                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                           ____________

                                           No. 01-40639
                                           ____________


               BOBBY GLEN COOK,


                                               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
                                    USDC No. 1:99-CV-153

                                          March 18, 2002


Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM*:

       Bobby Glen Cook seeks leave to appeal the district court’s denial of his habeas corpus

petition. See 28 U.S.C. § 2253(c) (providing that a litigant may not appeal the denial of a petition

for habeas corpus without first obtaining a certificate of appealability (COA) from a circuit judge).


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
We grant a COA only when the petitioner makes a “substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2).

        Cook met Edwin Holder while fishing. Holder and Cook fished together and later met for

drinks at Cook’s campsite. After Holder went to sleep, Cook and two co-defendants decided to rob

him. Cook shot Holder six times in the head at close range and disposed of the body in a river.

Forensic evidence later indicated that Holder was asleep when shot. Cook confessed to the shooting,

but said that he acted in self-defense. After a trial, a Texas jury convicted Cook of capital murder and

sentenced him to death. After direct and collateral review in the state courts, Cook sought a petition

of habeas co rpus in federal court challenging both his conviction and sentence. The district court

denied the petition. Cook now seeks a COA.

                                                    I

        Cook contends that permitting the testimony of Dr. James Grigson, a psychiatrist who

testified as an expert as to Cook’s “future dangerousness” at the sentencing phase of the trial, violated

Cook’s right to “fundamental fairness,” presumably under the Due Process Clause of the Fourteenth

Amendment or the Cruel or Unusual Punishment Clause of the Eighth Amendment. Dr. Grigson

neither examined Cook nor interviewed anyone who knew him. Dr. Grigson nevertheless, in response

to a hypothetical question, offered his expert opinion that Cook posed a future danger. It is unclear

whether Cook’s claim as to Dr. Grigson has been properly exhausted in state court, because Cook’s

trial lawyer did not object to admitting Grigson’s testimony on either state law or constitutional

grounds. Assuming arguendo that we have the power to review the claim, Cook’s claim as to Dr.

Grigson is foreclosed by Barefoot v. Estelle, 463 U.S. 880 (1983), in which the Supreme Court

rejected a constitutional challenge to testimony in a death penalty case by exactly this psychiatrist,


                                                  -2-
Dr. Grigson, in response to a similar hypothetical question.

       Despite the sharp criticism of Barefoot in a number of recent Fifth Circuit opinions,1 we lack

the power to undercut Barefoot on collateral review. The Antiterrorism and Effective Death Penalty

Act (AEDPA) permits habeas relief only on the basis of “clearly established” federal law. 28 U.S.C.

§ 2254(d). “Clearly established federal law” refers to the “holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor,

529 U.S. 362, 412 (2000). No Supreme Court case has held that Barefoot is no longer the law. It

cannot be “contrary to” or an “unreasonable application of” the Supreme Court’s precedents, as

required for habeas relief under § 2254(d), for a state court to decide an issue in the same way the

Supreme Court has decided it on substantially the same facts. We have recently rejected two

challenges in habeas petitions to Barefoot on the grounds that such challenges are not cognizable on

collateral review. Tigner v. Cockrell, 264 F.3d 521, 526 - 27 (5th Cir. 2001) (“We decline Tigner’s

invitation to undercut Barefoot, because to do so on collateral review would constitute a new rule

in violation of Teague’s non-retroactivity principle.”)2; Little v. Johnson, 162 F.3d 855, 862 - 63 (5th



       1
         See, e.g., Flores v. Johnson, 210 F.3d 456, 458 - 70 (5th Cir. 2000) (Emilio M. Garza, J.
specially concurring) (noting that the Supreme Court's later decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), may have undermined Barefoot); Gardner v. Johnson,
247 F.3d 551, 556 n.6 (5th Cir. 2001) (pointing out Dr. Griffith’s notoriety, his expulsion from the
American Psychiatric Association, and the fact that he previously testified that he was ‘one hundred
percent certain’ that a man who later was freed as innocent would kill again).
       2
         It is unclear whether and to what extent Teague v. Lane, 489 U.S. 288 (1989), survives the
passage of AEDPA. Teague forbade the federal courts to announce “new rules” of law on collateral
review. Compare Williams v. Taylor, 529 U.S. 362, 412 (2000) (O’Connor, J. for the Court) (“the
‘clearly established Federal law’ phrase bears only a slight connection to our Teague jurisprudence”)
with Williams, 529 U.S. at 379 - 80 (Opinion of Stevens, J. for four justices) (contending that it “is
perfectly clear that AEDPA codifies Teague” and observing that Teague “remains the law” after
AEDPA).

                                                  -3-
Cir. 1998) (rejecting, on the strength of Barefoot, a similar challenge to Dr. Grigson’s testimony).

        Cook also challenges the admissibility of Dr. Grigson’s testimony under Texas Rules of

Evidence 702, governing expert witnesses, and 403, governing unduly prejudicial evidence. These

contentions raise only issues of state law, and therefore cannot suffice to show the denial of a federal

constitutional right.3

                                                  II

        Cook raises several ineffective assistance of counsel claims. Cook contends that his counsel’s

failure to argue self-defense in the opening statement of the guilt phase of the trial constituted

ineffectiveness. Even assuming arguendo that the failure to argue self-defense was deficient, this

claim does not satisfy the prejudice prong of the Strickland test. See Strickland v. Washington, 466

U.S. 668 (1984) (setting forth the test for ineffective assistance of counsel requiring both deficient

performance by counsel and prejudice). The forensic evidence indicated that Holder was shot while

sleeping, which seems to rule out Cook’s self-defense claim. Moreover, Cook elected not to testify.

Self-defense would have been a difficult argument to make without the defendant’s testimony.

        Cook alleges his trial counsel was ineffective in the character witnesses selected for the

punishment phase of the trial. The attorney, Mr. House, called five witnesses to speak to Cook’s

good character. Four of the five witnesses had felony convictions. One was on parole for aggravated

sexual assault of a child. Cook argues that calling felons as character witnesses cast him in a poor

light and constituted ineffectiveness.

        Calling the four felonious character witnesses did not constitute ineffective assistance of


        3
        Judge Garza reaffirms his belief, as expressed in his special concurrence in Flores v. Johnson,
210 F.3d at 458 - 70, that the rationale for the holding in Barefoot may have been undermined by the
Supreme Court’s subsequent decision in Daubert. See supra note 1.

                                                  -4-
counsel because Cook insisted, against his lawyers’ advice, on calling these witnesses. Assuming the

client makes an informed decision, following one’s client’s instructions almost never constitutes

ineffective assistance of counsel. E.g., U.S. v. Masat, 896 F.2d 88, 91 - 94 (5th Cir. 1990); see also

Strickland, 466 U.S. at 691 (“[t]he reasonableness of counsel's actions may be determined or

substantially influenced by the defendant's own statements or actions.”). In Masat, an attorney

followed his client’s instructions in presenting many “seemingly ridiculous theories” and “generally

pursued a course of defense that seemed likely to lose the case.” Masat, 896 F.2d at 90. Because

the client insisted on the attorney’s tactics, we held that the attorney had not been ineffective. Here,

the state court, after an evidentiary hearing during the state writ proceedings, found that the

“character witnesses who appeared on Applicant’s behalf during the punishment phase were called

at the insistence of [Cook] against the advice of his trial counsel.” R. at 217. Under AEDPA, this

factual finding by a state court is “presumed to be correct.” 28 U.S.C. § 2254(e)(1). Cook bears the

burden of rebutting the presumption by clear and convincing evidence. Id. He has identified no

evidence that he did not insist that the Mr. House call these witnesses. As such, House called these

witnesses at Cook’s own insistence, and House’s actions in this regard were therefore not deficient.

        Cook also contends that House was ineffective in not calling several character witnesses

without criminal records, including his mother and his fiancée. The state habeas court determined

that Cook never informed his attorneys about these witnesses. Assuming arguendo that the attorneys

knew about the witnesses or should have discovered them in the course of a reasonable investigation,

their not testifying did not prejudice the outcome. Most of the potential witnesses were relatives of

Cook, and their testimony would have had little weight with the jury. Moreover, the prosecution

presented Dr. Grigson’s testimony. Cook himself vigorously argues the powerful weight of Dr.


                                                  -5-
Grigson’s testimony. With a psychiatric expert telling the jury that Cook would surely kill again,

having Cook’s mother, fiancée, cousin, aunt and work supervisor testifying about his good qualities

would almost certainly not help.

       Cook’s remaining claims of ineffective assistance focus on House’s strategy for dealing with

Dr. Grigson. House did not object to the admissibility of Dr. Grigson’s testimony, nor did he

introduce any rebuttal expert testimony on the dangerousness issue. The decision not to challenge

the admissibility of the testimony was not deficient. House said he did not want to “accentuate” Dr.

Grigson’s testimony. An admissibility hearing, out of the presence of the jury, would have alerted

the jury that the next witness’s testimony was especially important. House made a strategic choice

not to highlight Grigson’s testimony. And if House called any rebuttal witnesses, it would have

opened the door for the state to call one Dr. Gold. Dr. Gold was appointed by the court to assist the

defense. Dr. Gold examined Cook and found him to be a future danger. If the defense had

introduced an expert besides Dr. Gold to testify, the prosecution could have called Gold in rebuttal.

The testimony of an expert who had examined Cook would have undermined the defense’s argument

that the prosecution’s case was based only on a hypothetical question, and that the state’s expert had

never even spoken to Cook.

       As Cook has not made a substantial showing of the denial of any constitutional right, we

DENY his petition for a certificate of appealability.




                                                 -6-
