               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        ______________________

                              No. 92-2018
                         ____________________



CURTIS LEE JOHNSON,

                                                 Petitioner-Appellant,

                                versus

JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                                 Respondent-Appellee.

_________________________________________________________________

          On Application for Certificate of Probable Cause
                From the United States District Court
                  For the Southern District of Texas

_________________________________________________________________
                         (June 23, 1992)

Before POLITZ, Chief Judge, GARWOOD, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Johnson asks this court for a certificate of probable cause to

appeal from the district court's denial of his petition for a writ

of habeas corpus.     For the reasons set out below, his request is

DENIED.

                                  I

     On September 24, 1983, Curtis Lee Johnson--carrying a loaded

pistol--and a companion entered the open rear window of the second

story apartment of Murray Dale Sweat.    While burglarizing it, they

heard people coming up the stairs to the apartment.        Instead of
fleeing, the two remained, and when two people entered, Johnson

pointed the gun at them and told them not to move.    One of the men

turned and ran out the door, but the other, Sweat, lunged at

Johnson and grabbed his legs.   Johnson kicked Sweat, who fell over

backwards, and then--while Sweat was lying on his back--Johnson

shot and killed him.

                                 II

     Johnson was charged with capital murder and on December 15,

1983, was found guilty by a jury.     At the punishment phase of the

trial, the jury answered affirmatively the special issues under the

former article 37.071 of the Texas Code of Criminal Procedure.1

The trial court, accordingly, sentenced Johnson to the death

penalty.   On October 23, 1985, the Texas Court of Criminal Appeals

     1
      At the time of Johnson's offense, the Texas law provided:
          (b)On conclusion of the presentation of the
          evidence [at the sentencing proceeding], the
          court shall submit the following issues to
          the jury:
          (1)whether the conduct of the defendant that
          caused the death of the deceased was
          committed deliberately and with the
          reasonable expectation that the death of the
          deceased or another would result;
          (2)whether there is a probability that the
          defendant would commit criminal acts of
          violence that would constitute a continuing
          threat to society; and
          (3)if raised by the evidence, whether the
          conduct of the defendant in killing the
          deceased was unreasonable in response to the
          provocation, if any, by the deceased.
          . . . .
          (e)If the jury returns an affirmative finding
          on each issue submitted under this article,
          the court shall sentence the defendant to
          death.
     Vernon's Ann. Texas C.C.P. art. 37.071 (1981). The
     article was amended in 1985 and 1991.

                                 2
affirmed the conviction and sentence. Johnson v. State, 698 S.W.2d

154 (Tex.Crim.App. 1985).

      On January 2, 1986, the trial court scheduled Johnson's

execution for April 7, 1986.             On April 3, 1986, Johnson filed in

the United States Supreme Court a Motion for Permission to File

Late Petition for Writ of Certiorari to the Texas Court of Criminal

Appeals and Motion for Stay of Execution.                    On April 4, 1986,

Johnson also filed a Petition for Stay of Execution and Writ of

Habeas Corpus in federal district court.                    The district court

granted the stay of execution "pending further order of this Court"

and dismissed the petition on April 28, 1986.                 On April 7, 1986,

the Supreme Court granted a stay of execution pending the filing

and disposition of a writ for certiorari.              On October 6, 1986, the

Supreme Court denied Johnson's petition for writ of certiorari,

thus vacating its stay of execution.              Johnson v. Texas, 479 U.S.

871 (1986).

      On   July   29,    1987,     the    trial   court    scheduled     Johnson's

execution for September 16, 1987. On August 4, 1987, Johnson filed

an application for writ of habeas corpus in state court, and, after

the   trial   court     modified    the    execution      date,   a   supplemental

application on October 14, 1987.              Both applications were denied.

Ex Parte Johnson, Application No. 15,840-02 (Tex.Crim.App., October

19, 1987) & Application No. 15,840-03 (Tex.Crim.App., October 26,

1987).

      On October 21, 1987, Johnson filed a petition for writ of

habeas corpus in United States District Court for the Southern


                                          3
District of Texas, which granted a stay of execution on October 27,

1987.   An evidentiary hearing before a magistrate judge followed

and on December 2, 1991, the district court entered its order

adopting the report and recommendation of the magistrate judge in

its entirety (except conclusion of law 5 which was rejected and for

which the magistrate judge's alternative conclusion of law was

adopted).   In accordance therewith, the district court vacated the

October 1987 stay of execution, denied Johnson's petition for writ

of habeas corpus, and denied Johnson a certificate of probable

cause to appeal.   These proceedings followed.

                               III

     Johnson applies to us for a certificate of probable cause

after denial of a certificate by the district court.   The parties

have submitted briefs on the merits.   We have jurisdiction in this

case in accordance with 28 U.S.C. §§ 1291, 2253.

     A certificate of probable cause to appeal will be granted
     if the applicant can make "a substantial showing of the
     denial of a federal right."
          A "substantial showing" of a denial of a
          federal right means that "the issues are
          debatable among jurists of reason, that a
          court could resolve the issues [in a different
          manner]; or that the questions are `adequate
          to deserve encouragement to proceed further.'"
          The severity of the penalty in a death penalty
          case "is a proper consideration in determining
          whether to issue a certificate of probable
          cause, but the severity of the penalty does
          not in itself suffice to warrant the automatic
          issuing of a certificate."

Clark v. Collins, 956 F.2d 68, 71 (5th Cir. 1992) (citing Buxton v.

Collins, 925 F.2d 816, 819 (5th Cir. 1991) (internal quotes and

modifications as in original; citations omitted)).   We turn now to


                                 4
the issues raised by Johnson in his petition so that we may

determine if they meet this standard.

                                       A

                                      (1)

      Johnson first complains that the district court "erred in

adopting the     finding   of   the   magistrate     judge   that     there   was

sufficient evidence to support the affirmative jury finding that

[Johnson] acted deliberately when he shot Murray Dale Sweat."                 We

are not persuaded.

      In evaluating the sufficiency of the evidence in a federal

habeas corpus case, we must decide whether, "after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt."           Jackson v. Virginia, 443

U.S. 307, 320 (1979) (emphasis in original).                 In "viewing the

evidence," we must consider "all of the evidence . . . in the light

most favorable to the prosecution."          Id. (emphasis in original).

We also consider all reasonable inferences to be drawn from the

evidence.    Id.     Sufficiency of the evidence is determined based

upon the substantive elements of the criminal offense as defined by

state law.      Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.

1985).

      Under Texas law, "deliberately" is not a term of art and is

not   defined   in   the   trial   judge's   instructions      to   the   jury.

Instead, it "is to be taken and understood in its normal use and

common   language."        Carter     v.    State,    717    S.W.2d     60,    67


                                       5
(Tex.Crim.App. 1986).      The state does not have to show that the

defendant "carefully weighed or considered or carefully studied the

situation immediately prior to killing the deceased in order for

the jury to" decide that the defendant acted "deliberately";

instead, the circumstances of the crime may be sufficient to

support a finding of deliberateness.          Id. (emphasis in original).

"Deliberately"   is    defined   as   "with    careful   consideration   or

deliberation; circumspectly; not hastily or rashly; slowly; as, a

resolution deliberately formed."          WEBSTER'S NEW TWENTIETH CENTURY

DICTIONARY OF THE ENGLISH LANGUAGE (William Collins Publisher; 2d

ed. 1980).   The Texas Court of Criminal Appeals has held:

     [W]hile from the act of suddenly and impulsively firing
     a gun can be found the intent to cause the death, such
     action may not necessarily show that the act was
     deliberate. To find the act of deliberateness, there
     must be the moment of deliberation and the determination
     on the part of the actor to kill. Such determination
     must necessarily be found from the totality of the
     circumstances of the individual case.

Cannon v. State, 691 S.W.2d 664, 677 (Tex.Crim.App. 1985).

     In the instant case, the evidence before the jury showed the

following:   Johnson consciously decided to take a loaded gun with

him when he went to commit a burglary of an apartment in which

people were living.     When he heard people coming to the apartment,

Johnson made another conscious decision--to remain in the apartment

rather than flee.     When Sweat entered the apartment, Johnson chose

to confront him rather than try to hide or leave. In confronting

Sweat, Johnson again made a conscious decision, i.e., to point the

loaded gun at Sweat. The evidence revealed that, after a struggle,

Johnson shot Sweat at a time when Sweat was lying on his back

                                      6
several feet away from Johnson--a position in which he could pose

no threat to Johnson.          From these facts, the jury rationally could

have concluded that there was the "moment of deliberation and the

determination   .     .    .   to   kill"       and,    thus,    that    Johnson   acted

"deliberately."      Cannon, 691 S.W.2d at 677.                  We, therefore, find

no merit in Johnson's first claim of error.2

                                        (2)

      Our conclusion that there was sufficient evidence from which

the   jury   could        rationally    have           found    that     Johnson   acted

deliberately when he shot Sweat leads to a quick conclusion as to

Johnson's second assignment of error. He contends that his counsel

were ineffective because the issue of sufficiency of the evidence

to support a finding of deliberateness was not raised on direct

appeal.

      Even if we assume that Johnson's counsel failed to "function[]

as the `counsel' guaranteed by the Sixth Amendment," by failing to

raise sufficiency of the evidence on appeal, the fact remains that

the evidence    was       clearly    sufficient          to    support   a   finding   of

deliberateness.      Therefore, there was no prejudice to Johnson from


      2
      In his "deliberateness" argument, Johnson states that the
evidence showed that on other occasions he carried a gun when
committing crimes and never shot at anyone, even though he
pointed the gun. If this is an argument that because Johnson, on
other occasions, had not shot other people, he did not
"deliberately" shoot Sweat, then it goes astray. The issue is
not whether Johnson acted in conformity with his behavior on
other occasions and, thus, did not shoot Sweat; the issue is
whether Johnson acted deliberately on the occasion when,
admittedly, he did shoot Sweat. The jury considered that
question based on all the evidence before it and reached a
conclusion which it rationally could have reached.

                                            7
counsel's failure. Because his claim of ineffectiveness of counsel

fails the "prejudice" prong of the Strickland test,                 we find no

merit to it.     Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                     (3)

       Johnson next claims that his trial counsel were ineffective

because those lawyers failed to call any witnesses on his behalf at

the punishment phase of his trial.            The magistrate judge found

after an evidentiary hearing where trial counsel and witnesses for

Johnson testified, that:          1) "Counsel were not incompetent in

failing to obtain the seven witnesses now claimed to have been

readily accessible at the time;" and 2) "Johnson [has not] proved

that his defense was prejudiced by the failure to call his seven

relatives as witnesses."      Johnson v. Collins, No. C.A. H-87-3284,

Memorandum and Recommendation at 7 (S.D. Tex. 1991).

       Although Johnson contends that one of his trial counsel was

untruthful about filings made with the Texas court, was sanctioned

by the Texas Court of Criminal Appeals for failure timely to

perform his duties and was not truthful in his answers, the

magistrate made his findings based, in part, upon a determination

of the credibility of the witnesses after their appearance before

him.    These findings included, as a predicate to the magistrate

judge's finding that Johnson's counsel were not incompetent, a

factual finding     that   trial    counsel   had   made   efforts    to   find

witnesses    and   that    both    Johnson    and   his    mother    had   been

uncooperative.

       We can overturn findings of fact only if a review of all of


                                      8
the evidence leaves us with "the definite and firm conviction that

a   mistake   has   been    committed."     Bull's   Corner   Restaurant   v.

Director, Federal Emergency Mgmt. Agcy., 759 F.2d 500, 502-03 (5th

Cir. 1985) (citation omitted).        When findings of fact are based on

credibility determinations regarding witnesses, we must show even

more deference to the trial court's findings.          Anderson v. City of

Bessemer, 470 U.S. 564, 574 (1985).

      In this case, our review of the record does not convince us

that "a mistake has been committed," much less the even greater

conviction required to overturn the magistrate judge's findings of

fact. We, therefore, conclude because Johnson's trial counsel made

a good faith effort to locate mitigation witnesses--which was

frustrated by noncooperation on the part of the defendant and his

mother--that trial counsel was not constitutionally ineffective.

      Additionally, even if we did not reach this conclusion, we

agree with the magistrate judge (and the district court) that the

lack of mitigation witnesses did not prejudice Johnson.               None of

the proposed witnesses had even seen Johnson for several years.

They said they would have testified that Johnson was "slow" and

that,    therefore,        he   did   not   deliberately      shoot    Sweat.

Additionally, they would have testified that, in their opinion,

Johnson did not pose a future danger.        We agree with the magistrate

judge that "[i]n view of the calculated nature of the crime and

Johnson's prior and subsequent criminal history, including two

other aggravated robberies, there is little chance the jury would

have been impressed by the testimony of . . . highly partisan


                                       9
relative witnesses."      Memorandum and Recommendation at 7.

                                      (4)

     Johnson next complains that the district court erred in

concluding that Texas's procedure--at the punishment phase of the

trial limiting the jury to answering the three special issues--

allowed the jury to consider and give effect to "all mitigating

evidence."     Although admitting that he introduced no mitigating

evidence, Johnson contends that "a juror . . . might reasonably

have believed that [he] should not be sentenced to death because of

the relatively non-aggravated circumstances of the murder . . .

despite having found that the State had proven affirmatively the

three special       issues."     He   contends   that   the   special   issues

"provided no vehicle by which a juror could give effect to such a

reasoned moral response to the circumstances of the crime."                 He

cites Penry v. Lynaugh, 109 S.Ct. 2934, 2951 (1989), as supporting

the proposition that "the jury must be able to consider and give

effect   to   any   mitigating    evidence   relevant    to   a   defendant's

background, character, or the circumstances of the crime in order

to ensure reliability in the determination that death is the

appropriate punishment in a specific case."

     Even if we assume that Johnson is correct in his reading of

Penry, we still conclude that there is no merit to this claim of

error.   Each capital defendant is entitled to an "individualized

assessment of the appropriateness of the death penalty" based on

the jury's "reasoned moral response to the defendant's background,

character, and crime."         Penry, 109 S.Ct. at 2947 (emphasis in


                                       10
original; citations and internal quotations omitted).                  To the

extent, however, that Johnson's argument is that the jury should be

allowed to avoid answering the special issues affirmatively because

they feel sympathy for Johnson, that argument has been discredited

by Saffle v. Parks, 110 S.Ct. 1257, 1279 (1990), in which Justice

Kennedy, writing for the majority, pointed out that the Supreme

Court cases do not require such an instruction.               California v.

Brown, 479 U.S. 538, 542 (1987) held that an instruction to the

jury not to base its sentencing recommendation on, inter alia,

sympathy, did not violate the Eighth Amendment.

     To the extent that Johnson's argument is simply that the jury

could not avoid answering a special issue affirmatively, even

though it had reached a reasoned moral conclusion that he was not

worthy of the death penalty, we disagree. Johnson asserts that his

crime was "non-aggravated" (by which we assume Johnson refers to

the absence of torture, mutilation, multiple wounds, etc.).                 We

reject his characterization of this murder.              Even if Johnson's

crime   could   be   said   to   be   non-aggravated,      Johnson's    moral

culpability was relevant to and could have been considered in

answering the future dangerousness issue.                Furthermore, moral

culpability under such circumstances could have been considered

under the first or third special issues.            In Johnson's case, the

jury could have concluded that Johnson did not act deliberately,

but was provoked by Sweat's lunge at him into reflexively firing a

single shot after which he escaped as quickly as possible.                 This

conclusion   would   have   allowed    the   jury   to   answer   either    the


                                      11
deliberateness or provocation issues negatively.   We find no merit

in this assignment of error.

                                 (5)

     Johnson next contends that his trial counsel was ineffective

because "[r]easonably effective trial counsel would have attempted

to question each prospective juror during voir dire regarding the

ability of the prospective juror to vote "no" on at least one

special issue, even though the State had proven the issue . . .

beyond a reasonable doubt, if the circumstances of the offense were

such that the death penalty should not be assessed."     He further

contends that counsel should have asked the trial court, both at

voir dire and before the jury retired to consider its verdict, to

instruct the jury "that at least one special issue must be answered

negatively if the circumstances of the offense were such that the

death penalty should not be assessed."

     The magistrate judge points out that the larger part of one of

Johnson's trial counsel's "final argument in the punishment phase

. . . urged the jury to engage in an act of nullification because

the death penalty was morally wrong and the jury should return a

life sentence."   Furthermore, to the extent that Johnson argues

that the jury should have been instructed it could answer one or

more special issue negatively, regardless of mitigating evidence,

that is not the law in Texas.   A prospective juror who states he or

she would answer negatively to a special issue, even though the

state had proven it beyond a reasonable doubt, is disqualified from

service. Wainwright v. Witt, 469 U.S. 412, 422-24 (1985). Neither


                                 12
can such an argument withstand the Supreme Court's condemnation of

"uncontrolled discretion of judges or juries" in administration of

the death penalty in Furman v. Georgia, 408 U.S. 238, 253 (1972).

     In short, Johnson does not show that his trial counsel failed

either prong     of   the    Strickland      test    in   connection   with   this

assignment of error.        First, trial counsel's performances were not

so deficient that they failed to meet the constitutional standard.

Strickland, 466 U.S. at 687.       Second, Johnson has not demonstrated

prejudice as a result of counsel's alleged ineffectiveness in this

respect    because    had    counsel    sought       such    instructions,    they

justifiably would have been refused in accordance with Witt and

Furman.    Strickland, 466 U.S. at 687.         We, therefore, find no merit

in Johnson's argument concerning this issue.

     Although we have addressed Johnson's claims as they were

presented to us, we think it important to observe that we could

have dispensed with these arguments with greater dispatch:                    The

claims he makes in regard to the procedure under Texas's death

penalty statute (discussed above in sections III (A) (4) & (5)) fly

into the face of Jurek v. Texas, 428 U.S. 262 (1976), and Franklin

v. Lynaugh, 487 U.S. 164 (1988), which have upheld the Texas

statutes    as   constitutional        except       in    limited   circumstances

explicated in Penry v. Lynaugh, 109 S.Ct. 2934, 2947-51 (1989).

Because this record is devoid of any Penry type evidence, these

attacks on the Texas statute are meritless.

                                       (6)

     Finally, Johnson argues that "the district court erred . . .


                                        13
in finding . . . that [he] was not prejudiced by the error of

counsel during voir dire in instructing two prospective jurors,

both of whom became members of the jury which convicted and

sentenced    [him],   that   `deliberately'   means   much   the   same   as

`intentionally.'"3      Johnson contends that "[b]y instructing two

     3
      We understand Johnson to refer to the examinations during
voir dire of Charles Allen White and Frank Alan Cain by Benjamin
Durant, one of his trial counsel.
     In Durant's examination of Charles Allen White, the
following exchange occurred:
     Q. . . . Now, let me give you a fact situation. Would
     you agree with me that this word "deliberately" and the
     word "intentionally," mean basically the same thing?

     A.   Well, no, not really.

     Q.   Okay.    What do you see the difference in them?

     A. I see deliberately is doing the act right then and
     there, you know, just taking it and doing it; and
     intentionally is walking in the door with the intent of
     doing it.

     Q. Okay. Let me say this. When you say deliberately
     means doing it and knowing you're doing it?

     A.   Right.

     Q.   And wanting to do it?

     A.   That's right.

     Q.   That's deliberately?

     A.   That's what I said.

     . . .

     A. But it [whether or not something was committed
     deliberately] would have to be proven to me.

     Q. Let me ask you this: It has to be proven to you
     beyond a reasonable doubt?

     A.   Absolutely.


                                    14
     . . .

     Q. If you have a reasonable doubt as to whether or not
     something was committed deliberately, can you answer
     that question [the first special issue] "no"?

     A. If I have got a reasonable doubt, yes, sir, I
     could.

State Trial Record Vol. 12, pp. 38-40.   In Durant's examination

of Frank Alan Cain, we find the following:

     Q. I'm going to state the word "intentional" or
     "deliberate," I think they can possibly be two
     interchangeable words taking a fact situation into
     account.

     . . .

     Q. Let me give you an example of what I'm talking
     about. Suppose two men--suppose two men are fighting.
     Let's say if--let me give you a little background of
     that. Let's say one man is burglarizing another man's
     car, broken into this man's car; and then the man comes
     out and sees the fellow inside his car, the man that
     owns the car. So he attacks the burglar and they're
     fighting, and during the course of the fight a gun
     comes up from somewhere; and the two are struggling
     over the gun. And the gun goes off and shoots and
     kills the man who owns the car.

     Do you follow what I'm saying?

     A.   Yeah. Right.

     Q. Now, this would be a capital murder situation; but
     there may be a question, because the two men are
     struggling over a gun as to whether or not the burglar
     intentionally or deliberately shot the man that owned
     the car.

     Do you follow what I'm saying?

     A. He just--just intentionally kills someone.   Right.
     I understand what you are saying.

     Q. But what I'm saying, there may be--there may be a
     possibility that because of the fact--quite naturally
     if he just walked up to him and shot him in cold-blood,

                               15
jurors that the words mean much the same, defense counsel lessened

the burden on the state," and that "had defense counsel not

instructed two members of the jury that `deliberately' means much

the same as `intentionally,' the outcome with respect to Special

Issue No. 1 would have been different."

     One   prospective   juror,   Charles   Allen   White   stated   that

"deliberate" and "intentional" had different meanings to him.

Although he initially appeared to confuse the meanings, as the

questioning progressed, he seemed to have corrected his initial

confusion.   He responded to counsel's questions in such a way that

he could have been understood to see "deliberate" as requiring

conscious thought and choice to engage in an act, over and above

merely purposeful conduct.

     Frank Alan Cain, contrary to Johnson's argument, clearly



     obviously he did that intentionally and deliberately.

     A.    Right.

     Q. Because the two of them are struggling, there is a
     possibility that the burglar didn't intend to do it.
     Do you follow what I'm saying?

     A.    Right.

     Q. He killed the man because during the struggling the
     gun goes off, whatever the case might be. Because of
     that particular fact situation--don't misunderstand me.
     I'm not trying to lock into any particular fact. I'm
     giving you that as a hypothetical example on how a
     person can be killed during the course of a felony
     being committed. It might possibly not be a deliberate
     act, you see.

     A.    Right.

State Trial Record Vol. 12, pp. 196-198.

                                  16
demonstrated that he understood the difference between "deliberate"

and   "intentional."   First,   he    made   no   response   to   Durant's

assertion that the two were "interchangeable."        He then responded

correctly to Durant's questions:

      Q. Now, this would be a capital murder situation; but
      there may be a question, because the two men are
      struggling over a gun as to whether or not the burglar
      intentionally or deliberately shot the man that owned the
      car.

      Do you follow what I'm saying?

      A. He just--just intentionally kills someone.          Right.
      I understand what you are saying.

He then went on and responded correctly as Durant pursued the fact

situation he had outlined:

      Q. . . . if he just walked up to him and shot him in
      cold blood, obviously he did that intentionally and
      deliberately.

      A. Right.

He correctly responded as Durant distinguished "intentional" and

"deliberate."

      Q. Because the two of them are struggling, there is a
      possibility that the burglar didn't intend to do it.
      . . .

      A.   Right.

      Q. . . . It possibly might not be a deliberate act, you
      see.

      A.   Right.

      The magistrate judge, who reviewed the record and heard the

testimony of Durant, found as fact that "Mr. Durant did not mislead

members of the jury into the belief that `intentionally' and

`deliberately' meant the same thing and that an affirmative finding


                                 17
must automatically be made on Special Issue No. 1 [after a finding

of guilt in the guilt/innocence phase]." Report and Recommendation

at 21.    He concluded that Johnson was not prejudiced by Durant's

conduct of voir dire, id. at 13, and concluded as a matter of law

that Johnson had received effective assistance of counsel "under

the standards of Strickland v. Washington, 466 U.S. 668 (1984)."

Id. at 21.

      Strickland    instructs     us    that     in   reviewing    claims    of

ineffective assistance of counsel, "judicial scrutiny of counsel's

performance must be highly deferential," must avoid distortion by

hindsight, and must "indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance."     Strickland v. Washington, 466 U.S. 668, 689 (1984).

      Our review of the record does not leave us with "the definite

and   firm   conviction"   that   the       magistrate   judge   was   mistaken

concerning the belief of the jurors, and, therefore, we cannot

overturn this finding of fact.         Bull's Corner Restaurant, 759 F.2d

at 502-03.    Thus, we cannot agree with Johnson that the jurors were

so    confused   about   the    difference      between    "deliberate"     and

"intentional" that the verdict on special issue one was affected.

Furthermore, we agree with the court below that Johnson received

"effective assistance of counsel under the standards of Strickland

v. Washington."

       This contention of error is without merit.

                                       IV

      Having reviewed Johnson's assignments of error and having


                                       18
found them without merit, we conclude that he is not entitled to a

certificate of probable cause.        Although we have resolved one

issue, that of the effectiveness of counsel at voir dire, in a

different theoretical manner than did the court below, we do not

consider that resolution to be "in a different manner," i.e.,

coming to a contrary conclusion such that "encouragement to proceed

further" is   deserved.   The   application   for   a   certificate   of

probable cause is, therefore,

                                                          D E N I E D.




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