                       IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT


                                            No. 02-10258



BRUCE CHARLES JACOBS,


                                                                                 Petitioner-Appellant,

                                                versus


JANIE COCKRELL, 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-2728-M)

                                          October 29, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

   Petitioner, sentenced to death for capital murder, applies to this Court for a certificate of

appealability (COA) so that we may address the merits of his appeal from the district court’s denial

of his habeas corpus petition. Finding that petitioner has failed to make a substantial showing that he




       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
was denied any constitutional rights, the application is denied.

                                I. FACTS AND PROCEEDINGS

   A jury found Bruce Jacobs guilty of murdering 16-year-old Conrad Harris, who was stabbed with

a butcher knife 24 to 26 times in the bedroom of his Dallas home on the morning of July 22, 1986.

Conrad’s father, Hugh Harris, and his stepmother, Holly Kuper, were awakened at around 6:45 a.m.

by Conrad’s screams. Harris ran into Conrad’s bedroom to find a man with a butcher knife standing

before him, and Conrad on the floor bleeding. The assailant fled. Kuper noticed that the back screen

door had been ripped, and that the contents of her purse had been dumped out. A $100 bill was

missing from her purse. She also noticed a dinner knife sitting out in the kitchen that had not been

there the night before. Harris described the assailant to police as a bearded, muscular man, wearing

a tank top and Panama hat.

   The day before the murder, Kuper had answered a knock at the front door from a similar-looking

man asking for directions. The man re-appeared later in the day, and tried to force his way into the

back door. Kuper managed to lock the back door before he could get in, and she called the police.

Kuper and Harris independently made composite drawings for the police on the day of the murder.

   Publicity of the murder produced several witnesses who saw a man fitting the assailant’s general

description near Harris and Kuper’s home on the morning of the murder. In the same area and around

the same time as the murder, Alexander Wensowitch saw a man wearing a Panama hat who “almost

broke into a run” upon hearing police sirens. Soon after and also near the murder scene, Kay Harp

saw a man holding a hat in his hand run towards a cab and get in. Harp happened to know the cab

driver’s wife, and police were able to locate the driver. Zerai Haile testified that on the morning of

the murder, he drove a bearded man wearing a hat to Tenth and Tyler streets in South Oak Cliff.


                                                  2
Police drove Haile along the route he drove the morning of the murder, and Haile noticed a man

wearing a Panama hat and fitting the general physical description of the passenger— except without

the beard —walking down the street near the passenger’s destination on the morning of the murder.

After following him for a short while, police arrested the man, petitioner Bruce Jacobs. They found

bloody clothes and beard hair fibers in his home, and his fingerprints matched prints lifted from the

dinner knife found in Harris and Kuper’s kitchen. At trial, Harris and Kuper positively identified

Jacobs as the man who came to their home on the day before and the morning of the murder. The jury

found Jacobs guilty of capital murder and sentenced him to death.

    Jacobs’ conviction and sentence were upheld in state appeals and collateral proceedings, and a

federal district court denied his petition for a writ of habeas corpus. He now applies to this Court for

a COA, so that he may appeal the merits of the denial of his federal habeas petition.

                                   II. STANDARD OF REVIEW

    Before appealing a federal district court’s denial of a petition for a writ of habeas corpus, a state

prisoner must obtain a COA, which is issued “only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has held that this

language requires the prisoner to show “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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). It follows that we must consider petitioner’s arguments “through the lens of the

deferential scheme” that the district court applied under § 2254 in rejecting petitioner’s application

for a writ of habeas corpus. Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Under §

2254(d), a federal court reviewing a habeas petition must defer to a state court’s decision on an issue


                                                   3
unless it is “contrary to, or involve[s] an unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States; or... [is] 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)(1) & (2). A state court’s factual determinations “shall be presumed to be correct,” and

“[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” § 2254 (e)(1).

                                           III. ANALYSIS

A. Issues Relating to the State Habeas Proceedings

    1. Whether Jacobs’ state habeas petition received meaningful review

    Jacobs argues that during state habeas proceedings, he never received the state’s proposed

findings of fact and conclusions of law, and that the judge signed those findings verbatim, without

even reading Jacobs’ 200-page petition. These facts prove, according to Jacobs, that he was denied

meaningful state habeas review.

    Even if we agreed with all of Jacob’s assertions, deficiencies in state habeas proceedings provide

no grounds for relief in federal court. See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (no

federal habeas relief where the state habeas court adopted the district court’s proposed findings of

fact and conclusions of law only three hours after they were filed). “An attack on a state habeas

proceeding do es not entitle the petitioner to habeas relief in respect to his conviction, as it ‘is an

attack on a proceeding collateral to the detention and not the detention itself.’” Nichols v. Scott, 69

F.3d 1255, 1275 (5th Cir. 1995) (citation omitted). This result is unsurprising because the

Constitution does not require states to provide criminal defendants with any collateral proceedings.

Murray v. Giarratano, 492 U.S. 1, 10 (1989).


                                                   4
   2. Whether state habeas fact-finding is entitled to deference

   Jacobs argues that because there was no meaningful review, the general rule that state fact-finding

be presumed correct unless proved otherwise by clear and convincing evidence, see 28 U.S.C. §

2254(e)(1), should not apply to the habeas findings. We note first that Jacobs’ evidence that his

habeas petition went unread—that the file appeared undisturbed two weeks before the order was

signed—is questionable. However, we need not decide how the alleged procedural irregularities, if

true, would impact our deference to the state habeas fact-finding because the jury and direct appeal

fact-finding is more than sufficient to dispo se of Jacobs’ claims. Jacobs has not identified any

particular state habeas finding as erroneous, nor has he explained how that determination would aid

his petition. Nevertheless, nothing in this appeal relies on the state habeas findings.

B. Jury Instructions

   The jury answered “yes” to the following questions, or “special issues,” mandating a death

sentence under then-applicable Texas law, see TEX. CRIM. PROC. CODE ANN. § 37.071 (Vernon

1987):

   Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant,
   Bruce Charles Jacobs, that caused the death of the deceased, Conrad Harris, was committed
   deliberately and with the reasonable expectation that the death of the deceased would result?
   [the “deliberateness” special issue]

   Do you find from the evidence beyond a reasonable doubt that there is a probability that the
   defendant, Bruce Charles Jacobs, would commit criminal acts of violence that would
   constitute a continuing threat to society? [the “future dangerousness” special issue]

   1. Whether the instructions prevented consideration of mitigating evidence

   Jacobs argues that, as in Penry v. Lynaugh, 492 U.S. 302 (1989), the jury was unconstitutionally

prevented from giving effect to mitigating evidence. He also argues that expert affidavits prove that



                                                   5
the failure of the jury instruction to mention or define “mitigating evidence” created a reasonable

likelihood that jurors would erroneously believe they could not consider mitigating evidence in

violation of Boyde v. California, 494 U.S. 370 (1990).

   (a) Applicable facts

   Three witness testified on Jacobs’ behalf at the sentencing phase. Dorothy Crawford, Jacobs’

landlord, testified that he was a good tenant. Neighbor Ena Crawford testified that he was nice to her

and occasionally picked up groceries for her— in fact, she said Jacobs was picking up a loaf of bread

for her when he was arrested. An acquaintance, Lupe Torres, testified that he had a good reputation

in the community as a peaceful and law-abiding citizen. There was no evidence that Jacobs had been

arrested in the 14 years prior to the murder, and there was evidence that he had been employed as a

dishwasher.

   Fourteen witnesses testified at the sentencing phase on the prosecution’s behalf, producing the

following evidence. In 1963 Jacobs, then 16, stabbed a 12-year-old girl and was sent to a Texas

juvenile facility until 1966. Jacobs’ caseworker at the facility testified that Jacobs had an “explosive

temper” and had to be sent to the maximum security unit several times. In 1967, Jacobs, then 21,

assaulted and attempted to rob an Oregon high school student with a razorblade. He was imprisoned

in Oregon until 1972.

   Jacobs’ aunt, Shirley Reynolds, testified that he called her the day after the murder and said he

was thinking of moving to Houston, and that he tried to break into her house the following day. Legal

secretary Robbie Hill testified that Jacobs had made frightening sexual advances towards her on a

couple of occasions. Debbie Palmer, a former co-worker, testified that he was menacing and forward

towards female co-workers. Mary Blann, Jacob’s former manager, testified that Jacobs bragged at


                                                   6
work that he had burglarized houses, and that she fired Jacobs five days before the murder for

threatening a co-worker. Another former co-worker, Beverly Wilson, testified that Jacobs threatened

to kill her. Teri Hermann, a zoo employee, testified that on the same day her name and photo

appeared in a Dallas newspaper, Jacobs showed up in her living room (apparently Herman had left

the keys in the door) to ask her about animals. Hermann’s co-worker John Leggett scuttled Jacobs

out of the house. Jail supervisor Joe Kempf testified that Jacobs, while awaiting trial, taunted him on

one occasion. Dr. John Rennebohm, a psychiatrist who had examined Jacobs in connection with the

Oregon assault, testified that Jacobs exhibited characteristics of an antisocial sociopathic personality

and that it was “highly likely” that Jacobs would constitute a continuing threat to society.

   (b) Analysis

   In 1989, The Supreme Court found Texas’ capital sentencing scheme (the same one here)

unconstitutional as applied to capital defendant Johnny Paul Penry because it failed to “inform[] the

jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and

abused background by declining to impose the death penalty.” See Penry, 492 U.S. at 328. (Texas

has since amended the law, which now allows juries to consider “all evidence... that militates for or

mitigates against the imposition of the death penalty.” See TEX. CRIM. PROC. CODE ANN. §

37.071(d)(1) (Vernon Supp. 2002)). The decision was grounded in well-settled jurisprudence that

the Eighth and Fourteenth Amendments require that a capital sentencing jury be able to “consider[]

and give[] effect to evidence relevant to the defendant’s background or character to the circumstances

of the offense that mitigate against imposing the death penalty.” Penry, 492 U.S. at 318. Penry’s

mental retardation and childhood abuse, however, were outside the scope of the deliberateness special

issue (especially without a definition of “deliberately”) and actually suggested an affirmative answer


                                                   7
to the second question of future dangerousness. Id. at 323-24.

    In Boyde v. California, the Supreme Court held that in cases where a jury instruction could be

interpreted unconstitutionally (e.g., the Penry instruction), “the proper inquiry ... is whether there is

a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” 494 U.S. 370, 380 (1990) (emphasis added). The

Boyde jurors were asked, in a California capital sentencing, to consider “[a]ny other circumstance

which extenuates the gravity of the crime,” and defendant argued, unsuccessfully, that the instruction

could be erroneously understood as preventing the jurors from considering mitigating circumstances

not relating to the crime itself, such as defendant’s background and character. Id. at 378. The

Supreme Court in Johnson v. Texas, applying the Boyde standard to a Penry-instruction case, held

that the failure to instruct a jury that they could consider petitioner’s youth as mitigating was not

error because t he petitioner’s youth was within the “effective reach” of the future dangerousness

special issue. 509 U.S. 350, 368 (1993).

    With these cases in mind, this Court has explained that a Penry claim consists of two issues: “(1)

whether the evidence was constitutionally relevant mitigating evidence, and if so, (2) whether the

evidence was beyond the effective reach of the jurors.” See Boyd v. Johnson, 167 F.3d 907, 911 (5th

Cir. 1999) (citing Davis v. Scott, 51 F.3d 457, 460 (5th Cir. 1995)). “Relevant mitigating evidence,

which is evidence that one is less culpable for his crime, must show ‘(1) a uniquely severe permanent

handicap[] with which the defendant was burdened through no fault of his own,’ and (2) that the

criminal act was attributable to this severe permanent condition.’” Id. (citations omitted).

    The mitigating evidence Jacobs offered at trial has nothing to do with any handicaps, and was

within the effective reach of the future dangerousness special issue. A jury would no doubt consider


                                                   8
his good relations with the defense witnesses as evidence weighing against his future dangerousness.

See Boyd, 167 F.3d at 907 (“Evidence of good character tends to show that the cri me was an

aberration, which may support a negative answer to the special issue regarding the future

dangerousness of the defendant.”).

   Jacobs directs this Court’s attention to the affidavits of various academics who, viewing the

instructions in isolation, concluded that there was a reasonable likelihood that a jury mistakenly would

think they could not take into account mitigating evidence. We doubt, however, that this jury failed

to take into account the mitigating evidence because, again, the evidence Jacobs presented was

precisely the sort of evidence contemplated in assessing his future dangerousness. Jury members were

specifically instructed that, “in answering the special issues... you may take into consideration all of

the facts shown by the evidence....” In any event, this precise challenge has been raised and rejected,

see Trevino, 168 F.3d at 181-82, and we cannot overturn the decision of a previous panel based upon

expert affidavits. Jacobs has not made a substantial showing that he was denied a constitutional right

on claims relating to the consideration of mitigating evidence.

   2. Whether the failure to define other key terms was constitutional error

   Jacobs asserts that the failure of the jury instructions to define the terms “deliberately,” “criminal

acts of violence,” “probability,” “continuing threat,” and “society” rendered the the jury instructions

unconstitutional under Boyde because there was a reasonable likelihood that they were

misunderstood. We have rejected these precise claims before. See James v. Collins, 987 F.2d 1116,

1119-20 (5th Cir. 1993) (not necessary to define “deliberately,” “probability,” “criminal acts of

violence,” or “continuing threat to society”); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993)

(not necessary to define “deliberately,” “probability,” or “society”). “To the extent that these words


                                                   9
strike distinct chords in individual jurors, or play to differing philosophies and attitudes, nothing more

is at work than the jury system....” James, 987 F.2d at 1120 (quoting Milton v. Procunier, 744 F.2d

1091, 1096 (5th Cir. 1984)). Jacobs bolsters his claim with expert affidavits, but again, we cannot

overrule prior panels based on expert affidavits.

    Jacobs argues that the voir dire transcripts reveal that this jury actually misunderstood some of

these terms. For instance, he points to record excerpts in which some of them had trouble articulating

the difference between “deliberate” murder (the special issue term) and “intentional” murder (a

requirement of capital murder). However, a careful and full reading of the record shows that lawyers

for both sides engaged the jurors in long colloquies to explain the terms, and that all the jurors were

told, and agreed to the fact, that a conviction for intentional murder did not automatically imply an

affirmative answer to the deliberateness special issue.1 Nothing in the record reveals that any juror

actually misapplied the terms to the facts.

    The fact that the jury instructions did not define certain terms does not constitute a substantial

showing that Jacobs was denied a constitutional right.

    3. Whether Jacobs is entitled to a § 2254(e)(2) hearing

    Jacobs challenges the district court’s decision not to hold an evidentiary hearing on whether the

jury instructions were comprehensible. We review that denial for abuse of discretion. See Murphy v.

Johnson, 205 F.3d 809, 815 (5th Cir. 2000). Under 28 U.S.C. § 2254(e)(2),

    If the applicant has failed to develop the factual basis of a claim in State court proceedings,
    the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—



        1
        For instance, one juror, who initially said there was “not a whole lot” of difference in the
terms, was able to explain the difference—comparing deliberateness to premeditation and
planning—after a colloquy with defense counsel.

                                                    10
    (A) the claim relies on—

           (i) a new rule of constitutional law, made retroactive to cases on collateral review by
    the Supreme Court, that was previously unavailable; or

            (ii) a factual predicate could not have been previously discovered through the exercise
    of due diligence; and

    (B) the facts underlying the claim would be sufficient to establish by clear and convincing
    evidence that but for constitutional error, no reasonable factfinder would have found the
    applicant guilty of the underlying offense.

    Apart from the fact that Jacobs’ failure to brief this point (he merely incorporates previous filings)

amounts to a waiver of the issue, see Peel & Co., Inc. v. The Rug Market, 238 F.3d 391, 394 n.10

(5th Cir. 2001), the argument is unavailing. A review of Jacob’s original federal habeas petition shows

that he wanted the district court to hear testimony from various experts on how jurors would

understand, or misunderstand, the instructions. As explained above, this Court has already decided

that these exact instructions are not unconstitutionally vague, so even if the district court were to hold

an academic symposium on the jury instructions, the legal result would be the same. Jacobs reasons

do not meet the strict criteria of § 2254(e)(2); the district court did not abuse its discretion in denying

a hearing.

C. Ineffective Assistance of Counsel

    Jacobs argues that his trial lawyers were constitutionally inadequate at the sentencing phase

because they only presented three witnesses, none of whom knew Jacobs very well. There was no

evidence of Jacobs’ rough upbringing or his mental and emotional problems, and trial counsel failed

to call Jacobs’ wife, daughter, brother, father and mother-in-law, who, the record shows, were willing

to testify on Jacobs’ behalf.

    Jacobs first raised this issue in a state filing styled as a “supplemental” application to his original


                                                    11
application for a writ of habeas corpus. He concedes that the supplemental filing was untimely, and

the Texas court dismissed it as an abuse of the writ. Under Texas law, a subsequent state habeas

petition in a death penalty case will not be considered, except when: (1) the basis for the claim was

previously unavailable; (2) but for a federal constitutional violation, no rational juror would have

convicted the petitioner; or (3) but for a federal constitutional violation, no rational juror would have

sentenced the petitioner to death. See TEX. CRIM. PROC. CODE Art. 11.071 § 5(a).

    “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to

an independent and adequate state pro cedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “[T]he

existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that

some objective factor external to the defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). The Murray court noted that two

examples of “cause” would be (1) the unavailability of the factual basis for a claim, or (2) state

interference. Murray, 477 U.S. at 488.

    Jacobs argues that Texas’ procedure for funding his defense was the “external factor” impeding

timely development of this claim. Texas required authorization before approving attorneys’ fees and

expenses above certain caps, and Jacobs’ state habeas counsel (also counsel for this appeal) asserts

that he was initially hesitant to work hours beyond which his fee would exceed the cap. An undated

document he submitted stated that the Texas authorities would not “[a]s a general rule” award fee

compensation above a $7500 cap. But, when it turned out that his first above-the-cap invoice was


                                                   12
approved— apparently a green light to counsel that he should continue working —the 180-day

habeas time limit had already expired.

    Again, we note that the substance of the argument was incorporated by reference, so the entire

issue would ordinarily be waived. See Peel, 238 F.3d at 394 n.10. Nevertheless, after reviewing the

substance of the claim, it is plainly meritless.

    Texas’ funding procedure, at least on these facts, is not the type of cause envisioned under

Murray and Coleman. Jacobs concedes that the factual basis was available to trial counsel, and

Jacobs’ attempt to portray the funding rules as “state interference” is unavailing. The document

counsel submitted states that lawyers who anticipate exceeding the caps should seek “prior

authorization” from the Texas courts, but counsel has not argued that he was actually denied any

necessary fees, nor has he explained why he did not try to obtain prior authorization for funds to

pursue this issue at any time within the 6-month statutory window.

    We also note that Jacobs was able to raise 17 issues in his original (and timely) state habeas

petition, and that those were probably the issues counsel thought the strongest.

D. Sufficiency of the Evidence

    Jacobs contends that there was insufficient evidence that he committed, or attempted to commit,

a burglary on the night of the murder. Without at least an attempted burglary, Jacobs could not have

been convicted of capital murder, see TEX. PENAL CODE § 19.03, and subjected to the death penalty.

Kuper testified that, immediately after the murder, a $100 bill was missing from her wallet and that

the contents of her purse had been scattered. Jacobs had several $100 bills in his pocket when he was

arrested. Jacobs points out that there were no fingerprints on the purse, and that the fact Jacobs

possessed the $100 bills is explained by a pay stub, which was also in his possession upon arrest.


                                                   13
    The Supreme Court has held that review of the sufficiency of evidence of a state conviction

requires the court to ask “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Viewing

the evidence in the light most favorable to the prosecution, Jacobs was at the Harris and Kuper home

immediately before a $100 bill was missing, and was in possession of several $100 bills soon after.

The Texas Court of Criminal Appeals’ conclusion that the evidence was sufficient was not an

unreasonable application of the facts to the law, under the very deferential Jackson standard of

review. Jacobs has failed to make a substantial showing that he was denied a constitutional right with

respect to the sufficiency of the evidence.

E. Harris’ Identification of Jacobs

    Jacobs asserts that Harris’ identification of him was unconstitutionally unreliable and tainted by

unduly suggestive prosecutorial tactics. In particular, Jacobs says that Harris’ description and sketch

of the person he saw did not match some of Jacobs’ features, nor did it match Kuper’s sketch; that

Harris initially tentatively identified someone other than Jacobs; that Jacobs was required to stand,

open his shirt and wear a Panama hat before Harris identified him; and, that prosecutors showed

Harris photos of Jacobs in order to “coach” him into identifying Jacobs.

    Harris testified that he saw the assailant in a well-lit room from a short distance for at least five

seconds. He initially told police that he saw a “compact” and “short” man with a powerful build. The

day of the murder, Harris tentatively identified someone other than Jacobs from a photographic lineup

that did not include Jacobs. Harris testified that he told police, “This picture looks most like the man,

but I can’t say it is,” and “This is as close as you’ve got.” When Harris actually saw him in person,


                                                   14
Harris told police that “He wasn’t even close” because, among other things, “His height is wrong.”

   After Jacobs’ arrest, police showed Harris photos of Jacobs along with Jacobs’ written statement

admitting that he was in Harris’ home the morning of the murder.2 Harris said that Jacobs looked like

the assailant, but he wanted to see him in person to be absolutely sure. At a pre-trial identification

hearing, Jaco bs was made to stand before Harris wearing the Panama hat, and Harris positively

identified him. Harris was subjected to vigorous cross-examination at trial.

   The Supreme Court has held “that reliability is the linchpin in determining the admissibility of

identification testimony” under the Due Process Clause. Manson v. Brathwaite, 432 U.S. 98, 114

(1977). We follow a two-step analysis, asking “first whether the identification procedure was

impermissibly suggestive and second, whether the procedure posed a ‘very substantial likelihood of

irreparable misidentification.’” United States v. Rogers, 126 F.2d 655, 658 (5th Cir. 1997) (citation

omitted). “If the answer to both questions is yes, the identification is not admissible.” Id.

   The Texas Court of Criminal Appeals concluded that there was not a substantial likelihood of

irreparable misidentification. The five factors we use to evaluate the likelihood of misidentification

are “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree

of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty

demonstrated by the witness at the confrontation, and the length of time between the crime and the

confrontation.” Neil v. Biggers, 409 U.S. 188, 199 (1972). Cross examination “exposes to the jury


       2
        In the written statement, Jacobs claimed that he had been having an affair with Kuper for
three months, and that she would sometimes lend him money by placing cash in her house and
leaving the back door open. Jacobs wrote that he came to see Kuper that morning and stumbled
upon a “prowler” who “jumped [him] from behind” and cut his arm. After Jacobs repelled the
prowler, according to the statement, Harris emerged from the bedroom and saw Jacobs, who then
picked up the dinner knife to scare Harris.
       The trial judge granted Jacobs’ motion to suppress the statement.

                                                  15
the method’s potential for error” and “substantially lessen[s]” the risk of misidentification. Simmons,

390 U.S. at 384. Against these factors, we “weigh[] the corrupting effect of the suggestive

identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

   Harris had ample opportunity to get a good look at the assailant, with his full attention on the

assailant. His descriptions of the assailant immediately after the murder match Jacobs’ description,

and he testified he was absolutely certain that he had identified the assailant. We conclude that the

Texas Court of Criminal Appeals’ determination that the identification procedures did not pose a

substantial risk of misidentification was not unreasonable, and that Jacobs has failed to raise a

substantial showing that he was denied a constitutional right with respect to the identification

procedures.3

F. Exclusion of Expert Testimony

       The trial court excluded testimony from forensic psychologist Dr. Robert Powitzky, who

would have testified about the unreliability of eyewitness testimony in general, and about the

possibility that Harris misidentified Jacobs. Dr. Powitsky reviewed the transcript of Harris’ testimony

and, at a non-jury hearing, testified that the following factors would call into question Harris’

identification of Jacobs: (1) Harris only viewed Jacobs for a few seconds; (2) Harris was under a lot

of stress, which reduces the accuracy of identifications; (3) Harris was probably less focused on the

assailant’s face because eyewitnesses tend to focus on weapons; (4) Harris was shown a photo of

Jacobs and told that Jacobs confessed; (5) Harris conferred wit h Kuper in identifying Jacobs; (6)

Harris needed closure; and (7) Harris’ in-court identification was nine months after the incident.


       3
        In the same section of his brief, Jacobs argues that the alleged coaching constituted
prosecutorial misconduct. That argument was not raised below and is procedurally barred because
he has not shown any cause for failing to raise it below. See Coleman, 501 U.S. at 750.

                                                  16
    The trial judge noted that the prosecution had more than just eyewitness testimony placing Jacobs

at the scene, and that cross-examination was sufficient to point out the potential for misidentification.

The Texas Court of Criminal Appeals held that the trial court ’s decision was not an abuse of

discretion, and that any error would have been harmless in light of all of the other evidence

inculpating Jacobs. Jacobs argues that excluding the testimony denied his Due Process rights.

    The Supreme Court has held that “state and federal rulemakers have broad latitude under the

Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523

U.S. 303, 308 (1998). A “state trial court’s evidentiary ruling will mandate habeas relief when errors

are so extreme that they constitute a denial of fundamental fairness.” Little v. Johnson, 162 F.3d 855,

862 (5th Cir. 1998).

    Jacobs’ trial counsel vigorously cross-examined Harris on many of the points Dr. Powitzky

identified, and those points were also discussed at length in closing arguments. We do not think that

the exclusion rendered the trial fundamentally unfair.

    Jacobs directs our attention to United States v. Smithers, in which a divided Sixth Circuit panel

reversed a federal bank robbery conviction because the trial court failed to conduct a hearing on

whether to admit testimony from an expert on eyewitness testimony. 212 F.3d 306 (6th Cir. 2000).

While Smithers provides a useful discussion of the problems of eyewitness testimony in general, it is

not persuasive authority in this case. First, Smithers is a direct appeal of evidentiary ruling, and does

not bear on the more deferential, constitutional threshold at issue on habeas. Second, the Smithers

trial court’s error was failing to even hold a hearing to properly consider the testimony; Smithers does

not hold that the witness should have been allowed to testify.

    We conclude that the Co urt of Criminal Appeals’ analysis was reasonable, and Jacobs has not


                                                   17
made a substantial showing that he was denied a constitutional right with respect to the exclusion.

G. Unlawful Arrest

   Jacobs argues that his arrest violated the Fourth Amendment. Jacobs had a full and fair

opportunity to litigate this issue in state court, and under Stone v. Powell, 428 U.S. 465, 494 (1976),

the claim is not cognizable on habeas.

   According to Jacobs, Congress abolished the Stone v. Powell distinction between Fourth

Amendment claims and other claims when it amended the federal habeas laws in the Anti-Terrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. We

conclude, however, that Stone v. Powell is still good law. In a post-AEDPA case, the Supreme Court

noted that Stone v. Powell was “well settled,” Williams v. Taylor, 529 U.S. 362, 375 (2000), and this

Court has applied the rule to post-AEDPA cases. See, e.g., Jones v. Johnson, 171 F.3d 270, 278 (5th

Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1083 (5th Cir. 1998).

                                         IV. CONCLUSION

   For the above reasons, petitioner’s application for a COA is denied.




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