                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 19, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 01-10646



TED CALVIN COLE,
now known as Jalil Abdul-Kabir,

                                    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
                          (6:00-CV-014)
                      --------------------

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Ted Calvin Cole, a Texas death-row inmate

who is now known as Jalil Abdul-Kabir, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition.     We granted

Cole a Certificate of Appealability (COA) on his claim that his

Sixth Amendment rights, as outlined in Estelle v. Smith, 451 U.S.

454 (1981), were violated by the penalty-phase testimony of Dr.

Richard Coons, a psychiatrist, and on his claim that trial counsel

rendered ineffective assistance for failing to procure and present

     *
        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this opinion should not be published and is not precedent except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.
particular mitigating evidence at penalty phase of his trial.

Acting on our own motion, we also issued a COA so that we could, at

the   same   time,   examine      whether    the    district   court   erred    in

concluding that Cole had shown cause and prejudice to excuse his

state procedural default of his ineffective-assistance claim.

      We denied Cole’s motion for COA as to several other claims,

including    a    claim   that    the   trial     court’s   penalty-phase   jury

instructions were unconstitutional under Penry v. Lynaugh, 492 U.S.

302 (1989)       (Penry   I),    abrogated   on    other    grounds,   Atkins   v.

Virginia, 536 U.S. 304 (2002).          Cole now asks us to reconsider our

denial of his COA motion as to this claim.                  For the reasons set

forth below, we deny Cole’s motion for reconsideration and affirm

the district court’s denial of Cole’s 28 U.S.C. § 2254 habeas

corpus petition.

                          I. Facts and Proceedings

      In December 1987 Cole was staying at an abandoned motel with

his stepbrother, Michael Hickey (Michael), and Michael’s wife,

Kelly Hickey (Kelly).           Cole mentioned to the Hickeys that he was

willing to kill someone to obtain cash.              Cole and Michael decided

to rob Kelly’s grandfather, Raymond Richardson, and then strangle

him to death.

      Two days after this conversation, the three individuals went

to Richardson’s home and visited with him in his living room for

several hours.        The group then moved to the kitchen.                  When

Richardson started to leave the kitchen, Cole pushed him to the

                                         2
floor, where he landed face down.             Cole then sat on Richardson’s

back and strangled him with a dog leash that the men had brought to

the house for this purpose.         Cole exhorted Richardson to “hurry up

and die.”      After Richardson died, the group put his body under his

bed.    They then searched his house for cash, after which Cole went

to a grocery store to buy beer and bacon.                       Cole brought the

groceries back to Richardson’s house and shared them with Michael.

The morning after the murder, Kelly and Michael turned themselves

in to the police and gave statements.              Kelly testified at Cole’s

trial.

       Cole was arrested at the victim’s home the morning after the

murder.        Cole gave police two statements in which he admitted

murdering      Richardson,   and    these     statements       were   entered   into

evidence at trial. In one of these statements, Cole explained that

the group decided to strangle Richardson because “it was quieter

than shooting him and not as messy as cutting his throat, and it

just seemed the easiest way to do it.”            The jury found Cole guilty

of capital murder.

       In response to special issues in the penalty phase, the jury

answered that Cole had deliberately killed Richardson and that

there    was    a   probability    that   Cole   posed     a    threat   of   future

dangerousness.       The trial court then sentenced Cole to death.               The

Texas Court of Criminal Appeals (TCCA) affirmed Cole’s conviction

and sentence, and the United States Supreme Court denied his

petition for a writ of certiorari.

                                          3
     Cole filed an application for postconviction relief in state

court with the assistance of attorney Carlton McLarty.    He raised,

inter alia, a Penry I claim and a Smith Sixth Amendment claim.   The

TCCA denied Cole’s application.

     Assisted by different counsel, Cole then filed the instant 28

U.S.C. § 2254 habeas corpus petition in the district court.      The

Respondent argued, inter alia, that Cole’s ineffective-assistance

claim was procedurally defaulted.     The district court conducted a

hearing and concluded that Cole had shown cause and prejudice

sufficient to excuse any procedural default.     The district court

ultimately denied all of Cole’s claims on the merits and also

denied Cole’s motions to alter or amend the judgment under FED. R.

CIV. P. 59(e) and for a COA.

                           II. Analysis

A. Standards of Review

     In the context of a 28 U.S.C. § 2254 habeas petition, we

review the district court’s procedural rulings de novo and its

findings of fact for clear error.     Glover v. Cain, 128 F.3d 900,

902 (5th Cir. 1997).   The deferential standard of review found in

28 U.S.C. § 2254(d) applies to claims that have been adjudicated in

state court.   DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002).

Under this standard, a petitioner will not receive relief unless he

shows that the state court’s disposition of his claims “involved an

unreasonable application of clearly established Federal law, as



                                  4
determined    by   the   Supreme     Court   of   the   United   States.”

§ 2254(d)(1).

B. Procedural Default

      A petitioner procedurally defaults his claims when he fails to

exhaust state remedies and the court to which he must present his

claims to meet the exhaustion requirement would now hold these

claims procedurally barred.        Magouirk v. Phillips, 144 F.3d 348,

360-61 (5th Cir. 1998); Nobles v. Johnson, 127 F.3d 409, 420 (5th

Cir. 1997).     A petitioner may overcome a procedural default by

demonstrating cause for the default and actual prejudice resulting

from it.   Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001).

A petitioner demonstrates cause by showing that his efforts to

comply with the state’s procedural rules were hampered by “some

objective factor external to the defense.”        Murray v. Carrier, 477

U.S. 478, 488 (1986).

      Cole does not dispute that his ineffective-assistance claim is

procedurally defaulted.      Rather, consistent with his arguments in

the district court, Cole contends that the state court misled him

into believing that he would receive a new attorney after McLarty

had   to   withdraw   from   his    case.    He   contends   that   these

misrepresentations occurred at a hearing that the state court held,

and he argues that these misrepresentations provide cause and

prejudice sufficient to excuse his procedural default of his

ineffective-assistance claim.



                                     5
     Cole’s arguments on this issue miss the mark.      The record

controverts his assertion that the state court affirmatively misled

him into believing that he would receive new counsel after McLarty

withdrew.   Our review of the transcript that Cole relies on in

support of this argument reveals no statements by the trial court

that could be reasonably interpreted as assuring Cole that an

appointment of new counsel would be forthcoming.

     The district court thus erred in concluding that Cole had

established cause and prejudice to overcome his procedural default.

To the extent that the district court’s conclusion on this issue

included an implicit finding that the state court made affirmative

misrepresentations to Cole concerning whether he would receive new

habeas counsel, this finding is clearly erroneous.

     We note further that, even if the trial court had led Cole to

believe that he would receive new counsel, this still would not be

sufficient to overcome Cole’s procedural default.    The legal and

factual bases of this claim were available when Cole’s habeas

application was filed in state court.     There is no indication,

however, that Cole or his attorney thought of this claim or

attempted to raise it at any time prior to the filing of his 28

U.S.C. § 2254 petition.    The failure to exhaust thus does not

result from an objective factor external to the defense.       See

Murray, 477 U.S. at 488.




                                6
C. Ineffective-Assistance Claim

         As Cole’s ineffective-assistance claim is thus procedurally

defaulted, we could end our analysis here. See Cotton v. Cockrell,

343 F.3d 746, 755 (5th Cir. 2003).                  We nevertheless address the

merits of this claim.          See Busby v. Dretke, 359 F.3d 708, 724-26

(5th Cir. 2004), petition for cert. filed (U.S. Feb. 27, 2004) (No.

03-9218); Kunkle v. Dretke, 352 F.3d 980, 986-90 (5th Cir. 2003).

         Cole   contends     that     trial       counsel      Bob      Spence       rendered

ineffective       assistance        for     failing      to     conduct        an     adequate

investigation of mitigation evidence.                    Cole argues that, at the

penalty phase, Spence should have procured and presented the

testimony of Cole’s uncle, Ted Dean, and Cole’s sister, Carla

Marsh, as well as records pertaining to his prior periods of

incarceration and his juvenile conviction.

         To obtain relief based on ineffective assistance of counsel,

a petitioner must demonstrate both that his attorney rendered a

deficient performance (cause) and that this substandard performance

prejudiced the defense (prejudice).                Strickland v. Washington, 466

U.S. 668, 687 (1984).               An attorney who represents a capital

defendant       during     penalty        phase   must        perform     “a        reasonably

substantial, independent investigation into potential mitigating

circumstances.”      Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)

(en banc), cert. denied, 537 U.S. 1104 (2003).

         When assessing prejudice in the context of the penalty phase

of   a    capital   trial,    the     reviewing       court      must     “reweigh”       the

                                             7
aggravating evidence against all available mitigating evidence.

Wiggins v. Smith, 123 S. Ct. 2527, 2537, 2542 (2003).                  If this

analysis shows a “reasonable probability” that a reasonable juror,

when presented with the omitted mitigating evidence, would have

declined to   impose    the   death    penalty,    then   the   defendant     is

entitled to relief.     See id. at 2542-44, quote at 2543.

     The State presented a strong case at the penalty phase.                 One

of the State’s main pieces of evidence was Cole’s own diary, which

was found in Richardson’s home shortly after the murder.               In this

diary, Cole recorded his desire to “have” a 12-year-old boy named

Cody, whom Cole described as “jail bait” (the “Cody passage”).

Cole also recorded his desire to find a companion “who is young,

attractive and with a sense of adventure, with whom I can roam

around the world, sailing in the South Pacific, the Caribbean,

exploring   the   Mediterranean,      partying    somewhere     in   the   South

American jungles, smuggling, stealing, robbing, raping, pillaging,

modern-day Vikings or pirates” (the “pirate passage”).

     The State introduced evidence to show that Cole was charged

with the murder of Gary Don Dedecker approximately 15 years before

the instant crime.     This charge originally resulted in a mistrial.

At one point during the trial, Cole told a bailiff that he had

killed Dedecker and “would kill him again.”

     Cole, who was 16 or 17 years old at the time, eventually

pleaded guilty to this charge.            Cole described Dedecker as his

“best friend,” yet he gave a statement to police in which he

                                      8
asserted that he murdered Dedecker because he wanted Dedecker’s

car.       He told Kelly that he had killed Dedecker because he wanted

to know what it was like to kill a person.

       The State introduced the testimony of a family friend who had

let Cole stay in her home when he was 23 years old and had nowhere

else to go.      Cole molested this woman’s eight-year-old son and the

son’s 10-year-old friend, and he was subsequently convicted of

sexual assault charges based on these acts.        The son, who was 15

years old at the time of trial, testified in detail as to the

sexual acts Cole had performed on him and his friend.1

       Cole also presented evidence at penalty phase. Cole’s mother,

Nancy Hickey (Nancy), testified that Cole’s father, Charles Cole

(Charles) had abandoned the family when Cole was five years old.

Nancy then placed Cole in a church-run children’s home, where he

remained for the next five years.        Nancy’s brother and sister-in-

law, Ted and Barbara Dean, were Cole’s sponsors while he was in

home.       They bought him clothing, and he visited their home on

holidays.

       Nancy eventually remarried, and she regained custody of Cole

when he was 10 years old.       After Cole returned to Nancy, he made

good grades and tried to behave himself.            Cole had no legal


       1
       The state also introduced the testimony of Dr. Coons. As
explained in the discussion of Cole’s Sixth Amendment claim, the
introduction   of   this   testimony  was   arguably  erroneous.
Consequently, we have not considered this evidence in analyzing
Cole’s ineffective-assistance claim.

                                     9
troubles until he was charged with Dedecker’s murder. Barbara Dean

testified that Cole seemed to enjoy himself during visits to her

home,   but   he   expressed    no   emotions      about    returning    to   the

children’s home.

     Psychologist Jarvis Wright testified that Cole had a high IQ

and a difficult childhood.       Wright offered the opinion that Cole’s

personality was “fragmented,” that he lacked impulse control, and

that he did not know himself very well.                Wright observed that

persons with backgrounds similar to Cole’s tend to “mellow” and

make positive life changes starting around age 40. Wright believed

that Cole     could   have   central     nervous   system     damage,   but   his

testimony on this issue was somewhat vague.            Wright conceded that

Cole had a greater probability of future dangerousness than others.

     Wendel    Dickerson,      another      psychologist,     echoed    Wright’s

opinion that individuals similar to Cole tend to mellow with age.

Dickerson also noted that it was very difficult to predict future

dangerousness.     Dickerson acknowledged that he was not expressing

the opinion that Cole was not dangerous and that it was “not an

unreasonable    assumption”     to   believe    that   Cole    was   dangerous.

Dickerson also acknowledged that Cole’s test results could support

a conclusion that he was a sociopath.

     In the district court, Cole presented affidavits from Ted Dean

(Ted) and Carla Marsh (Marsh), as well as copies of Cole’s prison

and juvenile records, to support his argument that Spence should

have procured and presented these witnesses’ testimony and these

                                       10
documents.     According to Ted’s affidavit, he would have testified

that Charles, Nancy, and Nancy’s second husband, Paul Hickey

(Paul), were bad parents; that Nancy would leave her children with

other people for extended periods of time; that Nancy and Paul

neglected their children and did not treat them kindly; and that

Nancy was a poor housekeeper, and she gave her children no spending

money.

     Marsh too would have testified that Nancy, Paul, and Charles

were bad parents.        Marsh stated that Cole was reserved after he

left the children’s home, where he was not treated well; that Paul

would beat Cole; and that on one occasion Marsh thought Paul was

going to drown Cole until she intervened on Cole’s behalf.

     Cole’s     prison     records    reflect     that   his   only   prison

disciplinary    infractions    involved     nonviolent   behavior.     These

records are not, however, wholly favorable to Cole.             The records

from Cole’s sexual assault conviction show that he molested his

young victims at knifepoint.

     Cole’s juvenile records are likewise not entirely favorable to

Cole.    His    years    at   the    children’s   home   are   described   as

unpleasant, but no details are given. A psychiatrist described him

as having a poorly socialized, schizoid personality.             The family

home is described as dirty and needing a good cleaning.               On the

other hand, the records also describe Nancy as a loving and

concerned parent.        Another portion of the records describes the

Hickey home as clean and well-kept.

                                       11
1. Performance

     The issue whether Spence rendered a deficient performance in

connection    with      his    investigation      into   potential   mitigating

evidence presents a close question.              Our analysis of this issue is

complicated by the fact that Spence died in a car accident prior to

Cole’s    filing   of    his   §   2254   petition.      Consequently,   it   is

impossible to ascertain the extent of Cole’s investigation in

relation to penalty-phase preparations.              It is likewise impossible

to determine whether he deliberately chose to end his investigation

because he felt that he had sufficient mitigating evidence or

because he simply did not think to obtain the evidence on which

Cole now relies.

     It is apparent that Spence did make some preparations for the

penalty phase, as he did present some mitigating evidence. Compare

Wiggins, 123 S. Ct. at 2532.                   The evidence Cole now offers,

however, is subtly different from that presented at trial, and

there is no indication that Spence tried to obtain it.               Given the

“volume and easy availability” of this evidence, it is at least

arguable that Spence performed deficiently when he failed to

investigate and failed to obtain this evidence. See Neal, 286 F.3d

at 240.     Further, as Spence failed to obtain this evidence, it

cannot be said that he made a strategic decision to refrain from

using it.    See Neal, 286 F.3d at 242; compare Jernigan v. Collins,

980 F.2d 292, 296-97 (5th Cir. 1992).



                                          12
     For all of these reasons, Spence at least arguably rendered a

deficient performance by failing to discover the disputed evidence.

Accordingly, we shall assume arguendo that the performance was

deficient and proceed to examine whether this prejudiced Cole.

2. Prejudice

     Our reweighing of the evidence convinces us that Cole suffered

no prejudice as a result of Spence’s failure to procure and present

the disputed mitigation evidence.          The evidence adduced by the

State     at   the   penalty   phase     was   both   qualitatively   and

quantitatively substantial.     It showed that the instant murder was

both callous and calculated.     The senseless nature of this murder

is consistent with Cole’s prior crimes.

     Cole was 31 years old when he murdered Richardson, and his own

expert acknowledged that he was highly intelligent.         Thus, unlike

some other capital defendants, Cole cannot blame his heinous acts

on either youth or lack of intellectual capacity. See Robertson v.

Cockrell, 325 F.3d 243, 249 & n.5, n.6 (5th Cir.) (en banc), cert.

denied, 124 S. Ct. 28 (2003).          Rather, the record can fairly be

read as showing that Cole is a mature, bright man who consistently

made conscious decisions to do what he wanted to do regardless of

the consequences to others.     Conspicuously absent from the record

is any indication that Cole has ever felt any remorse for his many

crimes.    Also absent from the record is evidence concerning any

positive character traits.     In sum, the State presented a powerful



                                   13
case in support of its argument that there was a probability that

Cole would continue to pose a risk of dangerousness.

     In contrast, the mitigation evidence that Cole offered at

trial, even when combined with the evidence that he now offers,

simply is not sufficient to show a reasonable probability that a

reasonable juror, when presented with all this evidence, would have

declined to impose the death penalty.     See Wiggins, 123 S. Ct. at

2537, 2542.   As noted earlier, the records that Cole has produced

are not wholly favorable. This evidence is thus “double-edged,” as

it is both aggravating and mitigating.     See Ladd v. Cockrell, 311

F.3d 349, 360 (5th Cir. 2002).   Cole thus has not shown prejudice

based on Spence’s failure to procure and present these records.

     Neither can Cole show prejudice from Spence’s failure to

procure and present the testimony of Ted and Marsh. This evidence

consists largely of vague and unsubstantiated allegations that Cole

was abused and neglected by his parents and at the children’s home.

Cole certainly did not have an idyllic childhood, but the evidence

that he now insists should have been presented simply does not rise

to the level of that adduced in cases in which petitioners have

received relief on similar claims.    See Wiggins 123 S. Ct. at 2532-

33; Williams v. Taylor, 529 U.S. 362, 390-98 (2000); Lewis v.

Dretke, 355 F.3d 364, 367-69 (5th Cir. 2003).

     There are no specific allegations of abuse at the children’s

home.   There are inconsistencies between the affidavits as to the

specifics of Charles’s desertion of the family.    There is a lack of

                                 14
documentary evidence to support Cole’s assertions of physical

abuse, and even the abuse alleged does not rise to the level of

that shown in other cases.   There are no concrete allegations that

Cole suffered sexual abuse. Cole was never removed from the family

home because of abuse or neglect, and there is no indication that

his parents faced criminal charges based on parental shortcomings.

     In conclusion, Cole’s evidence simply is not very strong,

especially when compared with evidence produced in cases in which

petitioners have prevailed on similar claims.      When we add the

omitted evidence to that adduced at trial and weigh the aggregate

against the Respondent’s overwhelming evidence of Cole’s future

dangerousness, we conclude that Cole’s mitigating evidence is not

“of sufficient quality and force to raise a reasonable probability

that, had it been presented to the jury, a life sentence would have

resulted.”   See Andrews v. Collins, 21 F.3d 612, 624 (5th Cir.

1994).   Accordingly, even if this issue was not procedurally

barred, Cole still would not prevail.

D. Smith Sixth Amendment Claim

     Cole maintains that a harmful Sixth Amendment error resulted

from the admission of Dr. Coons’s testimony.   He contends that this

witness’s opinion was particularly harmful to him both because Dr.

Coons was the only medical doctor to testify and because the

substance of his testimony strongly suggested that Cole would

continue to be dangerous.



                                 15
       A psychiatric examination of a capital defendant that leads

the expert to form an opinion as to the defendant’s potential

future dangerousness has constitutional implications.              Smith, 451

U.S. at 461-71.       Under these circumstances, the Sixth Amendment

protects the defendant’s right to have an effective consultation

with counsel, which in turn requires that counsel be informed of

the scope of the examination.        Buchanan v. Kentucky, 483 U.S. 402,

424 (1987).     Accordingly, if a capital defendant’s attorney is not

informed that a psychiatric examination will encompass future

dangerousness, a Sixth Amendment violation can result from the

admission of the expert’s opinion on this topic.             Powell v. Texas,

492 U.S. 680, 681-82, 686 (1989).

       A Smith Sixth Amendment violation is, however, subject to

harmless-error review.          Satterwhite v. Texas, 486 U.S. 249, 258

(1988).      The harmless-error standard of Brecht v. Abrahamson, 507

U.S. 619, 637 (1993), applies to Smith claims raised in § 2254

petitions.      See Penry v. Johnson, 532 U.S. 782, 795 (2001) (Penry

II).    Under this standard, a petitioner will not receive relief

unless he shows that the error complained of “had substantial and

injurious effect or influence in determining the jury’s verdict.”

Brecht, 507 U.S. at 637, quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946).      Finally, because the         § 2254(d)(1) standard

applies to this claim, Cole will not receive relief unless he shows

that   the    state   court’s    decision   on   this    claim   “involved   an



                                      16
unreasonable application of[] clearly established Federal law, as

determined by the Supreme Court of the United States.”

     “[A]    federal       habeas     court       making        the     ‘unreasonable

application’     inquiry    should        ask   whether      the       state   court’s

application of clearly established federal law was objectively

unreasonable.”      Williams,       529    U.S.    at   409.       An    unreasonable

application differs from an incorrect application.                     Id. at 410-11.

Accordingly, a habeas court may correct an erroneous application of

law only if this application is also unreasonable.                      Id. at 411.

     The parties do not dispute that Cole’s trial attorney was

unaware   that   Dr.    Coons’s     examination         could    encompass       future

dangerousness,    and   the   Respondent          concedes      that    Cole’s    Sixth

Amendment rights were violated by the admission of Dr. Coons’s

testimony.   We note, however, that this issue is not clear, as Dr.

Coons did not offer a direct opinion regarding Cole’s future

dangerousness.     That is, Dr. Coons did not say whether he had

formed the opinion that there was a probability that Cole would

continue to pose a risk of danger in the future.                 Rather, Dr. Coons

merely offered his opinions concerning various factors that could

bear on that issue.     The only direct future-dangerousness opinions

offered at penalty phase came from Cole’s own experts, and even

they would not deny that he posed a risk of future dangerousness.

The lack of a direct future-dangerousness opinion from Dr. Coons

arguably supports a conclusion that there was no Sixth Amendment



                                          17
error.      See Hernandez v. Johnson, 248 F.3d 344, 348 (5th Cir.

2001).

      Even so, there is no need to resolve this issue.              If we assume

arguendo that the admission of Dr. Coons’s testimony resulted in a

Sixth Amendment violation, Cole still is not entitled to relief, as

he has not shown that the state court’s decision on this claim

“involved an unreasonable application of[] clearly established

Federal law, as determined by the Supreme Court of the United

States.”     § 2254(d)(1); see also Neal, 286 F.3d at 246.

      Dr.    Coons   testified       that    Cole   had   several   sociopathic

personality traits. He based this opinion on the deliberate nature

of the instant offense, the pecuniary motive behind the offense,

Cole’s criminal history, and Cole’s lack of remorse.                He explained

to the jury that sociopaths commit acts that society classifies as

wrong simply because such persons want to; that they do not learn

from their experiences; and that they do not feel remorse or guilt

for their bad deeds.

      The prosecutor asked Dr. Coons’s opinion of the Cody passage

and the pirate passage from Cole’s diary. Dr. Coons testified that

the   Cody   passage   showed    a    desire    for   homosexual    pedophilia,

accompanied with a knowledge that this behavior was wrong; and Dr.

Coons described the pirate passage as the fantasy life of a

sociopath, explaining that sociopath is a recognized psychological

term.



                                        18
       Cole has not shown that the state court’s decision on this

issue was unreasonable.              Cole’s assertions about Dr. Coons’s

credentials, although accurate, are unavailing.                     He was the only

medical doctor to testify, and the State made sure that the jury

was aware of this fact.        Wright and Dickerson, although not medical

doctors, had similarly impressive credentials.

       Cole’s arguments concerning the substance of Dr. Coons’s

testimony are likewise unavailing, as a careful examination of the

record    shows   that    it    is   unlikely        that   this    testimony    “had

substantial and injurious effect or influence in determining the

jury’s verdict.”       Brecht, 507 U.S. at 637.             When this testimony is

viewed in the context of the record as a whole, it becomes apparent

that much of Dr. Coons’s testimony was redundant and that he did

little more than label Cole’s obviously abnormal behavior with the

term     “sociopath.”          Further,        Dr.     Coons’s     testimony    spans

approximately one-tenth of the State’s penalty-phase case, and he

cannot    accurately     be    classed    as     the    State’s    “star   witness.”

Rather, he was only one of many whose testimony supports the jury’s

finding that Cole poses a risk of future dangerousness.

       Accordingly, if the admission of Dr. Coons’s testimony was

error, it was harmless.         The State’s case for future dangerousness

was amply supported by the facts of both the instant crime and

Cole’s past crimes, as well as by the testimony of Cole’s own

experts.    Dr. Coons’s testimony “was by no means the key to the



                                          19
State’s case on the question whether [Cole] was likely to commit

future acts of violence.”     See Penry II, 532 U.S. at 795.

       It thus is highly unlikely that the admission of this evidence

“had a substantial and injurious effect on the verdict.”             White v.

Johnson, 153 F.3d 197, 205 (5th Cir. 1998), citing Brecht, 507 U.S.

at 537. The state courts’ decision on this issue was not erroneous

or objectively unreasonable.        See Neal, 286 F.3d at 244-47.           Cole

has not shown that he should receive relief on this issue.

E. Motion for Reconsideration

       Cole also asks us to reconsider our denial of COA on his Penry

I claim based on the recent grants of certiorari in Smith v.

Dretke, 124 S. Ct. 46 (2003), and Tennard v. Dretke, 124 S. Ct. 383

(2003), two cases from this circuit containing Penry I claims.                He

argues that these grants of certiorari call into question our

analysis of his Penry I claim and that we should thus grant him a

COA on this claim.

       To the extent that Cole’s motion may be construed as seeking

panel reconsideration, it is untimely.              We need not, however,

resolve this issue because even assuming without granting that the

motion should be entertained, it is unavailing.

       Cole does not argue that our denial of COA on his Penry I

claim was improper under our jurisprudence.               Rather, he contends

that   the   certiorari   grants    in    Tennard   and    Smith   render    our

jurisprudence questionable.        “The Court’s grant of certiorari in a

capital case does not cause us to deviate from circuit law.”            Cantu

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v. Collins, 967 F.2d 1006, 1012 n.10 (5th Cir. 1992).        Accordingly,

the Court’s recent actions in Tennard and Smith do not invalidate

our original disposition of Cole’s COA motion.             See Wicker v.

McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).           We deny Cole’s

motion for reconsideration.

                            III. Conclusion

     Cole has not shown that he is entitled to habeas relief.           He

has not shown cause and prejudice sufficient to overcome his state

procedural   default   of      his        ineffective-assistance   claim.

Furthermore, even if this claim were not defaulted, he still would

not be entitled to relief on it, as he has failed to show that he

suffered any prejudice as a result of the alleged deficiency in

trial counsel’s performance.

     Neither has Cole shown that he is entitled to relief on his

Sixth Amendment claim, as he has not shown harm in connection with

the admission of Dr. Coons’s testimony.           Consequently, Cole has

failed to demonstrate that the state court’s decision on this claim

was objectively unreasonable. As Cole has not shown that he should

prevail on these issues, we affirm the district court’s denial of

Cole’s § 2254 habeas corpus petition.

     Finally, Cole’s motion for reconsideration of the denial of a

COA on his Penry I claim lacks merit:          Cole simply has not shown

error in our previous denial of COA.         Cole’s motion is denied.

     DENIAL OF 28 U.S.C. § 2254 HABEAS CORPUS PETITION AFFIRMED;

MOTION FOR RECONSIDERATION DENIED.

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