         IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT



                     No. 96-60101



ELROY EARL SAYRE,

                                    Petitioner-Appellant,

     versus


JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE
PENITENTIARY; MICHAEL C. MOORE,

                                    Respondents-Appellees.

              - - - – - - - - - - - - - -



                     No. 97-60239



ELROY EARL SAYRE,

                                    Petitioner-Appellant,

     versus


MICHAEL MOORE, ATTORNEY GENERAL OF THE STATE OF
MISSISSIPPI; JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,

                                    Respondents-Appellees.
            Appeals from the United States District Court
               for the Southern District of Mississippi

                              January 12, 2001

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

     Petitioner-appellant Elroy Earl Sayre (Sayre) appeals the

district   court’s     denial    of     habeas   corpus    relief   as   to   his

Mississippi distribution of a controlled substance conviction.

Sayre contends that: (1) trial counsel’s failure to call certain

alibi witnesses constituted ineffective assistance of counsel and

(2) trial counsel’s refusal to allow him to take the stand deprived

him of his right to testify.          We affirm the district court’s denial

of relief.

                       Facts and Proceedings Below

     Sayre is currently serving a twenty year sentence in the

Central Mississippi Correctional Facility at Pearl, Mississippi

imposed in respect to his August 1986 conviction for the September

1984 distribution of a controlled substance.                 The evidence at

Sayre’s trial reflected the following.

     On    September    18,     1984,    an   undercover    employee     of   the

Mississippi Bureau of Narcotics, David Jackson, visited Sayre at

his trailer in Jackson County, Mississippi, requesting one-half

pound of marihuana.      Because Sayre did not then possess one-half

pound of marihuana, the two agreed to meet at another of Sayre’s

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trailers to consummate the deal.

     Agent   Jackson       met    Sayre   at    his    second    trailer    the     next

morning, ready to purchase the half-pound of marihuana.                             Sayre

obtained a bag of marihuana from a patch of overgrown grass in his

backyard, providing the same to Agent Jackson in exchange for $475.

     During both of Agent Jackson’s encounters with Sayre, he wore

a body microphone.        Thus, Jackson’s conversations with Sayre were

overheard    by    two    other    agents–Dean        Shepard   and   Jay   Eubanks.

Unfortunately, the tape recording of the first conversation was

inaudible.        The    state    did   not    attempt    to    record   the    second

conversation.      All three agents testified at trial.

     Allison Smith, a drug analyst at the State Crime Laboratory,

identified the substance Agent Jackson purchased from Sayre as

marihuana.        Lonnie    Arinder,      a    fingerprint       examiner      at    the

Mississippi Crime Lab, identified as Sayre’s five fingerprints

taken from the bag containing the marihuana.                     Smith and Arinder

testified at trial.

     On August 27, 1986, Sayre was tried by jury, convicted of

distribution of a controlled substance, sentenced to serve twenty

years in the custody of the Mississippi Department of Corrections

and ordered to pay a $30,000 fine.

     On direct appeal, Sayre was represented by the same attorney

as at trial and advanced two points of error: (1) the trial court’s

failure to sustain his motion to quash the jury panel and declare



                                          3
a mistrial (during voir dire a juror stated that she thought drug

use was wrong) and (2) the trial court’s failure to sustain his

objection to the testimony of Dean Shepard and subsequent refusal

to grant a mistrial on this basis.              On December 9, 1987, the

Mississippi Supreme Court affirmed Sayre’s conviction.              Sayre v.

State, 515 So.2d 1238 (Miss. 1987).

     On December 28, 1992, Sayre filed an application for leave to

file a motion for post conviction relief.           In his motion for post-

conviction collateral relief, Sayre alleged ineffective assistance

of counsel at trial and on direct appeal.         Sayre complained of: (1)

counsel’s failure to call certain defense witnesses, (2) counsel’s

refusal to permit him to testify and (3) counsel’s failure to

“prosecute   an   adequate   and    effective    [direct]    appeal.”   Sayre

complained   of   violations   of    the   Fifth,    Sixth   and   Fourteenth

Amendments of the United States Constitution.            On June 21, 1994,

the Supreme Court of Mississippi, pursuant to MISS. CODE ANN. § 99-

39-21(1),1 denied Sayre’s motion for post-conviction collateral

relief.


     1
      MISS. CODE ANN. § 99-39-21(1):
     “Failure by a prisoner to raise objections, defenses,
     claims, questions, issues or errors either in fact or
     law which were capable of determination at trial and/or
     on direct appeal, regardless of whether such are based
     on the laws and the Constitution of the state of
     Mississippi or of the United States, shall constitute a
     waiver thereof and shall be procedurally barred, but
     the court may upon a showing of cause and actual
     prejudice grant relief from the waiver.”


                                      4
     On August 23, 1994, Sayre filed a petition for writ of habeas

corpus    under   28   U.S.C.   §    2254    in    the   Southern   District    of

Mississippi, advancing claims similar to those barred by the

Mississippi Supreme Court.           On August 10, 1995, the magistrate

judge filed a Report and Recommendation suggesting that the writ be

denied.    Despite Sayre’s objections thereto, on January 23, 1996,

the district court adopted the magistrate judge’s report and

dismissed the petition with prejudice.              Sayre filed his notice of

appeal February 13, 1996.       The district court denied a certificate

of probable cause.

     Thereafter, a judge of this Court granted Sayre’s request for

a certificate of probable cause.            Sayre now argues two points: (1)

trial counsel’s failure to call certain alibi witnesses constituted

ineffective assistance of counsel and (2) trial counsel’s failure

to call Sayre deprived him of his right to testify in his own

defense.     Sayre also contends that he is not procedurally barred

from raising these issues.

                                    Discussion

I.   Procedural Bar

     When a state court declines to hear a prisoner’s federal

claims because the prisoner failed to fulfill a state procedural

requirement, federal habeas is generally barred if the state

procedural    rule     is   independent      and   adequate   to    support    the

judgment.     Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991);


                                        5
Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995).   The procedural

default is not an adequate ground for denial of relief unless the

state supreme court applies the bar “strictly or regularly . . . to

the vast majority of similar claims.”        Amos, 61 F.3d at 339.

Mississippi does not (or at least did not) usually apply section

99-39-21(1)’s procedural bar to ineffective assistance of trial

counsel claims when, as was the case with Sayre, the defendant was

represented by the same lawyer on direct appeal as at trial.

Martin v. Maxey, 98 F.3d 844 at 848 (5th Cir. 1996); Sones v.

Hargett, 61 F.3d 410, 416 n.9 (5th Cir. 1995) (citing Wiley v.

State, 517 So.2d 1373, 78 (Miss. 1987)).   Because Mississippi does

not (or at least did not) strictly or regularly apply section 99-

39-21(1) to bar claims like Sayre’s, the state ground is not

adequate and Sayre’s claims are not barred.

II.   Ineffective Assistance of Counsel

      A.   Failure to Call Defendant to Testify

      Sayre complains that his lawyer’s failure to call him to the

stand, despite his repeated requests, effected a denial of his

right to testify on his own behalf.   Sayre asserts that he never

agreed with counsel’s decision not to call him, that he “later

realized” he should have testified and that he never knowingly and

intelligently waived his right to testify.

      A criminal defendant has the right to take the stand and

testify in his or her own defense.    Rock v. Arkansas, 107 S.Ct.


                                 6
2704,    2708    (1987).         Sayre    contends          only    that    his   attorney

interfered with his right to testify, not that the state trial

court (or prosecutor) did so.             In United States v. Brown, 217 F.3d

247, 258-59 (5th Cir. 2000), this Court recently held that the

“appropriate vehicle for such claims is a claim of ineffective

assistance of counsel.”2

     In Strickland v. Washington, 104 S.Ct. 2052, 2064-68 (1984),

the Supreme Court held that a defendant claiming ineffective

assistance       of    counsel    must     show          that:   (1)     trial    counsel’s

performance      was    deficient        and       (2)    the    deficient   performance

prejudiced the defense.          Because ineffective assistance of counsel

is a mixed question of law and fact, this Court reviews the

district    court’s      denial     of    habeas          relief    de    novo    (although

crediting, if not clearly erroneous, the trail court’s express or

implied findings of discrete, historic facts).                         Crane v. Johnson,

178 F.3d 309, 312 (5th Cir. 1999).

            1.        Deficient Performance

     Strickland review is highly deferential; Sayre must overcome

a strong presumption that counsel’s decision not to place him on


     2
      Brown also involved a claim by one defendant that the trial
court interfered with his right to testify by failing to require
a waiver on the record. Brown noted that in the habeas context,
the panel in United States v. Martinez, 181 F.3d 627, 628 (5th
Cir. 1999), declined to articulate what degree of substantiation
is required from a habeas petitioner claiming deprivation of the
right to testify. Brown, 217 F.3d at 258 & n.9. Because Sayre’s
petition only implicates his counsel’s actions, we need not
elaborate further on this point.

                                               7
the stand was sound trial strategy.            Id. at 2065-66.     This Sayre

cannot do.

       Mississippi points out that Sayre was represented by the same

counsel at a prior trial involving another sale of marihuana to

Agent Jackson.3       At that earlier trial, Sayre raised the defense of

entrapment and testified on his own behalf.           Sayre v. Mississippi,

533 So.2d 464, 466 (Miss. 1988).              On cross-examination, Sayre

admitted to dealing in marihuana since August of 1984.             Id.   Sayre

went on to explain that he was forced to traffic in marihuana

because the only other way he could support his family was to rob

a bank.        Had Sayre taken the stand in the August 1986 trial,

Mississippi would not have been able to question him about his

predisposition to sell marihuana because he was not asserting the

defense of entrapment as to the offense then on trial.              However,

Mississippi is correct that Sayre’s testimony in the earlier trial

was highly prejudicial to him.              We conclude that a reasonable

attorney, considering Sayre’s prior performance on the stand, could

have       decided   that   the   potential   risks   of   Sayre   testifying

outweighed the potential benefits.




               2.    Prejudice



       3
      On July 31, 1985, Sayre was tried and convicted of
distribution of a controlled substance on October 4, 1984.

                                        8
     Strickland’s prejudice element requires Sayre to show “that

there   is    a   reasonable    probability         that,    but    for   counsel's

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”                Strickland, 104 S.Ct. at

2068.

     Because counsel’s performance was not deficient, it is not

necessary to consider whether the challenged decision undermines

confidence in the outcome of Sayre’s second trial.                    However, we

observe that Sayre’s self-serving conclusory statement that his

testimony would have resulted in an acquittal, standing alone,

falls far short of satisfying Strickland’s prejudice element.

Neither here nor below has Sayre alleged anything further.                   Sayre

fails, as he did below, to explain what his testimony would have

been.     Thus, we have no idea how this testimony could have made a

different     outcome       reasonably       probable.         Considering      the

overwhelming evidence of Sayre’s guilt, we cannot conceive of

anything Sayre      could    have   said     that    would   have    provided   any

reasonable possibility of a different outcome.                 The testimony of

Agent Jackson was unimpeached and the plastic bag containing the

marihuana was covered with five of Sayre’s fingerprints.

     B.      Failure to Call Other Witnesses

     Sayre opines that counsel was ineffective for failing to call

favorable witnesses “that could have given testimony that he


                                         9
[Sayre] was not at the alleged crime scene . . . .”                    Sayre does

not, and did not below, identify any of the favorable witnesses or

otherwise suggest what they would have testified to (e.g., there is

no indication of where they would have said Sayre was at the time

of the offense), but he does state that one witness had been

threatened by the district attorney.

     We note that:

     “Complaints of uncalled witnesses are not favored in
     federal habeas corpus review because allegations of what
     a witness would have testified are largely speculative.
     [Citation omitted.] Where the only evidence of a missing
     witnesses’ testimony is from the defendant, this Court
     views claims of ineffective assistance with great
     caution.”

Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986). See also

Marler v. Blackburn, 777 F.2d 1007, 1010 (5th Cir. 1985); Murray v.

Maggio,   736     F.2d   279,   282   (5th   Cir.   1984);    United   States   v.

Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983); Buckelew v. United

States, 575 F.2d 515, 521 (5th Cir. 1978).

            1.     Deficient Performance

     Sayre does not, and did not below, explain what his counsel

was (or should have been) aware of at the time of trial that should

have caused him to call these unidentified witnesses or why the

favorable    witnesses      (whoever    they   are)    were    not   called.    A

prisoner’s       bald    conclusory    assertion      that    supposed    “alibi”

witnesses were not called does not serve to “overcome the strong

presumption that his counsel’s actions were reasonable.”                  Marler,


                                        10
777 F.2d at 1010.

            2.   Prejudice

     Sayre has never provided any court with affidavits (or similar

matter) from any of the unidentified favorable witnesses suggesting

what they would have testified to.           It is clear that Sayre’s

conclusory   speculation     about   the   effect   of   the   unidentified

favorable witness’ testimony falls far short of the prima facie

showing of prejudice necessary for the evidentiary hearing Sayre

requests.    Cockrell, 720 F.2d at 1427.

                               Conclusion

     We   conclude   that    Sayre   was   not   deprived      of   effective

assistance of counsel.      The decision of the district court denying

Sayre’s section 2254 petition is AFFIRMED.




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