                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                 _______________

                                   No. 96-20334
                                 _______________



1                            ROBERT ANTHONY CARTER,

2                                                  Petitioner-Appellant,

3                                    VERSUS

4                             GARY L. JOHNSON,
5             Director, Texas Department of Criminal Justice,
6                         Institutional Division,

7                                                  Respondent-Appellee.

 8                          _________________________
 9
10                        Remand from the Supreme Court
11                             of the United States
12                          _________________________

13                              December 12, 1997

14   Before KING, SMITH, and BENAVIDES, Circuit Judges.

15   JERRY E. SMITH, Circuit Judge:



16        Robert Carter appeals the denial of his petition for a writ of

17   habeas corpus filed under 28 U.S.C. § 2254 (1996).       We affirm the

18   judgment and vacate the stay of execution.



19                                     I.

20        Carter was convicted of capital murder and sentenced to death

21   in March 1982.    His case, which languished in the Texas courts for

22   over a decade and recently reached the Supreme Court, has now been
23   remanded to this court for further action.



24                                          A.

25        Carter was arrested in 1981 and charged with the murder of

26   Sylvia Reyes, who was fatally wounded during the robbery of a

27   service station.1     Carter confessed in great detail to the murder

28   but stated that the shooting had been accidental and denied any

29   intent to kill Reyes.        Pursuant to this confession, the police

30   obtained the murder weapon identified by Carter, and ballistic

31   experts confirmed that the revolver had been used in the murder.



32                                          B.

33        At trial, a witness identified as “David Josa” testified that

34   he was entering the service station when he heard gunshots inside

35   and observed two individuals leave it immediately thereafter.             The

36   first fled but returned when the police arrived.              The second, a

37   young black man fitting Carter’s description, emerged from the

38   store with “a wad of money” in his left hand and fled.                   Josa

39   observed this person for only a few seconds but did not see a gun,

40   nor was he able subsequently to identify Carter as the second man.

41        Another     witness,     Arthur        Mallard,   corroborated   Josa’s

42   testimony.     Mallard identified himself as the first person out of

43   the station and testified that he had observed a man fitting

44   Carter’s description reach across the counter to take money from

          1
            The first opinion of the Texas Court of Criminal Appeals summarizes the
     facts at length. See Carter v. State, 717 S.W.2d 60, 62-66 (Tex. Crim. App.
     1986), cert. denied, 484 U.S. 970 (1987).

                                            2
45   the cash register.    When the station attendant resisted, Mallard

46   heard a gunshot and fled the store.       He was unable to identify

47   Carter as the man he had seen.

48        The defense offered no evidence to rebut the state, and the

49   jury returned a verdict of guilty to capital murder.             At the

50   penalty stage, the state called witnesses to establish that Carter

51   had committed another murder six days prior to the charged offense.

52   Although none of the witnesses directly observed the second murder,

53   one identified Carter as the man she observed fleeing the scene.

54   Finally, the state introduced Carter's confession, in which he

55   confessed to the second murder, once again.

56        In rebuttal, defense counsel offered the testimony of three

57   witnessesSSCarter, his mother, and a family friendSSto establish

58   Carter's   good   character.   Carter   testified   that   he   had   not

59   intentionally killed the two victims and pledged to rehabilitate

60   himself if sentenced to life imprisonment rather than death.

61   Finally, in response to the character evidence, detective L.B.

62   Smith testified that Carter’s reputation as a peaceful and law-

63   abiding citizen was “bad.”     After brief deliberation, the jury

64   affirmatively answered the three special issues submitted pursuant

65   to TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981), and the trial

66   court imposed the death sentence.



67                                    C.

68        In 1990, Carter filed his first state habeas petition.            In

69   August 1995, the state trial court recommended that state habeas


                                       3
70   relief be denied, and the Texas Court of Criminal Appeals denied

71   this first habeas petition in December 1995.

72        In August 1995, while the original state habeas petition was

73   pending, Carter filed his second state habeas application, alleging

74   that the length of time between his sentencing and his scheduled

75   execution rendered his death sentence cruel and unusual punishment

76   in violation of the Eighth Amendment.             The state trial court

77   recommended that habeas relief be denied, and the Court of Criminal

78   Appeals denied this second application in January 1996.

79        Having finally exhausted his state remedies, Carter filed the

80   instant federal habeas petition in January 1996, followed soon

81   thereafter by a motion for discovery, a motion for an evidentiary

82   hearing, and an application for stay of execution.             On March 20,

83   1996, the federal district court entered final judgment, denying

84   habeas relief.     Carter appealed, and the district court issued a

85   certificate of probable cause (“CPC”) on April 19, 1996.

86        We affirmed on April 9, 1997.        See Carter v. Johnson, 110 F.3d

87   1098 (5th Cir. 1997).      On June 23, 1997, the Supreme Court decided

88   Lindh v. Murphy, 521 U.S. ___, 117 S. Ct. 2059 (1997).          Carter then

89   petitioned for writ of certiorari, raising, as his sole issue,

90   whether the Supreme Court, “under its customary 'GVR' practice,[2]

91   should remand this case for further proceedings in light of Lindh

92   v. Murphy . . . .”     (Citation omitted.)      The Court in fact did so,



            2
              The acronym “GVR” refers to the Supreme Court's practice of granting
     certiorari, vacating, and remanding for further consideration in light of some
     intervening development. The practice is thoroughly explained in Lawrence v.
     Chater, 516 U.S. 163, ___, 116 S. Ct. 604, 606-10 (1996) (per curiam).

                                           4
93    vacating and remanding “for further proceedings in light of Lindh

94    . . . .”     (Citation omitted.)        See Carter v. Johnson, 1997 U.S.

95    LEXIS 6758, 66 U.S.L.W. 3336 (U.S. Nov. 10, 1997).



96                                           II.

97                                            A.

98          Our    initial    opinion,     110     F.3d   at   1103,     involved     an

99    interpretation of the Antiterrorism and Effective Death Penalty Act

100   (“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996),3

101   that has since been rejected by the Supreme Court.                In Lindh, the

102   Court rejected the argument that the procedural rules established

103   in chapter 153 of the AEDPA, 28 U.S.C.A. § 2254(d) (1997), could be

104   applied to cases initiated before the AEDPA's effective date.                  See

105   Lindh, 521 U.S. at ___, 117 S. Ct. at 2068.

106         In our initial opinion, we held that the AEDPA’s procedural

107   provisions could be applied to Carter’s habeas petition despite the

108   fact that     his   case   was   initiated     before    the   effective    date.

109   Carter, 110 F.3d at 1103.        On the basis of this holding, we applied

110   a highly deferential standard of review to the state and district

111   habeas courts’ conclusions regarding questions of law and mixed

112   questions of law and fact.             We assume that the Supreme Court



            3
              The AEDPA significantly altered the landscape of federal habeas corpus
      jurisprudence. First, it imposed a jurisdictional prerequisite on appeal from a
      final order in a federal habeas proceeding, prohibiting the appeal unless a circuit
      justice or judge issues a “certificate of appealability” (“COA”). See AEDPA § 102
      (codified at 28 U.S.C. § 2253(c)(1)). Second, the AEDPA amended the procedures
      governing collateral review of state convictions in federal court. See AEDPA §§
      101-106 (codified at 28 U.S.C. §§ 2241-2255). And finally, the AEDPA provides for
      expedited procedures governing federal habeas petitions in capital cases. See AEDPA
      § 107 (codified at 28 U.S.C. §§ 2261-2266).

                                              5
113   remanded so that we may apply the correct standard of review to

114   Carter’s appeal.



115                                           B.

116         Before reaching the merits, we must decide whether we have

117   jurisdiction to entertain the appeal.          Although neither party has

118   challenged our jurisdiction, we are obliged to raise the issue sua

119   sponte.4

120         The AEDPA became effective April 24, 1996, five days after

121   Carter's CPC was issued.       Under similar circumstances, we recently

122   held that the AEDPA's requirement of a COA does not apply to habeas

123   applicants who obtained CPC's prior to the statute's effective

124   date.      See Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).

125   Accordingly, we have jurisdiction.




126                                       III.

127                                           A.

128         When we initially decided this case, we followed Drinkard v.

129   Johnson,    97   F.3d   751,   764-66   (5th   Cir.   1996),   cert.   denied,

130   117 S. Ct. 1114 (1997), and held that the amended standards of

131   review established in § 104(3)of the AEDPA (codified at 28 U.S.C.

132   § 2254(d) (1997)) are procedural in nature and therefore apply

133   immediately to all habeas petitions pending on the effective date


           4
              See, e.g., United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995);
      Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir. 1993).

                                              6
134   of the AEDPA.        See Carter, 110 F.3d at 1103.                 Under Lindh,

135   however, this was error, and § 104(3) of the AEDPA does not apply

136   to this case.     Accordingly, we must take a fresh look at Carter’s

137   appeal, applying traditional standards of review to the district

138   court’s conclusions of law and applications of law to fact.5

139

140                                            IV.

141         Carter   alleges      that   the   state      introduced   the   fraudulent

142   testimony of an “imposter witness” at trial, thereby incriminating

143   him and undermining the integrity of the verdict.                 To succeed on

144   such a claim, Carter must establish three elements: first, that

145   false    testimony    was    presented         at   trial;   second,   that   the

146   prosecution had actual knowledge that the testimony was false; and

147   third, that the testimony was material.              May v. Collins,     955 F.2d

148   299, 315 (5th Cir. 1992).          Carter cannot satisfy this standard.



149                                            A.

150         The sole evidence Carter offers to establish the first element

151   is the affidavit of David Josza.              Josza, who was identified as an

152   eyewitness during the murder investigation, avers that he did not

153   testify at Carter's trial.           Nevertheless, the trial transcript

154   indicates that an individual identified as “David Josa” testified

           5
              Lindh holds that while Congress did not intend immediate application of
      chapter 153 of the AEDPA, it did intend immediate application of chapter 154, which
      provides for expedited procedures in qualifying states. See Lindh, 521 U.S. at ___,
      117 S. Ct. at 2063. We have previously determined, however, that the State of Texas
      has not yet qualified for the expedited procedures governing habeas corpus petitions
      in capital cases. See Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated
      in part on other grounds, 105 F.3d 209 (5th Cir. 1997). Accordingly, we did not
      apply those procedures when we initially heard this case, and will not do so now.

                                                7
155   for the prosecution, offering substantially the same testimony as

156   the statement given by Josza during the investigation.                   Therefore,

157   Carter concludes that the witness who testified at trial must have

158   been an imposter.      Even if we assume, arguendo, that the testimony

159   was   fraudulent,     the   introduction         of   fraudulent    testimony   is

160   insufficient by itself to entitle Carter to habeas relief.6




161                                           B.

162         The Fourteenth Amendment is implicated by the introduction of

163   fraudulent or perjured testimony only if the prosecution has actual
                                      7
164   knowledge of the perjury.           We have consistently stated that this

165   requirement imposes a strict burden of proof on a federal habeas

166   petitioner.      See, e.g., May, 955 F.2d at 315; Koch v. Puckett,

167   907 F.2d 524, 531 (5th Cir. 1990).                Carter cannot satisfy this

168   burden.

169         Carter    relies   exclusively        on   circumstance      and   inference,

170   arguing that an “imposter witness” could not possibly testify at

171   trial without the substantial complicity of the prosecution.                    To

172   rebut this inference, the state introduced the affidavit of then-

173   prosecutor Brian Rains, which the state court found to be credible,

                6
                 Concluding that it was impossible to verify the identity of the
      challenged witness ten years after the fact, neither the state habeas court nor
      the federal district court found that David Josza did actually testify at trial.
      Because we hold that Carter failed to establish either knowledge or prejudice,
      however, we need not determine whether the contested testimony indeed was
      fraudulent.
            7
              See, e.g., United States v. Agurs, 427 U.S. 97, 103 (1976); Napue v.
      Illinois, 360 U.S. 264, 269 (1959); accord Spence v. Johnson, 80 F.3d 989, 996 (5th
      Cir.), cert. denied, 117 S. Ct. 519, and cert. denied, 117 S. Ct. 519 (1996).

                                              8
174   averring that he would not knowingly or intentionally present an

175   imposter witness at trial. After weighing this competing evidence,

176   the state court concluded there was no evidence that the state had

177   knowingly or intentionally presented an “imposter witness” at

178   trial.

179             These factual findings are entitled to a presumption of

180   correctness.8         The state court reasonably determined that Carter

181   had       not   satisfied    his    burden    to    prove    that   the    prosecution

182   knowingly or intentionally presented perjured testimony at trial.

183   We have no reason to doubt either the fairness of the state court’s

184   procedure or the correctness of its result.



185                                                C.

186             Both the state habeas court and the federal district court

187   dismissed the perjury claim on the ground that the alleged perjury

188   was not material to the outcome of the trial.                     For the perjury to

189   be material, Carter must show that “there was any reasonable

190   likelihood        that     the    false   testimony       could   have    affected     the

191   judgment of the jury.”9               Under the circumstances of this case,

192   Carter cannot make such a showing.

193             Given that the star witness for the prosecution was Carter,

194   whose         confession    was    introduced      into    evidence,      there   is    no


            8
             See 28 U.S.C. § 2254(d) (1988) (stating the presumption of correctness that
      was in effect before enactment of the AEDPA); Buxton v. Lynaugh, 879 F.2d 140, 144
      (holding that findings made on the basis of affidavits are entitled to presumption
      of correctness).
                9
             Agurs, 427 U.S. at 103; accord Spence, 80 F.3d at 997; see also Kyles v.
      Whitley, 514 U.S. 419, 433 n.7 (1995) (approving Agurs's materiality test).

                                                   9
195   reasonable   likelihood   that   Josa's   allegedly   false   testimony

196   affected the verdict.     The prosecution did not rely on Josa's

197   testimony to establish the essential elements of the offense, but

198   merely to corroborate the confession.        Moreover, the contested

199   evidence was cumulative of other evidence, particularly Mallard's

200   testimony.

201        Carter has failed to establish that the prosecution knowingly

202   and intentionally presented material false evidence.      Accordingly,

203   we find no error in the state court's determination on this issue.



204                                     V.

205        Carter contends that the district court erred by failing to

206   conduct a nunc pro tunc evidentiary hearing to determine his

207   competency to stand trial.   We disagree.



208                                     A.

209        The trial and conviction of a defendant while he is mentally

210   incompetent constitute a denial of due process.         See Cooper v.

211   Oklahoma, 517 U.S. 348, ___, 116 S. Ct. 1373, 1376 (1996).         The

212   constitutional standard for competency to stand trial is whether

213   the defendant “has sufficient present ability to consult with his

214   lawyer with a reasonable degree of rational understandingSSand

215   whether he has a rational as well as a factual understanding of the

216   proceedings against him.”    Dusky v. United States, 362 U.S. 402,

217   402 (1960); accord Godinez v. Moran, 509 U.S. 389, 396 (1993).

218   Carter claims that he adduced sufficient evidence in the state


                                        10
219   courts to warrant a federal nunc pro tunc evidentiary hearing on

220   the question of whether he was incompetent in fact.10

221         A habeas petitioner is entitled to a nunc pro tunc evidentiary

222   hearing for the purpose of proving that he was incompetent at the

223   time of trial only “when he makes a showing by clear and convincing

224   evidence to raise threshold doubt about his competency.”               Lokos v.

225   Capps, 625 F.2d 1258, 1261 (5th Cir. 1980).             In order for him to


           10
              The issue of competency may arise in two distinct contexts. See United
      States v. Williams, 819 F.2d 605, 607-09 (5th Cir. 1987); Lokos v. Capps,
      625 F.2d 1258, 1261-62 (5th Cir. 1980). We must distinguish between them for
      purposes of the present case.
            First, a habeas petitioner may allege that state procedures were inadequate
      to ensure that he was competent to stand trial. A trial court must conduct an
      inquiry into the defendant’s mental capacity sua sponte if the evidence raises
      a bona fide doubt as to competency. Pate v. Robinson, 383 U.S. 375 (1966). If
      the trial court receives evidence, viewed objectively, that should raise a
      reasonable doubt as to competency, yet fails to make further inquiry, this
      constitutes a denial of a fair trial. See Lokos, 625 F.2d at 1261.

            If a Pate violation is established, the federal habeas court must consider
      whether a meaningful hearing can be held nunc pro tunc to determine
      retrospectively the petitioner’s competency as of the time of trial. Id. at
      1262. If so, the petitioner bears the burden of proving his incompetence by a
      preponderance of the evidence; if not, the habeas writ must issue, subject to
      retrial at the state's discretion. Id. This Pate procedural guarantee is not
      before us, having been expressly abandoned by Carter on appeal.
            Second, a habeas petitioner may collaterally attack his state conviction
      by directly alleging incompetence at the time of trial, thereby claiming a
      violation of the substantive right not to be tried and convicted while
      incompetent, rather than of the procedural guarantee of a competency hearing in
      the event that a bona fide doubt arises at trial as to competency:
            It is always open for the defendant to later assert his actual
            incompetence at trial in a subsequent collateral proceeding, but the
            substantive claim should not be confused with a defendant’s
            procedural rights under Pate to a hearing whenever a bona fide doubt
            as to competence surfaces at trial.
      Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir.1979).
            Although Carter originally claimed both (1) that the state trial court
      violated his due process rights by failing to conduct an evidentiary hearing on
      his competency to stand trial sua sponte and (2) that the federal district court
      should conduct a nunc pro tunc evidentiary hearing to determine his competency
      at the time of trial, he has abandoned the former claim on appeal. Therefore,
      the issue before us is restricted to the question whether the district court
      erred by failing to conduct a nunc pro tunc evidentiary hearing on the question
      of competency at the time of trial.

                                             11
226   raise such doubt, he must present facts sufficient “to positively,

227   unequivocally      and    clearly     generate   a   real,    substantial      and

228   legitimate doubt” concerning his mental capacity.11               “When federal

229   habeas is sought on the ground that the defendant was in fact

230   incompetent at the time of trial, the petitioner’s initial burden

231   is substantial.”         Enriquez v. Procunier, 752 F.2d 111, 114 (5th

232   Cir. 1984).

233          Both the state habeas court and the federal district court

234   concluded that a nunc pro tunc evidentiary hearing was not required

235   to decide whether Carter was incompetent at trial.                  Indeed, the

236   state habeas court expressly concluded that Carter was competent:

237   “The    Court   finds    that   the    applicant’s     testimony     during    the

238   punishment stage of the trial shows a factual, as well as rational

239   understanding of the proceedings against him.” Moreover, the state

240   habeas court entered the following conclusion:                  “The applicant

241   fails to show that he was legally incompetent to stand trial, i.e.,

242   that he was unable to consult with counsel with a reasonable degree

243   of rational understanding or that he lacked a factual, as well as

244   rational, understanding of the proceedings against him.”                    These

245   findings are more than adequate to justify the district court's

246   conclusion that “the state court found that there was no evidence




             11
               United States v. Williams, 819 F.2d 605, 609 (5th Cir. 1987); Bruce v.
      Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973), subsequent opinion, 536 F.2d 1051,
      1058-59 (5th Cir. 1976). This threshold burden of proof is “extremely heavy.”
      Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983); accord Williams, 819 F.2d at
      609.

                                              12
247   that Petitioner was actually incompetent to stand trial.”12

248         Under 28 U.S.C. § 2254(d), the findings are entitled to a

249   presumption     of   correctness.       The   petitioner     must       rebut   this

250   presumption by clear and convincing evidence, and a federal court

251   may not issue a writ unless the petitioner can demonstrate by such

252   evidence    that     the   state   decision    was   based   on    an    incorrect

253   determination of the facts. Furthermore, the factual determination

254   of the state habeas court, finding that Carter failed to establish

255   he was legally incompetent to stand trial, must be afforded the

256   presumption of correctness.13

            12
              Carter claims that the state habeas court entered findings of fact and
      conclusions of law exclusively on the procedural Pate claim, not the substantive
      incompetency claim, thereby forfeiting the presumption of correctness afforded
      state court factual findings under 28 U.S.C. § 2254(d) (1988) for the latter
      claim. Although the findings of fact are not exhaustive, it is significant that
      the findings entered by the state habeas court are not limited to the narrow
      question of whether a bona fide doubt existed at trial concerning Carter's
      competency, but also support the conclusion that he was “competent in fact” at
      the time of trial.
          13
             See Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (assuming that
      competency is a factual determination entitled to the presumption of correctness);
      see also Miller v. Fenton, 474 U.S. 104, 113 (1985) (citing Maggio for the
      proposition that competency is a question of fact entitled to the presumption of
      correctness); Flugence v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (same); Williams,
      819 F.2d at 607-08 (same). The mere fact that the state court dismissed the
      habeas petition on the basis of affidavits, without granting an evidentiary
      hearing, does not disturb the presumption of correctness under § 2254(d). We
      have consistently recognized that, to be entitled to the presumption of
      correctness, a state court need not hold an evidentiary hearing; to the contrary,
      findings of fact based exclusively on affidavits are generally sufficient to
      warrant the presumption. See May v. Collins, 955 F.2d 299, 309-15 (5th Cir.
      1992); see also Sawyer v. Collins, 986 F.2d 1493, 1504-05 (5th Cir. 1993)
      (affording presumption of correctness to factual findings rendered solely on the
      basis of affidavits); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990)
      (same); Buxton v. Lynaugh, 879 F.2d 140, 143-47 (5th Cir. 1989) (same).
            Furthermore, although our prior decisions have characteristically involved
      cases in which the state habeas judge was the same judge who presided at trial,
      see, e.g., May, 955 F.2d at 314; Buxton, 879 F.2d at 146, we have never held that
      this is a prerequisite to according the presumption of correctness to factual
      findings based solely on affidavits. To the contrary, we have recognized that
      “it is necessary to examine in each case whether a paper hearing is appropriate
      to the resolution of the factual disputes underlying the petitioner’s claim.”
      May, 955 F.2d at 312. In the instant case, we are satisfied that the facts were
                                                                        (continued...)

                                              13
257                                            B.

258         Given the combined weight of the presumption of correctness

259   and the high burden of proof necessary to justify a nunc pro tunc

260   evidentiary hearing on the question of competency, Carter has

261   failed to demonstrate that the state habeas court erred in denying

262   his allegation of incompetency.               Carter relies primarily on the

263   affidavit of Dr. Dorothy Lewis, his board-certified psychiatrist,

264   who concluded that a history of head injuries, mental retardation,

265   and brain damage impaired his ability to make mature judgments,

266   appreciate the consequences of his behavior, and reflect in advance

267   on the appropriateness of his actions.              The fact that neither the

268   state habeas court nor the district court discussed this expert

269   opinion does not overcome the presumption of correctness.

270         First, Lewis did not offer her opinion that Carter was unable

271   to consult with his lawyers with a reasonable degree of rational

272   understanding or was unable to command a rational or factual

273   understanding of the proceedings against himSSthe minimum standard

274   for a finding that he was incompetent.                    Therefore, it was not

275   unreasonable     for   the   state      habeas    court    to   find   this   expert

276   testimony unpersuasive.

277         Furthermore, the state habeas court is entitled to find a

278   defendant    competent,      despite     the     introduction     of   psychiatric

279   testimony    diagnosing      him   as    incompetent,      without     ordering   an

280   evidentiary hearing.          See, e.g., Maggio, 462 U.S. at 113-18.


      (...continued)
      adequately developed in the record and the affidavits, and the state habeas court
      was entitled to render a factual determination based solely on the affidavits.

                                               14
281   Therefore, we previously have found similar expert psychiatric

282   testimony insufficient to satisfy the petitioner’s extremely heavy

283   burden of proving a “real, substantial and legitimate doubt”

284   concerning his competency, as required to warrant a nunc pro tunc

285   evidentiary hearing.    See, e.g., Williams, 819 F.2d at 607-09.

286   Hence, the Lewis affidavit is not sufficient, without more, to

287   establish the requisite “clear and convincing evidence” necessary

288   to overcome the presumption of correctness, nor does it demonstrate

289   the “real, substantial and legitimate doubt” necessary to warrant

290   a nunc pro tunc evidentiary hearing on the question of competency.

291        To the contrary, the state habeas court expressly found that

292   Carter's testimony established that he possessed a rational and

293   factual understanding of the proceedings against him.       Such a

294   conclusion by a state court, based upon a defendant’s testimony, is

295   entitled to a presumption of correctness.     See Holmes v. King,

296   709 F.2d 965, 968 (5th Cir. 1983).

297        Finally, Carter corroborates his claim of incompetency with

298   evidence of physical abuse and neglect and with anecdotal comments

299   made by the prosecutor and defense counsel at trial. Nevertheless,

300   the state habeas court found credible and persuasive the affidavits

301   offered by Carter’s court-appointed trial counsel, who stated that

302   they believed he was competent to stand trial and did not think his

303   prior head injuries had impaired his mental competency during the

304   trial.   These factual findings are entitled to the presumption of

305   correctness, and the anecdotal evidence is insufficient to overcome

306   this presumption by clear and convincing evidence.


                                      15
307                                           VI.

308           Carter did not contest the voluntariness of his confession,

309   and     it   thus    was   admitted    into     evidence      without      objection.

310   Nevertheless, he now collaterally attacks the admissibility of the

311   confession on the ground that it was involuntary.                     His claim is

312   meritless.



313                                            A.

314           A federal court entertaining a collateral challenge to the

315   voluntariness of a confession is obliged to afford a presumption of

316   correctness to state court findings of fact if fairly supported in

317   the record but is authorized to exercise de novo review over the

318   ultimate      conclusion     of   whether,      under     the    totality    of     the

319   circumstances, the confession was “voluntary.”14

320

321                                            B.

322           Pursuant to Jackson v. Denno, 378 U.S. 368 (1964), the trial

323   court conducted a hearing on the voluntariness of the confession

324   and entered factual findings, concluding that the confession was

325   freely and voluntarily made.            Therefore, we must presume correct

326   the    factual      determination     that    the    police     offered    Carter   no

327   improper     inducements     to   obtain      his    confession,     nor    did   they

328   threaten him in order to coerce it.                 The determination of whether

329   officers engaged in coercive tactics to elicit a confession is a


            14
             Thompson v. Keohane, 116 S. Ct. 457, 465 (1995); Miller v. Fenton, 474 U.S.
      104, 110-18 (1985); accord West v. Johnson, 92 F.3d 1385, 1402-03 (5th Cir. 1996),
      cert. denied, 117 S. Ct. 1847 (1997).

                                               16
330   question of fact, and the state court’s factual findings are

331   entitled to deference if supported in the record.15

332            Likewise, the state habeas court entered extensive factual

333   findings concerning the voluntariness of the confession, finding,

334   inter alia, that Carter was timely advised of his Miranda rights;

335   that he understood his rights, yet declined to request the presence

336   of either an attorney or a family member while in custody; that he

337   was offered no inducements to confess and suffered no threats or

338   coercion to extract a confession while in custody; that he was

339   mentally     competent    and    cooperative         at    the   time   he   made      his

340   confession; and that he acknowledged that his statement was made

341   voluntarily.          These     factual   findings         are    entitled        to   the

342   presumption of correctness under 28 U.S.C. 2254(d) (1988).                              To

343   overcome the presumption, Carter must rebut these factual findings

344   by clear and convincing evidence.              Id.    This he cannot do.

345            In his federal habeas petition, Carter sought to overcome the

346   factual findings by raising charges of coercion, intimidation, and

347   mental retardation.           The district court found, however, that his

348   allegations      of    coercion     and    duress         were    conclusional         and

349   unsupported by the evidence adduced at trial or presented by

350   affidavit,     and    likewise    found    that      the    allegation       of    mental

351   retardation was without merit.                 This factual determination is

352   adequately supported by the record.               Therefore, we must accept as


          15
             Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993); Self v. Collins,
      973 F.2d 1198, 1204 (5th Cir. 1992); see also Miller, 474 U.S. at 112 (noting that
      subsidiary questions such as whether the police engaged in coercive tactics are
      afforded the presumption of correctness); Hawkins v. Lynaugh, 844 F.2d 1132, 1137
      (5th Cir. 1988) (same).

                                                17
353   conclusive     the   state    court    factual    determination      that    the

354   challenged confession was given voluntarily, not as a product of

355   coercion or intimidation.



356                                          C.

357         Accepting these subsidiary facts as true, we must reach the

358   ultimate    question    whether    Carter's    challenged     confession     was

359   voluntary or constitutionally infirm.            The state trial and habeas

360   courts concluded that it was voluntary.             Applying pre-AEDPA law,

361   the ultimate question whether a confession is voluntary is a

362   question of law, to be reviewed de novo.               See United States v.

363   Scurlock, 52 F.3d 531, 536 (5th Cir. 1995).

364         Coercive police conduct is a necessary prerequisite to the

365   conclusion that a confession was involuntary, and the defendant

366   must establish a causal link between the coercive conduct and the

367   confession. See Colorado v. Connelly, 479 U.S. 157, 163-67 (1986).

368   Although mental condition may be a significant factor in the

369   voluntariness calculus, “this fact does not justify a conclusion

370   that a defendant’s mental condition, by itself and apart from its

371   relation to official coercion, should ever dispose of the inquiry

372   into constitutional 'voluntariness.'”          Id. at 164.16    Consequently,

373   in the absence of any evidence of official coercion, Carter has


            16
               Consequently, Carter’s allegations concerning his state of mind at the
      time of the confession are unavailing, for “while mental condition is surely
      relevant to an individual’s susceptibility to police coercion, mere examination
      of the confessant’s state of mind can never conclude the due process inquiry.”
      Connelly, 479 U.S. at 165; see also Raymer, 876 F.2d at 386-87 (noting that
      mental condition does not render a confession involuntary in the absence of state
      coercion).

                                             18
374   failed to establish that his confession was involuntary.                         See

375   United States v. Raymer, 876 F.2d 383, 386 (5th Cir. 1989).



376                                           VII.

377         Carter raises a litany of ineffective-assistance-of-counsel

378   claims,    urging    that     his     court-appointed     trial     counsel      were

379   constitutionally defective at both the guilt and punishment stages

380   of the trial.      Carter is unable, however, to overcome the rigorous

381   burden of proof required to demonstrate ineffective assistance.



382                                              A.

383         A   habeas    petitioner       alleging   ineffective     assistance       must

384   demonstrate both constitutionally deficient performance by counsel

385   and actual prejudice as a result of such ineffective assistance.

386   See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also

387   Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing

388   the Washington standard of review).                 Failure to prove either

389   deficient    performance       or     actual    prejudice      is   fatal   to    an

390   ineffective assistance claim.              Washington, 466 U.S. at 687.

391         To establish deficient performance, the petitioner must prove

392   that the performance of counsel fell below an objective standard of

393   reasonableness.      Id. at 688.       Therefore, courts may not fall prey

394   to   “the distorting        effect    of    hindsight”   but    must   be   “highly

395   deferential” to counsel's performance.               Id. at 689-90.           Hence,

396   there is a strong presumption that the performance “falls within

397   the wide range of reasonable professional assistance.” Id. at 689.


                                                 19
398   Carter has the burden to overcome this presumption.

399        Moreover, even if counsel's performance was deficient, Carter

400   must affirmatively demonstrate actual prejudice. To do so, he must

401   establish that the attorneys' errors were so deficient as to render

402   the verdict fundamentally unfair or unreliable.                        See Lockhart v.

403   Fretwell, 506 U.S. 364, 369 (1993); Washington, 466 U.S. at 687.

404   In evaluating claims of ineffective assistance during the guilt

405   stage    of   the    trial,      the    petitioner      must    show    a   “reasonable

406   probability”        that   the    jury    would      have    otherwise      harbored   a

407   reasonable doubt concerning guilt. Regarding the sentencing phase,

408   the petitioner must establish a “reasonable probability” that the

409   jury would not have imposed the death sentence in the absence of

410   errors by counsel.         Id. at 695.             “A reasonable probability is a

411   probability sufficient to undermine confidence in the outcome.”

412   Id. at 694.

413        For purposes of federal habeas review, state court findings of

414   fact made in the course of deciding an ineffectiveness claim are

415   entitled to a presumption of correctness.                   See 28 U.S.C. § 2254(d)

416   (1988); see also Washington, 466 U.S. at 698 (noting that findings

417   of fact are afforded deference); Motley, 18 F.3d at 1226 (same).

418   Unless   Carter      rebuts      them    by    clear   and     convincing     evidence,

419   therefore, we are required to accept, as conclusive, both the

420   factual findings and the credibility choices of the state courts.

421   See Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990).

422        The       ultimate          determination          whether         counsel     was

423   constitutionally ineffective is a mixed question of law and fact


                                                    20
424   that federal habeas courts have traditionally reviewed de novo.

425   See, e.g., Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996);

426   United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).                   Given

427   the holding in Lindh, we must apply this traditional de novo

428   standard to Carter’s appeal.



429                                           B.

430                                           1.

431          Carter avers that his trial counsel were ineffective because

432   they failed to challenge his competency to stand trial.                   The state

433   habeas     court,     however,      accorded       credibility     to     counsel's

434   affidavits, averring that they had no reason to believe that Carter

435   was mentally incompetent at the time of trial.                 Furthermore, the

436   state    habeas   court    found    there    was    insufficient     evidence     to

437   conclude that Carter was mentally incompetent.

438          These findings of fact and credibility determinations are

439   entitled to a presumption of correctness, and Carter has not

440   introduced the requisite clear and convincing evidence to prove

441   that     they   are   erroneous.        Therefore,       because    the    factual

442   determination       that   Carter    was     competent    to     stand    trial   is

443   conclusive and binding on us, it necessarily follows that his trial

444   counsel were not constitutionally ineffective in their failure to

445   contest the competency of the defendant to stand trial. “There can

446   be no deficiency in failing to request a competency hearing where

447   there is no evidence of incompetency.”              McCoy v. Lynaugh, 874 F.2d

448   954, 964 (5th Cir. 1989).


                                              21
449                                              2.

450            Carter alleges that his counsel might have exposed the alleged

451   “imposter witness” if they had interviewed David Josza prior to

452   trial.          Carter did not raise this argument explicitly in the

453   district court, but argues that it is subsumed within his argument

454   that counsel were ineffective in failing to interview government

455   witnesses         and   adequately    to   prepare   for   trial.   This   vague

456   allegation was not sufficient to place the district court on notice

457   of the claim that Carter now urges, however, and thus the claim is

458   deemed abandoned.17

459            Furthermore, Carter’s argument that his trial counsel “might”

460   have exposed the alleged “imposter witness” is pure speculation,

461   insufficient to overcome the strong presumption of competency and

462   the high burden of actual prejudice required to prove ineffective

463   assistance of counsel.             Indeed, given that the contested testimony

464   was merely cumulative and immaterial to the outcome of the trial,18

465   we cannot conclude that there is a reasonable probability that the

466   jury would have harbored a reasonable doubt about guilt, even if

467   the alleged “imposter witness” had been “exposed” by trial counsel.

468   The voluntary confession precluded any such reasonable doubt, so

469   Carter is entitled to no relief on this claim.



470                                              3.


          17
             See Nichols v. Scott, 69 F.3d 1255, 1285 (5th Cir. 1995), cert. denied, 116
      S. Ct. 2559 (1996); United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990).
               18
                    See supra part IV.

                                                 22
471         Carter alleges that his trial counsel were ineffective in

472   failing to challenge the admissibility of his confession.      But, as

473   we noted previously, the state habeas court accorded credibility to

474   counsel's affidavits, finding that the attorneys were justified in

475   their conclusion that the confession had been given voluntarily and

476   that there were no grounds to object to admissibility.      Moreover,

477   both the state trial court and the state habeas court found that

478   the confession was voluntary.

479         The presumption of correctness attaches to these factual

480   findings and credibility determinations, and Carter cannot overcome

481   it.   At a minimum, we cannot conclude that the performance of

482   counsel was “objectively unreasonable.”     See Washington, 466 U.S.

483   at 688.   Therefore, counsel did not render ineffective assistance

484   of counsel by failing to object, when objection would have been

485   futile.



486                                     4.

487         Carter claims that his trial counsel were defective in their

488   presentation of the “accidental death” defense, whereby they argued

489   that Carter had not actually intended to kill Reyes but had

490   accidentally discharged the weapon during a brief struggle at the

491   cash register.   Carter contends that his counsel denigrated the

492   “accidental   death”   defense   during   their   closing   arguments.

493   Furthermore, he argues that his counsel were deficient for failing

494   to propose a jury instruction on the question of accident.      These

495   allegations were not adequately presented to the district court,


                                        23
496   however, and they are deemed waived.      See Nichols, 69 F.3d at 1285;

497   Smith, 915 F.2d at 964.



498                                     5.

499        Carter claims that his defense counsel were deficient in

500   failing adequately   to    investigate    the   facts   of   the   case   and

501   Carter's background; he claims that such an investigation would

502   have produced numerous character witnesses who would have testified

503   during the punishment stage of the trial, as well as expert

504   testimony concerning his mental incapacity.             Therefore, Carter

505   contends, the deficient performance of counsel deprived him of

506   mitigating evidence that would have significantly influenced the

507   jury’s decision whether to impose the death penalty.               The state

508   habeas court found, however, that the testimony of such character

509   witnesses would have been cumulative and would not have been

510   sufficient to change the verdict.        We have no reason to question

511   this conclusion.

512        Given Carter's confession to the crime of murder, we can

513   hardly conclude that the testimony of character witnesses to his

514   reputation as a “good and peaceful person” would have sufficiently

515   impressed the jury to avoid the sentence of death.           Consequently,

516   the conclusion of the state habeas court that Carter failed to

517   demonstrate prejudice resulting from the absence of such character

518   witnesses was not error.

519        As to the allegation that defense counsel were deficient in

520   their failure adequately to investigate mental capacity and to


                                        24
521   secure expert witnesses who would offer mitigating evidence at the

522   punishment         stage,      that   claim    is    foreclosed     by    the   factual

523   conclusion that defense counsel were justified in believing that

524   Carter was mentally competent at the time of trial.19                     Furthermore,

525   the state habeas court found that there was insufficient evidence

526   to warrant the conclusion that Carter was incompetent in fact at

527   the time of trial, necessarily foreclosing any claim of ineffective

528   assistance predicated on the failure to investigate such alleged

529   incompetency.         See Motley, 874 F.2d at 964.

530           The duty of trial counsel to investigate is tempered by the

531   information provided to counsel by the defendant.                     When, as here,

532   the defendant has given counsel reason to believe that certain

533   investigations would be fruitless or harmful, the failure to pursue

534   such investigations may not later be challenged as unreasonable.

535   “In     any      ineffectiveness      case,    a    particular      decision    not   to

536   investigate must be directly assessed for reasonableness in all the

537   circumstances, applying a heavy measure of deference to counsel’s

538   judgments.”         Washington, 466 U.S. at 190-91.           Given that the state

539   courts have concluded that Carter was mentally competent at the

540   time        of   trial,   it    necessarily        follows   that   the    failure    to

541   investigate his mental competency in preparation for trial, or to

542   elicit expert testimony concerning his mental state during the

543   punishment phase of trial, was not ineffective assistance.




             19
              See Byrne v. Butler, 845 F.2d 501, 513 (5th Cir. 1988); accord Barnard v.
      Collins, 958 F.2d 634, 642 (5th Cir. 1992).

                                                    25
544                                          6.

545         Carter argues that his defense counsel were defective in

546   failing to object to the admissibility of his confession to the

547   murder of R.B. Scott, an extraneous offense that was introduced by

548   the   prosecution    during    the   punishment     stage   to   justify    the

549   imposition    of   the   death    penalty.      Carter    claims   there    was

550   insufficient evidence to corroborate this confession and insists

551   that it would have been excluded from the jury on a proper

552   objection.     Carter concedes, however, that he did not raise this

553   issue in the district court.         Therefore, it is deemed waived.        See

554   Nichols, 69 F.3d at 1285; Smith, 915 F.2d at 964.20



555                                          7.

556         Carter claims that his trial counsel were deficient in failing

557   to instruct the jury that “deliberate” conduct requires proof of

558   something more than “intentional” conduct under Texas law.21 Carter

559   failed to raise this issue before the district court, however,

560   thereby abandoning it.           See Nichols, 69 F.3d at 1285; Smith,

561   915 F.2d at 964.


           20
              Carter pleads for an exception to this rule, claiming that a miscarriage
      of justice will result from our refusal to address his argument. This claim is
      meritless, however, given the absence of any colorable reason to question his
      factual guilt. The corroboration requirement serves the function of assuring
      that confessions represent a truthful representation of the facts, thereby
      confirming factual guilt. See Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim.
      App. 1994).    Carter has suggested no reason to question the truth of his
      statement, nor does he deny his factual guilt of Scott's murder.
            21
              See, e.g., Motley v. State, 773 S.W.2d 283, 289 (Tex. Crim. App. 1989);
      Heckert v. State, 612 S.W.2d 549, 552-53 (Tex. Crim. App. 1981); see also Earvin
      v. Lynaugh, 860 F.2d 623, 627 (5th Cir. 1988) (“It is clear that something more
      than intentional conduct must be found at the punishment phase of the trial on
      the issue of 'deliberateness.'”).

                                             26
562                                          8.

563         Carter charges that defense counsel demonstrated a personal

564   antipathy    toward    him    during   their      closing   arguments   in   the

565   punishment phase of the trial, thereby prejudicing the jury.22               The

566   state habeas court, however, summarized in great detail counsel's

567   closing arguments, noting that counsel pleaded for mercy and

568   compassion, summarized the arguments against the death penalty, and

569   urged the jury to sentence Carter to life imprisonment rather than

570   death.     Therefore, defense counsel did not abdicate their role as

571   advocates, and the state habeas court concluded that their closing

572   arguments     did   not      transgress     the    “objective    standard     of

573   reasonableness.” Washington, 466 U.S. at 688. Having reviewed the

574   record, we agree.

575         In    considering      whether   counsel’s      closing   argument     was

576   ineffective, we consider the closing statements in their entirety.

577   Teague v. Scott, 60 F.3d 1167, 1173 (5th Cir. 1995).             Furthermore,

578   counsel may make strategic decisions to acknowledge the defendant's

579   culpability and may even concede that the jury would be justified

580   in imposing the death penalty, in order to establish credibility

581   with the jury.23 Although, at the penalty phase, Carter's attorneys

582   acknowledged his culpability and the need for punishment, they also



            22
               For example, defense counsel implied that Carter might have committed
      other criminal acts, questioned whether he couldSSand shouldSSlive in society,
      wondered aloud whether death was a greater punishment than life imprisonment, and
      conceded that the jury could sentence him death with a clear conscience.
           23
             See Kirkpatrick v. Butler, 870 F.2d 276, 284-85 (5th Cir. 1989); see also
      Washington, 466 U.S. at 689 (strong presumption that the strategic decisions of
      counsel are not ineffective).

                                             27
583   pleaded for mercy and urged the jury to sentence him to life

584   imprisonment rather than death.             Consequently, the argument fell

585   within “the wide range of reasonable professional assistance,” id.

586   at 689, and did not constitute ineffective assistance.



587                                        VIII.

588         Carter argues that execution of his death sentence, more than

589   fourteen years after his conviction, would violate the Eighth

590   Amendment.     We have previously held, however, that such a delay

591   does not offend the Constitution.24            Concluding that the district

592   court correctly refused to issue the writ of habeas corpus, we

593   AFFIRM the judgment and VACATE the stay of execution.




             24
                See Lackey v. Johnson, 83 F.3d 116, 117 (5th Cir.), cert. denied,
      117 S. Ct. 276 (1996); White v. Johnson, 79 F.3d 432, 437-40 (5th Cir.), cert.
      denied, 117 S. Ct. 275 (1996); Lackey v. Scott, 52 F.3d 98 (5th Cir.), cert.
      dismissed, 514 U.S. 1093 (1995). Likewise, every other court to address the
      question thus far has ruled against the petitioner. See, e.g., Stafford v. Ward,
      59 F.3d 1025 (10th Cir.), cert. denied, 515 U.S. 1173 (1995); Turner v. Jabe,
      58 F.3d 924 (4th Cir.), cert. denied, 515 S. Ct. 1017 (1995); McKenzie v. Day, 57
      F.3d 1461 (9th Cir. 1995).

                                             28
