              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 96-10616




ANDRE ANTHONY LEWIS
                                                Petitioner-Appellant,


versus



GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

                                                Respondent-Appellee,



                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                          (93-CV-0329-G)
                       - - - - - - - - - -
                        September 13, 2000


Before KING, Chief Judge and DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:*

     Petitioner-Appellant Andre Anthony Lewis appeals the district

court’s denial of his petition for habeas corpus filed pursuant to

28 U.S.C. § 2254.     This case is before us on a certificate of

probable cause (CPC).     Lewis puts forward thirteen claims, the

three most substantial of which are that (1) he is entitled to an


     *
       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this opinion should not be published and is not precedent except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.
evidentiary hearing, (2) he received ineffective assistance of

counsel, and (3) the state knowingly introduced false testimony.

Our   principal   focus     will   be   on   those   three,   but   we   shall

nevertheless identify and briefly address all thirteen claims.

                       I.    Facts and Proceedings

      Andre Anthony Lewis was convicted of capital murder in the

course of robbing a convenience store in Carrollton, Texas. He was

aided in the robbery by two other men, including his uncle, Willie

Charles Berry.    During the robbery, the murder victim, Matt McKay,

innocently entered the store as a potential customer and was

immediately ordered by Lewis to lie on the floor (presumably so

that he would not be able to identify the robbers).                 When the

frightened and confused McKay hesitatingly failed to respond, Lewis

shot him in the abdomen, then punched him and kicked him three

times as he lay on the floor.           Lewis and one of his cohorts then

completed the robbery and left in a get-away car driven by Berry.

The events of the robbery were captured on videotape by the store’s

security camera and were also witnessed by the store clerk and a

number of customers.

      Lewis was not arrested until more than six months later and

then as a result of statements made by Berry, who at the time was

incarcerated on an unrelated charge.           Lewis was tried on capital

murder charges, found guilty, and sentenced to death.           He appealed

this conviction to the Texas Court of Criminal Appeals, which

affirmed his conviction and sentence.          Rehearing was denied.      The


                                        2
United States Supreme Court denied a petition for a writ of

certiorari.     Lewis then filed a state habeas petition which the

state court denied the next day.           Approximately one month later,

the Texas Court of Criminal Appeals issued an order denying Lewis’s

habeas application.      He then filed a petition for a writ of habeas

corpus in federal district court and sought a stay of execution

pending his application for collateral relief.             The district court

granted his motion for stay of execution but subsequently denied

his habeas petition, based largely on the recommendations of the

magistrate judge.      The district court granted CPC, and this appeal

followed.

                               II.    Analysis

A.   Standard of Review

     Lewis filed his petition for habeas relief in the district

court    in   1993,   before   the   passage   of    the   Antiterrorism   and

Effective Death Penalty Act (“AEDPA”).1             Consequently, this claim

is reviewed under our pre-AEDPA standard of review, pursuant to

which we review “the district court’s determinations of law de novo

and its findings of fact for clear error.”2                “[W]e presume all

state court findings of fact to be correct in the absence of clear

and convincing evidence” to the contrary.3

B.   Entitlement to a full and fair evidentiary hearing


     1
          28 U.S.C. § 2254.
     2
         Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997).
     3
         Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994).

                                       3
      Lewis claims that in the state and federal habeas courts he

was denied the due process guaranteed to him under the Fourteenth

Amendment. He argues that this deprivation resulted from his being

accorded only insufficient “paper hearings.” Lewis claims that the

district court’s findings quoted extensively from the findings of

the state habeas court which, Lewis contends, were written by the

state prosecutors and merely rubber-stamped by the state habeas

court the day after the habeas petition was filed.                           He further

asserts that, as the state habeas judge was not the trial judge and

the habeas petition involved several credibility issues and other

factual questions, the habeas judge should not only have taken more

time but should have held “live” hearings on these issues.                         Lewis

thus advances that these hearings were not “full and fair,” so the

district court should not have deferred to the state court’s

findings of fact.

      “A    federal      habeas   court       must       allow       discovery   and   an

evidentiary hearing only where a factual dispute, if resolved in

the petitioner’s favor, would entitle him to relief and the state

has not     afforded     the   petitioner          a    full   and    fair   evidentiary

hearing.”4    Thus Lewis must show not only that he was not accorded

a   full    and   fair    opportunity         to       have    his    factual    disputes

adjudicated but also that he was prejudiced by that deprivation.

He fails on both counts.




      4
          Ward v. Whitley, 21 F. 3d 1355, 1367 (5th Cir. 1994).

                                          4
     Although Lewis is able to point to some areas where the facts

might be in doubt, he fails to demonstrate that he has not been

afforded a full and fair hearing. His strongest contention is that

the state habeas judge was not the state trial judge and thus was

not in a position to make informed decisions on such questions as

witness credibility.            This is admittedly an important factor in

determining whether a paper hearing is sufficient, yet it “is but

one factor to consider.”5          We must decide, on a case-by-case basis,

whether in light of all the circumstances the defendant received a

full and fair opportunity to have his factual disputes weighed on

state habeas review.6

     Lewis provides at best weak evidence of factual errors by the

trial court, largely in the form of unsworn, unsigned affidavits or

statements of experts who appeared only after the trial.                        Lewis

also offers no convincing proof that the state habeas judge, even

if convinced of the reliability of the “evidence” presented by

Lewis, would have found the shooting to have been the result of

impulse    or    that     it    was     anything   less    than    deliberate      and

specifically       intended.       As    the    entire   crime    was   captured   on

videotape, the state habeas judge was reasonably unpersuaded by

Lewis’s “proof.”          Irrespective of whether the judge actually

watched    the     tape    or    merely     reviewed      the    state’s   detailed

description of the events captured on it, none contest that the


     5
         See Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996).
     6
         See id.

                                            5
state accurately described the incident.                     The judge was thus

undoubtedly aware that Lewis aimed the gun, cocked the hammer, shot

the victim, kicked and punched him, and then calmly turned back to

complete the robbery, which the shooting had interrupted.                        The

district court did not err in granting deference to the state’s

findings of fact.

     As for prejudice, Lewis has also failed to show that if the

factual disputes he alleges had been resolved in his favor, the

result    at   either    phase   of   the   trial    would     likely   have     been

different.     As we demonstrate in subsequent parts of this opinion,

Lewis cannot show that the jury, in either the guilt or punishment

phase, would have reached a different verdict even if the jurors

had concluded that his factual assertions are true.                     We cannot

stress    enough   how    clearly     the   videotape        of   the   crime,    as

corroborated by eyewitness testimony, disproves Lewis’s contention

that he lacked the requisite mental state to commit capital murder

or that his actions were involuntary.            Neither could he expect to

dissuade the jurors with mitigating evidence when they saw for

themselves the way that he calmly and deliberately conducted

himself throughout the course of the robbery and the murder, and

the way that he exhibited no remorse after the shooting.                 We reject

Lewis’s    claim   that    he    is   entitled      to   a   full-blown,   “live”

evidentiary hearing and to discovery.




                                        6
C.   Ineffective Assistance of Counsel

       Lewis claims that his Sixth Amendment rights were violated by

the ineffective assistance provided by his counsel at both the

guilt and punishment phases of his trial. Specifically, he alleges

that his counsel failed to investigate and thus to introduce

evidence of his alleged abusive childhood and exposure to lead

poisoning.           Lewis     insists     that    such     evidence   would      have

demonstrated to the jury that he shot the victim as the result of

an impulsive reaction and not with specific intent to do so, or at

least cast reasonable doubt on the issue.                  Lewis also argues that

this evidence would have had a mitigating effect that in turn would

have influenced the jury not to impose a sentence of death.

       To prevail on a claim of ineffective assistance of counsel, a

habeas      petitioner       must   show    that   “counsel’s    performance       was

deficient” and that “the deficient performance prejudiced the

defense.”7        This test is disjunctive, so failure to succeed on

either prong is fatal to a petitioner’s claim.8

1.   Performance of Counsel: Cause.

       To prove that counsel’s performance was deficient, petitioner

must       show   that   it     “fell      below   an     objective    standard     of

reasonableness.”9 In addressing this claim, our scrutiny “must be



       7
       Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984).
       8
           See id.
       9
           Id. at 688.

                                            7
highly deferential:...A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”10         There is “a strong presumption that

counsel’s    conduct     falls    within   the    wide   range   of    reasonable

professional assistance.”11 We also must keep in mind that “[t]he

central purpose in examining any claim of ineffective assistance of

counsel is to ensure that the defendant was accorded due process,

‘not to grade counsel's performance.’”12

     Lewis    contends     that   counsel’s      performance     was   reversibly

deficient because of failure to put on psychiatric evidence at the

guilt or punishment phase of the trial.                  Specifically, Lewis

alleges that he has “frontal lobe syndrome,” a condition, he

insists, that affects one’s judgment, motor skills, and ability to

control impulse.        Lewis urges that if the jury had been aware of

this condition, they could have concluded that his shooting of the

victim was the result of an impulse reaction and was not a

deliberate, intentional act.

     Defense counsel was not likely aware of any such mental health

deficiency, for Lewis neither so informed counsel nor exhibited any



     10
          Id. at 688.
     11
          Id. at 689.
     12
       Bouchillon v. Collins, 907 F.2d 589, 594 (5th Cir. 1990)
(quoting Strickland, 668 U.S. at 697).

                                       8
signs or symptoms of it during the videotaping of the robbery.     On

the contrary, Lewis conducted himself in a cool, collected manner

throughout the entirety of the ten-minute robbery, including the

final minutes following the shooting.        In fact, as customers

entered the store, Lewis even played the role of store clerk,

operating the register, making change on a gasoline purchase,

selling cigarettes, and providing directions to a nearby hotel.

The videotape clearly refutes any contention that Lewis’s actions

during the shooting demonstrated an involuntary reflex action or

anything else that should have alerted counsel to a positive mental

or neurological problem.

     Nothing in these facts would prompt reasonable counsel to

wonder about Lewis’s mental or neurological condition, much less

suspect that he suffers from some sort of defect rendering him

unable to control his impulses.        Even if some lawyers might

routinely initiate inquiries into their capital murder clients’

psychological and physiological states, we cannot say that in every

capital case counsel is professionally obligated to investigate for

the possibility of psychological or neurological deficiencies of

his client absent some reason to suspect that the client “suffered

from a mental defect at the time of the offense or trial.”13   More

importantly in this case, counsel could have reasonably assumed

that the jury would not have been swayed by such an argument after




     13
          Barnard v. Johnson, 958 F.2d 634, 642 (5th Cir. 1992).

                                  9
witnessing Lewis’s performance during the robbery and shooting, and

might even have reacted by way of backlash against such tactics.

     Lewis also contends that counsel’s assistance was ineffective

in failing to put on mitigating evidence of his abusive childhood

and mental defects caused by lead exposure.       At the time of Lewis’s

trial, evidence of such abuse was not admissible relative to

Texas’s special issues at the punishment phase.14        And counsel did

put on    mitigating   evidence   intended   to   humanize   Lewis:   His

grandmother testified that he was remorseful after killing the

victim, but answered in the negative when asked if she had ever

seen Lewis’s father beat him. Lewis’s grandmother did testify that

he was neglected by his father, suffered bruises, was often afraid

to go home, and had a generally unhappy childhood.       Even though the

grandmother subsequently signed an affidavit in which she avers

that Lewis’s father was a brutal man who regularly beat his

children,15 neither she nor Lewis has offered an explanation for her

failure to testify about these matters at trial.       Thus it cannot be

said that Lewis’s counsel failed to adduce this evidence, only that
the witness failed to provide it.



     14
       Lewis was found guilty on June 2, 1987, well prior to the
Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934 (1989) which set forth the current rule allowing
evidence of abuse at the punishment phase of a capital trial.
     15
       Specifically, the affidavit alleges that Odell Lewis
(Lewis’s father) once beat Lewis in the face with a piece of
firewood, and that making his children strip naked, he would tie
them up and whip their private parts with switches or extension
cords.

                                   10
       A trial counsel’s “strategic choices made after thorough

investigation of the law and facts relevant to plausible options”

are    to    be   reviewed    with      great    deference      and,   in    fact,   are

“virtually        unchallengeable.”16           Counsel   did   put    on    mitigating

evidence but either chose, for tactical reasons, not to put forward

the argument regarding Lewis’s lead exposure or was excusably

unaware of the exposure and its alleged effect on Lewis.                       As such,

this    “failure”       to   put   on     evidence    cannot      be   construed      as

ineffective assistance of counsel.

2.    Prejudice

       But even if we assume arguendo that Lewis’s attorneys failed

to provide effective legal assistance, we would conclude that Lewis

was not prejudiced.          To prove that his defense has been prejudiced

by the deficiencies of counsels’ performance, Lewis must show that

“there      is    a   reasonable     probability      that,     but    for   counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”17               With regard to the alleged
errors of counsel at the sentencing phase, we ask “whether there is

a reasonable probability that, absent the errors, the sentencer ——

including an appellate court, to the extent that it independently




       16
            Id. at 690-91, 2066.
       17
            Strickland, 668 U.S. at 694.

                                           11
reweighs the evidence —— would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.”18

     Lewis claims, as noted above, that the evidence his counsel

should have adduced would have shown that the killing was the

result of an impulse reaction and thereby soften the sentiments of

the jurors toward him.   Lewis has not proven, however, that the

evidence of his abusive childhood or his exposure to lead poisoning

would have had this psychological or neurological effect and,

moreover, he has not shown that this evidence would have dissuaded

the jury from sentencing him to death. As observed earlier, the

jury actually watched the crime play out, presumably weighing

Lewis’s behavior throughout, and deciding first-hand whether his

action in shooting the victim was a deliberate and intentional act

or merely an involuntary reflexive one.    Testimony of an abusive

childhood or exposure to lead is unlikely to have convinced the

jurors that the shooting was an impulse reaction when they could

see quite clearly for themselves that Lewis cooly turned aside from

his robbing and deliberately cocked the gun and pulled the trigger.
They also saw that rather than reacting as one whose unintended

reflex had produced the fatal wounding of another, Lewis further

assaulted the victim as he lay on the floor then returned to his

larcenous pursuit with equal equanimity.

     Likewise, the jury was not likely to have bought Lewis’s claim

of remorse for his actions or to have their feelings “softened”


     18
          Id. at 695.

                                12
toward him after they watched him kick and punch the victim while

he writhed on the floor with a bullet wound in his abdomen, then

proceed to play-act the storekeeper role as he completed the

robbery.         The jurors were also aware that, after completing the

instant robbery,             Lewis and his cohorts went to a pool hall and

drank beer, and that less than a month after the instant robbery,

Lewis proceeded to rob another store. These are hardly the actions

of a man overcome with remorse for an unintentional, involuntary

killing.         In light of Lewis’s behavior in both the immediate and

extended wake of the shooting, sympathy for Lewis would not be the

expected emotion of the jurors.             Quite simply, Lewis has not shown

that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”19

D.   Alleged False Testimony of Willie Berry

       Lewis alleges that the prosecution knowingly introduced and

relied      on    the    false   testimony       of    his   uncle,    Willie   Berry,

specifically           Berry’s   denial   that    he    made   a    “deal”    with   the
prosecution in return for his testimony against Lewis, thereby

denying Lewis of due process. The state habeas court made findings

of fact which, in relevant part, stated unequivocally that no deal

existed between the State and Berry at the time of his testimony,

only    that      ——    as   Berry   himself     testified     ——     the   prosecution

indicated that it would take into consideration any truthful


       19
            Id. at 695.

                                           13
testimony Berry gave in cooperation with the State when considering

the charges against him.

     In reviewing pre-AEDPA capital cases, we presume “state court

findings of fact to be correct in the absence of clear and

convincing evidence” to the contrary.20        In light of Berry’s

testimony, the prosecution’s affidavits, and the indisputable fact

that the charges against Berry were not dismissed until two months

after he testified against Lewis, we are convinced that Lewis has

failed     to   produce   such   clear   and   convincing   evidence.

Consequently, the evidence put forth by Lewis purporting to prove

the existence of a deal and to show that Berry’s contrary testimony

was false is not sufficient to render the state habeas court’s

reliance on these findings of fact unreliable or to convince us

that a mistake has been made.21

E.   Other Claims

1.   Special Issues, as Interpreted and Applied in this Case, Are
     Unconstitutionally Vague

     Lewis contends that the two Texas special sentencing issues,

as instructed to the jury, were unconstitutionally vague because
the jurors were not furnished clear meanings of the core terms


     20
          Williams, 35 F.3d at 161.
     21
       Lewis’s main evidence is an unsigned, unsworn statement
by Berry attached to the affidavit of Joseph D. Ward, a Capital
Defense Investigator for the Texas Resource Center; that document
specifies that Berry refused to sign an affidavit swearing that
he received a deal from prosecutors prior to his trial testimony.
Lewis also offered two unverified memoranda from the prosecutor’s
office which, on their faces, do not show that a deal had been
made prior to Berry’s testimony.

                                  14
“deliberately” and “probability.”           This issue has been disposed of

both by the Supreme Court and by this court on numerous occasions.

The   Supreme    Court   has   held   that    factors   for   sentencing   are

sufficiently clear if each factor has some “common-sense core of

meaning...that criminal juries should be capable of understanding”22

and has held specifically that the wording of the Texas special

issues meet this standard.23          In addition, we have addressed and

rejected complaints asserting vagueness of specific words and

phrases in the special issues, including the terms “deliberately”

and “probability.”24     The magistrate judge correctly reached these

conclusions and we thus affirm the order of the district court,

adopting his Findings, Conclusions, and Recommendation.

2.    Inclusion of a Mentally Disabled Juror at the Guilt Phase

      Lewis alleges that his rights to a fair trial under the Sixth

and Fourteenth Amendments were violated by the inclusion of a

mentally disabled juror at the guilt phase of his trial.            He seeks

a new evidentiary hearing, contending that the hearing held on this

question was not “full and fair.”25           Juror Number 7, Herbert May,
suffered a mental breakdown between the guilt and punishment phases



      22
       Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct.
2630, 2636 (1994) (citing Jurek v. Texas, 428 U.S. 262, 279, 96
S.Ct. 2950, 2959 (1976) (White, J., concurring in judgment)).
      23
           See Jurek, 428 U.S. at 279.
      24
           See Woods v. Johnson, 75 F.3d 1017, 1034 (5th Cir. 1996).
      25
       See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745,
757 (1963); Perillo, 79 F.3d at 447.

                                       15
of the trial and was excused from the punishment phase, which was

conducted with the remaining eleven jurors without objection from

Lewis.      A hearing was held before commencement of the punishment

phase to ascertain whether May was fit to continue serving as a

juror for the remainder of the proceedings and to determine whether

his inclusion in the guilt phase had tainted those proceedings.

After examining the evidence, especially the testimony of Dr. Cliff

Cornette, an expert introduced by the State who had examined May,

the court determined that although May could not continue to serve

as a juror, he had exhibited no clear signs of mental disability

prior to his breakdown which occurred after the verdict of guilty.

Lewis now proffers “evidence,” in the form of a conversation of

counsel with May’s widow, to the effect that May had in fact

exhibited such signs earlier in the trial.                       It is unlikely,

however, that even if such evidence had been adduced, it would have

overcome the diagnosis of the psychiatrist that May had suffered

only    a    “brief     reactive    psychosis”      and    had   no   prior     mental

disability.           The   statements   of      counsel   regarding       an   alleged
conversation      with      May’s   widow    are   insufficient       to   constitute

“substantial new evidence.”26            Lewis has not shown that his rights

to a full and fair hearing on this issue were violated.27                       We thus

affirm the district court’s order adopting the magistrate judge’s

Findings, Conclusions, and Recommendation.


       26
            Townsend, 372 U.S. at 313.
       27
            See id.

                                            16
3.   The Batson Claim

     Lewis alleges that the prosecution used its peremptory strikes

in a racially discriminatory manner, in violation of defendant’s

Fourteenth Amendment rights as set forth in Batson v. Kentucky.28

We have considered this position in light of the briefs and

pertinent portions of the record.                Considering the race-neutral

explanations offered by the prosecution for its challenges and the

voire dire record, the magistrate judge correctly found that Lewis

failed to     show   that   there    was       clear   and     convincing    evidence

disproving the trial court’s findings. Finding no reversible error

of fact or law, we agree with the district court’s disposition of

this claim for essentially the reasons stated in the magistrate

judge’s Findings, Conclusions, and Recommendation.

4.   Punishment Phase Decisionmakers                   Acted     with    a   Racially
     Discriminatory Purpose

     Lewis     alleges      that    the    jury        acted    with     a   racially

discriminatory purpose in sentencing him to death.                      He bases this
claim on statistical data and anecdotal evidence published in a

newspaper article some eighteen months prior to the trial.                     He has

proffered no discrete evidence, however, to show that these jurors

or this prosecutor acted with racial animus.                    We have considered

this claim in light of the briefs and pertinent portions of the

record. Having done so, we find no reversible error and affirm the


     28
          476 U.S. 79, 106 S.Ct. 1712 (1986).

                                          17
district court’s disposition of the claim for essentially the

reasons stated in the magistrate judge’s Findings, Conclusions, and

Recommendation.    Specifically, the magistrate judge properly found

that Lewis has failed to demonstrate by credible evidence, as is

necessary to show a constitutional violation, that the particular

decisionmakers or the prosecution acted with a discriminatory

purpose in this case.

5.    Presentation of False and Misleading Testimony by the State

      Lewis claims that the prosecution intentionally introduced and

secured false testimony against him. Specifically, he alleges that

Willie Berry falsely testified during the punishment phase that

Lewis had participated in a previous robbery in Mesquite, Texas,

testimony that Lewis claims Berry has since recanted. According to

Lewis, the testimony was given in response to pressure asserted by

the prosecution.       Lewis also claims that the prosecution secured

the   testimony   of    an   imposter    playing   the   role   of   “Kenneth

Nichols.”29   Our consideration of these claims in light of the

briefs and pertinent portions of the record leads us inescapably to
conclude that neither the record nor the putative new evidence

proffered by Lewis supports these claims.            The magistrate judge

correctly found that the unsigned, un-notarized “affidavit” of



      29
       In support of this claim, Lewis offers only an unsworn,
unsigned affidavit of fact from Willie Berry, and Lewis’s
counsels’ report of a purported conversation with the “real”
Kenneth Nichols, who claims never to have testified at Lewis’s
trial.

                                        18
Berry is insufficient to outweigh the presumed veracity of Berry’s

sworn     testimony.          Similarly,        Lewis’s    unexplainedly       belated

presentation of the affidavit of Kenneth Nichols, as well as the

tenuous    content     of   the     affidavit      itself,       is    insufficient    to

overcome the presumption of correctness accorded the state findings

of fact which assert that the Kenneth Nichols who testified at

trial was the “real” one.            As such there was no reversible error,

so we affirm the district court, again for essentially the reasons

stated    in   the     magistrate     judge’s      Findings,          Conclusions,    and

Recommendation.

6.   Refusal to Admit Evidence of Defendant’s Remorse at Punishment
     Phase

     Lewis next asserts that his right to due process was violated

by the trial court’s refusal to admit a portion of the punishment

phase testimony of Lewis’s grandmother when the court sustained

hearsay objections to that testimony.                     Although the court did

refuse    to   admit    Lewis’s      grandmother’s        hearsay       statements,    it

allowed her to testify that Lewis had cried and shown great remorse

for killing Matt McKay.             Our consideration of this assignment of

error in light of the briefs and the record produces no sign of

reversible     error,    so    we    again   affirm       the    district    court    for

essentially the reasons set forth in the Findings, Conclusions, and

Recommendation of the magistrate judge.                         The magistrate judge

correctly found that our precedent does not require the admission




                                           19
of hearsay evidence at the punishment phase of capital trials,

Lewis’s contentions to the contrary notwithstanding.

7.     Preclusion of Relevant Background and Character Evidence from
       Jury Consideration

       Lewis contends that, in violation of the rule of Penry v.

Lynaugh,30 the jury was precluded from considering his character and

background,      thereby   violating    his    right   to   an   individualized

sentencing determination.          Specifically, Lewis objects to the
court’s refusal to allow testimony that (1) he was “only” nineteen

years old at the time of the offense, (2) he confessed to the

robbery and the “accidental” shooting at the time of his arrest,

(3) he demonstrated great remorse for his conduct and for the death

of the victim, and (4) he had suffered physical and psychological

abuse as a child and was raised in a troubled, un-nurturing

environment.        The record of this case and the applicable law

undermine Lewis’s position on this issue.              The magistrate judge

properly found that the proffered evidence Lewis sought to have

introduced was not reasonably likely to have weighed successfully

against the imposition of the death penalty or, in the case of the

testimony of his grandmother, was already within the effect of the

jury.       Therefore, no constitutional violation occurred.           Agreeing

with    the    reasons   stated   in   the    magistrate    judge’s   Findings,

Conclusions, and Recommendation, we adopt them by reference and

affirm the district court.


       30
            492 U.S. 302, 109 S.Ct. 2934 (1989).

                                       20
8.   Prosecutorial Misconduct During Trial

     Lewis argues that his trial was rendered fundamentally unfair

by the misconduct of the prosecution.     Specifically, he insists

that the prosecutor injected his personal opinion during the

closing argument of the guilt phase and again during the penalty

phase of the trial, thereby improperly shifting the burden of proof

to the defense. Our careful review of the transcripts of the
pertinent portions of the trial reveals no reversible error of fact

or law in this regard.   The magistrate judge found all but one of

Lewis’s claims to be procedurally barred by Lewis’s failure to

object contemporaneously to these alleged improprieties at trial.

Further, Lewis failed to show, as he must to prove that his

constitutional rights were violated, that the remarks amounted to

persistent and pronounced misconduct or that they likely influenced

the outcome of the trial.   To the extent any of the statements were

improper, their effect was harmless, as more fully explained by the

magistrate judge in his Findings, Conclusions, and Recommendation,
with which we agree.

9.   Allegedly Involuntary Nature of Lewis’s Statement

     Lewis contends that his confession was involuntary and thus

was improperly admitted at the trial.   Once again, the explanation

contained in the magistrate judge’s Findings, Conclusions, and

Recommendation dispels any doubt that Lewis’s contentions in this



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regard are without merit.     This claim is procedurally barred as

Lewis failed to contest the admission of his statement on direct

appeal.   Moreover, even if the claim were not procedurally barred,

we agree with the magistrate judge that it is without merit and

unsupported by the record or the state court’s findings of fact.

10.   Inclusion of a “Voice-print” Examiner

      Lewis would assign error to the admission of a voice-print

examiner, insisting that it constituted violation of Texas law. We
agree with the magistrate judge’s opinion, as set forth in his

Findings, Conclusions, and Recommendation, that this claim is

without merit.     Lewis has not shown that this admission violated

Texas state law.    Moreover, the admission of the testimony of the

voice-print expert violated no constitutional right and did not

render Lewis’s trial fundamentally unfair.

                           III.   Conclusion

      For the foregoing reasons we affirm the district court’s order

denying Lewis’s petition for habeas corpus.

AFFIRMED.




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