                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT


                                  No. 01-40229


                            JAMES REXFORD POWELL,

                                                      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
                           (6:98-CV-296)
_________________________________________________________________
                           April 8, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Primarily at issue is whether federal habeas relief should be

granted because, at the punishment phase of James Rexford Powell’s

Texas capital murder trial, evidence was admitted from his earlier

trial   in    Louisiana     (attempted-murder),      at   which   he   had    been

acquitted.      Concerning his death sentence, Powell appeals the

denial of 28 U.S.C. § 2254 habeas relief, claiming admission at the

punishment     phase   of   unreliable    evidence    concerning       the   prior

Louisiana trial (acquitted conduct) deprived him of a fair trial

and   was    insufficient    to   prove   future   dangerousness       beyond    a

reasonable doubt.       He also requests a certificate of appealability


*
       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this opinion should not be published and is not precedent except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.
(COA) based on claimed ineffective assistance of counsel (IAC)

during the punishment phase.      COA DENIED; AFFIRMED.

                                    I.

       In 1991, Powell was convicted by a Texas state court jury of

murdering a ten-year-old girl in the course of sexually assaulting

her.   Powell v. State, 898 S.W.2d 821, 824 (Tex. Crim. App. 1995).

During the punishment phase, two witnesses testified that Powell’s

reputation as a peaceful and law-abiding citizen was bad.

       In addition, others testified at that phase concerning the

events underlying the Louisiana attempted-murder trial (Louisiana

witnesses), at which Powell had been acquitted (Louisiana trial).

Powell’s    trial   counsel’s   objections,   on   the   basis   of   double

jeopardy, to the Louisiana witnesses’ testimony were overruled.

The victim for the Louisiana charge testified that Powell came to

her house posing as a member of a logging crew, threatened her with

a gun, choked her, hit her in the head with a shotgun, and shot her

through the temple, causing the loss of one eye.

       The jury answered affirmatively to the punishment issues.

Powell was sentenced to death. Id.       On direct appeal (represented

by his appointed trial counsel), Powell claimed, inter alia, that

the admission of evidence of the prior attempted-murder charge

constituted double jeopardy.        The conviction and sentence were

affirmed.    See id. at 829-31.      The Supreme Court of the United

States denied certiorari on 27 November 1995. Powell v. Texas, 516

U.S. 991 (1995).




                                    2
     Powell was represented by appointed counsel, David Bays, in

seeking    state    post-conviction    relief.        His   initial    petition

asserted, inter alia:          that the trial court violated his due

process    rights   by   admitting    evidence   of   the   attempted-murder

charge, without requiring the State to overcome the presumption of

prejudice or without finding the presumption was overcome; and also

arguably asserted that trial counsel was ineffective for failing to

call alibi witnesses for the Texas murder charge.             Powell filed a

supplemental pro se petition, contending, inter alia:                 Bays, his

habeas counsel, would not raise IAC claims against Powell’s trial

counsel; trial counsel was ineffective; and Bays provided IAC.

Based on the trial court’s 15 September 1997 findings of facts and

conclusions of law, including its recommended denial of relief, the

Texas Court of Criminal Appeals denied relief by an unpublished 4

January 1998 order. Ex Parte James Rexford Powell, Nos. 35,341-01,

35,341-02.

     With Bays as his attorney, Powell filed his federal habeas

petition in May 1998; it was the same as the state petition.               Upon

Powell’s     request,    the   district    court      substituted      Nicholas

Trenticosta as Powell’s court-appointed counsel; and Trenticosta

filed three supplemental petitions, raising a number of claims.

     In July 2000, summary judgment was granted against Powell’s

claims concerning the admission of the attempted-murder testimony

and the failure to instruct the jury on Powell’s parole eligibility

on a life sentence.      In January 2001, the district court dismissed

Powell’s remaining claims concerning: IAC; the State’s failure to


                                       3
disclose material, exculpatory evidence; and the reliability of DNA

evidence introduced at trial.

     The district court construed Powell’s notice of appeal as a

request for a COA and granted it with respect to one issue:

          Whether    the   State’s    introduction    of
          testimonial evidence at the penalty phase of
          the [Texas capital murder] trial concerning an
          attempted murder charge [in Louisiana] of
          which petitioner had previously been acquitted
          violated his rights to a fair and reliable
          sentencing determination under the Fifth,
          Eighth, and Fourteenth Amendments to the
          United States Constitution.

(Emphasis added.)

                                II.

     Pursuant to that COA, Powell contends: the admission of

“discredited and distorted” evidence from his Louisiana trial

denied him a fair and reliable sentencing determination; and

Apprendi v. New Jersey, 530 U.S. 466 (2000), requires proof beyond

a reasonable doubt of future dangerousness.   He also requests this

court grant a COA to consider his IAC claim for the punishment

phase.   Because Powell filed for federal habeas relief after the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA), 110 Stat. 1214 (1996), that Act applies. Lindh v. Murphy,

521 U.S. 320, 336 (1997).

                                A.

     When a claim has been adjudicated on the merits in state

court, habeas relief is unavailable unless the state court’s

adjudication resulted in a decision: that was either “contrary to,

or involved an unreasonable application of, clearly established


                                 4
Federal law, as determined by the Supreme Court”, 28 U.S.C. §

2254(d)(1); or that was “based on an unreasonable determination of

the facts in light of the evidence presented” in state court, 28

U.S.C. § 2254(d)(2).

       A state court decision is “contrary to” clearly established

federal law “if the state court arrives at a conclusion opposite to

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

state court decides a case differently than th[e Supreme] Court has

on a set of materially indistinguishable facts”.                 Williams v.

Taylor, 529 U.S. 362, 413 (2000).          A state court decision involves

an “unreasonable application” of clearly established federal law

“if   the   state    court    identifies    the   correct    governing   legal

principle from th[e Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case”.               Id.

       Concerning, among other § 2254(d) standards, the “unreasonable

determination of the facts” prong, subpart (d)(1), the petitioner

must provide by clear and convincing evidence that the state

court’s findings of fact are erroneous.           28 U.S.C. § 2254(e)(1).

       A state prisoner must give state courts an opportunity to act

on    his   claims   before    presenting    them   to   a   federal     court;

accordingly, Powell was required to exhaust his remedies in Texas

state courts before any federal habeas relief can be granted.               28

U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

If no state remedies remain available to the petitioner, the

exhaustion requirement is satisfied. Coleman v. Thompson, 501 U.S.

722, 732 (1991).


                                      5
     In   addition,    habeas     relief       is     not   available       to    a   state

prisoner who has procedurally defaulted his claims by not properly

providing the State with an opportunity to address them.                               See

O’Sullivan, 526 U.S. at 848 & 854 (Stevens, J., dissenting).                            If

Powell could have raised his claims in state court, failed to do

so, and is now barred from doing so by a state procedural rule, he

has procedurally defaulted on those claims. Murray v. Carrier, 477

U.S. 478, 489 (1986).            To overcome the procedural bar, Powell

either must demonstrate:         both cause for his default and prejudice

that would result from failing to address the claim; or that

failure to      consider   the    claim       would    result      in   a   fundamental

miscarriage of justice — in this instance, show that he is actually

innocent of capital murder.         See Coleman, 501 U.S. at 750.

     The district court’s findings of fact are reviewed for clear

error, and its conclusions of law are reviewed de novo.                          Thompson

v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).                 The issue presented by

the COA granted by the district court results from the summary

judgment awarded the State; for it, we review whether the record

discloses any genuine issues of material fact which would preclude

ruling in the State’s favor.          See, e.g., Meanes v. Johnson, 138

F.3d 1007, 1010 (5th Cir. 1998); Turner v. Houma Mun. Fire & Police

Civ. Serv. Bd., 229 F.3d 478, 482 (5th Cir. 2000).

     As previously noted in part, Powell contends: the admission of

“discredited and distorted” evidence at sentencing deprived him of

a “reliable and fair sentencing procedure”, in violation of his

Eighth    and   Fourteenth   Amendment          rights;      and    under        Apprendi,


                                          6
reliance on acquitted conduct (concerning the Louisiana attempted-

murder trial) was insufficient to prove future dangerousness beyond

a reasonable doubt.

                                 1.

     In his state proceedings, Powell raised the issue of the

admissibility of the acquitted conduct(asserting double jeopardy

and contending the court should have required the State to overcome

a presumption of prejudice); he also did so in district court

(asserting double jeopardy, collateral estoppel, and due process

violations).    Here, for the first time, however, he asserts that

the evidence was unreliable.

                                 a.

     The district court held Powell waived the admissibility claim

by failing to brief it; but, nevertheless, ruled on the merits that

the claim would not have succeeded.       In fact, Powell admits in his

brief here:     “State courts did not address the constitutional

implications of using unreliable evidence”. Because Powell did not

present this issue to Texas state courts, he failed to exhaust it.

See O’Sullivan, 526 U.S. at 842.       Further, Powell has waived it by

raising it for the first time in this appeal.          E.g., Lackey v.

Johnson, 116 F.3d 149, 152 (5th Cir. 1997).

                                 b.

     Additionally, Powell failed at trial to object to the evidence

on the basis that it was unreliable; therefore, the claim is waived

absent his showing it comes within an exception to the procedural

default rule.   See Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.


                                   7
1999)   (Texas’   contemporaneous   objection   rule   an   adequate   and

independent ground to procedurally bar federal habeas review).

Powell has not attempted to do so.

                                    c.

     In addition, Powell’s claim fails on the merits.        Under Texas

law, the truthfulness of testimony is a jury issue; therefore, the

purported reliability determination was not a part of the court’s

admissibility decision. See Colella v. State, 915 S.W.2d 834, 843-

44 (Tex. Crim. App. 1995).     Further, on direct appeal, the Texas

Court of Criminal Appeals held extraneous offenses are relevant to

show future dangerousness and do not have to be proven beyond a

reasonable doubt.    Powell, 898 S.W.2d at 830.

     “[A]n acquittal in a criminal case does not preclude the

Government from relitigating an issue when it is presented in a

subsequent action governed by a lower standard of proof”.        Dowling

v. United States, 493 U.S. 342, 349 (1990).         We have previously

held that testimony by the victim of an alleged, but unadjudicated,

sexual assault is relevant to prove future dangerousness, even

though the defendant was acquitted of a felon-in-possession charge

in connection with the assault.     Vega v. Johnson, 149 F.3d 354, 359

(5th Cir. 1998).

     The Louisiana jury determined Powell was not guilty, beyond a

reasonable doubt, of attempted-murder; it did not address whether

he was a future danger to society.       Consequently, the testimony at

issue, including the victim for the Louisiana charge identifying

Powell as her assailant, was relevant and properly admitted.


                                    8
     Powell has failed to show the state court decision was either

contrary to, or involved an unreasonable application of, clearly

established Supreme Court precedent.    28 U.S.C. § 2254(d)(1).   Nor

has he shown that the state court decision involved an unreasonable

determination of the facts in the light of the evidence presented.

28 U.S.C. § 2254(d)(2).

                                2.

     Citing Apprendi, 530 U.S. 466, and raising the issue for the

first time on appeal (while assuming it is pursuant to the COA

granted by the district court), Powell admits state courts never

addressed whether the evidence at issue is sufficient to support

the future dangerousness finding.

                                a.

     This claim is unexhausted, because it was never presented to

a state court; and, in addition, it has been waived by failing to

present it to the district court.      See Lackey, 116 F.3d at 152.

Moreover, it is procedurally barred because, if Powell presented

the claim now, the Texas Court of Criminal Appeals would dismiss

his successive petition as an abuse of the writ.       See Emery v.

Johnson, 139 F.3d 191, 195-96 (5th Cir. 1998); Nobles v. Johnson,

127 F.3d 409, 423 (5th Cir. 1997); Fearance v. Scott, 56 F.3d 633,

642 (5th Cir. 1995); Ex Parte Barber, 879 S.W.2d 889, 891 n.1 (Tex.

Crim. App. 1994) (en banc) (plurality opinion).

                                b.

     Even if Powell raised this claim under the correct standard,

Jackson v. Virginia, 443 U.S. 307 (1979), any error is waived in


                                 9
Powell’s habeas proceedings because he failed on direct appeal to

challenge sufficiency of the evidence. See United States v. Frady,

456 U.S. 152, 165, 167-68 (1982); Martinez v. Johnson, 255 F.3d

229, 242 (5th Cir. 2001); Finley v. Johnson, 243 F.3d 215, 219 (5th

Cir. 2001).

     Further, even if the testimony concerning the prior acquitted

conduct had been excluded, the evidence regarding the Texas murder

at issue was sufficient to support the jury’s future dangerousness

finding. See Kunkle v. State, 771 S.W.2d 435, 449 (Tex. Crim. App.

1986) (en banc).     Consequently, a claim based on Jackson would

fail.

                                    c.

     Apprendi   is   not    retroactively    applicable       to     cases    on

collateral review.   In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000);

see also United States v. Sanders, 247 F.3d 139 (4th Cir. 2001).

     In addition, Powell’s Apprendi claim also fails because it is

barred by Teague v. Lane, 489 U.S. 288, 303, 310, 316 (1989).                This

claim does not fall within one of the exceptions to the Teague-bar.

     Finally, Powell’s sentence was, obviously, not enhanced beyond

the statutory maximum penalty for capital murder, see TEX. PENAL CODE

ANN. §§ 12.31(a) & 19.03(b) (Vernon 1994); the factual question of

future   dangerousness     was   submitted   to   a   jury;        and   future

dangerousness does not have to be proved beyond a reasonable doubt,

see TEX. PENAL CODE ANN. §§ 19.02(a)(1) & 19.03(a).

     Therefore, any Apprendi claim, if applicable, would fail.




                                    10
                                    B.

      Powell requests a COA on whether trial counsel was ineffective

for failing “to mount a defense against” the acquitted conduct at

the punishment phase.        To obtain a COA, Powell must make “a

substantial showing of the denial of a constitutional right”, 28

U.S.C. § 2253(c)(2), by demonstrating that reasonable jurists could

agree that the petition should have been resolved in a different

manner. Slack v. McDaniel, 529 U.S. 473, 484 (2000).           No authority

need be cited for the rule that, whether a COA should issue is

viewed against the backdrop of the deferential scheme established

by § 2254, discussed in part II.A.

      In order to be granted a COA for claims denied on the merits,

Powell must show “reasonable jurists would find the district

court’s   assessment   of   the   constitutional     claims   debatable      or

wrong”.   Id.    (COA-merits-standard).          For       claims     resolved

procedurally, Powell must make the same showing about the district

court’s assessment and must also show reasonable jurists would find

it   debatable   whether    the   district   court   was    correct    in   its

procedural ruling.     See id. (COA-procedural-standard).

      In his state post-conviction proceedings, Powell’s IAC claim,

arguably presented in the petition filed by his counsel, concerned

a claimed failure to locate alibi witnesses regarding the Texas

murder.    Powell’s pro se petition alleged IAC for failure: to

locate alibi witnesses for the Texas murder; to investigate; to

hire a DNA expert; to strike certain jurors; and to adequately

cross-examine the State’s experts.


                                     11
                                      1.

     Texas does not allow “hybrid representation”.             Satterwhite v.

Lynaugh, 886 F.2d 90, 93 (5th Cir. 1989).           Therefore, because only

claims raised in the petition filed by his attorney were properly

before Texas state courts, see Rudd v. State, 616 S.W.2d 623, 625

(Tex. Crim. App. 1981), Powell’s pro se claims were not fairly

presented   to   state   courts     and    are   therefore   unexhausted   and

procedurally barred.      Satterwhite, 886 F.2d at 92-93.

     Powell has not shown the district court’s procedural ruling on

these claims was even debatably wrong, see Slack, 529 U.S. at 484,

and has never attempted (in district court or here) to make the

showing required to overcome the procedural bars to his claims. He

does not satisfy the COA-procedural-standard.

                                      2.

                                      a.

     With   respect      to   his    above-referenced        exhausted   claim

concerning Texas alibi witnesses, Powell has waived that claim by

failing to brief it on appeal.             His failure to defend claim is

unexhausted:     Powell never raised this specific claim in state

court and would be procedurally barred by Texas’ abuse-of-writ

statute as a successive writ.         TEX. CODE CRIM. PROC. art. 11.071 §

5(a).   Powell has similarly failed to make any argument concerning

the district court’s procedural ruling, as required by Slack, 529

U.S. at 484.      Again, he does not satisfy the COA-procedural-

standard.




                                      12
                                         b.

       As noted, in ruling on whether to grant a COA, we do so

against the backdrop of the deferential scheme established by §

2254. Even if Powell could overcome the procedural bars, he cannot

make the necessary showings to satisfy the COA-merits-standard

concerning     deficient    performance          and    prejudice       required     by

Strickland v. Washington, 466 U.S. 668, 687 (1984), to succeed on

a IAC claim.      Restated, he must satisfy the COA-merits-standard

concerning: whether his trial “counsel’s representation fell below

an objective standard of reasonableness”, allowing for the strong

presumption that counsel’s conduct “falls within the wide range of

reasonable   professional     assistance”,            id.    at    689-90;   and,   for

prejudice (an error rendering his trial fundamentally unfair or

unreliable),    whether,     but   for     his    trial       counsel’s      deficient

performance, the jury would not have decided, pursuant to the

future dangerousness special issue, that Powell “constitute[s] a

continuing threat to society”.

                                     (i)

       Powell does not satisfy the COA-merits-standard concerning

whether   trial   counsel’s    performance            fell    below     an   objective

standard of reasonableness. Although he did not call the witnesses

from   the   Louisiana     trial   who        would    have       provided   testimony

favorable to Powell, counsel timely objected to admission of the

Louisiana witnesses’ testimony on double jeopardy grounds and

argued the issue to the judge outside the presence of the jury;




                                         13
counsel also vigorously cross-examined the State’s witnesses and

exposed the fact that Powell had been acquitted.

     Because Powell failed in state court to raise his Strickland

claim concerning the punishment phase, there is no record regarding

trial counsel’s strategy during that phase.      Instead, presented is

only Powell’s assertion that trial counsel:           “did absolutely

nothing to prepare for the ... penalty phase”; “failed to obtain a

transcript of the Louisiana trial[;] and failed to investigate

independently”.   The only evidence concerning counsel’s conduct

comes from the state post-conviction proceeding, in which the state

habeas judge (who had been the trial judge) found the trial court

          had sufficient contact with both Powell and
          his trial attorneys to be able to make
          credibility    determinations    and   factual
          findings....    The Court finds that counsel
          conducted a thorough investigation in this
          cause and attempted to contact every potential
          witness supplied by Powell. Counsel was not
          able to locate every witness provided by
          Powell, despite making diligent efforts to do
          so.

Ex Parte James Rexford Powell, No. 3977-A, at 2 (15 Sept. 1997).

                               (ii)

     Even if Powell could satisfy the COA-merits-standard for

whether trial counsel’s performance was deficient, Powell cannot

satisfy that standard for prejudice.        Prior to hearing testimony

concerning the attempted-murder, the jury had already determined

that Powell was guilty of abducting, sexually assaulting, and

strangling a ten-year-old girl.        And, after the attempted-murder

testimony, two witnesses testified that Powell had a bad reputation

as a peaceful and law-abiding citizen.

                                  14
     Consequently, Powell’s COA request can also be denied for

failure to show the denial of a constitutional right.      Restated,

reasonable jurists would not find debatable or wrong the district

court’s assessment of this claim.    See Strickland, 498 U.S. at 697;

Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001).

                               III.

     For the foregoing reasons, we DENY the COA request and AFFIRM

the denial of habeas relief.


                                    COA DENIED; JUDGMENT AFFIRMED




                                15
