analysis             would have let him sit there through this
are involvedSSthe constitutionality of the                 whole trial on guilt and not take the
prosecutor’s conduct, and counsel’s failure to             stand if he knew this guy was wanting to
object to that conduct.                                    testify and he didn’t do it?

    The rule governing prosecutorial statements         Defense counsel’s objection was sustained, but
is as follows:                                          no instruction to the jury was given.

   In the case of asserted prosecutorial                   The prosecution then continued:
   misconduct implicating some other
   incorporated constitutional right such as               Well, that still leaves you with your
   the right to remain silent, the court asks              common sense, why did he wait. For
   whether or not the prosecutor’s                         the first time, today, November the 1st,
   statement was [1] manifestly intended                   1988 to say, “I didn’t do it. I was shot
   or [2] was of such character that a jury                in the hand as the car was driving off.”
   would naturally and necessarily take it
   to be a comment on the failure of the                Defense counsel objected again but was
   accused to testify.                                  overruled. The prosecutor concluded, without
                                                        objection:
Rogers v. Lynaugh, 848 F.2d 606, 609 (5th
Cir. 1988) (quotations omitted, emphasis                   If that’s the case, aren’t you going to be
added). The determination depends heavily on               the first one that runs to the police when
the context in which the remark was made.                  that thing’s over and say, “No, guys, let
Montoya v. Collins, 955 F.2d 279, 286 (5th                 me tell you, it wasn’t me. It wasn’t me.
Cir. 1992). If constitutional error is found, to           I want to sign 14 statements. It’s not
win reversal on appeal a defendant must show               me. Let me testify. Let me tell you
that the error was not harmless. Rogers,                   about it.”
848 F.2d at 609.
                                                            Counsel objected twice and was sustained
   Richardson did not testify until the penalty         once. Richardson claims that his attorney
phase, at which time he claimed innocence.              failed to object with sufficient frequency and,
His counsel subsequently relied on this                 in so failing, was constitutionally ineffective.
testimony in arguing against the imposition of          That is hardly the case.5 Defense counsel was
death, stating that Richardson “told you his            obviously aware of Richardson’s right not to
entire story. And that’s the story he’s told me         speak to the police or to testify, for counsel
since the start of this case.”                          objected twice. Richardson simply wishes
                                                        now that defense counsel had objected four
   The prosecutor rebutted by stating that              times.
Richardson had failed to testify during the guilt
phase:                                                     Yet counsel’s decision not to object more

   If he’s not guilty, don’t you start
   screaming at the start of this trial, “I               5
                                                           The state court avoided the question altogether
   didn’t do it. Let me take the stand on               by denying Richardson’s claim on grounds of
   the first stage of this trial before they            harmless error. See Ex parte Richardson,
   ever have a chance to say I’m guilty. I              No. 18,337-02.

                                                    3
vociferously than he did may simply have been          on death row following his first trial and
a prudent exercise of self-restraint. More             conviction. The introduction, during the
interruption might have drawn excessive                sentencing phase, of evidence of a prior death
attention to the prosecutor’s statements,              sentence is not constitutional error, so long as
causing the jury to give them greater weight           the evidence does not affirmatively mislead the
than they would otherwise merit.          An           jury and diminish its sense of sentencing
overruled objection might have diluted the             responsibility. Romano v. Oklahoma, 512
persuasive value of a prior favorable                  U.S. 1, 10 (1993). Richardson claims,
evidentiary ruling. And objection might have           however, that because the fact of his prior
simply annoyed the jury by slowing the                 death row st ay was unduly prejudicial,
process.                                               counsel’s failure to object and demand
                                                       redact ion of the words “death row” from the
   At worst, objecting twice rather than four          report of the prior offenses constituted
times was a bad judgment call but hardly               ineffective counsel.
amounted to “errors so serious that counsel
was not functioning as the ‘counsel’                      Under Texas law, evidence of prior bad
guaranteed the defendant by the Sixth                  acts is generally admissible at the penalty
Amendment.” See Washington, 466 U.S. at                phase of a capital trial. See Hogue v. Johnson,
687. Richardson’s first theory thus falls well         131 F.3d 466, 478 n. 16 (5th Cir. 1997). Even
short of the mark for establishing unreasonably        assuming that the trial court would have, on
ineffective assistance.                                objection, redacted the words “death row,”
                                                       and that failure to object rose to unreasonably
    Moreover, the state court determined that          ineffective assistance, Richardson fails to show
any constitutional error by the prosecutor (and        a “reasonable probability” that such redaction
any resulting ineffectiveness by counsel in            would have affected the sentencing decision.
failing to object) were harmless. Richardson is        See Washington, 466 U.S. at 687, 694.
utterly unable to show that no reasonable jurist
could have so found. See Drinkard, 97 F.3d                                   C.
at 769.                                                   Counsel did not present expert testimony
                                                       concluding that, given the trajectory of the
    The prosecutor’s comments were made at             bullets, Richardson could not have been
the penalty phase of the trial. There is no            holding the gun. Richardson asserts that such
showing that, had counsel objected more                testimony would have contradicted self-
frequently to prosecution comments on                  serving witness accomplice testimony
Richardson’s silence during the guilt phase of         identifying him as the shooter.
trial, there was a “reasonable probability” that
the sentencing decision would have been any               Counsel did, however, put the identity of
different. See Washington, 466 U.S. at 694.            the shooter at issue during cross-examination
                                                       of numerous prosecution eyewitnesses,
    Having already determined Richardson’s             including a deputy sheriff, a firearms expert,
guilt, the jury should have been focused on            two police officers, the doctor who performed
factors relevant to sentencing, rather than on         the autopsy, and the witness accomplice.
revisiting the question of guilt. That counsel         Moreover, the district court found credibility
failed successfully to distract the jury is no         problems with the expert testimony
basis for a finding of constitutional harm             Richardson attempts to present here as critical
caused by ineffective counsel.                         to constitutionally adequate representation.

                     B.                                   Given counsel’s aggressive efforts to prove
   Counsel failed to object when, during the           that Richardson was in fact not the shooter,
penalty phase, the prosecutor introduced               Richardson hardly suffered from legal
evidence of offenses committed by                      representation so deficient “that counsel was
Richardson, including those committed while            not functioning as the ‘counsel’ guaranteed the
                                                   4
defendant by the Sixth Amendment.” Id. at                of[,] clearly established Federal law” to
687. His attorney could have made a rational             mandate reasonableness review over state
calculation that presenting expert testimony             court applications of law to fact. Id. Under
that some jurors might also find incredible              § 2254(d)(1), a habeas writ will not lie unless
would do more harm than good by                          "reasonable jurists considering the question
undermining the legitimacy of Richardson’s               would be of one view that the state court
entire theory of the case. Again, at worst this          ruling was incorrect." Drinkard, 97 F.3d
was bad judgment, imperfect lawyeringSSnot               at 769. In other words, merely to be eligible
constitutional inadequate representation.                for a COA, an applicant must show that his
                                                         constitutional claim is at least debatable.
                    II.                                  Richardson has made no such showing.
         As amended, 28 U.S.C. § 2254(d)
reads:                                                      The application for a COA is DENIED.

   An application for a writ of habeas
   corpus on behalf of a person in custody
   pursuant to the judgment of a State
   court shall not be granted with respect
   to any claim that was adjudicated on the
   merits in State court proceedings unless
   the adjudication of the claimSS

        (1) resulted in a decision that was
   contrary to, or involved an
   unreasonable application of, clearly
   established Federal law, as determined
   by the Supreme Court of the United
   States; or

       (2) resulted in a decision that was
   based on an unreasonable determination
   of the facts in light of the evidence
   presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added). In
Drinkard, this court construed § 2254(d)(1) to
require de novo review for questions of law
and reasonableness review for mixed questions
of law and fact (i.e., questions that require the
application of law to facts), and § 2254(d)(2)
to mandate reasonableness review for
questions of fact. See Drinkard, 97 F.3d at
767-68.6 This approach is based on a plain-
text reading of § 2254(d)(1), construing the
requirement of an “unreasonable application

   6
     See also Lindh v. Murphy, 96 F.3d 856 (7th
Cir. 1996) (en banc), rev'd on other grounds,
521 U.S. 320 (1997); Neelley v. Nagle, 138 F.3d
917 (11th Cir. 1998), cert. denied, 119 S. Ct. 811
(1999).

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