                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 01-40475




                          DAVID LEE LEWIS,

                                              Petitioner-Appellant,


                               VERSUS


                     JANIE COCKRELL, Director,
               Texas Department of Criminal Justice,
                       Institutional Division,

                                               Respondent-Appellee.




           Appeal from the United States District Court
                 For the Eastern District of Texas
                            6:99-CV-484
                              July 16, 2002


Before DAVIS, JONES and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.*

      Lewis, a Texas death sentenced inmate, challenges the district

court’s denial of his petition for habeas corpus.    We affirm.

                                 I.

      On November 30, 1986, David Lee Lewis broke into the home of


  *
   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opinion should not be published and is not precedent except under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.
Myrtle Ruby, a seventy-four year-old widow who was attending church

choir rehearsal.      While Lewis was burglarizing her home, she

returned home from rehearsal.         They ran into each other in a

hallway. Instead of retreating, Lewis shot Ruby with his sawed-off

.22 rifle and struck her in the head with the rifle.    He stole her

car, drove to his uncle’s house and parked nearby while Lewis and

his uncle went on a hunting trip.       The police found the car and

arrested Lewis when he returned from the trip.    Lewis confessed to

the crime.

     Lewis was convicted and sentenced to death in 1987, but in

1993 the Texas Court of Criminal Appeals (TCCA) reversed the

conviction on direct appeal because part of the record had been

lost.   He was tried again in 1993 and was once again convicted and

sentenced to death.   The TCCA affirmed the conviction and sentence

on direct appeal in 1995.    Lewis petitioned for habeas corpus in

state court in 1997, but the TCCA denied relief in 1999.    In 1999,

he filed a second petition which the court dismissed as an abuse of

the writ.

     In March 2000, Lewis filed a federal habeas petition in

district court.    The court granted the State’s motion for summary

judgment and dismissed his petition. Lewis sought a Certificate of

Appealability (COA) for four issues.         COA was granted on two

issues; he appeals the denial of COA on the remaining two issues.

         II. Application for Certificate of Appealability

     Lewis seeks a COA on two claims: (a) his counsel’s cross-

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examination      of    the   State’s    psychiatric      expert   on   future

dangerousness was grossly inadequate; (b) the state court violated

his rights to due process by refusing to consider newly discovered

evidence that would have established that he was not a future

danger to society.

                 A.    Ineffective Assistance of Counsel

       Because of Lewis’ confession and other strong corroborating

evidence of Lewis’ guilt, counsel concentrated his efforts at trial

on avoiding the death sentence.              Lewis pled guilty.     Counsel’s

strategy was to obtain a negative answer from the jury on the

qualifying question of whether Lewis would be a future danger to

society.    The State called a psychiatric expert, Dr. Quijano, to

testify on this issue.        Counsel did not engage an expert witness

but rather arranged for the testimony of six prison guards familiar

with    Lewis’   conduct     during    the    previous   six   years   of   his

incarceration.        He expected that they would testify that he had

been a model prisoner and had not committed any acts of violence

against other prisoners or guards during the previous six years.

Counsel, however, did not confront Dr. Quijano about this expected

testimony and ask him whether such testimony would alter his

opinion on whether Lewis would be a future danger to society.

Lewis argued in his state habeas petition and before the district

court that this failure to confront Dr. Quijano with these facts

amounted to ineffective assistance of counsel.

       At the state habeas hearing, Lewis’ former counsel testified

                                        3
that he made a deliberate decision not to confront the expert with

these facts.      He testified that he expected that if he had revealed

the substance of these witnesses’ testimony, Dr. Quijano would have

explained that testimony or justified his conclusion in a way that

was most favorable to the State “and then I’ve lost my thunder when

the fact witness comes up.”

      The state habeas court concluded that the decision not to

confront the State’s expert with the guards’ testimony was sound

trial strategy. The state court concluded that “counsel engaged in

a   sound    strategy     of   attempting    to   build   up   the   defense’s

credibility with the jury so that the evidence presented would so

contradict the State’s evidence of future dangerousness that jurors

would be forced to conclude the State failed in its burden of

proof.      In executing this strategy [Lewis’] counsel invoked this

court’s authority to find a mental health expert and pursued this

tactic from voir dire to closing argument.”

      We    are   satisfied     that   the   state   court’s    findings    and

conclusions are reasonable and consistent with Strickland.                 Lewis

has failed to show a substantial denial of a federal right as to

this claim.

                     B.   “Newly Discovered Evidence”

      Following disposition of his state habeas application, Lewis

filed a successive application and raised a single claim that he

was deprived of a fair trial under the due process clause because

“newly discovered evidence” if known at trial, would have compelled

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a rational jury to find that Lewis did not constitute a continuing

threat to society. This “newly discovered evidence” claim is based

on testimony habeas counsel elicited from Dr. Quijano, the State’s

psychiatric expert, at the evidentiary hearing during the first

state habeas proceeding.      Counsel asked the witness whether his

opinion given at trial on Lewis’ future dangerousness would be

different if based on Lewis’ good behavior in prison from 1993

until the 1998 habeas hearing.        The state habeas court sustained

the State’s objection to this testimony.          In a proffer, however,

the witness testified that he would probably not be a danger in

prison and that it is not likely he will commit future criminal

acts.   The state court denied this newly discovered evidence claim

as an abuse of the writ.

     The   court   below   properly   dismissed    this   claim   based   on

procedural default.

     Contrary to Lewis’ argument, the Texas Court of Criminal

Appeals dismissed this claim on procedural grounds rather than

dismissing it on the merits.     In its dismissal, the Texas Court of

Criminal Appeals expressly found that Lewis’ subsequent application

failed to satisfy Texas Code of Criminal Procedure Art. 11.071, §

5(a), the Texas statute prohibiting subsequent habeas applications.

In addition to citing to the relevant statute, the court, in its

order of dismissal, provided “the application is dismissed as an

abuse of the writ.”        This is also abundantly clear from the

findings and conclusions of the state trial court which were

                                      5
submitted   to   the   Court   of   Criminal    Appeals.     The   trial   court

concluded “the subsequent application for post conviction writ of

habeas corpus does not meet the standard contemplated in Article

11.07(1), § 5, Texas Code of Civil Procedure.”

      As we stated in Barrientes v. Johnson, 221 F.3d 741, 759 (5th

Cir. 2000), “Texas abuse of the writ doctrine has, since 1994,

provided an adequate state ground for the purpose of imposing a

procedural bar.” Because the state court’s dismissal of this claim

was on an independent and adequate state law ground the district

court correctly concluded that this claim is procedurally barred

and Lewis’ application for COA on this claim is denied.2

                                     III.

      The district court granted a certificate of appeal on two

issues: (a) whether trial counsel was ineffective in arguing an

incorrect   burden     of   proof   to   the   jury;   and   (b)   whether   the

inaccurate testimony of the State’s expert witness that there was

an 85 percent chance Lewis would be a future danger to society

violates Lewis’ right to a fair trial.

                     A) Ineffective Assistance Claim

      This claim relates to counsel’s argument to the jury on

Special Issue No. 2: “Is there a probability that the defendant,


  2
    Characterizing this evidence of past-trial conduct as “newly
discovered” evidence is flawed from the outset: The evidence could
not have been “discovered” before the trial because it did not
exist. It is easy to see why the state habeas court excluded this
evidence as irrelevant.

                                         6
David Lee Lewis, would commit criminal acts of violence that would

constitute a continuing threat to society?

       In explaining the court’s charge and this interrogatory,

counsel argued to the jury that in order to answer this special

issue in the affirmative it must conclude beyond a reasonable doubt

that the defendant would constitute a continuing threat to society.

       Lewis argues that the plain language of the interrogatory only

required the jury to find future dangerousness on a probability

standard rather than a reasonable doubt standard and that this

error undermined counsel’s effectiveness with the jury.

       We are satisfied that this claim was never raised in state

court and      is    procedurally     barred.   Although     Lewis   raised      an

ineffective assistance of counsel claim on state habeas corpus

review, he did not allege this particular ground.               Neither did he

allege this ground in the federal district court.                The district

court acknowledged as much when it stated in its memorandum opinion

“Lewis did not raise this as a separate sub-claim.”                   The court

considered this claim based on facts Lewis mentioned in his reply

brief to the director’s motion for summary judgment.

       Thus, this ground for ineffectiveness of counsel has never

been exhausted in state court.          This does not require us to remand

this   claim    to    state   court   because   if   Lewis   were    to   file   a

successive habeas petition in Texas state court his application

would be dismissed as an abuse of the writ under Texas Code of

Criminal Procedure Article 11.07(1)§ 5(a).                   Lewis alleges no

                                         7
exception or cause that would permit a Texas court to consider this

claim.

     Additionally, the claim is without merit.    Counsel’s argument

that the jury must find proof beyond a reasonable doubt to support

an affirmative answer to Special Issue No. 2 is consistent with the

court’s jury instruction, which specifically defined “reasonable

doubt” and instructed the jury to answer this question in the

negative “[i]n the event you have a reasonable doubt as to whether

the defendant would commit criminal acts of violence that would

constitute a continuing threat to society....”     And the burden of

proof counsel argued is consistent with state law.    See Lagrone v.

State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997)(en banc)(“Once

again, we must refer appellant to a long line of our prior cases

holding that the inclusion of the term ‘probability’ in the future

dangerousness   special    issue   of   capital   trials   does   not

impermissibly soften the     required burden of proof in criminal

cases.”)

     We, therefore, agree with the district court that counsel was

not deficient in making this argument.

                      B.   Due Process Claim

     Lewis argues next that Dr. Quijano’s testimony that Lewis

presented an 85 percent probability of committing future acts of

dangerousness was false and had a substantial and injurious effect

on the outcome of his trial in violation of the due process clause.



                                   8
       The   district   court   held   that   this   claim   was   raised   by

implication in the state habeas court through his Sixth Amendment

ineffective assistance of counsel claim.               This conclusion is

inconsistent with our recent decision in Wilder v. Cockrell, 274

F.3d 255 (5th Cir. 2001), which holds that a substantive Sixth

Amendment claim presented on collateral review was not sufficient

to fairly present a related due process claim for exhaustion

purposes.     As we stated in Wilder, “it is not enough that all the

facts necessary to support the federal claim were before the state

courts or that a somewhat similar state law claim was made.” Id. at

259.    Furthermore, “where petitioner advances in federal court an

argument based on a legal theory distinct from that relied upon in

the state court, he fails to satisfy the exhaustion requirement.”

Because this claim is unexhausted and would be subject to dismissal

by the Texas habeas court as an abuse of the writ, this claim is

procedurally barred.

       On the merits, Lewis cannot establish this claim under this

Court’s case law dealing with claims of false and misleading

testimony by experts.      To establish a due process violation based

on the government’s use of false or misleading testimony, the

defendant must show (1) that the witness’s testimony was actually

false, (2) that the testimony was material, and (3) that the

prosecution knew the witness’s testimony was false.                Fuller v.

Johnson, 114 F.3d 491, 496 (5th Cir. 1997), citing Giglio v. United



                                       9
States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766 (1972).

       Lewis does not meet this standard.              First, the testimony at

issue    -   that   Lewis       presented   an    85   percent   probability    of

committing future dangerous acts - was elicited by the defense, not

the prosecution.          Although the testimony came from the State’s

expert witness, Dr. Quijano, it was elicited by the defense over

protestations from the witness, who cautioned that quantifying

future dangerousness was not accurate. The court below pointed out

that Dr. Quijano testified that expressing his opinion in terms of

a percentage was “a dangerous game,” was “very misleading,” and

that the number was “not precise.” R 18 at 18.                Most importantly,

the jury was aware of the misleading nature of this quantification,

and in hearing Dr. Quijano’s warnings regarding the unprecise

nature of his testimony, knew that his quantification was not

intended to mislead.

       Lewis also argues that Dr. Quijano’s state habeas evidentiary

hearing      testimony      softening       his   quantification     of      future

dangerousness based on Lewis’ post-sentencing behavior in prison

from 1993 to 1998 raises “new evidence” that Lewis never was a

future danger.        Lewis contends that this evidence supports his

position that Dr. Quijano’s testimony to the contrary is false.

But,    because     Dr.   Quijano’s     state     habeas   evidentiary    hearing

testimony     relates      to    Lewis’     post-conviction      behavior,    this

information could not have been known by Dr. Quijano, the state or

anyone else at the time of trial.

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                               IV.

     For reasons stated above, we conclude that Lewis failed to

demonstrate the denial of a constitutional right on the claims

discussed in §§ II A and B above.    A certificate of appealability

on those claims is therefore denied.

     We also conclude that the district court correctly denied

habeas relief on petitioner’s Strickland and due process claims

discussed above at §§ III A and B.   The district court’s judgment

on these claims is affirmed.

     AFFIRMED.




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