             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

             ______________________________________

                          No. 97-10851
             ______________________________________


DOMINGO CANTU, JR.,
                                           Petitioner-Appellant,

                              versus

GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
                                              Respondent-Appellee.

          _____________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                           (94-CV-1397-H)
          _____________________________________________
                          August 18, 1999


Before JOLLY, WIENER, EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge.*

     In his pre-AEDPA1 quest for habeas corpus relief, Petitioner-

Appellant Domingo Cantu, Jr., asks us to grant a certificate of

probable cause (CPC) so that he can appeal from the district

court’s denial of habeas relief.   Cantu insists that he has made a

substantial showing of the denial of a federal right, which he must

do to our satisfaction if we are to grant a CPC.          Cantu has

specified errors in both the guilt-innocence and punishment phases

     *
           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that this opinion should not be published and is not precedent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.
     1
          Anti-terrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2254 (1994 & Supp. 1998).
of his state court trial, in which he was convicted and sentenced

to death for the brutal rape and murder of a 94-year-old woman.2

     From our examination of the records of Cantu’s state and

federal court proceedings, viewed in light of the legal arguments

advanced by able counsel in their appellate briefs and in their

arguments to this panel, we are satisfied that Cantu has failed to

demonstrate that the issues on which he bases his claims of the

denial of federal rights 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.’”3   For the reasons briefly set forth below,

therefore, we affirm the district court’s dismissal of his petition

for habeas relief and deny Cantu’s application for CPC.

                                I.

                      FACTS AND PROCEEDINGS

     The homicide that occurred on June 25, 1988, during the course

of the aggravated sexual assault referred to above, led to the

August 26, 1988 indictment of Cantu in Dallas County, Texas.    He

was tried and convicted by a jury in late October 1988, and on

November 1, 1988, the same jury affirmatively answered the two

special sentencing issues under Article 37.071(b) of the Texas Code

of Criminal Procedure, leading to imposition of the death penalty


    2
          The gruesome details of the crime are set forth in Cantu
v. State, 842 S.W.2d 667, 674-76 (Tex. Crim. App. 1992).
     3
          Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980))
(emphasis in Gordon).

                                2
by the state court.   In June 1992, the Court of Criminal Appeals of

Texas affirmed Cantu’s conviction and sentence, and in September of

that year denied rehearing. The United States Supreme Court denied

certiorari in June 1993.

     Cantu instituted state habeas corpus proceedings in April

1994, and the Court of Criminal Appeals of Texas denied such relief

on the basis of the findings of fact and conclusions of law of the

trial court.   After his execution was scheduled Cantu instituted

these proceedings in federal district court, which stayed the

execution. The district court considered the recommendation of the

magistrate judge as well as Cantu’s objections, then adopted the

former.   Cantu timely filed a notice of appeal and applied to the

district court for a CPC, which was denied some ten days later.   He

now applies to us for a CPC to appeal the district court’s denial

of habeas relief.

                                 II.

                              ANALYSIS

A.   Guilt-Innocence Phase

     Presumably in light of the plethora of evidence of guilt,

Cantu has not challenged the sufficiency of the evidence supporting

his conviction.   Rather, he ties his insistence that he has made a

substantial showing of the denial of a federal right in the guilt-

innocence phase to allegedly reversible errors in his trial court’s

conduct of the jury trial.      We address in turn each of those

allegations.




                                  3
       1.      Batson Claim4

       Cantu asserts that a Batson Equal Protection Clause violation

occurred when the state trial court allowed the prosecution to use

a   peremptory      challenge   to   exclude   venireperson       Sanchez,    an

Hispanic, from the jury.        In proffering race-neutral reasons for

that       peremptory   challenge,   the   prosecution   listed    seven5    and

expressed reliance on the cumulative effect of all those reasons.

The trial court credited the totality of those reasons as well as

Ms. Sanchez’s questionnaire and the court’s observation of her

demeanor when responding to voir dire questions, and found the

prosecution’s position credible.6 In response to Cantu’s complaint

that other unchallenged venirepersons had some of the same traits

as ascribed to Ms. Sanchez, the prosecution noted —— and the court

accepted —— that none had all seven traits and thus did not have

the same totality of circumstances.            We perceive no substantial

showing of the denial of a federal right in the trial court’s

disposition of Cantu’s Batson objection to the state’s peremptory

challenge to selecting Ms. Sanchez.

       2.      Denial of Challenge for Cause

               The trial court denied Cantu’s challenge of venireperson

Jennings for cause based on his response to questions regarding

proof of each element of the offense beyond a reasonable doubt.

When the trial court denied Cantu’s cause challenge he still had

       4
               Batson v. Kentucky, 476 U.S. 79 (1986).
       5
               See Cantu, 842 S.W.2d at 688.
       6
               Id. at n.16.

                                       4
unused     peremptory    challenges,    yet     he   did   not      expend      one   on

Jennings.      Under Texas law, this failure constituted procedural

default by Cantu, eschewing preservation of the alleged error.7                        To

obtain federal habeas review under prescribed circumstances ——

state procedural default coupled with refusal of the state courts

to   review    his    constitutional     claim,      for   one      ——    Cantu   must

demonstrate both cause and prejudice.            Having failed to assert and

prove either prong of the applicable test,8 Cantu’s claim of

reversible     trial    court   error   in     its   ruling      on      the   Jennings

challenge is procedurally barred in federal court.9                      Even if that

were not so, however, Cantu’s claim would fail on its merits.                         Our

review of the voir dire of Jennings by counsel for both parties and

by the court satisfies us that the court did not err in concluding

that Jennings’s views would not prevent or substantially impair his

performance of the duties of a juror pursuant to his oath and the

instructions     of    the   court.     This    entitles      the     trial     court’s

conclusion to that effect, and the factual determinations on which

it is grounded, to a presumption of correctness.10

      3.      Prosecution’s Challenge for Cause

      When the prosecution challenged venireperson Holloway for

cause in light of this potential juror’s voir dire testimony


      7
              Id. at 682-83.
      8
          Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright
v. Sykes, 433 U.S. 72, 87 (1977).
      9
              Carrier, 477 U.S. at 485; Sykes 433 U.S. at 87.
      10
              28 U.S.C. § 2254(d) (Supp. 1998).

                                        5
regarding the requirement that the state prove its case beyond a

reasonable doubt, the trial court granted the challenge over

Cantu’s objection.            The gravamen of the state’s challenge was

Holloway’s assertion that she would require proof to an absolute

certainty, which the prosecution correctly classified as a more

stringent burden than beyond a reasonable doubt.                     A reading of all

the questions propounded to Holloway by the prosecution, the

defense, and the court discloses some answers that, when read out

of   context,          are   facially     inconsistent        and     susceptible      of

interpretation of her acceptance of the appropriate level of proof.

When the entire colloquy is read in context, however, the trial

court’s ruling comes across as clearly irreversible.                     We need look

no further than the final exchange between the court and Holloway

to be convinced that its grant of the prosecution’s challenge for

cause     was    not    erroneous,      particularly    when        viewed    under   the

presumption of correctness of §              2254(d):

     Q.         And all I need to know from you, very simply is, in

     a death penalty case, which would you require, proof

     beyond       a     reasonable   doubt,     which    is    what     the    law

     requires, or would you require, since it is a death

     penalty case, absolute certainty, proved beyond any doubt

     whatsoever?

     A.         I would require absolute certainty.11

B.   Punishment Phase


     11
                Cantu v. State, 842 S.W.2d 667, 681 (Tex. Crim. App.
1992).

                                            6
      Cantu mounts a stereotypical punishment phase challenge by

asserting      that    the    Texas   statutory         death   penalty      issues   ——

deliberateness        and    probability        of     future   violence12    ——    were

constitutionally inadequate to allow the jury fully to reflect any

mitigating value of Cantu’s voluntary intoxication at the time of

the offense, which might have produced temporary insanity, or of his

history of substance abuse.            In addition to being instructed to

answer the questions regarding the special issues of deliberateness

and future violence, the jury was properly instructed on deciding

the   weight    and    credibility     to       give    mitigating      evidence    and,

specifically,     on    the    consideration           of   temporary    insanity     and

voluntary intoxication —— and their definitions —— in the sentencing

calculus.      Our review of the pertinent portions of the record on

these matters demonstrates beyond cavil that the jury was able to

give adequate mitigating effect to evidence of Cantu’s intoxication,

possibility of temporary insanity, and any aspect of his character,

substance abuse record, and other circumstances advanced by Cantu

in support of his request for a sentence less than death.                      Assuming

without deciding that intoxication, and temporary insanity resulting

therefrom, are constitutionally relevant mitigating factors, nothing

in the jury instructions can be construed to have prevented the jury

from giving mitigating effect to Cantu’s drunken state, his history

of substance abuse, or any other purportedly mitigating evidence

adduced on his behalf.


      12
            Tex. Crim. P. Code Ann. § 37.071(b) (West 1981 & Supp.
1999).

                                            7
     We perceive no violation of the Eighth Amendment in the conduct

of the punishment phase of Cantu’s trial.13   Moreover, for whatever

comfort it may provide, Cantu should know that even if we had

concluded that there was some deficiency in the instructions and

presentation of the proffered mitigating evidence that prevented or

inhibited full application of its effects by the jury, we would hold

any such error to be harmless. The value of the evidence of Cantu’s

intoxication and history of substance abuse so pales in comparison

to the egregiousness of the crime and the plethora of punishment

phase evidence supporting the death penalty that any deficiency

affecting the jury’s ability to give effect to such mitigating

evidence would have been entirely harmless.

                                III.

                             CONCLUSION

     We are completely satisfied that the district court committed

no reversible error in denying habeas relief to Cantu or refusing

to grant him a CPC.   We therefore affirm all rulings of that court,

and for the foregoing reasons, decline to issue Cantu a CPC.

AFFIRMED; CPC DENIED.




    13
          For Cantu to prevail on the basis for which his challenge
to the mitigating effect aspect of the punishment phase is asserted
would require the application of a new rule of law, which in turn
would require the kind of retroactive application that is barred by
Teague v. Lane, 489 U.S. 288, 310 (1989).

                                  8
