                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                  No. 01-41264


                                 JOHN BALTAZAR,

                                                  Petitioner-Appellant,


                                      VERSUS


                     JANIE COCKRELL, Director of the
                  Texas Department of Criminal Justice,

                                                  Respondent-Appellee.




           Appeal from the United States District Court
   For the Southern District of Texas, Corpus Christi Division
                                 (2:00-CV-289)
                                 March 18, 2002


Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

       A Texas state court sentenced John Richard Baltazar to death

for the capital murder of a five-year-old girl. Baltazar now seeks

a Certificate of Appealability (COA) to pursue habeas corpus relief

in this court.      In his application for a COA, Baltazar argues (1)


   *
   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opinion should not be published and is not precedent except under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.

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that the district court erred in denying him an evidentiary hearing

on his attorneys’ ineffective assistance, and (2) that the state’s

use of the transferred intent doctrine violated his due process

rights because it negated the state’s burden of proving that he

intended to kill a person under six years of age.        Because Baltazar

has failed to make a substantial showing that his constitutional

rights were violated, we deny his application for a COA.



                     I.   Facts and Procedural History

      In 1997, John Baltazar’s mother, Jesusista Hernandez, was

dating Ted Cuellar. On one occasion, Baltazar and his brother told

Cuellar that if he ever ended his relationship with their mother,

they would kill him and his family.        On September 27, 1999, Cuellar

and Hernandez engaged in a violent, relationship-ending argument

during which Cuellar assaulted Hernandez.

      That evening, Baltazar and several of his friends drove to the

home of Cuellar’s sister, Matilde Marines, where Cuellar was known

to stay.     When they arrived at the Marines home, Baltazar and his

friend, Johnny Gonzales, walked to the front door; Baltazar was

armed with a .22 caliber pistol.          Hoping to find Cuellar sleeping

on the couch, Baltazar kicked the door open and began shooting into

the living room.       Cuellar, however, was neither on the couch nor

anywhere else in the Marines home.          Instead, the living room was

occupied by the Marineses’ five-year-old daughter, Adriana, and her



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ten-year-old cousin, Vanessa, who were both lying on the couch

watching television. Two of Baltazar’s bullets hit Adriana in the

head and one hit Vanessa in the chest. Vanessa identified Baltazar

as the shooter.

      Baltazar then moved down the hallway toward Matilde and Jose

Marines’s bedroom.         The couple had heard a loud bang and were

getting out of bed when Matilde opened the door to find Baltazar

and Gonzales standing in her doorway.        Baltazar was shirtless and

had a gun in his outstretched hand.           As Jose got out of bed,

Baltazar shot him twice, once in the mouth and once in the neck.

Dalinda Cuellar, Matilde’s sister, was in her bedroom across the

hall and witnessed Baltazar shoot Jose.       Matilde closed and locked

her bedroom door after the shots and Baltazar and Gonzales fled the

scene.

      At 10:20 p.m., Matilde called “911,” and police and medical

workers    arrived    soon    thereafter.   Although   Jose   and   Vanessa

survived their gunshot wounds, Adriana died shortly after arriving

at the hospital.

      Johnny Gonzales’s nephew and girlfriend were waiting in a car

outside the Marines home during the shootings. They both testified

that they heard six gunshots come from inside the Marines home.

They also testified that later that evening, Baltazar confessed to

shooting someone in the face in retaliation for his mother’s

assault.

      While the police were still questioning family members at the

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crime scene, Ted Cuellar arrived at the scene and attempted to

enter the home.          Police officers stopped him at the door and

explained what had happened.           Cuellar told the police that he had

broken up with Baltazar’s mother earlier that night and informed

them of his reasons to suspect that Baltazar and his brother were

involved in the shootings.            Based on this information, the police

began searching for Baltazar.             Early the next morning, officers

found him at the trailer of his girlfriend, Linda Clark.                 Baltazar

tried to flee when he spotted the officers, but after a struggle,

he was arrested for evading detention.              Before he was released on

his evading detention charge, a homicide detective confiscated his

tennis shoes.       The shoes were later found to match the sneaker

print on the Marineses’ door.

       Baltazar’s parole officer testified that during the shootings,

Baltazar was under a home-restriction curfew every evening from

9:00 p.m until 7:00 a.m.          Baltazar wore a monitoring device that

automatically alerts law enforcement authorities when he is out

during his curfew.          On the night of the shootings, Baltazar’s

monitoring device indicated that he was out of his house from 9:20

p.m. to 10:54 p.m. and from 1:16 a.m. until 8:28 a.m. the following

day.   The first absence would have provided Baltazar with adequate

time to commit the shootings.           During the second absence, Baltazar

had gone to Clark’s trailer, where he was later arrested.

       Baltazar    was   convicted      of    capital   murder   and   aggravated

assault on March 9, 1998.         On March 11, 1998, following a separate

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punishment hearing, the jury answered two special issues supporting

a death sentence.       While his direct appeal was pending, the Texas

Court of Criminal Appeals appointed an attorney to represent

Baltazar in his state habeas proceedings; on March 31, 1999, that

attorney filed a writ of habeas corpus in state court.              The Court

of Criminal Appeals affirmed the conviction and denied Baltazar’s

state habeas petition.

      Through the same attorney who represented him in his state

habeas proceedings, Baltazar filed a petition for writ of habeas

corpus and a request for an evidentiary hearing in federal district

court.    On September 27, 2001, the district court granted summary

judgment to the state and denied Baltazar’s petition without

holding an evidentiary hearing.                The district court also denied

Baltazar a COA sua sponte.            Baltazar has now applied for a COA with

this court.



                                 II.      Analysis

      A habeas petitioner cannot appeal the denial of habeas relief

from the district court unless he obtains a COA.                 28 U.S.C. §

2253(c)(1).      Since Baltazar filed his habeas application after

April 24, 1996, the rules for COA review are governed by the

Antiterrorism and Effective Death Penalty Act (AEDPA).               Lindh v.

Murphy, 521 U.S. 320, 336 (1997).                “Under AEDPA, a COA may not

issue unless ‘the applicant has made a substantial showing of the



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denial of a constitutional right.’” Slack v. McDaniel, 529 U.S.

473, 483 (2000) (citing 28 U.S.C. § 2253(c)(2)).            “When a district

court has rejected the constitutional claims on the merits, the

showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong,” or, at least, that the “issues presented were adequate

to deserve encouragement to proceed further.” Id. at 484; Moore v.

Johnson, 225 F.3d 495, 500 (5th Cir. 2000).            Although the nature of

the penalty in a capital case is an appropriate consideration in

evaluating a COA application, “the severity of the penalty does

not, in and of itself, require the issuance of a COA. . . .                 In

capital cases, doubts as to whether a COA should issue must be

resolved in favor of the petitioner.”            Clark v. Johnson, 202 F.3d

760, 763 (5th Cir. 2000); Lamb v. Johnson, 179 F.3d 352, 356 (5th

Cir. 1999).

      To obtain habeas relief, a petitioner must either demonstrate

that the state court’s decision “was contrary to . . . clearly

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

United States,” or “involved an unreasonable application of . . .

clearly established Federal law, as determined by the Supreme Court

of the United States.”          Williams v. Taylor, 529 U.S. 362, 412-13

(2000).      A   state    court’s     decision   is   “contrary   to”   clearly

established federal law if it “arrives at a conclusion opposite to

that reached by th[e] [Supreme] Court on a question of law or if

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the state court decides a case differently than this Court has on

a set of materially indistinguishable facts.”              Id. A state court’s

decision is an “unreasonable application” of federal law “if the

state court identifies the correct governing legal principle from

th[e] [Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.”                      Id.    A state

court’s determination of factual issues are presumed correct and

the applicant bears the burden of rebutting the presumption with

clear and convincing evidence.



A.   Evidentiary Hearing/Ineffective Assistance Claims

      Baltazar contends that the district court erred in denying him

an   evidentiary      hearing     on     his    Sixth    Amendment    ineffective

assistance of counsel claims.                 Baltazar bases his ineffective

assistance     claims    on   two      criticisms   of    his   trial      counsels’

representation.        He first argues that his attorneys overlooked

potential Fourth Amendment challenges to his arrest and the seizure

of his tennis shoes (“Fourth Amendment claims”).                 He also claims

that his attorneys were remiss in failing to present mitigating

evidence during the punishment phase of his trial (“mitigating

evidence claims”).         We reject both of these arguments because

Baltazar has failed to develop a factual or legal basis for these

allegations.

      To prevail on his ineffective assistance claims, Baltazar must



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show that (1) his trial counsels’ performance was so deficient that

it fell below an objective standard of reasonableness and (2) there

is a reasonable probability that, but for his attorneys’ errors,

the result of his trial would have been different.                   Strickland v.

Washington, 466 U.S. 668, 687 (1984); Haynes v. Cain, 272 F.3d 757,

761 (5th Cir. 2001).        The objective standard of reasonableness is

“highly    deferential”      and      includes   a   “strong    presumption       that

counsel’s     conduct    falls     within     the    wide   range    of    reasonable

professional     assistance.”          Strickland,     466    U.S.   at    689.     In

deciding ineffective assistance claims, a court need not address

both prongs of the Strickland standard, but may dispose of such a

claim based solely on a petitioner’s failure to meet either prong

of the test.      Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).

       A habeas petitioner’s right to an evidentiary hearing is

governed by 28 U.S.C. § 2254(e)(2) and Rule 8 of the Rules

Governing § 2254 Cases.            If a petitioner “failed to develop the

factual basis” in his state habeas proceedings for his ineffective

assistance claims, the federal habeas court shall not conduct an

evidentiary     hearing    on    those    claims     unless    certain      statutory

conditions are satisfied.             28 U.S.C. § 2254(e)(2).             The Supreme

Court has held that the phrase “failed to develop,” as used in §

2254(e)(2), implies that the failure to develop facts was the

result of “a lack of diligence, or some greater fault, attributable

to the prisoner or the prisoner’s counsel.”                 Williams, 529 U.S. at

434.   If the petitioner was not diligent in developing his claims

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in state court, § 2254 prohibits a federal court from providing an

evidentiary hearing unless:

      (A) the claim relies on –
           (i) a new rule of constitutional law, made
      retroactive to cases on collateral review by the Supreme
      Court, that was previously unavailable; or
           (ii) a factual predicate that could not have been
      previously discovered through the exercise of due
      diligence; and
      (B) the facts underlying the claim would be sufficient to
      establish by clear and convincing evidence that but for
      constitutional error, no reasonable fact-finder would
      have found the applicant guilty of the underlying
      offense.


28 U.S.C. § 2254(e)(2).            If the petitioner’s failure to develop

facts in state court was not due to his lack of diligence, he is

excused from showing compliance with the § 2254 requirements,

Williams,     529   U.S.    at     437,   and   the   decision   to   provide    an

evidentiary hearing is within the district court’s discretion.

Rule Governing § 2254 Cases 8(a); Clark, 227 F.3d at 284.

      The state habeas court rejected Baltazar’s Fourth Amendment

claims because he submitted no admissible evidence of ineffective

assistance     by   his    trial    attorneys.        During   his   state   habeas

proceedings, the director provided a joint affidavit from both of

Baltazar’s trial attorneys stating that they prepared a motion to

suppress this evidence but that Baltazar instructed them not to

file it.    The affidavit states that Baltazar told them not to file

the motion because he feared that this strategy could increase the




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chances that his wife,1 who drove him to and from the murder scene,

might be implicated in the crime.          As we noted in United States v.

Mascat, 896 F.2d 88, 92 (5th Cir. 1990), “we must give great

deference to choices which are made under the explicit direction of

the client.”     Although he had the opportunity to respond, Baltazar

submitted no admissible evidence to contravene this affidavit. The

only factual basis for his claim was his habeas counsel’s sworn

hearsay statement that Baltazar’s trial attorneys overlooked the

opportunity to file a motion to suppress.         According to Baltazar’s

habeas attorney, trial attorney Grant Jones admitted during a

telephone interview that he “did not see” the issue.

       Baltazar asserts that his habeas counsel’s sworn hearsay

statement “joins issue” on his ineffective assistance claim and

entitles him to an evidentiary hearing.             But Baltazar himself

concedes that there is no authority for this proposition.         In cases

where a habeas petitioner has submitted hearsay affidavits in

support of his petition, we have held that those statements do not

provide a factual basis for an evidentiary hearing.            Goodwin v.

Johnson, 132 F.3d 162, 186 (5th Cir. 1997); Ward v. Whitley, 21

F.3d 1355, 1367 (5th Cir. 1994).       We see no reason why the hearsay

   1
     The trial attorneys appear to be referring to Linda Clark, the
same person whom we earlier identified as Baltazar’s girlfriend.
The majority of the references to Clark in the record state that
she was Baltazar’s girlfriend, not his wife.        Although it is
possible that the couple married after he was convicted and
sentenced to death, it is more likely that the attorneys’ affidavit
mistakenly referred to Clark as Baltazar’s wife, when she was
actually his girlfriend.

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statements of one’s attorney should be treated differently.               Thus,

the district court did not abuse its discretion in denying an

evidentiary hearing on these claims.

       For similar reasons, we conclude that the district court acted

within its discretion when it denied Baltazar an evidentiary

hearing on his mitigating evidence claims.           Baltazar argues that

his attorneys should have hired a mental health expert to evaluate

him. According to a doctor who evaluated him after trial, Baltazar

suffers from two behavioral disorders, was subjected to violence as

a child, and is alcohol dependant.              But in the state habeas

proceedings, one of Baltazar’s trial attorneys explained that he

chose not to have Baltazar examined by a mental health expert

because he believed that, given Baltazar’s extensive criminal

history, the State might have used this evidence to bolster its

argument that Baltazar posed a continuing threat to society.               The

trial attorneys formed this strategy after reviewing reports from

Baltazar’s previous psychological examinations.

       The failure to present a mental health witness at trial does

not qualify as ineffective assistance if the attorney articulates

a valid strategical reason for not presenting the witness.               Cannon

v. Johnson, 134 F.3d 683, 687-88 (5th Cir. 1998). Baltazar offered

no admissible evidence to contravene the veracity of this proffered

strategy; instead, he challenged his attorney’s explanation only

with    hearsay.       Baltazar’s     habeas   counsel   claims   that    when

questioned about the lack of mitigating psychological evidence in

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the record, trial attorney Jones responded that he “did not trust”

mental health experts and never used them.                  As we stated above, a

district      court   does    not     abuse      its   discretion   in   denying    an

evidentiary      hearing     when     the     habeas    petitioner’s     claims    are

supported only by hearsay.



B.       Due Process Claims

         The state used Texas’s transferred intent doctrine2 to convict

Baltazar of the capital murder of a child under six years of age.

While there is compelling evidence that Baltazar intended to kill

Ted Cuellar, it is decidedly less clear that he intended to kill

his actual victim, Adrianna Marines.                    Baltazar argues that the

state’s use of the transferred intent doctrine violated his due

process rights because it improperly alleviated the state’s burden

of proving that he had the specific intent to kill a young child.3

     2
    Texas’s “transferred intent” statute appears in § 6.04 of the
Texas Penal Code and reads as follows:

     (a) A person is criminally responsible if the result would not
     have occurred but for his conduct, operating either alone or
     concurrently with another cause, unless the concurrent cause
     was clearly sufficient to produce the result and the conduct
     of the actor clearly insufficient.
     (b) A person is nevertheless criminally responsible for
     causing a result if the only difference between what actually
     occurred and what he desired, contemplated, or risked is that:
     (1) a different offense was committed; or
     (2) a different person or property was injured, harmed, or
     otherwise affected.
     3
      The Texas Capital Murder statute states that “[a] person
commits an offense if he commits murder as defined under Section
19.02(b)(1) and . . . the person murders an individual under six

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Baltazar’s jury charge required the jury to find that Baltazar

acted only with the intent to kill Ted Cuellar; it did not require

them to     find   that   he   specifically   intended   to   kill   Adrianna

Marines.

       Baltazar’s claim is without merit under both Texas and federal

law.    First, on a petition for writ of habeas corpus, we defer to

the state courts’ interpretation of state law.           Fierro v. Lynaugh,

879 F.2d 1276, 1278 (5th Cir. 1989).          Texas courts have held that

the Texas capital murder statute does not require that a defendant

know that his victim is under six years of age.          Black v. State, 26

S.W.3d 895, 897 (Tex. Crim. App. 2000) (“We hold that there is no

requirement in section 19.03(a)(8) that an offender know or intend

that his victim be a child under six.”).           Second, United States

Supreme Court “has never articulated a general constitutional

doctrine of mens rea,” and it has never held that a state’s

definition of a crime must include a mens rea element.               Powell v.

Texas, 392 U.S. 514, 535 (1968); see also Montana v. Egelhoff, 518

U.S. 37, 56 (1996) (“The doctrines of actus reus, mens rea,

insanity, mistake, justification, and duress have historically

provided the tools for a constantly shifting adjustment of the

tension between the evolving aims of the criminal law and changing

religious, moral, philosophical, and medical views of the nature of

man.    This process of adjustment has always been the province of



years of age.”      Tex. Pen. Code Ann. § 19.03(8) (Vernon 1994).

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states.”).       We therefore see no constitutional infirmity in Texas

applying the doctrine of transferred intent to this case.

      To support his argument that the Constitution requires that

the defendant know his victim’s age, Baltazar cites United States

v. X-Citement Video, Inc., 513 U.S. 64 (1994).                         In X-Citement

Video, the Supreme Court analyzed the scienter requirements of the

Protection of Children Against Sexual Exploitation Act, 18 U.S.C.

§ 2252, which criminalizes the possession and distribution of child

pornography. Under an ordinary grammatical reading of the statute,

there would be no requirement that the offender know that the

pornography in question actually involves minors.                   Id. at 68.      The

Court, however, rejected the grammatical reading and held that the

better    interpretation        of    the        statute    presumes     a   scienter

requirement for the age of the performers.                  Id. at 78.

      X-Citement Video is distinguishable from this case in obvious

ways.     First, the Court’s conclusion is based solely on its

interpretation of 18 U.S.C. § 2254; the Court did not hold that the

Constitution requires a scienter element in age-sensitive crimes.

Given that this case involves a state statute, not a federal one,

we defer to the Texas courts’ interpretation of that statute.

Second,    the    reasoning     of    the    opinion       is   specific     to   child

pornography.      The Court observed that when dealing with obscenity

laws, the age of the person in the pornographic image can mean the

difference between criminal and innocent behavior.                   Id. at 72.      As

such, the Court found it equitable to presume that the statute

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required the offender to know that he was dealing with child

pornography.      To the contrary, the age of Baltazar’s murder victim

affects only the severity of his punishment. The Supreme Court has

upheld such penalty-enhancing laws under similar circumstances. In

United States v. Feola, 420 U.S. 671 (1975), the court upheld a

federal statute that enhanced the penalty for assaulting a law

enforcement officer without requiring that the offender realize

that   his    victim    was   an      officer.   The   court   reasoned   that

“[c]riminal intent serves to separate those who understand the

wrongful nature of their act from those who do not, but it does not

require knowledge of the precise consequences that may flow from

that act once aware that the act is wrongful.”            Id. at 685.

       Finally, even assuming that the transferred intent instruction

was unconstitutional, it does             not warrant habeas relief because

the instruction allowed the jury to convict Baltazar of capital

murder on the alternative ground of killing a person in the course

of a burglary.4        See Tex. Pen. Code § 19.03(a)(2).         The Supreme

Court has held that a jury need not specify which ground it used to

support its conviction when a criminal statute provides alternative

grounds for the conviction. Schad v. Arizona, 501 U.S. 624, 630-46


   4
    In Texas, a person commits burglary “if, without the effective
consent of the owner, the person . . . enters a habitation . . .
not then open to the public, with intent to commit a felony, theft,
or an assault.”    Tex. Pen. Code Ann. § 30.02(a) (Vernon 1994).
There is convincing evidence in this case that Baltazar entered the
Marines home without the Marineses’ consent and with, at minimum,
the intent to assault Ted Cuellar.

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(1991).    Since Baltazar has not challenged the sufficiency of the

evidence to convict him of felony murder, any error associated with

the transferred intent doctrine was harmless.      O’Neal v. McAninch,

513 U.S. 432, 435-36 (1995) (applying harmless-error review to an

instruction that “violated the Federal Constitution by misleading

the jury”).      Baltazar therefore is not entitled to a COA on this

ground.



                               III.   Conclusion

      Baltazar has failed to develop a sufficient factual basis for

his ineffective assistance claims; the district court therefore did

not abuse its discretion in denying him an evidentiary hearing. He

has also failed to assert a legal basis for his claim that the

application of Texas’s transferred intent doctrine violated his due

process rights.      For the foregoing reasons, Baltazar’s request for

a COA is DENIED.




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