                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                              No. 00-10074
                    Civil Action No. 3:94-CV-1788-P


                           DANIEL JOE HITTLE,

                                                               Petitioner,

                                  versus

  GARY JOHNSON, Director, Texas Department of Criminal Justice,
                     Institutional Division,

                                                               Respondent.


         Appeal from the United States District Court for the
                      Northern District of Texas

                              August 3, 2000


Before DAVIS, JONES, and BARKSDALE, Circuit Judges.

By EDITH H. JONES, Circuit Judge:*

            Appellant Daniel Joe Hittle has applied to this court for

a certificate of appealability after being denied section 2254

relief by the federal district court.          The contentions he raises

are the same as those that he presented unsuccessfully to the

district court.     Finding no issue that deserves encouragement to

proceed further, we deny COA.




     *
            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opinion should not be published and is not precedent except under the limited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.
            Hittle was indicted in November 1989 for the capital

murder of Gerald Walker, a Garland, Texas police officer.                   During

the same crime spree, Hittle killed four other individuals.                 He was

found guilty of capital murder and sentenced to death.                The Texas

Court of Criminal Appeals affirmed the conviction and sentence.

Hittle v. State, No. 71,138 (Tex. Crim. App. -- April 7, 1993)

(unpublished).     Certiorari was denied by the U.S. Supreme Court.

Hittle exhausted his state court post-conviction remedies and then

applied to the federal district court for section 2254 habeas

relief.    The district court referred the matter to a magistrate

judge whose lengthy and comprehensive report and recommendation

denying relief it accepted.

            Because    the   district       court   denied   a   certificate      of

appealability, Hittle has filed a motion for that relief in this

court.    In order to issue a COA, this court must be satisfied that

Hittle    has   made   a   substantial       showing   of    the   denial    of    a

constitutional right.        28 U.S.C. § 2253(c)(2)(2000).         This showing

requires the petitioner to demonstrate that the issues he asserts

are debatable among jurists of reason, that a court could resolve

the issues in a different manner, or that the questions are

adequate to deserve encouragement to proceed further. See Slack v.

McDaniel, ____ U.S. ____, 120 S.Ct. 1595, 1604 (2000); Barefoot v.

Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394 (1983).                       The

standard for reviewing the merits of section 2254 claims is set



                                        2
forth in the 1996 Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”).1

            In his motion, Hittle has raised the same claims that he

put in issue before the district court.           Unfortunately, he has not

bothered to explain precisely why any of the district court’s

analysis or conclusions were wrong.           Despite this shortcoming, we

have reviewed each of Hittle’s claims and agree with the district

court’s reasoning.

            The    first     contentions    relate   to   the   trial   court’s

accepting the resignation of Mrs. Nancy Schmidt from the jury,

before the trial began, because of the need to care for a sick

child.     Hittle argues that the juror was not disqualified under

state law, that the trial court should not have excused her, that

he should not have replaced her with an alternate juror, and that

he should have received a continuance and a later hearing to

contest the factual basis for excusing Mrs. Schmidt.                    As the

magistrate judge found, these objections are based on state law,

which it is not in the power of the federal habeas court to

address.          Although     Hittle   asserts      constitutional      claims

conclusionally, he presents neither facts nor law connecting the

state trial court’s actions to constitutional violations, and we

      1
            As revised, section 2254(d) states that writs of habeas corpus shall
not be granted unless the adjudication of the claim “(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)(2000).

                                        3
know of no constitutional ramifications to the state court’s

decisions.

            Hittle next contends that the trial court failed to

define “reasonable doubt” in its jury charge and thus erred by not

applying retroactively a 1991 decision of the Texas Court of

Criminal Appeals.      This claim, like two of Hittle’s other claims

before us, was not raised in the state courts and is therefore

procedurally barred from consideration in federal habeas corpus.2

Smith v. Johnson, 99-20524 (5th Cir., July 12, 2000).              In none of

these claims has Hittle made any effort to demonstrate cause or

prejudice that would constitute a basis for our avoiding the

procedural bar.

            Three challenges are asserted to the jury charge in the

punishment phase: that it improperly imposed on petitioner a burden

of proof concerning mitigating evidence; that the jury should have

been charged that mitigating evidence could not be used as an

aggravating circumstance; and that the jury should have been

instructed that evidence admitted during the punishment phase of

trial [such as an abusive childhood or mental disorder] could be

used as mitigating evidence as a matter of law.            These contentions

are meritless. We agree with the magistrate judge’s opinion, which


      2
            The other claims that Hittle did not preserve in the state court
system are his asserted denial of Sixth Amendment confrontation rights in regard
to admission of the police dispatch tape concerning the events surrounding
Officer Walker’s death, and the due process implication of testimony from
acquaintances which came in during the punishment phase of the case, that Hittle
stated his intent to kill a game warden.

                                       4
finds no constitutional flaw in the reasonable doubt instruction,

because it properly places the burden of proof on the punishment

phase issues on the state.    The magistrate judge’s opinion also

relies on the analysis by the Texas Court of Criminal Appeals in

regard to the court’s instructions on how to treat mitigating

evidence. The bottom line in those analyses is that constitutional

law (a) does not require consideration of any mitigating evidence

as a matter of law; (b) does not preclude a jury from considering

mitigating evidence as an aggravating circumstance; and (c) in this

case, did not require the giving of a Penry instruction because

Hittle’s personal background did not comport with Penry.       The

Supreme Court has recently instructed that federal courts are bound

to accept the legal conclusions of state courts if they are

objectively reasonable.   Williams v. Taylor, 120 S.Ct. 1479, 146

L.Ed.2d 435 (2000).   Not only were the state court and district

court conclusions reasonable, but we find no other plausible

construction of the jury instructions here.

          Raising a Brady claim, Hittle asserts that the state

failed to turn over to him a cash register tape used to bolster

testimony that Hittle’s wife purchased certain shotgun shells from

Outdoorsman Sporting Goods before the crime. The state court found

as a matter of fact that no such tape existed.   The state court’s

findings were adopted by the Texas Court of Criminal Appeals.

Under federal law, “a determination of a factual issue made by a



                                 5
State court shall be presumed to be correct”.                        28 U.S.C. §

2254(e)(1). Hittle has offered nothing to rebut the presumption of

correctness. Accordingly, because there was no cash register tape,

the state could not possibly have violated Hittle’s rights by

failing to disclose it before trial.

              Hittle finally asserts five claims of unconstitutionally

ineffective     assistance     of   counsel.        As     the   magistrate    judge

explained, Hittle has again failed to overcome findings of fact by

the   state    courts   that    refute       the   basis    for    each   of   these

ineffectiveness claims. In light of those factual findings, Hittle

has not demonstrated that counsel was factually ineffective within

the understanding of Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064 (1984).

              For all these reasons, the motion for certificate of

appealability is DENIED.




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