             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               No. 01-41489
                                             _______________



                                          ERIC LYNN MOORE,

                                                               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
                                            m 99-CV-18
                                    _________________________
                                         November 18, 2002



Before SMITH, EMILIO M. GARZA, and                        Eric Moore was sentenced to die for mur-
  DENNIS, Circuit Judges.                              dering Helen Ayers. He appeals the denial of
                                                       habeas corpus relief. We affirm.
JERRY E. SMITH, Circuit Judge:*
                                                                            I.
                                                          In 1990, Moore and three other men
                                                       stopped at the rural home of Richard and
   *                                                   Helen Ayers. On a pretext of needing jumper
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                       cables, the four men gained access to the
determined that this opinion should not be pub-
lished and is not precedent except under the limited   Ayers’ residence and robbed the couple at
circumstances set forth in 5TH CIR. R. 47.5.4.         gunpoint, then ushered them into the master
bedroom. After ordering them to lie down on                state judgment unless the state court’s decision
their mattress, the men fired five shots from a            was “contrary to, or involved an unreasonable
single weapon, shooting Mrs. Ayers in the                  application of, clearly established Federal law,”
head and Mr. Ayers in the shoulder. Mrs.                   or “resulted in a decision that was based on an
Ayers died. Moore confessed to shooting Mr.                unreasonable determination of the facts.”
Ayers but claimed that one of the other three              Riddle v. Cockrell, 288 F.3d 713, 716 (5th
fired the shot that killed Mrs. Ayers.                     Cir.) (quoting 28 U.S.C. § 2254(d)(1)-(2)),
                                                           cert. denied, 123 S. Ct. 420 (2002).
   The Texas Court of Criminal Appeals af-
firmed, Moore v. State, 882 S.W.2d 844 (Tex.                   A state court decision is contrary to estab-
Crim. App. 1994), cert. denied, 513 U.S. 1114              lished federal law if the state court “applies a
(1995), and denied Moore’s state application               rule that contradicts the governing law set
for post-conviction relief, Ex parte Moore,                forth in [the Court’s] cases,” or confronts facts
No. 38,670-01 (Tex. Crim. App. 1998). Dur-                 that are “materially indistinguishable” from rel-
ing state post-conviction proceedings, several             evant Supreme Court precedent, yet reaches
of Moore’s claims were found procedurally                  an opposite result. Williams v. Taylor, 529
barred because they had not been raised on di-             U.S. 362, 405-06 (2000). Alternatively, a
rect appeal, as required by Texas law. Moore               state court “unreasonably applies” clearly es-
then filed a federal habeas petition raising               tablished federal law if it correctly identifies
these same claims and two procedurally barred              the governing precedent but unreasonably ap-
claims under Penry v. Johnson (“Penry II”),                plies it to the facts of a particular case. Id. at
532 U.S. 782 (2001). The district court de-                407-09.
nied Moore’s petition for relief but granted a
certificate of appealability (“COA”) with re-                                      III.
gard to eleven of the claims.1                                 Six of the claims are barred from federal
                                                           review because Moore did not raise them dur-
                       II.                                 ing his state direct appeal or post-conviction
   We review the district court’s findings of              proceedings. In stating five of the claims,
fact for clear error and its conclusions of law            Moore argues that he was denied the effective
de novo. Martinez v. Johnson, 255 F.3d 229,                assistance of counsel at various points during
237 (5th Cir. 2001), cert. denied, 534 U.S.                his trial. Specifically, he avers that the follow-
1163 (2002). The Anti-Terrorism and Effec-                 ing actions by his attorney amounted to in-
tive Death Penalty Act of 1996 (“AEDPA”)                   effective assistance: the failure (1) to discover
limits the scope of federal habeas corpus re-              or investigate evidence of Moore’s “bad acts”;
view where the state provided a full and fair              (2) to object to the trial court’s removal, for
hearing on a petitioner’s claims. We may not               cause, of prospective jurors Karen Eade and
issue a writ for a defendant convicted under a             Michael King; (3) to object to evidence that
                                                           Moore had been diagnosed as a sociopath;
                                                           (4) to object to evidence of conditions within
   1
    Moore unsuccessfully sought a COA from this            the Texas prison system; and (5) to object to
court to appeal a twelfth claim concerning whether         an improper question asked by the state during
he was constructively denied effective assistance of       cross-examination regarding the percentage of
counsel on direct appeal. Moore v. Cockrell, No.           cases that the Court of Criminal Appeals over-
01-41489 (5th Cir. Mar. 22, 2002).

                                                       2
turns.2 In addition, Moore contends that there               on review, the Court of Criminal Appeals ex-
is a reasonable probability that the result of the           plicitly adopted the trial court’s conclusions of
punishment phase of his trial would have been                law. Federal review is therefore barred.5
different if Officer Frank Svoboda had testified
truthfully.                                                      Still, if a petitioner can show cause for a
                                                             procedural default, and ensuing prejudice, his
   Procedural default exists where a state                   failure to raise a claim in state proceedings will
court clearly and expressly bases its dismissal              not bar federal habeas review. Murray v.
on a state procedural rule that provides an in-              Carrier, 477 U.S. 478, 485 (1986). A peti-
dependent and adequate ground for the dis-                   tioner demonstrates cause for failing to raise a
missal.3 Coleman v. Thompson, 501 U.S. 722,                  claim in state court if “some objective factor
731-32 (1991). Notably, Texas law precludes                  external to the defense impeded counsel’s ef-
habeas relief for all record-based claims that               forts to comply with the state’s procedural
are not raised on direct appeal. E.g., Finley v.             rule.” Id. at 488.
Johnson, 243 F.3d 215, 219 (5th Cir. 2001);
Rojas v. State, 981 S.W.2d 690, 691 (Tex.                       If, however, the “basis of the constitutional
Crim. App. 1998).                                            claim is available, and other defense counsel
                                                             have perceived and litigated that claim,” a par-
   During post-conviction proceedings, the                   ticular petitioner’s lack of knowledge of the le-
state trial court found, as a matter of law, that            gal basis for the claim does not constitute
the six claims were procedurally barred be-                  cause for the failure to raise the claim below.
cause they were never raised on direct appeal;4              Engle v. Issac, 456 U.S. 107, 134 (1982).
                                                             Moore does not suggest a reason, nor can we
                                                             determine one from the record, why he would
   2                                                         have been impeded from bringing his ineffec-
     In addition, Moore argues that his appellate
                                                             tive assistance of counsel claims, and the
counsel’s failure to raise the improper cross-ex-
amination question on direct appeal constituted in-          perjured-testimony claim.
effective assistance of counsel. Because Moore
makes no argument in support of this claim, how-                                  IV.
ever, we consider it waived. See FED. R. APP. P.                Moore claims that had his trial counsel ob-
28(a)(9)(A); United States v. Thames, 214 F.3d               jected to the state’s comments, during voir
608, 611 n.3 (5th Cir. 2000) (noting the rule).              dire, concerning the possibility of parole, the
   3
     In his brief, Moore does not address the issue
                                                                4
of procedural default. Nor did he file a reply brief              (...continued)
in response to the government’s argument that                the state court alternatively reaches the merits of a
these six claims are procedurally defaulted.                 claim. Harris v. Reed, 489 U.S. 255, 264 n.10
                                                             (1989); Fisher v. Texas, 169 F.3d 295, 300 (5th
   4
     After declaring that the claims were procedur-          Cir. 1999).
ally defaulted, the state trial court discussed the
                                                                5
merits of the claims in the alternative. Neverthe-                In the district court, the state argued that
less, the claims are still procedurally defaulted. An        Moore’s claims are procedurally barred. Cf. Fish-
express state court procedural ruling is an inde-            er, 169 F.3d at 300-301 (declining to apply pro-
pendent and adequate bar to federal review, even if          cedural bar where state did not raise procedural
                                        (continued...)       default in district court).

                                                         3
result of the punishment phase of his trial               not generally prejudicial where the jury later is
would have been different. The district court             instructed to disregard the subject matter of
reviewed this claim de novo because of the                the improper comments. Sawyer v. Butler,
state court’s supposed failure to make specific           848 F.2d 582, 590-91 (5th Cir. 1988). Here,
findings of fact or conclusions of law. Our               the jury was correctly and timely instructed not
review of the state court opinion and state               to consider parole eligibility.7 Therefore,
habeas petition reveals, however, that Moore              assuming that the prosecutor’s comments were
never raised this claim during state proceed-             improper, we cannot say that there was a
ings. Because the claim is therefore unex-                reasonable probability that the outcome of the
hausted, and Moore offers no reason why he                punishment phase would have been different
could not have raised it in state court, we need          had defense counsel objected.8
not consider it. Nevertheless, because the
state does not argue that the claim is unex-                                     V.
hausted, we address its merits.                              The district court denied Moore leave to
                                                          amend his petition to add a Penry II claim,
   Moore claims that during voir dire, the                finding that the claim was procedurally barred.
state improperly referenced the possibility that          Moore argues that the procedural default
he might receive parole “somewhere far down               should be excused because his trial and state
the road.”6 To prevail on an ineffective assis-           post-conviction counsels’ failure to raise a
tance of counsel claim, Moore bears the bur-              Penry II claim constituted ineffective assis-
den of establishing a reaso nable probability             tance of counsel, or in the alternative, that the
that had counsel objected to the comment, the             issue was novel. We reject both arguments.
result in the punishment phase would have
been different. Strickland v. Washington, 466                                     A.
U.S. 668, 694 (1984).                                        In Penry v. Lynaugh (“Penry I”), 492 U.S.
                                                          302 (1989), the Court held that jury instruc-
   Importantly, the failure to object to a prose-         tions used by Texas courts in capital sentenc-
cutor’s improper comments during voir dire is             ing proceedings were unconstitutional in cases
                                                          in which the defendant introduced evidence of
                                                          mental retardation and childhood abuse. To
   6
     The prosecutor stated the following to Frances       comply with Penry I, Texas courts amended
Myrene Locust Corley, who was seated as the sixth         their instructions in capital cases by providing
juror:                                                    an additional instruction regarding the effect of
                                                          mitigating evidence, although the new instruc-
   In this case, you obviously know there were
   only two punishments available, you either
   get the death penalty or you receive life
   imprisonment. That would probably indi-                   7
                                                               Generally it is presumed that juries will follow
   cate to you that rehabilitation in that scheme         instructions. Zafiro v. United States, 506 U.S.
   may not be that big of an issue, because life          534, 540 (1993).
   in prison is there and although, SS
                                                             8
   possibility of parole may exist somewhere                   Because Moore’s other ineffective assistance
   far down the road, that is really not                  of counsel claims are procedurally barred, we need
   probably something that is going to be of              not address his claim that the cumulative effects of
   primary concern.                                       defense counsel’s errors violated due process.

                                                      4
tion did not provide jurors with plain guidance          viction excuses his failure to raise the issue in
on how to apply such evidence. In Penry v.               state court. It is true that “where a constitu-
Johnson (“Penry II”), 532 U.S. 782 (2001),               tional claim is so novel that its legal basis is
the Court held that Texas jury instructions              not reasonably available to counsel, a defen-
were still unconstitutional where a defendant            dant has cause for his failure to raise the claim
introduced evidence of mental retardation and            in accordance with applicable state proce-
childhood abuse.                                         dures.” Ross, 468 U.S. at 16. As we have
                                                         noted, however, Penry II claims had already
   At trial in 1991, Moore introduced evi-               been brought and rejected during the pendency
dence of mental retardation and childhood                of Moore’s state post-conviction proceedings.
abuse. He was sentenced under the instruction            E.g., Fuller, 829 S.W.2d at 209. With the
used by Texas courts in the wake of Penry I.             constitutional question already tried and test-
Because Moore never argued in state court                ed, it cannot be that counsel “had no reason-
that the instruction was unconstitutional, the           able basis upon which to formulate a constitu-
claim is unexhausted. As we have said, unex-             tional question.” Selvage v. Collins, 975 F.2d
hausted claims cannot be brought in a federal            131, 134 (5th Cir. 1992) (quoting Ross, 468
habeas petition unless the petitioner can show           U.S. at 14-15).
cause for not raising the issue in state court, or
a miscarriage of justice if the claims were not              Instead, Moore argues that the “hostility”
considered. Coleman, 501 U.S. at 735.                    of Texas courts to Penry II-type claims ren-
                                                         dered these claims novel during his state post-
                       B.                                conviction proceedings. In Engle, 456 U.S. at
    Moore argues that his procedural default             130, however, the Court held that a defendant
should be excused because of ineffective as-             who “perceives a constitutional claim and
sistance of counsel. To succeed on this claim,           believes it may find favor in the federal courts,
he first must demonstrate that his counsel’s             . . . may not bypass the state courts simply
actions fell below an objective standard of rea-         because he thinks they will be unsympathetic
sonableness. Washington, 466 U.S. at 690.                to the claim.” In other words, federal courts
During the pendency of Moore’s post-trial                will not designate claims as novel merely be-
proceedings, the Court of Criminal Appeals al-           cause state courts have rejected them;9 a pe-
ready had rejected Penry II-type claims. E.g.,           titioner who recognizes the constitutional basis
San Miguel v. State, 864 S.W.2d 493, 495                 for a claim must first bring the claim in state
(Tex. Crim. App. 1993); Fuller v. State, 829             court. In light of Engle, the Court of Criminal
S.W.2d 191, 209 (Tex. Crim. App. 1992).
Therefore, we agree with the district court that
it was not objectively unreasonable for                     9
                                                              Before Penry II, we held that “the unsuccess-
Moore’s counsel to forgo bringing a Penry II
                                                         ful advancement of ‘Penry’ claims by defense
claim where precedent dimmed the possibility             counsel as early as 1980 demonstrates that such
of victory.                                              claims were reasonably available at that time.”
                                                         Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.
                      C.                                 1992). In several cases, we declined to find cause
  In the alternative, Moore contends that the            under Ross even where a habeas action was ini-
novelty of a Penry II claim following his con-           tiated before Penry I. E.g., id.; Cuevas v. Collins,
                                                         932 F.2d 1078, 1081-82 (5th Cir. 1991).

                                                     5
Appeals’ rejection of Penry II-type claims did
not render this claim novel in any sense of the
word.10

   AFFIRMED.




   10
      Because Moore was not granted a COA as to
whether Dr. Walter Quijano impermissibly used
race as a factor in assessing Moore’s future dan-
gerousness, we decline to address this issue. See
United States v. Kimler, 150 F.3d 429, 430-31 &
n.1 (5th Cir. 1998).

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