                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       ____________________

                           No. 97-10864
                       ____________________


                        TROY DALE FARRIS,

                                              Petitioner-Appellant,

                              versus

           GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
                OF CRIMINAL JUSTICE, INSTITUTIONAL
                             DIVISION,

                                              Respondent-Appellee.


          Appeal from the United States District Court
               for the Northern District of Texas
                         (4:94-CV-142-Y)

                          April 27, 1998
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:1

     Troy Dale Farris, convicted in Texas state court of capital

murder and sentenced to death, appeals the denial of habeas relief,

claiming that the district court erred in applying a presumption of

correctness to the trial court’s determination that prospective

juror Janice Goodson was excludable for cause, in the light of the

Texas Court of Criminal Appeals, in a decision in another case,



     1
          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that this opinion should not be published and is not precedent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.
overruling its earlier decision in Farris’ direct appeal on that

issue; and that his court appointed counsel labored under an actual

conflict of interest due to their professional affiliation with an

attorney who was formerly the lead prosecutor assigned to his case.

We AFFIRM.

                                I.

     Farris was convicted by jury in May 1986 of the offense of

capital murder for the shooting death of Tarrant County Texas

Deputy Sheriff Clark Rosenbalm. (The facts underlying the murder

are not at issue.)   Following a separate punishment hearing, the

jury affirmatively answered two special issues that were presented;

and, accordingly, the trial court sentenced Farris to death.

     On direct appeal, the Texas Court of Criminal Appeals affirmed

the conviction and sentence. Farris v. State, 819 S.W.2d 490 (Tex.

Crim. App. 1990), cert. denied, 503 U.S. 911 (1992), overruled by

Riley v. State, 889 S.W.2d 290, aff’d on rehearing, 889 S.W.2d 297

(Tex. Crim. App. 1994), cert. denied, 515 U.S. 1137 (1995).

     Farris then filed for state habeas relief.    The trial judge

conducted the state habeas proceeding; following an evidentiary

hearing, the court, in August 1993, entered findings of fact and

conclusions of law, and recommended that habeas relief be denied.

The Texas Court of Criminal Appeals adopted the trial court’s

finding and denied habeas relief in December 1993.        Ex parte




                              - 2 -
Farris, No. 15,938-02 (Tex. Crim. App. Dec. 15, 1993) (unpublished

order).    Execution was set for 8 March 1994.

     On 2 March 1994, Farris sought federal habeas relief and a

stay of execution; a stay was granted on 4 March.         And, at the end

of 1994, while Farris’ federal habeas petition was pending, the

Texas Court of Criminal Appeals rendered Riley v. State, 889 S.W.2d

290, aff’d on rehearing, 889 S.W.2d 297 (Tex. Crim. App. 1994),

cert. denied, 515 U.S. 1137 (1995), which expressly overruled its

prior     opinion   in   Farris’   appeal   on   the   issue    of   whether

venireperson Goodson was properly excluded for cause.

     In early 1997, the magistrate judge recommended granting

habeas relief to Farris with respect to Goodson’s exclusion, while

recommending denying relief on all other issues.               But, in June

1997, the district court denied habeas relief as to all claims;

nevertheless, it granted a certificate of probable cause to appeal.

Farris v. Johnson, 967 F. Supp. 200 (N.D. Tex. 1997).          Farris moved

to amend the judgment; in July 1997, in the light of the Supreme

Court’s decision in Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059

(1997), the district court amended the denial order by applying the

standards of 28 U.S.C. § 2254 as existed prior to the enactment of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

(The district court later granted Farris an AEDPA certificate of

appealability. But, as the district court ruled, pre-AEDPA law

applies.)


                                   - 3 -
                                II.

     Farris claims that the district court erred in according a

presumption of correctness to the trial court’s finding that

Goodson was excludable for cause due to her position regarding the

death penalty. For his second, and only other, issue, he maintains

that his court appointed counsel labored under an actual conflict

of interest due to their professional affiliation with the former

lead prosecutor on Farris’ case, who resigned from the district

attorney’s office prior to Farris’ trial and formed a professional

relationship with his trial counsel.

     Of course, under pre-AEDPA habeas law, “[i]n considering a

federal habeas corpus petition presented by a prisoner in state

custody, federal courts must generally accord a presumption of

correctness to any state court factual findings.”   Mann v. Scott,

41 F.3d 968, 973 (5th Cir. 1994), cert. denied, 514 U.S. 1117

(1995). Of particular application here, as stated in Wainwright v.

Witt, 469 U.S. 412, 429 (1985), a state trial judge’s decision to

strike a juror because of his views on capital punishment is a

factual finding entitled to the presumption of correctness found in

28 U.S.C. § 2254(d).   (All references in this opinion to § 2254(d)

are to that section as it existed prior to amendment by AEDPA).

However, “[e]ight exceptions exist to this presumption. One of the

exceptions is if the record does not fairly support the finding.

If the record as a whole does not fairly support the finding, the


                               - 4 -
finding is not entitled to the presumption of correctness.”          James

v. Whitley, 39 F.3d 607, 609-10 (5th Cir. 1994), cert. denied, 514

U.S. 1069 (1995); see also Gilley v. Collins, 968 F.2d 465, 469

(5th Cir. 1992) (although findings of fact are entitled to a

presumption of correctness, this court is not bound by those

findings if the state finding is not fairly supported by the

record).

     It goes without saying that we review a district court’s

findings of fact for clear error; issues of law, de novo. E.g.,

Mann, 41 F.3d at 973 (citing Barnard v. Collins, 958 F.2d 634, 636

(5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993)).                And,

needless to say, “[a] finding of fact made by the district court is

clearly erroneous only when the reviewing court, after reviewing

the entire evidence, is left with the definite and firm conviction

that a mistake has been committed.”          Williams v. Collins, 16 F.3d

626, 630 (5th Cir.), cert. denied, 512 U.S. 1289 (1994).

                                      A.

     In asserting that the district court erred in according a

presumption   of   correctness   to    the   trial   court’s   findings   in

excluding Goodson, Farris contends that, instead, the presumption

should be applied to Riley v. State, which overruled Farris v.

State on the issue of whether Goodson was properly excluded.              He

maintains also that Goodson’s exclusion was based on an application



                                 - 5 -
of an improper legal standard; and that the decision to exclude her

was without support in the record.

     On   direct    appeal,   in   affirming   Farris’   conviction     and

sentence,   the    Texas   Court   of   Criminal   Appeals   rejected   the

contention that Goodson was excluded improperly because of her

capital punishment views:

            [W]e find Goodson established, via her juror
            questionnaire form and later upon examination,
            that she could not impose the death penalty
            under any circumstances. She also stated that
            she would not “deliberately” find appellant
            “not guilty” because of her opposition to the
            death penalty. On the more critical issue of
            the three questions at punishment, Art.
            37.071(b),   however,    Goodson   vacillated.
            Pursuant to questioning by the State, defense
            counsel, and the trial judge, Goodson stated,
            among other things, she was opposed to capital
            punishment under any circumstances, that she
            could answer affirmatively the special issues
            if the facts warranted, but that it would
            violate her conscience to vote yes on the
            issues “in the proper case and the proper
            evidence”.        Goodson    understood    her
            responsibilities as a juror and said she would
            not violate her oath, but she also stated she
            did not agree with the law and if she were
            selected as a juror she would have no choice
            but to follow it.

            ....

                 On the basis of these facts, we cannot
            say the trial judge abused his discretion in
            granting the State’s challenge for cause to
            venire-person Goodson. When presented with a
            prospective juror who has conflicting feelings
            regarding the law, the juror’s oath, and
            capital punishment, the trial judge is in a
            unique position to determine whether those
            same feelings would prevent or substantially
            impair the venire-person’s performance as a
            juror.

                                   - 6 -
Farris, 819 S.W.2d at 501.

     As noted, approximately three years later, however, while

Farris’ federal habeas petition was pending, the Texas Court of

Criminal Appeals, in Riley v. State, revisited Farris.                     In Riley,

the court, in its original opinion, had held that a prospective

juror in Riley’s capital murder trial was excused improperly, based

solely on her opposition to the death penalty.                Riley, 889 S.W.2d

at 296-97.      On rehearing, the court held that its opinion was

inconsistent with its holding on this issue in Farris, due to the

fact that the two cases were factually indistinguishable.                          As a

result, the Riley court overruled Farris on that issue:                      “Farris

was wrongly decided, Wainwright v. Witt notwithstanding, and [we]

hereby expressly overrule it.”           Riley, 889 S.W.2d at 298.                  The

Riley   court    concluded     that    Goodson       was   not      a    vacillating

venireperson, as had been concluded in Farris, stating that,

despite her objection to capital punishment, Goodson “insisted she

would   not   violate    her   oath    to     render   a     true       verdict,    and

unambiguously    and    unwaveringly     insisted      she    would       answer    the

special issues honestly and in accordance with the evidence.”

Riley, 889 S.W.2d at 300.        The court held that Goodson had been

improperly excluded due to her conflicting feelings regarding

capital punishment, despite the fact that she stated she could

answer the special issues honestly.            Id.


                                      - 7 -
     Because Farris contends that Goodson was improperly excluded,

we excerpt her voire dire at considerable length:

            [BY THE STATE] Q. I notice an answer to your
            questionnaire ... in response to the following
            question, with reference to the death penalty
            which of the following statements would best
            represent your feelings, circle one, and you
            circled No. 3 and with your signature on the
            next page or two pages later, I could never
            under any circumstances return a verdict which
            assessed the death penalty.      Is that your
            opinion?

            [BY GOODSON] A.       Yes, that’s the way I feel.

            Q.    I beg your pardon?

            A.    That’s the way I feel, yes.

            Q.   I presume then that you are opposed to
            capital punishment?

            A.    Yes I am.

            Q.   And I will repeat that question one more
            time and this is important for the record in
            this case. Could you, under any circumstances
            as a juror in a criminal case, vote to return
            the death penalty?

            A.    No.

     Next, counsel for Farris explained in detail to Goodson the

procedure   for   the   penalty    phase     of   the   trial,   including   the

submission of the special questions, and the role of the jury at

that phase of the trial.

            [BY DEFENSE COUNSEL] Q. The question that I
            have of you is whether or not your feeling
            about the death penalty is so strong and is so
            fixed that you feel that you would not be able
            to answer these factual questions fairly and



                                     - 8 -
          truly and honestly without regard for       the
          consequences. That was a long question.

          [BY GOODSON] A. You are asking me if I feel
          strongly enough about the death penalty that I
          would not -- that I would say not guilty, so I
          wouldn’t have to say it; is that what you are
          saying.

          Q.   Yes, ma’am. Regardless of what the facts
          were presented by the State of Texas.

          A.   No, I would not do that.

          Q.   You would make up -- we are taking this
          in two stages.

          A.   I would try to do the best that I thought
          the reasonable outcome should be.

          Q.   Your oath of office as a juror would
          require you to render a true verdict, and what
          that means, I can tell you, is to render a
          verdict based upon the evidence, based upon
          the facts, not based on what you want to have
          happen. So at the first stage of the trial
          you see no difficulty and you could do that?
          Difficulty is not the right word. You could
          do that?

          A.   I would not like to.

          Q.   Okay.

          A.   But on the other hand, if I were to be
          placed in that position --

          Q.   Uh-huh.

          A.   -- then I would do the best I could.

     Counsel for Farris continued questioning Goodson, once again

explaining in detail the procedures of the penalty phase of the

proceedings, including the submission of the special questions.




                              - 9 -
            [BY DEFENSE COUNSEL] Q. The law requires that
            these questions be based on evidence that
            you’ve heard, just as your guilty verdict has
            to be based on the evidence and that stands to
            reason. A trial should be more than guesswork
            or speculation or what I think maybe [might]
            have happened.

            [BY GOODSON] A.    Yes.

            Q.   All right. Does your feeling about the
            death penalty -- and, you know, what the
            consequences of yes answers would be and you
            know what the consequences of no answers would
            be -- Is your feeling about the death penalty
            such that you do not feel that you could
            fulfill the oath of office that you would have
            to take and answer those questions 1, 2 and/or
            3, if 3 were to be given to you, that you
            could not answer those questions fairly and
            truly and honestly just as your oath requires
            you?

            A.    I can only tell you that I would do my
            best.    That I would not deliberately do
            otherwise.

            Q.   Okay.    That’s --

            [BY THE COURT] Q. I did not hear.         Would not
            deliberately do what?

            [BY GOODSON] A.     I wouldn’t deliberately do
            otherwise.

    At this point, a dispute between the prosecutor and defense

counsel over whether Goodson had clearly stated her views on

capital   punishment     resulted    in   a   conference   in   the   judge’s

chambers.    Questioning then resumed by counsel for Farris:

            [BY DEFENSE COUNSEL] Q. What I was about to
            try -- and I don’t know if being up here is
            going to help at all. What we have got is we
            have jurors who have to make the decisions
            about the facts in the case.   They have to

                                    - 10 -
make those decisions based on the evidence and
what the law is trying to do by saying that a
juror must make those decisions based on the
facts, is trying to keep the jurors from
jumping the gun, if you will, from going
around what the facts are just in order to
arrive at a certain outcome. Does that make
sense?

[BY GOODSON] A.   Yes.

Q.   So the law says this wouldn’t be proper
for the jurors just to say, well, I am a juror
and I get to write in a yes or no up here, but
because I want it to come out a certain way, I
am just going to disregard the facts; I am not
going to pay any attention to the evidence in
the case and in order to arrive at a certain
outcome I will just answer the questions in a
certain way that I know is going to bring
about the outcome. The law says that we must
go through step-by-step; that the jurors must
answer the questions based upon the facts and
then the outcome is set out by the law and
falls on the Judge. I just want to make sure
we don’t have any misunderstanding.

A.   You are asking me if I feel strongly
enough about the death penalty that if I think
he is guilty I am going to say, no, he is not
guilty so he doesn’t get the death penalty?
You are asking me if I would do that?

Q.   Yes, ma’am. That would be at the first
stage, yes, ma’am.

A.   I would not deliberately.

Q.   Now at the second stage -- see, your job
is not over at the first stage -- At the first
stage we decide guilty or not guilty, and at
the second stage is when you see these
questions. The Judge [will] give you a set of
written instructions, and these questions
would be in those instruction[s] and the Judge
would tell you, answer questions either yes or
no, depending on the evidence that you’ve
heard. And if you had heard enough evidence


                    - 11 -
     to convince you beyond a reasonable doubt the
     law would require you to answer the questions
     yes.     If you had not heard sufficient
     evidence, the law would require you to answer
     the questions no.     Your obligation is to
     follow the law at both stages of the trial,
     and I am sure you can agree with that. Just
     as you would not automatically vote not guilty
     to keep somebody from getting the death
     penalty because that would be contrary to your
     oath, as I understood your earlier answer you
     wouldn’t automatically vote no to these
     questions to keep somebody from getting the
     death penalty because that also would be
     contrary to your oath. Have I misstated your
     answer? If I have --

     A.     No, that’s sound like [sic] what I said.

     Q.   No one is asking you to like or dislike
     the death penalty. No one is asking you to
     put yourself in the role of judge because
     that’s not your job.    Your job as a juror
     would be to answer the questions, the factual
     questions, and I take it, regardless of your
     feelings one way or another that you could do
     that because that’s what your oath requires
     you to do?

     A.   Yes. I wouldn’t want to; I wouldn’t like
     to, but I would.

     ....

     Q.   Would you follow the law and would you be
     able to, in fact, base your decisions upon the
     facts of the case rather than personal opinion
     or personal feelings recognizing that that’s
     not the job of the juror?      The job of the
     juror is to base their decisions on the facts.

     A.     I would do the best I could.

At this juncture, the court questioned Goodson.

     [BY THE COURT] Q.    Mrs. Goodson, when you
     filled out this questionnaire, was it your
     intention to sign this No. 3 which said, “I


                          - 12 -
could never under any circumstances return a
verdict which assessed the death penalty?” Is
that what you said?
[BY GOODSON] A. Yes.

Q.   All right. Now, as Counsel has told you,
if the Defendant is found guilty you will then
be asked to answer these three questions yes
or no.    If you answer those two or three
questions yes, depending on whether the third
one is used, you will be assessing the death
penalty.   Now, which is proper?     That you
could not under any circumstances, as you said
here, or can you follow the instructions of
the Court and answer these questions yes in
the proper case? Which is it? Nobody is mad
at you. We just need to know.

A. The problem I have with that question is
that I am not sure that the way it’s worded
says what it means.

Q.   What are you referring to?

A.   It says under any circumstances.

[BY DEFENSE COUNSEL] Q. Judge, is this the
complete questionnaire? Are you talking about
the whole questionnaire?

[BY GOODSON] A. Yes. It says, would I under
any circumstances return the death penalty.
That’s what that says and I said no. Okay. I
didn’t understand what that was asking me.
What I understood was if, indeed, that he was
found guilty then we were to say, yes, we want
the death penalty and would I do that. That’s
what I understood. I did not understand that
I would be required to come here and answer
questions and decide what I felt was right or
not, and that in saying that I thought he was
guilty then I would be, in fact, saying that I
was for the death penalty.

[BY THE COURT] Q. All right. Now,       well, it
still comes back to a situation where   the jury
might be asked to assess punishment      in this
case. They do not assess punishment     as it is

                    - 13 -
          done in other type cases, but they are asked
          to answer those three questions either yes or
          no, and I think you have surmised from talking
          to Counsel for each side that if you vote yes
          to 1, 2 and/or 3 you will have voted to assess
          the death penalty. Now could you, in a proper
          case, if the facts warranted, do that?
          [BY GOODSON] A. I could. I wouldn’t want to.
          I wouldn’t want to, but I would.

          Q. Would it violate your conscience to vote
          yes in the proper case and the proper
          evidence?

          A.   Yes, it would.

     Apparently, (and understandably) still unclear as to Goodson’s

views, questioning resumed by counsel for Farris.

          [BY DEFENSE COUNSEL] Q. Let me ask you, Mrs.
          Goodson, this: Mrs. Goodson, you could follow
          the law, is that what I understood your
          answers to be; is that correct?      That you
          don’t like being placed in this position and
          you wouldn’t want to do it, but with the full
          explanation, and I am not talking about that
          very brief question that was asked on the
          questionnaire because as you can see by that
          question it really didn’t tell you what the
          procedure is. It really didn’t tell you what
          all you may be faced with.

          [BY GOODSON] A. I feel like if I were told
          that I had to come to the Court and had to
          listen to the facts and if I listened to those
          facts and felt like he was guilty then I would
          not deliberately say, no, he is not. I would
          not want to be in that position. I would hate
          very badly to be in that position, but I don’t
          feel like I could do otherwise than what the
          law says I have to do.

          Q.   You would follow the law?    You wouldn’t
          violate your oath of office?

          A.    I would not, no.



                                - 14 -
          Q.   By the same token, at the second stage
          you   would  not   violate  your   oath and
          automatically vote one way or another? Here
          again, you would base your answers on the
          facts?

          A.     Yes, I will.

          Q.   Without arguing with the Court or the
          State’s counsel, we feel that Mrs. Goodson is
          qualified and exactly fills the requirements
          of the law and she should not be excused and
          we object to excusing her.

          [BY THE COURT] Each answer I get from her
          still goes back to guilt or innocence.      I
          don’t think we have got over that point and I
          would appreciate you working on that area.

          ....

          [BY GOODSON] A. I don’t know what I can say
          or maybe I am not understanding what you are
          asking me, but I don’t feel like I can put it
          any plainer or see it any differently than I
          already have.

     In yet another attempt to clarify Goodson’s views, the

prosecution once again explained the bifurcated procedure.


          [BY THE STATE] Q. And did you or did you not
          circle this question, I could never under any
          circumstances return a verdict which assessed
          the death penalty, and you had four choices
          and you chose that one?

          A.     Yes, I did.

          ....

          Q.   On this page you had the possibility of
          answering four different questions, and I
          refer to page 5 of this questionnaire, that
          you have told and that you have signed and in
          response to the following question with
          reference to the death penalty, which of the

                                - 15 -
following statements would best represent your
feelings, circle one. No. 1, I believe the
death penalty is appropriate in some cases.
You didn’t circle that one, did you?

A.   No, I didn’t.

Q.   No. 2, although I do not believe that the
death penalty should ever be involved so long
as the law provides for it I could assess if I
believed the facts warranted it, and you
didn’t circle that one, did you?

A.   No, I didn’t.

Q.   No.   3,  I   could   never  under   any
circumstances return a verdict which assessed
the death penalty, but you did circle that
one, didn’t you?

A.   Yes, I did.

Q.   No. 4, none of the above; you didn’t
circle that one, did you?

A.   No, sir, I didn’t.

Q.   Seated right there where you are, I asked
you a while ago are you opposed to capital
punishment?

A.   Yes, I am.
....

Q.   Did you or did you not answer my question
a while ago that you were opposed to capital
punishment?

A.   Yes, I am.

Q.   Is that your final answer?

A.   I feel like I have no choice. I mean, I
am told that I have to come -- yes, I am told
I have to come to this jury and I have to
listen to the facts and if I listen to these
facts then I have to personally say if I
believe he is guilty or not.       That’s my
responsibility. I have no choice, you know, I

                     - 16 -
           really don’t want to do it and I don’t believe
           in it and don’t want to do it, but if the
           State of Texas tells me that I have to do it,
           I have no choice.

           Q.   Nobody is telling you you have to do
           anything.   That’s the reason we have this
           legal system we have. Nobody is about to ...
           tell you to do anything.

           A.   If I am chosen, if I have to come to this
           jury then I don’t have a choice.

           Q.   You certainly do have a choice.           You get
           a vote.

           A.   I can say the man is guilty.   Well, I
           believe there is other ways of dealing with
           that person being guilty than the death
           penalty.

           Q.   All right. Let me ask you this: In the
           State of Texas the law provides that in some
           cases for a jury to return a verdict of death
           that’s our law, and there is a lot of law that
           I don’t agree with. And if you don’t agree
           with this law, that’s all we are asking you.
           If you will just tell us, you can go home.

           A.   Pardon me for saying so, but I have said
           so for several times that I don’t agree with
           it.

     After hearing argument from counsel for Farris as to why

Goodson   should   not   be   stricken,    the   court,   pursuant   to   the

following finding, excused Goodson:

           The Court having observed the demeanor of the
           juror and her answers to various questions,
           finds her views on capital punishment would
           prevent    or   substantially    impair    the
           performance of her duties as a juror in
           accordance with her instructions and oath and
           she is, therefore, discharged and excused from
           the case.



                                  - 17 -
(Emphasis added.)

     As noted, “in a proceeding under [pre-AEDPA] 28 U.S.C. §

2254(d), the trial court’s factual determination that a potential

juror is disqualified is entitled to a presumption of correctness,

absent one of the specifically enumerated exceptions contained [in

that section].”     Ellis v. Lynaugh, 873 F.2d 830, 833 (5th Cir.),

cert. denied, 493 U.S. 970 (1989).2      Such a deferential standard of


     2
         Pre-AEDPA 2254(d) provided:

                In any proceeding instituted in a Federal
           court by an application for a writ of habeas
           corpus by a person in custody pursuant to the
           judgment of a State court, a determination
           after a hearing on the merits of a factual
           issue, made by a State court of competent
           jurisdiction in a proceeding to which the
           applicant for the writ and the State or an
           officer or agent thereof were parties,
           evidenced by a written finding, written
           opinion, or other reliable and adequate
           written indicia, shall presumed to be correct,
           unless the applicant shall establish or it
           shall otherwise appear, or the respondent
           shall admit—

                     (1) that the merits of the
                factual dispute were not resolved in
                the State court hearing;

                     (2) that     the  factfinding
                procedure employed by the State
                court was not adequate to afford a
                full and fair hearing;

                     (3) that the material facts
                were not adequately developed at the
                State court hearing;

                     (4) that   the   State  court
                lacked jurisdiction of the subject

                                - 18 -
review, obviously, is especially appropriate for a finding of juror

bias because it “is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge’s province.”

Witt, 469 U.S. at 428; see also O’Bryan v. Estelle, 714 F.2d 365,

392   (5th   Cir.   1983),   cert.   denied,   465   U.S.   1013   (1984)

(Higginbotham,      J.,   concurring   specially)     (discussing    the

justification for the presumption of correctness afforded the trial

court’s finding of juror bias).



                 matter or over the person of the
                 applicant   in the  State  court
                 proceeding;

                      (5) that the applicant was an
                 indigent and the State court, in
                 deprivation of his constitutional
                 right, failed to appoint counsel to
                 represent him in the State court
                 proceeding;

                      (6) that the applicant did not
                 receive a full, fair, and adequate
                 hearing   in   the   State    court
                 proceeding; or

                      (7) that the applicant was
                 otherwise denied due process of law
                 in the State court proceeding;

                      (8) or unless that part of the
                 record of the State court proceeding
                 in which the determination of such
                 factual issue was made ... is
                 produced     as     provided     for
                 hereinafter, and the Federal court
                 on a consideration of such part of
                 the record as a whole concludes that
                 such factual determination is not
                 fairly supported by the record....

                                 - 19 -
                                          1.

     But, as noted, Farris contends that this pre-AEDPA § 2254(d)

presumption   must    be    applied,      instead,         to   the     Texas     Court    of

Criminal Appeals’ ruling in Riley that Goodson “unambiguously and

unwaveringly insisted that she would answer the special issues

honestly and in accordance with the evidence”; and that, therefore,

she was not a vacillating juror, and thus, was not properly

excludable for cause.        We disagree.

     Initially,      we    note    that    §     2254(d)         provides         that    the

presumption of correctness applies to a proceeding in which the

Applicant   (Farris)       and   the   State     or   its       agent    were      parties.

Nevertheless, Farris contends that “[t]here is nothing ... that

stands for the proposition that § 2254(d)’s reference to the

participation   of    the    Applicant         and   the    State       is   an    absolute

prerequisite to [§ 2254(d)’s] application.”                      But, the following

language from § 2254(d) is just the opposite: “After a hearing on

the merits of a factual issue, made by a state court of competent

jurisdiction in a proceeding to which the applicant for the writ

and the State ... were parties”. (Emphasis added.)                       Farris was not

a party to Riley, which was rendered nearly three years after

Farris.

     Moreover, although it is true that the § 2254(d) presumption

may apply to state trial or appellate courts, see Sumner v. Mata,

449 U.S. 539, 547 (1981), that presumption is reserved for factual


                                       - 20 -
determinations.        Riley, in overruling Farris, did not make a

finding of fact regarding Goodson’s exclusion.             Rather, the court

recharacterized Goodson as a non-vacillating venireperson, and then

ruled   that   she    was    improperly   excluded   on   the   basis   of   her

conflicting feelings regarding capital punishment.                 Riley, 889

S.W.2d at 300.       Along this line, we fail to understand how, while

deciding Riley, the Texas Court of Criminal Appeals can, for §

2254(d) purposes, make a factual finding applicable to Farris.

     Again, as discussed, the finding of juror bias is based upon

the determination by the trial judge, who, alone among the judges

involved at various stages, personally observes the demeanor and

credibility of the prospective juror during voir dire.              See Witt,

469 U.S. at 428.            Obviously, the Riley court did not observe

venireperson Goodson during voir dire, and, as a result, could not

judge her demeanor and credibility.          In short, the ruling in Riley,

with respect to Farris, is a ruling on a question of law; it is not

a factual determination to which the presumption of correctness

afforded by § 2254(d) attaches.

                                      2.

     Second, Farris contends that the state trial court is not

entitled to the presumption of correctness, because it applied an

erroneous legal standard in excluding Goodson.              The law is well

settled regarding when a prospective juror may be excluded for

cause because of her views on the death penalty.

                                    - 21 -
       “[O]pposition    to   capital    punishment,   in    itself,   is   not

sufficient cause for a judge to exclude a member of the jury pool.”

Fuller v. Johnson, 114 F.3d 491, 500 (5th Cir.), cert. denied, 118

S. Ct. 399 (1997) (citing Lockhart v. McCree, 476 U.S. 162, 176

(1986)).       Instead, the “standard is whether the juror’s views

would ‘prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his

oath’”.     Witt, 469 U.S. at 424; see also Mann, 41 F.3d at 980.

       In   order,   using   the   appropriate   standard,    to   exclude   a

prospective juror for cause, it is not necessary “that a juror’s

bias be proved with ‘unmistakable clarity’”.               Witt, 469 U.S. at

424.    As the Court noted, “determination of juror bias cannot be

reduced to question-and-answer sessions which obtain results in the

manner of a catechism.         What common sense should have realized

experience has proved: many veniremen simply cannot be asked enough

questions to reach the point where their bias has been made

‘unmistakably clear’”.       Id. at 424-25.

       “Even if the record is silent as to the standard employed by

a state trial judge ... he is presumed to have applied the correct

standard.” Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.), cert.

denied, 478 U.S. 1010 (1986).          But, here, we are not faced with a

situation where the trial judge failed to state the standard used

to exclude Goodson; rather, as quoted supra, the trial judge, in

excluding her, stated the standard from Witt.

                                    - 22 -
                                         3.

     Lastly, Farris contends there is no support in the record for

the trial court’s determination that Goodson would be substantially

impaired in her ability to perform her duties as a juror.                      The

trial judge observed Goodson’s demeanor and heard her answers

during voir dire. Goodson underwent extensive questioning from not

only the prosecution and defense, but also the judge, regarding her

views on capital punishment and her ability to properly function as

a juror.

     As reflected in the earlier-quoted voir dire, Goodson stated

that she was opposed to capital punishment and that under no

circumstances could she vote to return the death penalty.                  Also,

she stated that she would do her best to answer the special issues

honestly, and that, despite what the evidence revealed, it would

violate her conscience to assess the death penalty in a case where,

based on the evidence, it was warranted.              The trial judge, at the

conclusion   of   the        lengthy    questioning        and   conflicting   or

inconsistent answers, applied the Witt standard and ruled that

Goodson’s    “views     on     capital        punishment    would   prevent     or

substantially impair the performance of her duties as a juror in

accordance with her oath and instructions.”

     We agree with the district court that “[t]he testimony of Ms.

Goodson presents the textbook case for when a reviewing Court,

pursuant to a § 2254 review, should defer to the judgment of the


                                       - 23 -
trial judge regarding the credibility and demeanor of a potential

juror.”    Farris,        967       F.     Supp.     at    208.      This      case    vividly

demonstrates that, although “mere emotional opposition to capital

punishment alone is insufficient cause for juror exclusion, it is

equally clear that emotional opposition may rise to the level where

it   interferes     with        a    potential       juror’s      ability      to   sit   as    a

dispassionate and objective arbiter of justice.”                           Mann, 41 F.3d at

981.

       In sum, Farris has failed to overcome the presumption of

correctness afforded by § 2254(d) to the trial judge’s decision to

exclude    Goodson.                 Again,     the        “credibility      determinations

[concerning such a decision] are more appropriately resolved under

the watchful eye of the trial judge than by an appellate court

staring at a cold record, which is precisley why they are accorded

a presumption of correctness under 2254(d).”                         Id. at 982.

                                               B.

       The other issue raised by Farris is that his court appointed

counsel, Jack Strickland and Bill Lane, labored under an actual

conflict of interest that adversley affected their performance, due

to the fact that Larry Moore, the original lead prosecutor assigned

to   Farris’      case,    resigned           from    the     Tarrant    County       District

Attorney’s     Office      prior         to   trial,       and    became    professionally

associated with Strickland and Lane during their representation of

Farris.      He    asserts          that    his     counsel      could   not    continue       to


                                              - 24 -
represent him and, at the same time, pursue allegations that Moore

was aware of improprieties in the investigation of Farris’ case.

     Along this line, Farris asserts that the district court erred

in concluding that he had waived any right to a conflict of

interest; that it improperly held that the conflict did not have an

adverse effect on counsel’s performance; and that it applied an

erroneous legal standard in evaluating the conflict claim.      (As

discussed below, because we agree that Farris waived this conflict-

claim, we do not reach the other two subissues.)

     The Sixth Amendment right to counsel includes, of course, the

right to conflict-free-counsel. Wood v. Georgia, 450 U.S. 261, 271

(1981). However, “like the right to counsel of any kind, the right

to conflict-free counsel can be waived.”   United States v. Greig,

967 F.2d 1018, 1021 (5th Cir. 1992).   Therefore, we first address

the validity of the waiver executed by Farris; obviously, “the

finding of a waiver obviates a determination of whether there was

an actual conflict.”   United States v. Plewniak, 947 F.2d 1284,

1287 n.1 (5th Cir. 1991), cert. denied, 502 U.S. 1120 (1992).

     Farris contends that his waiver was invalid because the

affadavit he executed in order to accomplish the waiver contained

factual inaccuracies; that it was based on counsel’s opinion that

the allegations against Moore were meritless; and that the trial

court failed to inquire into the effectiveness of his waiver.




                              - 25 -
       The law in our circuit is well established regarding the

requirements for a valid waiver of the Sixth Amendment right to

conflict-free counsel: “(1) that the defendant be aware that a

possible conflict of interest exists; (2) that the defendant

realize the consequences to his defense that continuing with

conflicted counsel would have; and (3) that the defendant be aware

of his right to obtain other counsel.”            Crank v. Collins, 19 F.3d

172, 176 (5th Cir.), cert. denied, 512 U.S. 1214 (1994) (citing

United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975)).

       Farris executed his affidavit on 18 February 1986, waiving any

potential conflict of interest arising from his court appointed

counsel’s professional relationship with Moore. In the affidavit,

Farris states: that his counsel informed him of that relationship,

which consisted of an office sharing arrangement; that there

existed the potential for a conflict of interest; that counsel had

agreed not to discuss Farris’ case with Moore; that he (Farris) had

been    made     aware    of   the   allegation     implicating     Moore   in

improprieties regarding the destruction of evidence;              and that his

counsel informed Farris that, in their opinion, the allegation was

meritless.      The affidavit stated also that Farris was aware of his

options:       (1)   to   relieve    Strickland      and   Lane     of   their

representation, have new counsel appointed, and pursue the claims

against Moore; (2) to direct Strickland and Moore to pursue the

allegations against Moore, which would result in counsel seeking


                                     - 26 -
permission from the court to withdraw; and (3) to agree with

Strickland and Moore that the allegations against Moore were

meritless and should not be pursued, in which event they would

remain as his counsel and he would agree that there was no conflict

between Strickland, Lane, and Farris.            In the affidavit, Farris

stated, that, after carefully reviewing these options, he had

decided to choose the third:          forego pursuing the allegations

against Moore, and continue to be represented by Strickland and

Lane.

     Moreover, Farris had consulted with Art Brender, an attorney

appointed by the trial judge, about his affadavit and the decision

not to pursue the allegations regarding Moore.           Farris’ affidavit

concluded with his stating that he had made his decision “freely,

voluntarily, and intelligently”.

     Along this line, in a proceeding prior to his state trial,

Farris testified that he had executed the affidavit, and understood

the consequences. He testified also about his one hour meeting with

Brender, and that they had discussed the ramifications of the

waiver-affidavit.

     A state court finding that a defendant validly waived his

right   to   conflict-free-counsel    is    entitled    to    the   §   2254(d)

presumption of correctness.        Crank, 19 F.3d at 176.           Again, the

presumption    applies,   unless    one    of   the   eight   earlier-quoted

exceptions exist.



                                   - 27 -
     The state habeas court (as noted, the same judge presided at

Farris’ trial and at the habeas proceeding) reviewed Farris’

waiver-affidavit and concluded that he had “waived his right to

complain that ... Moore’s business relationship with [] defense

counsel posed a conflict of interest.”              The state habeas court

concluded further that the waiver was “knowing and voluntary”, that

the affidavit demonstrated that Farris realized the consequences of

Strickland and Lane continuing their representation, and that

Farris was aware of his right to obtain other counsel.

     “This Court has held on many occasions that a state court

‘paper hearing’ is sufficient to allow a federal court to invoke

the § 2254(d) presumption of correctness to the state court’s

findings when   the   state    habeas   judge   also    presided      over   the

petitioner’s trial.”      Baldree v. Johnson, 99 F.3d 659, 663 (5th

Cir. 1996), cert. denied, 117 S. Ct. 1489 (1997) (citing Perillo v.

Johnson, 79 F.3d 441, 446 (5th Cir. 1996); Vuong v. Scott, 62 F.3d

673, 683-84 (5th Cir.), cert. denied, 516 U.S. 1005 (1995)).                 The

state trial judge observed Farris as he testified about his waiver-

affidavit, and, indeed, appointed counsel so that Farris could,

with the advice of independent counsel, decide whether to waive any

conflict of   interest.       That   same   judge    examined   the    waiver-

affidavit during the state habeas proceeding.

     As noted, in this regard, Farris maintains that his affidavit

contained a factual inaccuracy, which invalidates any waiver of a


                                 - 28 -
potential conflict of interest. The affidavit states that Farris

was told that one Sheriff’s Deputy had accused Moore of being

involved in the destruction of evidence.            Farris contends that it

was actually two deputies, and that this difference is significant

because “corroborated testimony always carries more weight than the

uncorroborated testimony of a single witness”.             However, Farris

failed   to    produce    affidavits,   or    any    supporting   documents,

regarding the testimony of either deputy.

     Along this line, at the state habeas proceeding, the trial

court, in its findings of fact regarding the allegation that Moore

was involved in the destruction of evidence, stated that Moore had

heard that two deputies had alleged that they had told him (Moore)

about the destruction of evidence. The trial court also noted that

Farris’ affidavit claimed that one deputy made allegations against

Moore. Thus, the state habeas court, in concluding that Farris

validly waived any potential conflict of interest, appears to have

considered the fact that there was a factual inconsistency in the

affidavit.    (In   the   state   habeas     proceeding,   Farris   did   not

specifically     raise    the   subissue     that   a   factual   inaccuracy

invalidated his waiver; but, as noted, the state court, in the

findings of fact, seems to note the inconsistency, yet still

concluded that the waiver was valid. Farris did raise the subissue

in his federal habeas proceeding.)

     Again, Farris did not produce the affidavits or any supporting

documents of either one of the deputies.                 He has failed to

                                   - 29 -
demonstrate how the purported factual inaccuracy, if any, in his

affidavit, invalidated his waiver.

     In sum, in executing the waiver, Farris was aware that a

potential for conflict existed, was aware of the consequences of

continuing to be represented by Strickland and Lane, and was aware

of his right to obtain other counsel.     He has failed again to

overcome the § 2254(d) presumption of correctness.

                              III.

     For the foregoing reasons, the denial of habeas relief is


                                                     AFFIRMED.




                             - 30 -
