                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                 UNITED STATES COURT OF APPEALS              May 28, 2004
                      FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                          No. 03-11094


                       GARY LYNN 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


     *
      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this opinion should not be published and is not precedent except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.
denied Sterling’s application for a certificate of appealability

(“COA”).    Sterling now requests a COA from this Court pursuant to

28 U.S.C. § 2253(c)(2).         For the following reasons, we GRANT

Sterling’s application for COA on the ineffective assistance of

counsel (“IAC”) issue regarding the admittance of a potentially

racially biased juror, but we DENY a COA as to the other issues

presented.

                                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.     In 2001 the Court of Criminal Appeals adopted the trial



                                    2
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. 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.

                                  DISCUSSION

     Sterling filed his Section 2254 petition for a writ of habeas

corpus after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”).             Therefore, his petition is

subject to the procedures imposed by AEDPA; Sterling’s right to

appeal is governed by the COA requirements of § 2253(c).            See Slack

v. McDaniel, 529 U.S. 473, 478 (2000).

     Under AEDPA, a petitioner must obtain a COA before an appeal

can be taken to this Court.       28 U.S.C.A. § 2253(c) (West 2004); see

also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a

COA has been issued federal courts of appeals lack jurisdiction to

rule on the merits of appeals from habeas petitioners.”).              When a

habeas petitioner requests permission to seek appellate review of

the dismissal of his petition, this Court limits its examination to

a “threshold inquiry into the underlying merit of his claims.”


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Miller-El, 537 U.S. at 327.            “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in

support of the claims.        In fact, the statute forbids it.”          Id. at

336.

       A COA will be granted if the petitioner makes “a substantial

showing of the denial of a constitutional right.”                 28 U.S.C.A.

§   2253(c)(2)    (West    2004).    Meeting   this    standard      requires   a

petitioner to demonstrate that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented

were   adequate    to     deserve   encouragement     to   proceed    further.”

Miller-El, 537 U.S. at 336 (internal quotes and citation omitted).

At issue is the debatability of the underlying constitutional

claim, but not the resolution of that debate.              Id. at 342.     “[A]

claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Id. at 338.

       When the district court denies a petitioner’s petition on

procedural grounds without reaching the underlying constitutional

claim, a COA should issue if the petitioner demonstrates both that

reasonable jurists would find it debatable whether the district

court was correct in its procedural ruling and that reasonable

jurists would find it debatable whether the petition states a valid

claim of the denial of a constitutional right.             Slack, 529 U.S. at


                                       4
478.     Here, because this case involves the death penalty, “any

doubts as to whether a COA should issue must be resolved in

[Sterling’s] favor.”     Hernandez v. Johnson, 213 F.3d 243, 248 (5th

Cir. 2000).

Whether a COA should issue on Sterling’s IAC claim as to the
admittance of juror Victor Walther.

       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 v. Washington, 466 U.S. 668, 687-88, 690

(1984); Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999).           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 quotes and citation omitted).           However, it is also

well settled that the Sixth Amendment ensures that “the accused

shall enjoy the right to a speedy and public trial, by an impartial

jury.”    Id. at 685 (emphasis added).        Thus, the Sixth Amendment

“envisions [defense] counsel’s playing a role that is critical to

the ability of the adversarial system to produce just results.”

Id.; see also Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)

(reconfirming two-prong Strickland analysis in the context of


                                    5
whether defense counsel conducted a reasonable investigation into

mitigating evidence).

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

Sterling’s capital murder jury, is Caucasian; Sterling’s victim

Carthey was 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 or press Walther during voir dire about his racial

bias, which bias subsequently tainted Sterling’s trial.

     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 Walther’s prior representation by Dunn on

several occasions; Walther 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.”     Both

Dunn and his co-counsel on Sterling’s defense, Kerri Anderson


                                  6
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 attorney-client 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.   Moreover, 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

had said so if asked.   Walther also stated he has some very close

friends who are African-American, the term “nig**r” is a “just a

figure of speech,” and using that term did not make him a racist.

     The district court 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.      See id. at 687 (explaining that

failure to demonstrate either prong in the IAC analysis makes it

unnecessary to examine the other).          The district court did not

undergo any prejudice analysis under Strickland.

     Here, Sterling’s defense counsel had firsthand knowledge about

the potentially racially biased views of a possible juror to

Sterling’s murder trial.   Strategy or not, the fact that Dunn did


                                   7
not seem to delve at all into what effect the possibly racist views

he personally knew Walther to hold (toward African-Americans) would

have on the impartiality and outcome of Sterling’s trial creates

the   following   debatable     questions,     among   reasonable    jurists:

(1) did Sterling’s counsel’s treatment of Walther as a potential

juror   and   acceptance   of   him   as   a   juror   amount   to   deficient

performance; and (2) as a result of Walther serving on the jury,

was the proper functioning of the adversarial process undermined to

the extent that Sterling’s trial cannot be relied upon as a just

result under the Sixth Amendment.           Thus, based upon the limited

threshold inquiry this Court performs under the mandate of Miller-

El, we find reasonable jurists would be able to debate whether this

issue should have been resolved in a different manner.

Whether a COA should issue on Sterling’s due process claim
regarding Deputy James Jones’ mistaken testimony about the time of
the murder.

        Any prisoner who attempts to bring his constitutional claim

to federal court after procedurally defaulting in state court “must

demonstrate cause and actual prejudice before obtaining relief.”

Engle v. Isaac, 456 U.S. 107, 129 (1982); see also Wainwright v.

Sykes, 433 U.S. 72, 87-89 (1977).          “[T]he existence of cause for a

procedural default must ordinarily turn on whether the prisoner can

show that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.”

Murray v. Carrier, 477 U.S. 478, 488 (1986).                “Where a plain


                                      8
procedural bar is present and the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the

petition or that the petitioner should be allowed to proceed

further.”   Slack, 529 U.S. at 484.

     During Sterling’s trial, Deputy James Jones opined that the

murder had taken place between 11:00 p.m. on Friday, May 13, 1988,

and 1:00 a.m. on Saturday, May 14, 1988.   Years later, Deputy Jones

realized his mistake and changed his opinion to reflect that the

murder took place earlier on that Friday evening.       Deputy Jones

gave an affidavit stating such, which was filed in the state’s

response to Sterling’s state habeas petition, and testified at the

evidentiary hearing that he was mistaken about the time frame and

would have corrected himself earlier if the issue had been raised

at trial or otherwise. Sterling argues that this mistaken and then

changed testimony is tantamount to the prosecution suppressing

material evidence, which he contends violated his due process

rights under Brady v. Maryland, 373 U.S. 83, 87 (1963).

     However,   Sterling   did   not   complain   of   this   alleged

prosecutorial misconduct until he moved to amend his state habeas

petition on September 28, 1998, more than fourteen months after

Deputy Jones had given his affidavit, on July 17, 1997, which

affidavit had been included in the state’s response filed more than

90 days after Sterling’s first state habeas petition had been filed


                                 9
on December 30, 1996.     Sterling waited to attempt to amend his

petition more than four months after the state habeas evidentiary

hearing, which took place on May 28 and 29, 1998, and at which

Deputy Jones testified about his mistake.    This amendment was not

allowed pursuant to the 90-day extension deadline prescribed by

state procedure.   Tex. Code Crim. Proc. Ann. art. 11.071, § 4(f)

(Vernon 1997) (now located at art. 11.071, § 4(b)).      Sterling’s

state habeas petition was denied in 2001.      The Texas Court of

Criminal Appeals dismissed Sterling’s second habeas petition filed

later in 2001, which included his Brady claim regarding Deputy

Jones’ mistaken testimony, as an abuse of the writ.   Id. § 5.   That

court also found that Sterling had not shown cause and prejudice to

overcome the procedural default bar per the requirements of Article

11.071, § 5.

     The state asserts that the district court was correct in its

deferral to the state procedural bar applied to Sterling’s Brady

claim by the Court of Criminal Appeals.      See Emery v. Johnson,

139 F.3d 191, 196 (5th Cir. 1997) (holding that “violation of

Texas’s abuse-of-the-writ-doctrine constitutes an independent and

adequate procedural bar to [] consideration of his barred claims”).

     The district court found no cause sufficient to excuse the

procedural default.     The court noted:    the lapse of more than

fourteen months between the written disclosure of Deputy Jones’

mistake and Sterling’s attempt to amend his petition; the lapse of


                                 10
four months between Deputy Jones’ testimony about his mistake and

Sterling’s   attempt   to   amend   his   petition;   that   there   is   no

allegation or evidence pertaining to the prosecution or Deputy

Jones suppressing or hiding the evidence contained in Deputy Jones’

affidavit; and that Sterling’s counsel could have interviewed and,

indeed, it would have been “sensible and advisable” to interview

Deputy Jones regarding his trial testimony, particularly because

one of Sterling’s initial state habeas claims specifically attacked

Deputy Jones’ testimony as it related to whether there was another

suspect who had not had an alibi and had been with Sterling at the

time of the murder.

     Here, based upon the two-prong threshold inquiry this Court

performs under Slack, we find reasonable jurists would not be able

to debate whether the district court was correct in its procedural

ruling.   We therefore do not need to address the possible validity

of Sterling’s Brady claim as he has not met one of the required

prongs under Slack. 529 U.S. at 485 (encouraging courts to analyze

the procedural prong first where possible).

Whether a COA should issue on Sterling’s due process and IAC claim
as to the lack of a lesser-included offense (“LIO”) instruction.

     Again, Strickland governs Sixth Amendment IAC claims; both

deficient performance by counsel and resultant prejudice must be

established.    466 U.S. at 687-88, 690.          “[T]he court should

recognize that counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the

                                    11
exercise of reasonable professional judgment.”                     Id. at 690.      The

Supreme Court case Beck v. Alabama, 447 U.S. 625 (1980), has been

interpreted to mean that a death sentence does not comport with due

process and may not be imposed if the jury was not permitted to

consider an LIO instruction which was supported by the evidence.

Hopper v. Evans, 456 U.S. 605, 610-11 (1982).                     The defendant must

meet the state’s standard for entitlement to an LIO instruction, as

long as the standard is consistent with the Constitution.                      Id. at

611-12.    Under Texas law, before an LIO instruction is warranted,

“there must be some evidence directly germane to a lesser-included

offense for the fact-finder to consider.”                    Dowthitt v. Johnson,

230 F.3d 733, 757 (5th Cir. 2000) (citation omitted) (applying

Texas law).

     In    Texas,    a     person       commits   murder    if,     inter   alia,    he

“intentionally or knowingly causes the death of an individual.”

Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon 1988) (now located at

§ 19.02(b)(1)).          A person commits capital murder if he commits

murder     as    defined     in     §    19.02(a)(1)       and,    inter    alia,    he

intentionally commits the murder in the course of committing

robbery.        Id. § 19.03(a)(2).          Capital murder requires that the

defendant have acted intentionally, not merely knowingly. A person

acts with intent “with respect to the nature of his conduct or to

a result of his conduct when it is his conscious objective or

desire to engage in the conduct or cause the result.”                               Id.

                                            12
§ 6.03(a).    A person acts with knowledge “with respect to the

nature of his conduct . . . when he is aware of the nature of his

conduct” and “with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result.”

Id. § 6.03(b).

     Sterling argues that the evidence presented at trial entitled

him to an LIO instruction on the crime of noncapital murder.

Because his counsel failed to request or object to the omission of

such an instruction, he asserts he was denied effective assistance

of counsel.      Sterling contends that proof of his intent as to

murder is not clear because he did not bring a deadly weapon with

him, he only struck the victim once, and he claims he was unsure

whether the victim was still breathing.    Sterling also points to

Dunn’s testimony at the state habeas hearing that the failure to

request the LIO instruction may have been an “oversight.”

     The state responds that Donica testified at the hearing that

counsel would have requested the LIO instruction if they “felt [it]

was supported by the evidence.” The state contends Sterling cannot

demonstrate that the record contains any evidence permitting a

rational jury to find that Sterling’s conduct did not meet the

requisite level of intent.      The state further argues that the

record evidence established that Sterling intentionally caved in

the skull of the elderly victim with a bumper jack, then dragged

the body through two barbed wire fences and secreted it more than



                                 13
100 feet away from the road where it would not be found.                             If

Sterling only intended to commit robbery, not murder, there was no

need to crush Carthey’s head in with a heavy blunt object, as the

victim posed no physical threat.

       The    district    court   found    that     the   state   court      was    not

unreasonable in its conclusion that Sterling had not demonstrated

that there was any evidence submitted at trial to directly support

the inclusion of an LIO instruction such that he was entitled to

that   instruction       under    Texas    law;     nor   was   the    state      court

unreasonable      in   its    application      of   Strickland        to   find    that

counsel’s failure to request or object to the omission of an LIO

instruction was not objectively unreasonable or prejudicial because

the evidence did not support that LIO.                    Here, based upon the

limited threshold inquiry this Court performs under the mandate of

Miller-El, we find reasonable jurists would not be able to debate

whether this issue should have been resolved in a different manner.

Whether a COA should issue on Sterling’s Sixth Amendment claim
regarding unconstitutional harm due to the delay in counsel being
appointed to represent him.

       In cases of trial error, such errors are subject on habeas

review to harmless error analysis under Brecht v. Abrahamson,

507 U.S. 619 (1993), which permits relief in federal habeas only

upon a       showing   that   a   particular      constitutional       error      had a

“substantial and injurious effect or influence in determining the

jury’s verdict.”         Id. at 623 (citing Kotteakos v. United States,


                                          14
328   U.S.    750,   776   (1946)).      Trial    error       occurs    during    the

presentation of the case to the jury and is amenable to harmless

error analysis because it can be “quantitatively assessed in the

context of      other   evidence   presented.”          Id.    at    629    (citation

omitted).      In cases of trial error, a petitioner must explain how

“specific errors of counsel undermined the reliability of the

finding of guilt.”      United States v. Cronic, 466 U.S. 648, 659 n.26

(1984).      However, at the other end of the spectrum lie systemic or

structural errors that warrant automatic reversal, such as complete

denial of counsel, denial of counsel at a critical stage of the

criminal proceedings, or if counsel fails to subject the state’s

case to meaningful adversarial testing.            Id. at 658-59.           This type

of constitutional error requires automatic reversal without a

showing of harm; that is, prejudice is presumed.                    Id. at 659.

      Sterling argues that the district court improperly applied the

harmless error analysis under Brecht when it considered whether a

few months’ delay in the appointment of his defense counsel on the

Carthey murder case prejudiced Sterling’s trial.                Sterling asserts

the pretrial period from his arrest for the Carthey murder on May

20, 1988, to the time he was appointed counsel for the Carthey case

on October 3, 1988, was a critical stage of the proceedings in

which    defense     counsel   should   have     been    pursuing       a   detailed

investigation for mitigating evidence to present at his punishment

phase.    See Wiggins, 123 S. Ct. at 2535 (noting defense counsel’s


                                        15
obligation    to    thoroughly    investigate     defendant’s   background).

Therefore, Sterling maintains the district court should have found

systemic or structural error and presumed prejudice as dictated by

Chronic.

     The state responds first that it was Sterling himself who

injected Brecht’s harmless error standard into this proceeding in

his federal habeas petition, and thus any error is invited error.

The state argues moreover that because Sterling never alleged at

the state habeas level that harm should be presumed as a result of

counsel’s failure to discover or present mitigation evidence in the

state courts, such a claim is procedurally defaulted.                The state

also contends the application of the harmless error standard by the

district court was proper; the delay in appointment of Sterling’s

counsel does not implicate any of the systemic Sixth Amendment

errors that “by their very nature cast so much doubt on the

fairness of the trial process that, as a matter of law, they can

never be considered harmless.” Satterwhite v. Texas, 486 U.S. 249,

256 (1988).    The state asserts there is no record evidence that

officials in Navarro County knew of or were forwarded any request

for counsel that Sterling made on July 4, 1988, in Hill County

jail, where he was being detained and where he faced two other

counts of capital murder.

     Also, the state argues both members of Sterling’s defense team

had adequate       time   to   prepare   his   defense;   Sterling   makes   no


                                         16
allegation that they failed to subject the prosecution’s case to

meaningful adversarial testing at any critical stage of the trial.

Donica was appointed as one of his defense attorneys on October 3,

1998, less than a month after Sterling signed a pauper’s oath on

August 9, 1988, and two-and-a-half months after Sterling was

indicted for the Carthey murder in Navarro County on July 14, 1988.

Although Dunn was appointed to chair Sterling’s defense on December

28, 1998, and the trial began on February 8, 1989, Dunn testified

at the state habeas hearing that in spite of time constraints, he

was able   to   conduct   a   more   than   adequate   investigation   into

Sterling’s background. Donica never averred that the timing of her

appointment deprived her of adequate time to investigate; at the

state habeas hearing, she testified Sterling’s file contained

“notes from quite a few witnesses that we talked to.         Most of them

punishment witnesses.”

     The state maintains Sterling has also failed to establish that

prejudice resulted from any failure of counsel to investigate and

present mitigation evidence. In fact, the state points to the fact

that Sterling has never even suggested to this Court or the

district court what mitigating evidence should have been introduced

but was not investigated or discovered because of the delay in

appointment of counsel.

     The district court assumed trial error regarding the delay in

the appointment of counsel for Sterling and proceeded to analyze

whether Sterling suffered any prejudice from such delay.               The

                                     17
district court determined that the state habeas court was not

unreasonable in its conclusion that the investigation of Sterling’s

case was not frustrated by the delay in appointment of his counsel

or that such delay contributed to his conviction.   This Court notes

that the months-long delay in counsel being appointed in this case

is troubling; however, the type of Wiggins or Williams v. Taylor,

529 U.S. 362 (2000), IAC error Sterling ultimately alleges resulted

from the delay in the appointment of his counsel is one in which

Strickland’s prejudice/harmless error prong is clearly applied, not

automatically presumed.2   Here, based upon the limited threshold

inquiry we perform under the mandate of Miller-El, we find that

reasonable jurists would not be able to debate whether this issue

should have been resolved in a different manner.

                            CONCLUSION

     Having carefully reviewed the record of this case and the

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

conclude that Sterling has satisfied this Court that reasonable

jurists would find debatable the district court’s resolution of the

IAC issue regarding the admittance of a potentially racially biased

juror.   Thus, we GRANT Sterling’s application for COA only as to



     2
      We address Sterling’s argument that prejudice should be
presumed without deciding whether such an argument would be
procedurally barred as an abuse of the writ under Texas law as
Sterling did not raise this legal argument in his first state
habeas petition, arguing only “Prejudicial Delay in the Appointment
of Counsel.”

                                18
that issue.    However, Sterling has failed to satisfy this Court

that reasonable jurists would find debatable the district court’s

resolution    of   the   other   issues   on   which   he   requests   a    COA.

Therefore, we DENY Sterling a COA as to those issues.                      It is

further ORDERED that the Clerk shall establish a briefing schedule

and notify this panel when briefing is completed so that the panel

can fix a time for oral argument on the IAC issue, if necessary.

GRANTED in part.     DENIED in part.




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