               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT
                        ________________________

                              No. 97-20599
                        ________________________

JAMES RONALD MEANES,

                                    Petitioner-Appellee,

versus

GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division,

                                    Respondent-Appellant.

                        ________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
                     ________________________
                          April 14, 1998

Before KING, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     The respondent-appellant, Gary L. Johnson, the Director of the

Texas Department   of    Criminal    Justice,   Institutional   Division,

appeals the district court’s grant of a writ of habeas corpus to

James Ronald Meanes, a Texas death row inmate convicted of capital

murder.   For the reasons set forth below, we reverse and render.



                           FACTUAL BACKGROUND

     On April 21, 1981, around noon, an armored van driven by

Olivero Flores, who was accompanied by Dorothy Wright, pulled into

the Sage grocery store parking lot on the Gulf Freeway in Houston,

Texas, to pick up a deposit.     As Flores exited the van and walked

around to the front of the store, the petitioner, Ronald Meanes,
who is African-American, and his co-defendant, Carlos Santana,1 who

is Hispanic, exited a car parked near the front of the store and

opened the trunk.     Wright, still in the back of the van, then heard

a “black voice” tell Flores to halt in a loud, demanding tone.

Flores, who was carrying money bags in his left hand and had a

weapon on his right hip, turned to face the men but made no move

toward his weapon.     As Flores turned, two or three shots rang out,

and Flores fell to the ground, “flopping like a chicken.”           Although

no one saw who shot Flores, it was determined that Flores was

killed by a bullet from either a rifle or a pistol.

     One of the men, armed with a pistol, then approached Flores,

bent over him, and began firing shots at the van, about three

seconds after the original shots. The same voice that Wright heard

tell Flores to halt screamed, “bitch, open the door” at Wright, who

was still in the back of the armored van.           After more shots were

fired at the van, the men broke the glass on the driver’s side of

the van, and Meanes entered the van.         Meanes then climbed over the

driver’s seat to the passenger’s side, looked through the wire

screen to the back of the truck where Wright was lying on the

floor, poked a pistol through the screen, and said, with the same

voice that she had heard before, “Get up bitch, right now or you’re

dead.”    Wright then opened the back of the van and walked toward

the store with her hands raised.       The two men then left in the van,

with the man with the pistol as the passenger.

     Meanes and his co-defendant were captured soon thereafter in

     1
         Mr. Santana was executed in 1993 for his role in this robbery/murder.

                                    - 2 -
a cane patch a few blocks from the scene of the robbery.       Upon

questioning, Meanes revealed the location of the weapons used in

the robbery.



                      PROCEDURAL BACKGROUND

     On July 22, 1981, Meanes was convicted of capital murder after

a jury trial.     On July 23, 1981, after a separate punishment

hearing, the jury answered affirmatively the two special issues

presented to it pursuant to the version of article 37.071 of the

Texas Code of Criminal Procedure then in effect.      In accordance

with state law, the trial court then sentenced Meanes to death.   On

September 14, 1983, the Texas Court of Criminal Appeals affirmed

both Meanes’s conviction and sentence. Meanes v. State, 668 S.W.2d

366 (Tex. Crim. App. 1983).   On April 16, 1984, the United States

Supreme Court denied certiorari.     Meanes v. Texas, 466 U.S. 945,

104 S. Ct. 1930 (1984).

     On August 15, 1984, Meanes filed his first application for a

state writ of habeas corpus.       On November 18, 1985, after an

evidentiary hearing, the trial court entered findings of fact and

conclusions of law, recommending that relief be denied.    On May 7,

1986, the Texas Court of Criminal Appeals accepted the trial

court’s recommendation and denied the application.

     On August 4, 1986, Meanes filed his first petition for a

federal writ of habeas corpus.    On October 18, 1988, that petition

was dismissed by the district court for failure to exhaust state

court remedies.   Specifically, the district court found that the


                                 - 3 -
state judge who had signed the state habeas findings, the Honorable

Sam Robertson, acted without jurisdiction under state law, because

he was at that time a justice on the Fourteenth Court of Appeals

and therefore ineligible under state law to hear Meanes’s habeas

petition.       In addition, the district court found that Justice

Robertson was a potential witness in the state habeas corpus

hearing and that Meanes was deprived of his right to cross-examine

him at that hearing.           Finally, the district court found that

Justice Robertson had engaged in improper ex parte communications

with the State regarding Meanes’s habeas petition.

     For reasons unknown to anyone, neither the State nor Meanes

was given notice of the district court’s October 26, 1988 order,

and no one discovered the error until early 1995.                  By that time,

Justice Robertson had retired from the court of appeals and was

sitting    as   a   visiting     state    district      judge.     Over    Meanes’s

objection, Justice Robertson was again assigned to preside over

Meanes’s state habeas petition.             After two evidentiary hearings,

the trial court entered findings of fact and conclusions of law

recommending that habeas relief be denied. On August 24, 1995, the

Texas Court of Criminal Appeals accepted the district court’s

recommendation and denied the application.

     On August 25, 1995, Meanes filed a second petition for federal

habeas    relief.     On   May    1,     1997,   the    district   court    entered

judgment, granting habeas relief in part.                    Specifically, the

district    court    found     that    Meanes     was    denied    the    effective

assistance of counsel at the punishment stage of his trial and that

                                       - 4 -
Meanes’s Eighth and Fourteenth Amendment rights were violated when

the trial court incorrectly instructed the venire that the law of

parties2 applied not only to the guilt phase of the trial but to

the punishment stage as well.       See Enmund v. Florida, 458 U.S. 782,

102 S. Ct. 3368 (1982).      On July 7, 1997, the district court denied

the Director’s motion for reconsideration and Meanes’s motion to

alter or amend.      On July 15, 1997, the Director filed a timely

notice of appeal.       Meanes has not appealed any of the district

court’s findings against him.



                            STANDARD OF REVIEW

      In reviewing requests for federal habeas corpus relief, we

review the district court's findings of fact for clear error, but

review issues of law de novo.        Dison v. Whitley, 20 F.3d 185, 186

(5th Cir. 1994).       A finding of fact is clearly erroneous when,

although there is enough evidence to support it, the reviewing

court is left with a firm and definite conviction that a mistake

has been committed. United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S. Ct. 525, 541-42, 92 L.Ed. 746 (1948);

Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th

Cir. 1994).    The question of whether counsel was constitutionally

ineffective is a mixed question of law and fact, which we review de



      2
         Section 7.02(a)(2) of the penal code sets forth the law of parties and
provides that "[a] person is criminally responsible for an offense committed by
the conduct of another if .... acting, with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts
to aid the other to commit the offense." Tex. Penal Code Ann. § 7.02(a)(2)
(Vernon 1989).

                                    - 5 -
novo by independently applying the law to the facts found by the

district court, unless those factual determinations are clearly

erroneous. See Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir.

1996); United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).




                                   ANALYSIS

      On appeal, the State contends that the district court erred in

three ways.    First, the State argues that the district court erred

in not considering the procedural bar to Meanes’s Enmund claims.

Contained within this discussion is the State’s argument that

Meanes was not denied the effective assistance of counsel. Second,

the State argues that, even assuming that Meanes’s claims are not

procedurally barred, the district court erred in finding that

Enmund was violated.       Finally, the State argues that the district

court’s factual findings were clearly erroneous.              Because we find

that Meanes’s Enmund claims are procedurally barred and that the

district court erred in concluding that Meanes received ineffective

assistance of counsel, we need not address the State’s second and

third arguments.3


     3
        In his reply brief, Meanes does not respond in any structured way to the
State’s procedural bar argument. Instead, Meanes attempts to make much of the
fact that the same state court judge who presided over his first state habeas
proceeding presided over his second state habeas proceeding despite Judge Hoyt’s
findings in his first federal habeas case. In fact, virtually all of Meanes’s
reply brief centers on this one issue. Despite our efforts, we fail to see the
significance of Meanes’s argument on this point. Moreover, we note that Judge
Hoyt made no reference to this claimed error in his memorandum opinion granting
Meanes’s petition as to the sentencing phase of his trial. Furthermore, the
overriding concern of Judge Hoyt’s in 1988 -- i.e., that Justice Robertson was
not authorized under state law to preside over Meanes’s state habeas proceeding
because he was then a Justice on the Fourteenth Court of Appeals -- was no longer

                                     - 6 -
      It is well settled that federal habeas review of a claim is

procedurally barred if the last state court to consider the claim

expressly and unambiguously based its denial of relief on a state

procedural default.      See Coleman v. Thompson, 501 U.S. 722, 111 S.

Ct. 2546 (1991); Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038

(1989); Amos v. Scott, 61 F.3d 333 (5th Cir. 1995).             In this case,

the state habeas court expressly found that Meanes’s Enmund claim

was procedurally barred: “The applicant is procedurally barred from

advancing his habeas claim that the State and the trial court

improperly instructed some veniremembers during voir dire that the

law of the parties was applicable to the first special issue

because he did not make a timely objection.”4            See also Meanes v.

State, 668 S.W.2d 368, 371 (Tex. Crim. App. 1983)            (direct appeal)

(“No objection was made to the allegedly improper remarks, and

nothing was preserved for review.”).

      Where a state court has explicitly relied on a procedural bar,

a state prisoner normally may not obtain federal habeas relief

absent a showing of cause for the default and actual prejudice.
Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2644 (1986).

In general, to show cause, a petitioner must demonstrate “that some

objective factor external to the defense impeded counsel’s efforts

to comply with the State’s procedural rule.”             Id. at 488, 106 S.



present when Justice Robertson presided over Meanes’s state habeas proceeding in
1995, because Justice Robertson had retired from the Court of Appeals and was
sitting as a district court judge by designation.
      4
         As noted above, the state trial court’s findings were adopted by the
Court of Criminal Appeals.

                                    - 7 -
Ct. at   2465.     If   a   petitioner   fails   to   show   cause   for   his

procedural default, the court need not address the prejudice prong

of the test.     See Engle v. Isaac, 456 U.S. 107, 134 n.43, 102 S.

Ct. 1558, 1575 n.43 (1982).

     In its brief, the State argues that the only bases upon which

Meanes can establish cause are that Enmund announced a new rule

that was not reasonably available at the time of trial, and that

Meanes’s counsel was ineffective for failing to object to the

court’s questioning during voir dire.         We agree with the State’s

characterization of the issues and, therefore, will address each of

these arguments in turn.

     At the time of Meanes’s trial, Texas law provided that the law

of parties could apply to the punishment phase of the trial.               See

Wilder v. State, 583 S.W.2d 349, 356-57 (Tex. Crim. App. 1979),

vacated and remanded on other grounds, 453 U.S. 902, 101 S. Ct.

3133 (1981).     Thus, any objection to the questioning during voir

dire arguably would have been futile, at least with respect to

Texas law. “[T]he futility of presenting an objection to the state

courts[, however,] cannot alone constitute cause for a failure to

object at trial.” Engle, 456 U.S. at 129, 102 S. Ct. at 1573.

Instead, the claim must also be novel.           Selvage v. Collins, 975

F.2d 131, 135 (5th Cir. 1992).      Meanes’s argument that the Supreme

Court’s decisions in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954

(1978), and Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978

(1976), dictate the result in this case clearly cuts against

finding that the claim was novel.        To the extent that Meanes argues

                                   - 8 -
that cause is shown because Enmund was an intervening decision, we

note that a claim is not novel if “other defense counsel have

perceived and litigated that claim.”              Engle, 456 U.S. at 134, 102

S. Ct. at 1575; accord Smith v. Collins, 977 F.2d 951, 956 (5th

Cir. 1992) (quoting Engle). In this respect, other defense counsel

had in fact perceived and litigated the Enmund claim at the time of

Meanes’s trial, as evidenced by the fact that counsel in Enmund

itself had raised and litigated this claim in the Florida state

court proceedings.       See Enmund v. Florida, 399 So.2d 1362, 1371

(Fla. 1981) (rejecting a similar argument some three months before

Meanes’s trial), reversed, 458 U.S. 782, 102 S. Ct. 3368                (1982).

Accordingly, Meanes cannot rely on the intervening decision of

Enmund to establish cause.5

      We turn next to Meanes’s argument that he received ineffective

assistance of counsel because his counsel failed to object to the

court’s questioning and instructions regarding the law of parties

during voir dire.      Although ineffective assistance of counsel can

constitute cause, “counsel’s ineffectiveness will constitute cause

only if it is an independent constitutional violation.”                Coleman,

501   U.S.   at   755,    111   S.   Ct.     at    2567.    Counsel     is   not

constitutionally deficient, however, if, at the time trial, such an

objection would have been futile in light of existing state law and

the right was not clearly established under federal law.                     See


      5
         Because of our disposition of this issue and because the State has not
argued this point, we need not decide whether Enmund announced a new rule for the
purposes of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989).          For a
discussion of the relationship between Teague and establishing cause based on an
intervening decision, see Selvage v. Collins, 975 F.2d 131 (5th Cir. 1992).

                                     - 9 -
Nichols v. State, 69 F.3d 1255, 1288 (5th Cir. 1995) (finding that

counsel was not ineffective for failing to request an anti-parties

instruction prior to Enmund because “it was not clearly established

Texas or federal law that such an instruction, if requested, was

required”).      Counsel    is   not   required    “to   anticipate    a   state

appellate court’s willingness to reconsider a prior holding” or a

federal habeas court’s willingness to “repudiate an established

rule.”    Hill v. Black, 932 F.2d 369, 373 (5th Cir. 1991).

      As noted above, at the time of Meanes’s trial, Texas law

permitted the law of parties to be applied to the punishment phase

of a capital case.     See Wilder v. State, 583 S.W.2d 349 (Tex. Crim.

App. 1979), vacated and remanded on other grounds, 453 U.S. 902,

101 S. Ct. 3133 (1981).          The Court of Criminal Appeals did not

reverse this position until three years after Meanes’s trial.                See

Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984).

Moreover, Enmund was not decided until over a year after Meanes’s

trial.6


      6
         Meanes argues that the language relied on by the State in Wilder was
dicta. We disagree. In Wilder, the Court of Criminal Appeals clearly applied
the law of parties to find the evidence of the wheel man’s “deliberateness” on
the basis of his co-defendant’s actions. Moreover, the Texas Court of Criminal
Appeals apparently thought enough of this dicta to specifically reverse Wilder
in 1984, stating: “We hold that the law of parties may not be applied to the
three special issues under Art. 37.071(b). Wilder and Armour v. State, 583
S.W.2d 349 (Tex. Crim. App.1979) is overruled as far as it is inconsistent with
this opinion.” Green, 682 S.W.2d at 287. Furthermore, we note that in his
first state habeas petition, Meanes also apparently thought that Wilder held that
the law of parties could apply to the punishment phase of a capital trial as
well. In fact, he submitted eight (8) affidavits from Texas trial lawyers, each
stating that they thought that Wilder held that the law of parties could apply
to the punishment phase of a capital trial.

      Meanes also argues that the State’s argument that Wilder provided that the
law of parties applied to the punishment phase of a capital trial “flies in the
face of the assurance made by the State of Texas to the Supreme Court of the
United States during oral arguments in Jurek v. Texas, 428 U.S. 262 (1978), that

                                    - 10 -
       Recognizing this, Meanes attempts to shift the focus from

Enmund to the Supreme Court’s earlier decisions in Lockett v. Ohio,

438 U.S. 586, 98 S. Ct. 2954 (1978), and Woodson v. North Carolina,

428 U.S. 280, 96 S. Ct. 2978 (1976).           In both Lockett and Woodson,

a plurality of the Supreme Court held that the Eighth Amendment

requires an individualized sentencing decision in capital cases.

According to Meanes, Lockett and Woodson clearly brought into

question     any   argument     that     the    law   of   parties     can    be

constitutionally applied in the sentencing phase of a capital

murder trial.      Although we agree with Meanes that there was a

reasonable     basis     for    making    the    argument      that    it    was

constitutionally impermissible to apply the law of parties to the

punishment phase of a capital trial at the time of his trial, it

does not necessarily follow that his counsel was constitutionally

deficient for failing to raise this claim.            See Smith, 977 F.2d at

960.   At its core, Meanes’s argument amounts to nothing more than

an argument that, because there was no cause for his procedural

default in the sense that the claim was reasonably available based

on earlier decisions, it must necessarily follow that his counsel

was ineffective for failing to raise the argument.                 As we have

previously held, however, “The Supreme Court clearly rejected such

an ‘either or’ approach in Smith, 477 U.S. at 535, 106 S. Ct. at



the special scheme adopted by Texas would show a ‘real basis for distinguishing
among defendants.’” What the Texas executive branch argued before the Supreme
Court in Jurek, however, casts no helpful light on the fact that the Texas Court
of Criminal Appeals, which has the ultimate responsibility for determining what
the State criminal law is, held that the law of parties applied to the punishment
phase of a capital trial.

                                    - 11 -
2667, and Carrier, 477 U.S. at 485-88, 106 S. Ct. at 2644-45.”

Smith, 977 F.2d at 960.   The inescapable fact remains that Enmund

was not decided until over one year after Meanes’s trial and that,

at the time of his trial, Texas law provided that the law of

parties applied to the punishment phase of a capital case. Given

the state of the law at that time, we cannot say that counsel’s

performance fell outside of the “wide range of professionally

competent assistance” recognized in Strickland v. Washington, 466

U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984).

     Having failed to show cause for his procedural default, Meanes

may nonetheless be entitled to habeas relief if he can show that

imposition of the procedural bar would constitute a “miscarriage of

justice.”   Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514,

2518 (1992).   “Where, as here, the asserted error . . . goes only

to the sentence imposed in a capital case, such a ‘miscarriage of

justice’ is not established unless it is shown ‘by clear and

convincing evidence that but for’ the asserted ‘constitutional

error, no reasonable juror would have found the petitioner eligible

for the death penalty under the applicable state law.’”     Hogue v.

Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (quoting Sawyer, 505

U.S. at 336, 112 S. Ct. at 2517).      After an exhaustive review of

the record, we find that Meanes has not met this burden.

     The substance of Meanes’s testimony at the punishment phase

and in his confession was that he agreed to participate in the

robbery only after his co-defendant had promised him that no one

would be harmed.   He testified that his co-defendant shot at the


                              - 12 -
victim with the pistol three times, fired six more shots into the

armored van from the same position, and then traded weapons with

Meanes, who was unable to pump the shotgun, and fired the shotgun

at the van nine more times.     Meanes further contended that he fired

only two pistol shots during the entire robbery and that these

shots were at the driver’s side window of the armored car in an

attempt to gain entry.    Meanes also argued that he never pointed

the gun at Wright or told her “Get up bitch, right now or you’re

dead.” He further testified that Santana was the only one who

approached the victim’s body and that Santana did so only at the

end of the robbery when Santana was wielding the shotgun.

     Contrary   to   Meanes’s    testimony,   however,   a   number   of

eyewitnesses testified at trial that Meanes was the one holding the

pistol, and no one identified him as holding the shotgun at any

time.   Similarly, none of the eyewitnesses testified that they saw

any exchange of weapons.         The eyewitness accounts contradict

Meanes’s version of events in many other important respects.

Although Meanes asserted that only Santana approached the victim’s

body and only at the end of the robbery when Meanes alleges that

Santana held the shotgun, Wright testified that she heard two shots

as the victim was shot and that a man with a pistol then knelt by

the victim and fired more shots at the van.    Moreover, wet blood of

the victim’s type was found on the ammunition clip inside the

pistol, further indicating that it was the person with the pistol

who had approached the victim.

     In addition, two witnesses testified that they saw both men


                                 - 13 -
shooting toward the passenger side of the van at the same time at

the beginning of the robbery and before the men even moved away

from their car.    One of the men identified the man shooting the

pistol from the trunk of the car as Meanes, further contradicting

Meanes’s story that he only fired the pistol at the driver’s side

door of the van.    Another witness testified that he first heard

three pistol shots, followed by two shotgun blasts two to three

seconds later, further contradicting Meanes’s claim that Santana

fired nine pistol shots in a row and then switched to the shotgun.

     Given the above evidence contradicting Meanes’s story and the

extensive 83-page cross-examination by the prosecution, in which

the State demonstrated that Meanes lied a number of times, we

conclude that Meanes has fallen well short of establishing “‘by

clear   and   convincing   evidence   that   but   for’   the   asserted

‘constitutional error, no reasonable juror would have found the

petitioner eligible for the death penalty under the applicable

state law.’” Hogue, 131 F.3d at 497 (quoting Sawyer, 505 U.S. at

336, 112 S. Ct. at 2517).



                              CONCLUSION

     For the reasons set forth above, we find that Meanes is

procedurally barred from raising his Enmund claims in this court.

In addition, to the extent that the district court held that Meanes

received ineffective assistance of counsel, we find that decision

erroneous as a matter of law.     Accordingly, the judgment of the

district court is REVERSED and judgment is RENDERED denying Meanes


                                - 14 -
habeas corpus relief.

                                 REVERSED; RENDERED.




                        - 15 -
