                         Revised March 25, 2002

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                               No. 00-21009



                               ALONZO EVANS,

                                                      Petitioner-Appellee,


                                  VERSUS


             JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
                CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                      Respondent-Appellant.




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


                               March 8, 2002
Before DeMOSS, GARWOOD, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

     Petitioner-Appellee, Alonzo Evans (Evans), is serving a 30-

year prison sentence following his conviction in state court for

aggravated robbery, which was enhanced by two prior convictions.

Evans filed a habeas corpus petition under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, in

which   he    claimed   his   trial   counsel   was    ineffective.    The
Respondent-Appellant,       Gary   L.    Johnson,     Director    of   the   Texas

Department of Criminal Justice, Institutional Division, moved for

summary judgment on behalf of the State of Texas (State).                      The

district court denied respondent’s motion for summary judgment and

granted Evans' habeas corpus petition.                 Respondent appeals the

district court's ruling. The district court's judgment is reversed

and rendered.



                              I.    BACKGROUND

       On March 15, 1996, Rolly Itoge (Itoge) and a female friend

were   approaching    the   door    to       his   upstairs   apartment      around

midnight, when Evans put a gun to the left side of Itoge's head and

demanded his money.    Itoge told Evans that he was not going to give

him any money, so Evans shot him in the back.             While fighting back,

Itoge was shot once more.      After a struggle, Evans decided to give

up and runway.

       Wallace McNary (McNary), Itoge's neighbor, heard the gunshots

and looked through the peephole of his apartment door. McNary

called the police and waited with Itoge until the police and an

ambulance arrived. Itoge described his attacker as tall, fair-

complected and wearing a colored, striped shirt.                 Itoge also said

his attacker had an eye patch over one eye, and that Itoge had

pulled the patch off during the struggle.               McNary also described




                                         2
Evans to police and later identified him when the police brought

him back to the scene.

     Evans was discovered by police walking in a nearby field

shortly after the shooting.   According to police, Evans attempted

to avoid detection and did not stop until the officers actually

drew their weapons.   He had taken off his shirt, which had blood on

it, and tucked it into his pants.    Evans was sweating heavily and

had fresh scratch marks on his face and neck.   In addition, he had

an eye patch with a broken strap in his pants pocket.

     Evans was found guilty of the crime of aggravated robbery with

a deadly weapon by a jury of his peers in the 263rd District Court

of Harris County, Texas.      On March 26, 1997, the trial judge

sentenced Evans to a 30-year term of imprisonment in the Texas

Department of Criminal Justice, Institutional Division.       Evans

filed a direct appeal in the Court of Appeals for the Fourteenth

District of Texas at Houston, claiming that the evidence was

insufficient to support a conviction for aggravated robbery, and

that the trial judge made impermissible comments during voir dire

that were so prejudicial that they undermined the fairness of the

trial.   The transcript reflects that the trial judge made the

following remarks to the venire during the voir dire:

               My attitude basically is jury service is not
          so much volunteer work as it is a duty. You know
          as citizens of this State, there's no longer a
          draft for the United States.

               There's really not a lot required of you
          besides all of us to pay our taxes. This is one of

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the few duties requested and demanded to make sure
we all have a safe society.

     If you go back to work in the next couple of
days–where were you yesterday?

     Well, I had jury service.

     Oh, I throw that stuff in the trash.

     Well, besides the fact we're now having to
arrest about 10 percent of the panels that don't
show up. I'd say about 60 percent don't show up.

     And they laugh at you and say:    Oh, I don't
ever do that.

     My attitude is you get what you put into it.
If you're not willing to come down and serve this
afternoon, you're going down to the local grocery
store.

     Between the time you get to the store from the
car, somebody bops you on the head, takes your
purse or wallet, frankly, I don't think you have
much of a complaint.

     I think if you're not willing to serve, you
ought to not have the right of too much to
complain. It also lets the other person do this.
I've got something better to do. And if everyone
felt that way, believe me I've seen hundreds of
excuses.

     I go to the jury assembly room once a year.
We rotate in there once a year.     I hear every
excuse in the book why I have something better to
do than serve on the jury.

      Even in the courtroom I hear a hundred
different reasons why they cannot serve on the
jury.

     Lot of those reasons are valid. Some of those
you question. Frankly, for everyone exercising an
excuse, no one would go to trial.

     Can you imagine what it would be like to walk
around your street and everyone charged with a

                      4
            crime was out on bond? They were arrested 5 years
            ago but never gone to trial because there are no
            juries.

                 You've done a valuable service being down
            here. We'll pass out your work excuses in a few
            moments to excuse you for work today.

                 If you are picked for the jury, we'll give you
            work excuses at the end for those of you selected.

     The Court of Appeals for the Fourteenth District of Texas

affirmed Evans' conviction and sentence on May 20, 1999. The court

of appeals held that Evans failed to make a timely and specific

objection at the time the comments were made and, therefore, the

issues raised were procedurally barred by Texas' contemporaneous

objection rule.       TEX. R. APP. P. 33.1.       Evans did not file a

petition for discretionary review with the Texas Court of Criminal

Appeals.

     On October 29, 1999, Evans filed a state application for writ

of habeas corpus.     In his application, Evans argued that his trial

counsel was ineffective because he failed to object to the trial

judge's    improper   comments,   failed   to   secure   testimony   of   an

eyewitness, and failed to request an expert witness and analysis of

blood found at the crime scene and on Evans' shirt.          The Court of

Criminal Appeals denied Evans' application without written order on

January 12, 2000.

     Evans then filed a timely federal petition for writ of habeas

corpus under 28 U.S.C. § 2254 on February 4, 2000.                   In his

petition, Evans asserted the same issues that he had in his state


                                    5
habeas corpus application.     The State moved for summary judgment,

which was denied.       Instead, the district court conditionally

granted Evans' federal application for writ of habeas corpus.           In

addressing   Evans'   petition,   the   district   court   presented   its

assertions as follows: “(1) the trial judge's comments made to the

venire during voir dire denied [Evans] his Sixth and Fourteenth

Amendment rights to a fair and impartial trial; and (2) he was

provided with ineffective assistance of counsel in violation of the

Sixth and Fourteenth Amendments.”       Thus, the district court, sua

sponte, raised the claim that the trial judge's comments during

voir dire violated Evan's Sixth and Fourteenth Amendment rights to

due process.    The State now appeals the district court's order

granting Evans' petition for a writ of habeas corpus.



                        II.   STANDARD OF REVIEW

     This Court reviews the district court's findings of fact for

clear error, but decides issues of law de novo.      Clark v. Scott, 70

F.3d 386, 388 (5th Cir. 1995).      Notably, the petition for habeas

relief before this Court is governed by the heightened standard of

review provided by AEDPA. AEDPA applies to this action because the

petition was filed after the effective date of the act, which was

April 24, 1996.       AEDPA embodies the principles of federalism,

comity, and finality of judgments.       Montoya v. Johnson, 226 F.3d

399, 404 (5th Cir. 2000), cert. denied, 121 S. Ct. 2220 (2001).         As


                                    6
a result, “AEDPA substantially restricts the scope of federal

review of state criminal court proceedings.”      Id.   Furthermore,

AEDPA instructs:

           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 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).    Therefore, neither the district court nor

this Court may grant a writ of habeas corpus based solely on a

finding of error by a state court.   Rather, a writ may be granted

only if a state court “arrives at a conclusion opposite to that

reached by [the Supreme Court] on a question of law or if the state

court decides a case differently than [the Supreme Court] has on a

set of materially indistinguishable facts.”     Williams v. Taylor,

529 U.S. 362, 413 (2000).   Without such a   direct conflict, a writ

will be granted only if the state court “identifies the correct

governing legal principle from [the Supreme Court's] decisions but

unreasonably applies that principle to the facts of the prisoner's

case.”   Id.; Montoya, 226 F.3d at 404.



                                 7
                              III.    DISCUSSION

     We have before us three issues:                (1) whether the district

court improperly raised, sua sponte, the issue that the state trial

judge's   comments   during    voir    dire       violated    Evan's   Sixth    and

Fourteenth   Amendment    rights      to    due    process;    (2)    whether   the

district court erred when it granted relief on Evans' claim of

ineffective assistance of counsel, when counsel failed to object to

the state trial judge's comments during voir dire; and (3) whether

the district court erred when it granted relief on Evans' claim

that he was denied effective assistance of counsel, when counsel

failed to perform scientific tests on certain evidence presented at

trial, and to secure the testimony of an alleged eyewitness and an

expert witness.

A.   The trial judge's comments during voir dire.

     Evans argued in his direct appeal in the Fourteenth Court of

Appeals of Texas that the state trial judge's comments during voir

dire violated his right to a fair trial under the Sixth and

Fourteenth   Amendment.       When    the    Fourteenth       Court    of   Appeals

addressed the issue, it concluded that Evans was procedurally

barred from raising the issue because he had failed to make a

contemporaneous objection.       When Evans filed his state application

for a writ of habeas corpus, he did not raise the issue again.

     However, the district court, sua sponte, raised the claim

after Evans petitioned the court for a federal writ of habeas


                                       8
corpus.   On this issue, the district court found:

           [T]he trial judge's comments crossed the line that
           separates a trial judge's role from that of a
           prosecutor.   The judge injected himself into the
           adversarial   process   by  suggesting   that   the
           defendant on trial will be back on the streets
           ready to '[bop] you [venire] on the head take [sic]
           your purse or wallet' if you do not take this jury
           service seriously. Moreover, people whose attitude
           is wrong about jury service, gets what they
           deserve–people on the streets who have been charged
           with crimes but never tried.

The State contends that, because the issue was not raised in Evans'

state application for a writ of habeas corpus, the issue is both

procedurally barred and unexhausted.   Therefore, the State argues

that the district court should not have raised the issue, sua

sponte, when addressing Evans' federal petition.     For the reasons

stated below, we disagree with the State's argument that the

district court could not raise the issue sua sponte. Nevertheless,

we also disagree with the district court's conclusion that Evans'

Sixth and Fourteenth Amendment rights were violated.

     First, it is well established that a claim is exhausted if “it

is clear that [the habeas petitioner's] claims are now procedurally

barred under [state] law.”   Gray v. Netherlands, 518 U.S. 152, 161

(1996); Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999).

Second, we recognize that:

           In all cases in which a state prisoner has
           defaulted his federal claims in state court
           pursuant to an independent and adequate state
           procedural rule, federal habeas review of the
           claims   is  barred unless  the  prisoner can
           demonstrate cause for the default and actual

                                 9
           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).                   Even though the

district   court's     order      did        not     expressly     address   the

contemporaneous objection rule, implicit in its order is the cause

and prejudice analysis that is required to overcome the rule.                The

district   court   found   that   the        state    trial   judge's   comments

“threatened”   and    “poisoned”         the       trial   process.       Again,

consideration of the issue as related to the ineffective assistance

of counsel was not improper.

     However, we cannot reach the same conclusion as the district

court. We find that the trial judge's comments during voir dire do

not necessitate reversal.      We have held:

           [O]ur role is to determine whether the judge's
           behavior was so prejudicial that it denied the
           defendant a fair, as opposed to a perfect, trial.
           To rise to the level of a constitutional error,
           the...judge's actions, viewed as a whole, must
           amount to an intervention that could have led the
           jury to a predisposition of guilt by improperly
           confusing the functions of judge and prosecutor.
           The judge's intervention in the proceedings must be
           quantitatively and qualitatively substantial to
           meet this test.

United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)

(citations omitted).       Therefore, our review of this issue must

focus on matters such as the context of the remarks, to whom the

remarks were directed, the number and nature of the remarks, and

the presence of curative instructions. United States v. Munoz, 150

                                        10
F.3d 401, 414 (5th Cir. 1998).

     The comments at issue in this case were made to members of the

venire. The judge's comments, taken as a whole, make it clear that

his intent was to express his belief that the venire members had a

duty as citizens to serve on a jury, and that they would have no

complaint about being the victim of a violent crime if they avoided

jury service.   The comments had nothing to do with the case about

to be tried before those who were chosen to serve as jurors.         And,

as the district court noted, “it is unlikely that the jury was

aware of the judge's attitude about the defendant's case, in

particular, and persons charged with crimes, in general. . . .

[T]he trial judge did not mention the petitioner by name or the

specifics of his accused crime.”   While the trial judge's comments

were undesirable, we do not believe the trial judge's comments

reached a level of prejudice that would have denied Evans a fair

trial.

B.   Ineffective assistance of counsel claims.

     To   establish   constitutionally    ineffective   assistance    of

counsel, the petitioner must demonstrate that counsel's performance

was deficient because it fell below an objective standard of

reasonableness and was prejudicial.      Strickland v. Washington, 466

U.S. 668, 687 (1984).   Furthermore, in order to show prejudice, a

petitioner must demonstrate that counsel's error was “so serious as

to deprive the defendant of a fair trial, a trial whose result is


                                 11
reliable.”      Id.   In determining the merits of this issue, we “must

indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance.” Id. at 689.

     i.     Counsel's failure to object to the trial judge's
            comments.

     The district court granted habeas relief on the claim that

counsel was ineffective for failing to object to the trial judge's

comments to the venire.          The district court determined that the

“trial judge's        comments   were    so    prejudicial    as   to   chill   the

adversarial process, denying the trial counsel a platform from

which an objection could be made that would not further prejudice

the petitioner's trial.”         Nevertheless, the court concluded that

because counsel did not object, “counsel's performance was both

deficient and prejudicial.”         We disagree with the district court's

conclusion.

     In his petition for writ of habeas corpus, Evans simply argued

that counsel's failure to object could not have fallen within the

“wide range of reasonable professional assistance” called for under

Strickland.      Evans has not convincingly argued that his counsel's

failure to object to the trial judge's comments directed at the

venire    was   so    prejudicial   as    to    produce   a   result    that    was

unreliable.       Given that we have found that the trial judge's

comments were not prejudicial enough to rise to the level of a

constitutional violation, it would be futile to conclude that

counsel was ineffective for not objecting to the same comments.

                                         12
      ii.    Counsel's failure to perform scientific tests on certain
             evidence presented at trial, and to secure the testimony
             of an alleged eyewitness and an expert witness.

      Evans, in his habeas petition, asserted that his counsel

contributed to the jury's verdict of guilt because he failed:                     (1)

to request an analysis of the blood that was on his shirt when he

was arrested; (2) to call an expert witness to testify about the

blood    testing;    and   (3)    to   call    Itoge's    female   friend    as    an

eyewitness.      First, although Evans did not provide affidavits from

the alleged eyewitness or indicate what testimony the eyewitness

would give, the district court “presume[d] that the testimony would

be favorable to the petitioner.”              However, complaints of uncalled

witnesses are not favored in federal habeas corpus review because

allegations of what the witness would have testified are largely

speculative.      Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir.

2001).      The district court engaged in this type of speculation.

Therefore, we cannot conclude that counsel's failure to call the

alleged eyewitness was ineffective assistance.                In addition, “for

[Evans] to demonstrate the requisite Strickland prejudice, [he]

must show not only that [the] testimony would have been favorable,

but   also    that   the   witness     would     have    testified   at     trial.”

Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).                    Evans

has not done this.

      Second, the district court found to be meritorious Evans'

claims    that   counsel    was    ineffective      for    failing   to     call   a


                                         13
scientific expert to testify, and for failing to order scientific

testing on Evans' bloody shirt.            The district court found that

counsel requested funds for testing but that the tests were not

part of the record.       The district court then presumed that the

tests   either    were    not    conducted    or   were     not    compelling.

Regardless,    the    district    court    concluded      that    counsel   was

ineffective.

     However, Evans did not present any evidence or allegations

concerning what the expert would have stated, or what results the

scientific tests would have yielded.           Again, Evans' unsupported

claims regarding the uncalled expert witness are speculative and

disfavored by this Court as grounds for demonstrating ineffective

assistance of counsel.      Sayre, 238 F.3d at 635-36.            Furthermore,

Evans must be able to show “a reasonable probability that, but for

counsel's failure to request an expert, the jury would have had a

reasonable doubt concerning his guilt.”            Earhart v. Johnson, 132

F.3d 1062, 1068 (5th Cir. 1998). Evans, however, cannot accomplish

this task.    There was never any question regarding whose blood was

on Evans' shirt. After being arrested, Evans stated that the blood

on his shirt was his own.        At trial, counsel argued that the small

amount of blood on the shirt was Evans', and the State never

contradicted that assertion.          Therefore, there would have been

nothing to gain from the testing of the blood or the calling of an

expert witness.      Therefore, we cannot conclude that Evans' counsel


                                      14
deprived him of a fair trial.



                            CONCLUSION

     For the foregoing reasons, we hold that Evans was not deprived

of effective assistance of counsel.   The decision of the district

court granting Evans' § 2254 petition is reversed and rendered.




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