                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                               No. 00-50821


                         SAMUEL CLARK GALLAMORE,

                                                    Petitioner-Appellant,

                                     v.


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

                                                     Respondent-Appellee,


            Appeal from the United States District Court
                  for the Western District of Texas
                         San Antonio Division
                             (5:98-CV-428)
                            October 4, 2001


Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

            Samuel Clark Gallamore was convicted of capital murder

for participating in the beating and stabbing deaths of an elderly

couple    and   their   daughter.    The   Texas   courts   have   rejected

Gallamore’s direct appeals as well as his request for state habeas

relief.    The federal district court denied Gallamore’s request for

federal habeas relief, but granted 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opinion should not be published and is not precedent except under the limited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.
Gallamore now raises two challenges to his conviction: (1) the

trial court violated Gallamore’s due process rights as defined by

Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), by

failing to inform the jury that Gallamore was ineligible for parole

for thirty-five years; and (2) trial counsel rendered ineffective

assistance. For the reasons that follow, we affirm the judgment of

the district court.

                              I.   BACKGROUND

            On March 29, 1992, Gallamore and an accomplice, James

Steiner, drove to the home of Verle Clayton Kenny (“Kenny”) to rob

it.   On their way to the robbery, the miscreants agreed to kill

anyone who tried to hinder them.

            Three people were present at the Kenny residence on the

night of the robbery: Kenny, who was 83 years old; Julianna Kenny,

who was 74 years old and paralyzed on her left side; and Adrienne

Arnot, Julianna Kenny’s 41 year old daughter.

            According to Gallamore’s confessions1, he walked to the

Kennys’ door while Steiner, who was carrying a tire iron and a

cedar branch, hid in the shadows.           Arnot answered the door and

Gallamore forced his way into the home.           Gallamore grabbed Arnot

and “took her down” while his accomplice rushed in and began

beating Kenny and Arnot with the tire iron and cedar branch.


      1
            Gallamore made two detailed confessions shortly after his arrest.
Transcripts and tape recordings of both confessions were presented to the jury.
Gallamore also testified in his own defense at trial and admitted to
participating in the robbery.

                                      2
Gallamore then went to the kitchen and obtained a large knife.

Gallamore returned to the front of the house, stabbed Mrs. Kenny,

and then beat her in the head with the cedar branch.           Gallamore and

Steiner continued stabbing and beating all three victims               until

they were dead.       Gallamore took several silver spoons, cash from

Arnot’s purse, and other small items from the home.               After his

arrest, Gallamore led law enforcement officers to the location

where he had buried the property taken from the Kenny home.

           Gallmore was indicted by a Kerr County, Texas, grand jury

for intentionally and knowingly murdering more than one person

during the same criminal transaction.         Venue for Gallamore’s trial

was transferred to Comal County. The guilt-innocence phase of

Gallamore’s trial began on January 27, 1994.         On February 1, after

deliberating for less than two hours, the jury found Gallamore

guilty of capital murder.

           During the punishment phase of Gallamore’s trial, the

state argued Gallamore’s future dangerousness by presenting the

testimony of three law enforcement officers regarding Gallamore’s

reputation in the community for unlawfulness and violence.              The

state also presented Gallamore’s prior criminal history, including

evidence   of   a    prior   arrest   for   assaulting   his   own   sister.

Additionally,       the   state   presented   evidence   indicating     that

Gallamore threatened to escape if convicted.         Gallamore’s counsel

offered the testimony of several friends and family members in an



                                      3
attempt     to    rebut     the     state’s     evidence      regarding     future

dangerousness.         Gallamore’s counsel also offered the testimony of

Dr.     Wendell   Dickerson,       a   forensic      psychologist,   concerning

Gallamore’s mental health and potential future dangerousness.

            The jury determined that Gallamore posed a threat of

future violence, that Gallamore had intended to kill the deceased,

and that there were not sufficient mitigating circumstances to

warrant a life sentence.           Based on these jury findings, the trial

court sentenced Gallamore to death in accordance with Texas law.

            Gallamore appealed his conviction and sentence.                   The

Texas    Court    of    Criminal   Appeals,     in    an   unpublished    opinion,

affirmed.    Gallamore v. State, No. 71,856 (Tex. Crim. App. 1995).

Gallamore did not petition for certiorari in the United States

Supreme Court. Gallamore’s application for state habeas relief was

rejected by the Texas courts. Ex Parte Gallamore, App. No. 36,958-

01 (Tex. Crim. App. 1998).

            Gallamore      promptly     filed   his     federal   habeas    corpus

petition in federal district court.                  The district court denied

Gallamore’s request for habeas relief in 94-page opinion, but

granted a certificate of appealability (“COA”) on all issues raised

in the habeas petition.        Gallamore v. Johnson, No. SA-98-CA-428-EP

(W.D.Tex. 2000).        This appeal followed.2


      2
            The district court granted Gallamore a COA on the four issues raised
in his habeas petition, but Gallamore has raised only two of these issues on
appeal. Failure to brief the other two issues on appeal constitutes waiver.
See, e.g., Lara v. Johnson, 141 F.3d 239, 242 (5th Cir. 1998).

                                         4
                                 II.    DISCUSSION

            A.        Standard of Review

            Gallamore’s habeas petition, filed in the district court

after April 24, 1996, is reviewed in accordance with the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh

v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).                          AEDPA

review of Gallamore’s habeas petition “requires deference to the

state habeas court’s adjudication of [Gallamore’s] claims on the

merits, unless that adjudication: (1) ‘was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined       by    the   Supreme    Court    of        the   United    States,’     §

2254(d)(1), or (2) constituted an ‘unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,’ § 2254 (d)(2).”            Wheat v. Johnson, 238 F.3d 357, 360

(5th Cir. 2001) (citing 28 U.S.C. § 2254).

            B.        The Simmons Issue

            Gallamore argues that the trial court violated his due

process rights as defined in Simmons v. South Carolina, 512 U.S.

154, 114 S.Ct. 2187 (1994), by refusing to instruct the jury that

Gallamore would not be eligible for parole for thirty-five years if

given   a    life-sentence.3           Simmons       mandates     that     “where    the

defendant’s      future      dangerousness      is    at    issue,   and    state    law

      3
        At the time of Gallamore’s trial, a Texas capital murder defendant who
received a life sentence was ineligible for parole for at least thirty-five
years. See Tex. Code Crim. Proc. Ann. art. 42.18 § 8(b)(2) (Vernon Supp. 1994).
Texas law did not provide a life-without-parole alternative to the death penalty.

                                          5
prohibits the defendant’s release on parole, due process requires

that the sentencing jury be informed that the defendant is parole

ineligible.”        512 U.S at 156, 114 S.Ct. at 2190.                Gallamore

contends that Simmons applies because “the minimum length of time

the    petitioner    would   be   required   to   serve     [if   given   a   life

sentence] far exceeds the commonly held beliefs of the jurors.”

Petitioner’s Brief at 22.         Gallamore argues that the trial court’s

failure to offer an instruction relating to parole eligibility

allowed his jurors to employ “misconceived ideas about parole.”

Gallamore offers affidavits of three of the jurors in support of

this argument, and contends that he is entitled to an evidentiary

hearing to demonstrate his jurors’ misunderstanding of Texas parole

law.

            Gallamore’s      reliance   on   Simmons   is    misplaced.        “In

Simmons, the Supreme Court expressly held that its ruling does not

apply to Texas, because it does not have a life-without-parole

alternative to capital punishment.”           Tigner v. Cockrell, No. 01-

50238, slip op. at 5114 (5th Cir. Aug. 28, 2001) (citing Simmons,

512 U.S. at 168 n. 8, 114 S.Ct. at 2196).           A parole-ineligibility

instruction is not required unless the defendant is completely

ineligible for parole under state law.             Id. (citing Ramdass v.

Angelone, 530 U.S. 156, 167, 120 S.Ct. 2113, 2120 (2000)).                    This

court has repeatedly refused to apply Simmons to Texas convictions.

See, e.g., Tigner, slip op. at 5114-15; Wheat, 238 F.3d at 361-62.


                                        6
Therefore,      the    state   habeas   court’s   rejection      of   Gallamore’s

Simmons challenge was neither “contrary to, [nor] involved an

unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States.”                  28 U.S.C.

§ 2254(d)(1).

               In his brief, Gallamore concedes that this court has

refused to apply Simmons to Texas convictions.                Nevertheless, he

argues that the reasoning of Simmons requires its extension to the

facts     of   this    case.    Such    an   extension   would    constitute   an

impermissible “new” rule of constitutional criminal law barred in

habeas review by the Teague non-retroactivity principle.                  Tigner,

slip op. at 5115 (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct.

1060 (1989); Wheat, 238 F.3d at 361-62).             Therefore, Simmons does

not apply to the facts of this case.4

               C.     Ineffective Assistance of Counsel

               Gallamore next argues that the district court erred by

refusing to grant his request for an evidentiary hearing regarding

his contention that he received ineffective assistance of counsel.

Gallamore claims that his counsel failed to: (1) adequately develop

and present mitigating mental health evidence through the expert

witness; (2) obtain the assistance of co-counsel; and (3) call the


      4
            Gallamore also argues that he is entitled to an evidentiary hearing
to resolve factual issues relating to his Simmons claim. Gallamore is entitled
to an “evidentiary hearing to prove his contentions only if we believe that he
is entitled to relief if his allegations are proven true.” Moawad v. Anderson,
143 F.3d 942, 947-48 (5th Cir. 1998). Because his Simmons claim is without
merit, Gallamore is not entitled to an evidentiary hearing.

                                         7
trial court’s attention to a state court opinion that allegedly

would   have    entitled   defense        counsel        to     question      jurors

“extensively” about their knowledge of parole laws.

          Under    the   well-known       Strickland          test,    “[a]   habeas

petitioner alleging ineffective assistance must demonstrate both

constitutionally    deficient   performance         by    counsel       and   actual

prejudice as a result of such ineffective assistance.”                    Carter v.

Johnson, 131 F.3d 452, 463 (5th Cir. 1997) (citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)).

Establishing   deficient   performance       requires         the     petitioner   to

“prove that the performance of counsel fell below an objective

standard of reasonableness.”    Id.       The petitioner must show “‘that

counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”

Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998) (quoting

Strickland, 466 U.S. at 668, 104 S.Ct. at 2064).                    The petitioner

must overcome a strong presumption that the conduct of his trial

counsel falls within a wide range of reasonable professional

assistance.    Strickland, 466 U.S. at 687-91, 104 S.Ct. at 2064-66.

To demonstrate prejudice, the petitioner “must establish that the

attorney’s errors were so deficient as to render the verdict

fundamentally unfair or unreliable.”            Moawad, 143 F.3d at 946

(citing Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69).                    When

contesting counsel’s performance during the punishment stage of



                                      8
trial, the petitioner “must establish a ‘reasonable probability’

that the jury would not have imposed the death sentence in the

absence of errors by counsel.”              Id.   Gallamore is entitled to

habeas relief only if the state court’s “decision rejecting his

ineffective-assistance claim was either ‘contrary to, or involved

an   unreasonable     application     of’     established   [Federal]     law.”

Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 1512 (2000).

            1.    Counsel’s Mental Health Strategy

            In his first ineffective-assistance challenge, Gallamore

asserts that his attorney failed to properly develop and present

mitigating mental health evidence. Counsel waited until the eve of

trial to secure the assistance of Dr. Dickerson, leaving Dickerson

too little time to examine Gallamore adequately.                 Moreover, a

“medically trained” expert rather than a psychologist should have

been hired by his attorney to investigate the possibility of

organic brain damage caused by Gallamore’s long history of drug

abuse.

            In support of his argument, Gallamore relies in part on

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985).              In Ake, the

Court held that when a defendant demonstrates that “his sanity at

the time of the offense is to be a significant factor at trial, the

State    must,   at   a   minimum,   assure    the   defendant   access   to   a

competent psychiatrist who will conduct an appropriate examination

and assist in evaluation, preparation, and presentation of the



                                       9
defense.”    Ake, 470 U.S. at 83, 105 S.Ct. at 1096.            Gallamore’s due

process right of access to a mental health expert has not been

violated in this case.         Dr. Dickerson evaluated Gallamore and

testified on Gallamore’s behalf.            Gallamore’s reliance on Ake is

misguided in that Gallamore has not raised a due process challenge.

Rather,    Gallamore    asserts     that    his   counsel’s     performance    was

deficient in violation of the Strickland standard.               Gallamore, now

unsatisfied with Dr. Dickerson’s testimony, asserts that his trial

counsel should have prepared a better mental health strategy and

put together a more qualified and prepared team of mental health

experts to testify on Gallamore’s behalf.

            Gallamore’s arguments regarding the effectiveness of his

mental health expert do not establish ineffective assistance of

counsel.      First,    most   of    Gallamore’s       arguments      hinge   on   a

comparison of Dr. Dickerson’s testimony with that of the health

expert who testified in the accomplice’s trial. This comparison is

largely irrelevant because Gallamore and his accomplice do not

share identical mental health histories. Moreover, the state court

expressly found that Dr. Dickerson was a competent mental health

expert who had sufficient time to prepare for trial and who

thoroughly and competently testified about mitigating evidence, and

Gallamore’s    future    dangerousness.           In   any   event,   Gallamore’s

ineffective assistance claim should focus on the conduct of counsel

rather than on the effectiveness of a witness.                   The attorney’s



                                       10
decision to employ Dr. Dickerson rather than the Steiner’s mental

health expert is a decision of trial strategy that “we must presume

. . . [falls] within the ‘wide range of reasonable professional

assistance.’” Moawad, 143 F.3d at 948 (quoting Strickland, 466 U.S.

at 689, 104 S.Ct. at 2065).

              This is not a case where Gallamore’s counsel failed to

investigate     his      client’s    mental        health    or    failed    to   present

relevant mitigating evidence.             See, e.g., Lockett v. Anderson, 230

F.3d 695, 716 (5th Cir. 2000) (holding that the failure to conduct

a   minimal    investigation        of    a    defendant’s        possible   mitigation

evidence renders counsel’s performance deficient).                           Gallamore’s

counsel    acted    reasonably       by       interviewing        family    members      and

friends,      and   by    employing       Dickerson         to    examine    Gallamore.

Dickerson and seven lay witnesses testified as to mitigating

evidence,     and   the    district       court     correctly       observed      that   an

abundance of testimony relating to Gallamore’s mental health was

presented during the punishment phase of trial.                      Furthermore, the

state habeas court found that counsel acted reasonably in hiring

Dickerson and offering his testimony at trial.                      Gallamore has not

cast doubt on the reasonableness of the state court’s conclusion

that his counsel’s performance was constitutionally acceptable.

              This prong of Gallamore’s ineffective-assistance argument

also fails because he has failed to established that any prejudice

arose from the allegedly deficient conduct.                        Gallamore provides



                                              11
little evidence indicating what another mental health expert might

have revealed that would probably have altered the sentence. See

Crane v. Johnson, 178 F.3d 309, 315 (5th Cir. 1999) (the defendant

did   not    prove    prejudice    because       he    “produced     no    persuasive

psychiatric evidence in the district court that if produced at

trial,      would    have    undermined        confidence      in    the   resulting

verdict.”).       Gallamore’s key evidence regarding prejudice is the

affidavit of an expert who reviewed Dr. Dickerson’s testimony, but

never personally examined Gallamore.                  This court has previously

found a similar affidavit unpersuasive.                See Dowthitt v. Johnson,

230 F.3d 733, 746 (5th Cir. 2000) (finding an expert affidavit to

be insufficient where it was “based on [the expert’s] review of a

portion of the paper record, and [the expert] did not personally

interview [the defendant].”).             The state court’s finding that no

prejudice     resulted      from   the    retention      of    Dr.   Dickinson   was

reasonable.

             2.      Appointment of Co-counsel

             Gallamore      next    argues      that     his    attorney      offered

ineffective assistance by failing to secure the assistance of co-

counsel.     This argument is based on an initial indication to the

trial court by Gallamore’s trial counsel that the appointment of

co-counsel would be useful.              Co-counsel was appointed, but only

assisted during voir dire.               Gallamore contends that co-counsel

should have been retained for the duration of the trial, and that



                                          12
the absence of co-counsel    prejudiced Gallamore because co-counsel

would have adequately prepared an effective mental health expert to

testify on Gallamore’s behalf.

          The state habeas court rejected this argument and found

that Gallamore’s counsel had acted reasonably in hiring additional

counsel to assist only in the voir dire process.    The state habeas

court also concluded that the absence of co-counsel during the

remainder of the trial did not prejudice Gallamore.

          Outside of his conclusory allegations, Gallamore has not

demonstrated how appointment of co-counsel would have altered the

outcome of his trial.   There is no constitutional guarantee of the

assistance of two attorneys in a capital case.    Counsel’s decision

to retain co-counsel only during voir dire does not constitute

ineffective assistance.

          3.   Counsel’s Failure to Bring Jackson v. State to
               the Trial Court’s Attention

          Gallamore also complains that his counsel failed to call

the trial court’s attention to Jackson v. State, 822 S.W.2d 18

(Tex. Crim. App. 1991).     Jackson, according to Gallamore, permits

counsel to examine jurors “extensively” during voir dire about

their ability to obey an instruction forbidding consideration of

parole.   Gallamore contends that Jackson should have been cited

when the trial court stopped defense counsel from questioning a

potential juror further about the juror’s understanding of Texas




                                  13
parole law.   Gallamore attempts to establish prejudice by arguing

that if Jackson has been cited to the court and applied, then

counsel would have been able to question more extensively and

strike for cause any venire members who had reservations about

issuing a life sentence for fear of early parole.

          Gallamore’s reliance on Jackson is misplaced.      Jackson

explains that if a potential juror is “shown to be unable to

disregard parole in determining the punishment issues, he would

have been subject to a challenge for cause.”       822 S.W.2d at 27.

However, Jackson does not stand for the proposition that jurors

must be extensively questioned about their understanding of parole

during voir dire.     In fact, on direct appeal of Gallamore’s

conviction, the Texas Court of Criminal Appeals indicated that

“extensive” questioning is inappropriate, explaining that “a voir

dire inquiry which predicates a parole question with a legal

description of the attributes of a life sentence vis a vis parole,

is not a proper query.”    Gallamore v. State, No. 71,856 (Tex. Crim.

App. December 13, 1995); see also, Howard v. Texas, 941 S.W.2d 102,

116 (Tex. Crim. App. 1996) (en banc) (holding the same).

          Where a petitioner’s argument related to the failure of

counsel to raise a case lacks merit, counsel’s failure to raise the

case is not prejudicial.     Neal v. Cain, 141 F.3d 207, 214-15 (5th

Cir. 1998).   Even if Gallamore is correct in his assertion that

Jackson should have been raised, defense counsel is not obliged to



                                  14
raise    every   non-frivolous   issue    in   order   to   offer   effective

assistance. Counsel’s actions during voir dire are viewed as trial

strategy and do not form the basis for an ineffective assistance

claim unless the voir dire strategy is so unreasonable that it

“permeates the entire trial with obvious unfairness.”               Teague v.

Scott, 60 F.3d 1167, 1172 (5th Cir. 1995).             Counsel’s failure to

raise Jackson does not establish a “reasonable probability of a

different result” that “undermines confidence in the result” of

Gallamore’s trial.     West v. Johnson, 92 F.3d 1385, 1400 (5th Cir.

1996).    Counsel’s failure to raise Jackson does not establish a

reasonable probability of a different outcome that undermines

confidence in the verdict.       The state court’s finding that counsel

did conduct extensive voir dire and its conclusion rejecting

prejudice from the failure to cite Jackson reasonably apply Federal

law.

                            III.    CONCLUSION

            For the foregoing reasons, we AFFIRM the judgment of the

district court denying federal habeas relief.




                                     15
