                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT


                                  No. 00-40366


                         Jeffrey Carlton Doughtie,

                                                         Petitioner-Appellant,

                                       v.

                       Gary Johnson, Director,
                 Texas Department of Criminal Justice

                                                         Respondent-Appellee,



         Appeal from the United States District Court for the
                       Southern District of Texas
                               (98-CV-152)


                             November 14, 2000

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.


EDITH H. JONES, Circuit Judge:*

             Jeffrey    Carlton     Doughtie     seeks     a   certificate   of

appealability (COA) to challenge the district court’s denial of his

petition for habeas corpus relief from a capital murder conviction

and sentence.     Finding no error in the district court’s ruling on

the issues Doughtie raises, we deny COA.



     *
            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opinion should not be published and is not precedent except under the limited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.
            On August 2, 1993 Doughtie entered Golden Antiques, a

Corpus Christi shop owned by Sylvia and Jerry Dean, an elderly

married couple.    Doughtie had worked for the Deans.          He requested

money for a bus ticket to San Antonio.       When Sylvia Dean refused to

give it to him, Doughtie grabbed a vase and left the store with it.

After walking a few blocks, Doughtie picked up a piece of metal

tubing and went back to Golden Antiques.         Mrs. Dean told him that

she had called the police.       Doughtie attacked the Deans and beat

them to death with the metal tubing.      Doughtie was convicted of the

1993 bludgeoning murders of Jerry and Sylvia Dean by the state

court in Nueces, County, Texas.     Based on the jury’s answers to the

special   issues   submitted   pursuant   to    Texas   Code   of   Criminal

Procedure   Article   37.0711,    Doughtie     was   sentenced   to   death.

Doughtie’s convictions and sentence were affirmed on direct appeal

by the Texas Court of Criminal Appeals.        Doughtie then applied for

and was denied a post-conviction writ of habeas corpus at the state

level.    Having exhausted his state remedies, Doughtie applied for

a federal writ of habeas corpus.     The federal district court denied

relief and refused to issue a COA.        Doughtie now seeks a COA from

this court.

            In order to obtain appellate review of the district

court’s judgment denying his petition, Doughtie must receive a

certificate of appealability (“COA”) from this court.            28 U.S.C. §

2253(c)(1)(A); Fed. R. App. P. 22(b).          The standard we apply to

                                    2
determine a COA application is whether a petitioner “has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1603

(2000).   The petitioner need not prove that he should prevail on

the merits, but rather he must demonstrate that the issues “are

debatable among jurists of reason; . . . a court could resolve the

issues in a different manner; or . . . the questions are adequate

to deserve encouragement to proceed further.” Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983); Miller v. Johnson, 200 F.3d 274, 280

(5th Cir. 2000), petition for cert. filed, No. 99-9891 (April 3,

2000).

          In a capital case, “the severity of the penalty does not

in   itself   suffice   to   warrant   the    automatic   issuing   of   a

certificate,” although the court may properly consider the nature

of the penalty in deciding whether to allow an appeal.           Barefoot,

463 U.S. at 893; Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir.),

cert. denied, 120 S.Ct. 522 (1999).       However, “[a]ny doubts as to

whether the COA should issue are to be resolved in the petitioner’s

favor.”   Penry v. Johnson, 215 F.3d 504 (5th Cir. 2000).

     I.   Ineffective Counsel

          Doughtie’s    argument   that      he   was   denied   effective

assistance of counsel at the punishment phase of his trial is based

on his lawyer’s decision not to introduce certain evidence of



                                   3
Doughtie’s remorse and of his voluntary but unsuccessful efforts to

gain admittance to an in-patient drug rehabilitation facility prior

to the murders. The standard for ineffective assistance of counsel

is well-established: Doughtie must prove that (1) his counsel’s

representation was deficient, and (2) the deficient performance was

so serious that it prejudiced his defense.      See Strickland v.

Washington, 466 U.S. 668, 687 (1989).

          Doughtie had confessed his crimes to a local television

reporter, Dave Johnson, during a recorded pre-trial interview from

prison. Doughtie also expressed remorse for his crimes during this

interview.   At the guilt-innocence phase of Doughtie’s trial, the

State called Mr. Johnson to testify about the portion of the

interview in which Doughtie confessed to the murders. In response,

Doughtie’s lawyer sought to introduce taped       portions of the

interview in which Doughtie discussed his remorse for the killings

and his unsuccessful pre-murder attempt to enter an in-patient drug

treatment center. The trial court ruled that these portions of the

interview were inadmissible hearsay.    Defense counsel did enter a

bill of exception concerning these allegedly mitigating statements,

but counsel did not attempt to reintroduce this inadmissible

hearsay evidence during the punishment stage of the trial.

          Doughtie now argues that this failure to attempt to

reintroduce the potentially mitigating portions of the Johnson



                                 4
interview   at   the   punishment   phase   of   the   trial   amounts   to

constitutionally ineffective assistance of counsel.            Doughtie’s

argument is based on a comment made by Judge Joaquin Villareal, the

state trial judge, in ruling that the potentially mitigating

excerpts from the TV interview were inadmissible hearsay:

     I think I would allow it if some live person, either your
     client [Doughtie] or Johnson [the reporter], to come in,
     but I’m still having a problem with Johnson speaking
     about remorse and stuff like that. . . . Let me put it
     this way: Those three lines [the allegedly mitigating
     portions of the interview], questions and answer on pages
     two, three, and six, I      would allow your client to
     testify to. Or if you wish to use them for punishment,
     then Johnson could testify to that.       And that’s it.
     That’s the ruling as imperfect as it may be.

Trial Record, Guilt or Innocence Phase, Vol. XVI/XXI at 387.         From

this statement, Doughtie concludes that the interview excerpts in

which he expresses remorse were hearsay for the guilt/innocence

phase of the trial but admissible as mitigating evidence during the

punishment phase.      However, when Doughtie’s bill of exception was

discussed at the punishment stage, Judge Villareal clarified his

hearsay ruling regarding this evidence:

     “It was the Court’s opinion that everything in the
     [interview] tape is hearsay. The Court agrees that part
     of the things included in the tape could be testified to
     by the defendant [Doughtie] if he ever were to take the
     stand, but the [contents of the tape alone] are not
     appropriate because of -- the state would be deprived of
     cross-examination of the witness.”




                                    5
Trial Record, Punishment phase, Vol. XIX/XXI at 423-24.                              Thus,

Judge Villareal’s ultimate ruling on this potentially mitigating

interview evidence was that it is inadmissible hearsay.

            The accuracy of this ruling is irrelevant for federal

habeas purposes, since a state trial court’s evidentiary ruling

cannot be challenged by federal habeas petition.                          See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a

federal habeas court to reexamine state court determinations on

state-law issues.”). The federal district court correctly reasoned

that Doughtie’s federal habeas claim “ignores the fact that the

trial   court    determined         that   the      statements        were    inadmissable

hearsay.”

            Moreover,         a    trial   counsel’s          failure    to    attempt   to

introduce inadmissible evidence does not rise to the level of

constitutionally deficient performance.                       See Robinson v. Johnson,

151 F.3d 256, 260-61 (5th Cir. 1998), cert. denied, 119 S. Ct. 1578

(1999); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (counsel

is   not   constitutionally           required          to   make    futile    motions   or

objections).         It would have been futile to attempt to reintroduce

evidence    that      Judge       Villareal       had    already      determined    to   be

inadmissible.

            Doughtie asserts that his attorney’s failure to call him

personally      to    the   stand     to   express           his    remorse   amounted   to


                                              6
ineffective assistance of counsel.              Doughtie did not raise this

issue with the district court and may not raise it for the first

time on appeal.          Doughtie’s Petition for Writ of Habeas Corpus

discusses his desire to testify about his efforts to find in-

patient drug rehabilitation, but not his desire to testify as to

his   remorse.      In    any   event,   even   if   Doughtie’s   counsel    was

deficient in not calling him to testify about his remorse, Doughtie

would still be unable to satisfy the second prong of the Strickland

test.     Given the brutality of his crimes and his record of

committing other violent offenses,2 a simple statement of remorse

would have been unlikely to affect a reasonable jury’s decision as

to his sentence.          Thus,   Doughtie      suffered no prejudice as a

result of his counsel’s allegedly deficient performance.                     See

Strickland, 466 U.S. at 687.

            Doughtie also asserts that his lawyer was deficient in

failing to introduce evidence that prior to committing the murders

Doughtie wanted to be placed in a “secure, in-patient” facility for

drug addicts.      Doughtie believes that such evidence would have




      2
            In addition to the awful facts of the Dean murders themselves, the
State presented evidence at the punishment stage of the trial that: 1) Doughtie
had received prior convictions for forgery by passing and furnishing a controlled
substance to a prisoner; 2)he participated in an armed robbery of Mac’s Liquor
Store on August 16, 1993 and threatened to kill the clerk; 3)he committed armed
robbery at the Golden Sand Dollar store on August 24, 1993 and threatened to kill
the cashier; 4) he committed a burglary of a habitation; and 5) Doughtie
committed another, unrelated capital murder by a combination of bludgeoning and
strangulation.

                                         7
convinced the jury to reduce his punishment from death to life in

prison.

            First,    the    portions   of   the   Dave     Johnson    interview

pertaining to Doughtie’s desire for in-patient drug treatment were

determined by the state trial court to be inadmissible hearsay. As

discussed above, state evidentiary issues are not cognizable during

federal habeas review.       See Estelle, 502 U.S. at 67-68.          Counsel is

not obliged to make futile efforts to introduce inadmissible

evidence.      See Robinson 151 F.3d at 260-61.

            Second, Doughtie’s defense counsel was not deficient in

not calling Doughtie himself3 and/or drug counselor Patrick McGrew

to   testify     regarding    Doughtie’s     desire   for    in-patient     drug

rehabilitation.       It should be pointed out that Doughtie never

actually received in-patient drug rehabilitation;                     rather, he

merely expressed a desire to undergo such treatment.                    Doughtie

claims that this mere expression of desire--unaccompanied by any

affirmative steps to secure such care--is by itself mitigating

evidence sufficient to persuade a reasonable jury to opt for a

prison term instead of the death penalty. This argument is tenuous

at best, given the brutality of the Dean murders and Doughtie’s

history of violent crime.



      3
            We are bound by the state habeas court’s finding that Doughtie’s
attorneys did not prevent him from testifying, and he chose not to testify in his
own behalf.

                                        8
          Doughtie     did   in   fact    present     evidence    of    his    drug

addiction, and his counsel attempted to characterize Doughtie’s

attack on the Deans as a result of his drug use.              The jury found no

mitigating value in this. It is therefore unlikely that they would

have   found     any   additional    mitigating       value     in     Doughtie’s

recognition of his drug problem and subsequent failure to get

proper treatment for it.          Indeed, Doughtie’s awareness of his

problem and evident understanding that in the absence of treatment

he was a danger to society could easily have been taken by the jury

as an aggravating, not mitigating, factor.             The case thus mirrors

this court’s recognition that evidence of drug or alcohol abuse

tends to be “double-edged,” or             potentially more harmful than

helpful to the defendant.     Williams v. Cain, 125 F.3d 269, 278 (5th

Cir. 1998).    Ineffective assistance of counsel claims based on the

failure to present allegedly mitigating evidence which is actually

“double edged” in nature are groundless.            See Boyle v. Johnson, 93

F.3d 180, 187-88 (5th Cir. 1996); West v. Johnson, 92 F.3d 1385,

1410 (5th Cir. 1996); Woods v. Johnson, 75 F.3d 1017, 1035 (5th

Cir. 1996).    Doughtie has not persuaded us otherwise.

          Finally, even if the evidence of Doughtie’s efforts to

seek rehabilitation was not “double-edged,” counsel’s failure to

present   this    evidence   would       not   rise   to   the       level    of   a

constitutional violation under the second prong of Strickland:



                                      9
Doughtie was not prejudiced by his attorney’s failure to introduce

this exceptionally weak mitigating evidence.          See Strickland, 466

U.S. at 687.      Given the brutality of the murders and Doughtie’s

numerous prior violent offenses, the mitigating evidence Doughtie

sought to introduce would not have swayed a reasonable jury away

from imposing the death penalty.

       II.   Evidentiary Hearing

             Doughtie   complains   of    the   federal   district   court’s

failure to grant him an evidentiary hearing on his claims of

ineffective assistance of counsel.          At this proposed evidentiary

hearing, Doughtie intended to present the allegedly mitigating

evidence of his remorse and attempt to enter a drug rehabilitation

center.

             In the wake of the Antiterrorism and Effective Death

Penalty Act (AEDPA), we review      the district court’s decision        not

to grant an evidentiary hearing under an abuse of discretion

standard if the statutory minimum criteria for a hearing have been

met.    See Rules Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foll.

§ 2254; see also Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.

2000); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).

The statute permits a hearing where the petitioner has failed to

develop the factual basis for a claim if:

       the claim relies on a new rule or constitutional law,
       made retroactive to cases on collateral review by the

                                     10
     Supreme Court, that was previously unavailable; or a
     factual predicate that could not have been previously
     discovered through the exercise of due diligence; and the
     facts underlying the claim would be sufficient to
     establish by clear and convincing evidence that but for
     the constitutional error, no reasonable factfinder would
     have found the applicant guilty of the underlying
     offense.

28 U.S.C. § 2254(e)(2).   The statutory exceptions apply only where

the failure to develop the factual basis is directly attributable

to the decision or omission of the petitioner.   McDonald, id.    To

find that the federal district court abused its discretion, it is

necessary to conclude that (1) the state habeas courts did not

provide Doughtie with a “full and fair hearing,” and (2) if

Doughtie’s allegations regarding the deficient performance of his

counsel were proven true,    he would be entitled to relief.     See

Clark, 202 F.3d at 766; Moawad v. Anderson, 143 F.3d 942, 947-48

(5th Cir. 1998), cert. denied, 525 U.S. 952 (1998).

          The statute affords Doughtie no basis for a federal

evidentiary hearing.   There is no requirement for either state or

federal habeas courts to conduct a “hearing” with live testimony.

Jackson, 150 F.3d 520, 523-24 (5th Cir. 1998).   A paper hearing is

sufficient, particularly if, as here, the state trial and habeas

courts were one and the same.   Clark v. Johnson, 202 F.3d at 766.

As Doughtie’s hearing opportunity in the state courts was adequate,

the statutory criteria for a federal evidentiary hearing were not




                                 11
met. The district court correctly applied AEDPA in its handling of

the evidentiary hearing issue.

      III. Texas Capital Punishment Statutes

            Doughtie’s final ground for appeal is the oft-made and

consistently     rejected     argument      that     the   Texas       capital    murder

statutes and the death penalty provisions thereof (Tex. Penal Code

§ 19.03 and T.C.C.P. Art. 37.071) are unconstitutional.                      Doughtie

breaks no new ground in his constitutional attack on the Texas

death sentencing scheme, asserting that (1) a finding of future

dangerousness on the first special issue jury question may be based

solely on the circumstances of the capital offense itself; (2) the

burden of proof on the mitigation special issue is not placed upon

the   State;    and   (3)   the    jury’s     answers      to   the     special    issue

questions are not subject to meaningful appellate review.

            Doughtie’s arguments run contrary to clearly established

precedents.     See   Jurek   v.    Texas,     428    U.S.      262,    268-71    (1976)

(plurality opinion); Lowenfield v. Phelps, 484 U.S. 231, 244-45

(1988) (discussing the “narrowing function” of the Texas penal

statute).      The district court’s order denying habeas corpus fully

refutes this standard “throw in” constitutional argument.

            Because    reasonable      jurists       could      not    disagree     over

whether Doughtie has shown ineffective assistance of counsel, any

error by the district court in denying an evidentiary hearing, or



                                         12
a constitutional violation in the Texas capital murder statutes,

there is no basis for granting a COA.

          Certificate of Appealability DENIED.




                               13
