                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT               November 23, 2004

                                                       Charles R. Fulbruge III
                                                               Clerk
                          No. 03-11094


                         GARY STERLING,

                                            Petitioner-Appellant,


                             versus


  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                             Respondent-Appellee.




          Appeal from the United States District Court
               For the Northern District of Texas
                         (3:01-CV-0228)
Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM*:

     Petitioner Gary Lynn Sterling was convicted of capital murder

in Texas and sentenced to death.   Sterling filed a petition for

writ of habeas corpus in the United States District Court for the

Northern District of Texas pursuant to 28 U.S.C. § 2254. The

district court denied Sterling’s petition. The district court also

denied Sterling’s application for a certificate of appealability



     *
      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this opinion should not be published and is not precedent except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.
(“COA”).    Sterling requested a COA from this Court pursuant to 28

U.S.C. § 2253(c)(2) on several issues.            We granted Sterling a COA

as   to   his    Strickland    v.    Washington,    466   U.S.     668   (1984),

ineffective assistance of counsel (“IAC”) claim based on his

counsel’s failure to question juror Victor Walther (“Walther”)

about racial bias during voir dire.          For the following reasons, we

AFFIRM the judgment of the district court.

                                    BACKGROUND

      In February 1989 Sterling was convicted and sentenced to death

for the capital offense of murdering John W. Carthey in the course

of committing or attempting to commit robbery. On direct appeal in

1992, the Texas Court of Criminal Appeals affirmed Sterling’s

conviction and sentence; the Supreme Court of the United States

denied certiorari. In 1994 the district court dismissed Sterling’s

initial habeas corpus petition for failure to exhaust state court

remedies.       This   Court   affirmed     the   dismissal   of    Sterling’s

unexhausted petition, but the Supreme Court granted certiorari,

vacated the judgment, and remanded for further proceedings.                  On

remand in 1995, this Court again affirmed the district court’s

dismissal of Sterling’s unexhausted petition.

      In December 1996 Sterling filed his state habeas application.

After conducting an evidentiary hearing, the trial court entered

findings of fact and conclusions of law recommending the denial of

relief. As to the particular IAC issue Sterling currently appeals,


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the trial court found: “Applicant’s trial counsel was not deficient

by reason of his failure to question juror Walther about racial

bias.”     In 2001 the Court of Criminal Appeals adopted the trial

judge’s findings and conclusions and denied habeas relief.     Later

that same year, Sterling filed a subsequent application for state

habeas relief, which the Texas Court of Criminal Appeals dismissed

as an abuse of the writ.        In 2002 the Supreme Court denied

certiorari.

     Sterling then filed his petition for a writ of habeas corpus

in district court, which the court denied after oral argument in

2003.    As to the particular IAC issue Sterling currently appeals,

the district court found: “Considering the strategic nature of

Sterling’s counsel’s conduct, Dunn’s personal knowledge about, and

assessment of Walther, and Walther’s answers during voir dire

examination, the state habeas court did not unreasonably determine

that Sterling’s counsel was not ineffective for failing to inquire

of Walther about racial bias.”        The district court also denied

Sterling’s motion to reconsider the judgment.         Sterling then

noticed his appeal, and the district court denied his application

for COA.    We granted Sterling a COA as to his Strickland claim of

IAC based on his counsel’s failure to question Walther about racial

bias during voir dire.

                             DISCUSSION

     Sterling filed his § 2254 petition for a writ of habeas corpus


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after the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”).       In a habeas corpus appeal, this

Court reviews the district court’s findings of fact for clear error

and its conclusions of law de novo, applying the same standards to

the state court’s decision as did the district court.           Busby v.

Dretke, 359 F.3d 708, 713 (5th Cir. 2004).

     Under AEDPA, this Court may not grant relief on a claim the

state court has adjudicated on the merits “unless the adjudication

of the claim . . . 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.”    28 U.S.C. § 2254(d)-(d)(1) (2004).         “A state court’s

decision is deemed ‘contrary to’ clearly established federal law if

it relies on legal rules that directly conflict with prior holdings

of the Supreme Court or if it reaches a different conclusion than

the Supreme Court on materially indistinguishable facts.”         Busby,

359 F.3d at 713 (citing Williams v. Taylor, 529 U.S. 362, 405-06

(2000)).    “A state court’s decision constitutes an unreasonable

application of clearly established federal law if it is objectively

unreasonable.”     Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir.

2003).     “In order for a federal court to find a state court's

application of [Supreme Court] precedent ‘unreasonable,’ the state

court’s decision must have been more than incorrect or erroneous.”

Wiggins v. Smith, 539 U.S. 510, 520 (2003).         We presume the state


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court’s findings of fact are correct, and the petitioner bears the

burden of rebutting this presumption by clear and convincing

evidence.    28 U.S.C. § 2254(e)(1).

Whether the state court’s decision was contrary to, or involved an
unreasonable application of, clearly established law.

       In order to establish a Sixth Amendment IAC violation, a

petitioner must prove both (1) that counsel rendered deficient

performance and (2) that counsel’s actions resulted in actual

prejudice.        Strickland, 466 U.S. at 687-88, 691-92; Moore v.

Johnson, 194 F.3d 586, 591 (5th Cir. 1999). “Unless a defendant

makes both showings [under Strickland], it cannot be said that the

conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.” 466 U.S. at

687.

       It is well settled that “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome    the    presumption      that,     under    the   circumstances,      the

challenged   action     might      be   considered     sound   trial   strategy.”

Strickland, 466 U.S. at 689 (internal quotation marks and citation

omitted). “A fair assessment of attorney performance requires that

every effort      be   made   to    eliminate    the    distorting     effects    of

hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at

the time.” Id.         It is the petitioner who must overcome the

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presumption that defense counsel’s performance fell within the

broad    range    of    reasonable    professional        assistance.       Riley    v.

Cockrell, 339 F.3d 308, 315 (5th Cir. 2003).

     Even    if    counsel's     performance         is   found    deficient,       the

petitioner must still demonstrate that such deficiency rendered the

verdicts unfair or unreliable.             Id. (citing Lockhart v. Fretwell,

506 U.S. 364, 369 (1993)).           For a petitioner to meet the prejudice

prong of Strickland “requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.”        466 U.S. at 687.

     Sterling      is    African-American;          and   Walther,    who    sat     on

Sterling’s capital murder jury, is Caucasian.                Sterling maintains

that Walther      is    racist   as   to       African-Americans     and    that    his

prejudiced views link race with criminal behavior.                   Sterling bases

this contention on a post-trial affidavit where Walther referenced

the criminal behavior of “some nig**rs who live a couple of blocks

over.”    At the state habeas hearing, Walther testified that he

likely used that term at the time of Sterling’s trial.                      Sterling

argues that one of his defense counsel, Robert Dunn, was familiar

with Walther’s attitude toward African-Americans because he had

known Walther since his youth.                 Thus, Sterling asserts Dunn was

ineffective in that he did not question Walther during voir dire

about his racial bias and its effect on his ability to serve

impartially as a juror.


                                           6
      Sterling makes his IAC argument based on Turner v. Murray, 476

U.S. 28 (1986), Wiggins, and ABA Guideline 10.10.2(A) and (B).

Sterling   argues      that   Dunn   failed       to   adequately   prepare    for,

investigate,     and    question     the   possibility      of   racial   bias   in

potential jurors in Sterling’s trial.                  Sterling maintains that

Dunn’s asserted strategic reasons for accepting Walther cannot

justify Dunn’s refusal to inquire into the effect of Walther’s

racial views on his suitability as a juror in Sterling’s case.

Dunn’s alleged reasons were that he felt Walther was a fair man and

he   thought    Walther’s     previous         contacts   with   him   would   help

Sterling. Sterling argues that any perceived advantage to Sterling

stemming from Walther’s previous relationship with Dunn may have

been overwhelmed by a much larger disadvantage to Sterling stemming

from Walther’s racist views. If Dunn had investigated further into

Walther’s racial attitudes, Dunn could have assessed whether the

balance came out in Sterling’s favor.

      Sterling also contends that Dunn’s proferred reasoning that

jurors do not answer questions about racial bias honestly is

overbroad and cannot be reconciled with the basic assumptions and

duties of counsel under the jury system. Moreover, Walther’s racist

views cannot be downplayed by the state. Thus, Sterling argues the

state court’s conclusion that trial counsel’s decision not to

examine Walther on racial issues despite his knowledge of Walther’s

racial   bias   did    not    constitute        deficient   performance    was   an


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unreasonable application of clearly established federal law.

       The state asserts that both sides asked numerous questions

about Walther’s ability to be fair and impartial during voir dire,

especially in light of his prior representation by Dunn on several

occasions; Walther clearly indicated he could be fair to both

sides. Dunn testified at the state habeas hearing that despite any

potential prejudiced views, he considered Walther a “fair man” and

“probably a middle-of-the-road juror for Navarro County.”                     Dunn

also     reasoned      that   because     of     his    prior    attorney-client

relationship with Walther, Walther’s presence on the jury would

enure to Sterling’s benefit. Both Dunn and his co-counsel on

Sterling’s defense, Kerri Anderson Donica (“Donica”), testified

that the decision that Walther would be a favorable juror was a

conscious and strategic trial tactic.                 Donica felt Dunn was very

pleased    to   have    Walther   on    the    jury    because   of   their   prior

relationship.

       While Dunn did not question any potential jurors about racial

bias, he stated this decision rested on his belief that he very

seldom receives truthful answers.              The state also points out that

Sterling has not established that Walther was racially prejudiced.

Walther testified at the state habeas hearing that “the color [of

a defendant] doesn’t make no difference” and that he felt the same

way at the time of Sterling’s trial and would have said so if

asked.    Walther also stated he has some very close friends who are



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African-American; using the term “nig**r” did not make him a

racist; and he did not consider himself to be a racist.

     Moreover, in regard to the jury selection process, the state

notes that counsel’s actions during voir dire are considered to be

a matter of trial strategy.          See Teague v. Scott, 60 F.3d 1167,

1172 (5th Cir. 1995).     The state also contends that the state court

at the evidentiary hearing was in the best position to evaluate the

credibility and demeanor of Dunn and Walther. Thus, underlying the

state court’s factual finding of a lack of deficient performance

are credibility choices in favor of Dunn and Walther that must be

afforded   a    presumption   of     correctness.            The     state     discounts

Sterling’s arguments based on Turner because the issue there was a

trial court’s failure to allow the defendant to question potential

jurors about racial prejudices in spite of a specific request by

the defendant.    476 U.S. at 30-31.           However, the decision to make

such request or delve into such questioning is properly left to

defense counsel. Id. at 37 n.10. The state also argues that nothing

in Wiggins, which dealt with defense counsel’s duty to reasonably

investigate mitigating evidence for use in the punishment phase,

539 U.S. at 524-27, or the ABA Guideline on voir dire and jury

selection,     establishes    that    Dunn’s          stated       reasons     for   not

questioning    Walther    about    his       racial    views       were   objectively

unreasonable.

     Therefore,     the   state    maintains          that     the     state     court’s


                                         9
conclusion that Dunn’s performance as Sterling’s defense counsel

was not deficient was not objectively unreasonable. The state also

asserts the district court correctly determined that considering

the strategic nature of Dunn’s conduct, Dunn’s personal knowledge

about and assessment of Walther, and Walther’s answers during voir

dire, the state habeas court was not unreasonable in its conclusion

that   Dunn’s   performance   at   voir   dire   did   not   amount    to   the

deficient performance required to show IAC.

       Under the deferential scrutiny accorded to defense counsel’s

trial decisions under Strickland, we cannot say that the district

court clearly erred in its findings on deficiency or erred in its

legal conclusion that Sterling had not shown IAC.            Here, Sterling

did not rebut the state court’s finding on deficiency with clear

and convincing evidence; Sterling did not show that Dunn’s decision

not to question Walther on his racial views fell outside the wide

range of reasonable strategic professional assistance.                Sterling

did not overcome the presumption that Dunn’s challenged behavior

“might be considered sound trial strategy.”            Strickland, 466 U.S.

at 689 (citation omitted).     Therefore, Sterling has not sustained

his burden on the deficiency prong of Strickland.             We thus agree

with the district court and find that the state court’s decision

regarding the lack of a deficiency in performance by Dunn was not

contrary to, and did not involve an unreasonable application of,

clearly established federal law.


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     Having sustained the state court’s and the district court’s

determination that Sterling failed to demonstrate deficiency under

Strickland, this Court need not reach the prejudice prong. See id.

at 697 (explaining that failure to demonstrate either prong in the

IAC analysis makes it unnecessary to examine the other).

                           CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing, for the reasons set forth above, we

AFFIRM the judgment of the district court.

AFFIRMED.




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