                       REVISED JANUARY 16, 2003

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                              No. 02-50455


CHRISTOPHER BLACK, SR.,
                                             Petitioner-Appellant,

                                 versus

JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                             Respondent-Appellee.



           Appeal from the United States District Court
                 For the Western District of Texas


                           December 11, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

     Christopher Black was sentenced to death upon his conviction

by a Texas jury of capital murder.      In February 1998, angry at the

end of his marriage, Black recorded on cassette tapes why he wanted

to kill his family, applied for the purchase of a handgun, and some

days later purchased a semi-automatic pistol. The next day he went

to the house where his wife was living.       There in the presence of

Deidre Blackburn, a friend of his wife,1 he shot his wife twelve

     1
        She testified that she saw Black shoot his wife and then fled to a
neighbor’s house as the shooting continued.
times, his infant daughter as she sat in a high chair, and fired

five rounds at point blank range into the chest of his step

granddaughter, then seventeen months old.                All died of the gunshot

wounds.      He       then    immediately     called    911    and    told    a   police

dispatcher      that     he    had   just    killed    his    wife,    daughter,      and

granddaughter.         Arrested at the scene, he was indicted by a Bell

County grand jury for the murder of a person under the age of six

years, a capital crime in Texas.

       The Texas courts rejected his direct appeal and habeas attack

upon his conviction and sentence. The United States District Court

for the Western District of Texas in turn rejected his federal

petition filed under 28 U.S.C. § 2254 on the merits and denied his

request for a certificate of appealability. Today he requests from

this    court     a    certificate      of       appealability       upon    claims   of

ineffective assistance of counsel: that his counsel denied him the

right to testify in the punishment phase or was ineffective in

adopting a trial strategy with which he did not agree, and that the

state trial judge denied him the right to counsel by excusing a

member of the venire outside the presence of all counsel and Black.

We pay the deference due the decisions of the state courts and

conclude that Black has failed to make a substantial showing of

denial of a constitutional right.                    We deny his request for a

certificate of appealability.



                                             I

                                             2
      Our standard of review is settled.            Black filed his federal

habeas petition in 2001, and hence his claims are governed by the

Antiterrorism        and   Effective    Death   Penalty    Act    of   1996.      A

certificate of appealability is a prerequisite to our jurisdiction,

and can be granted only upon a substantial showing that Black was

denied a constitutional right, and if we conclude that “reasonable

jurists      would    find   the     district   court’s   assessment        of   the

constitutional claims debatable or wrong.”2

      In     affirming     Black’s    conviction   and    sentence     on   direct

appeal,3 the Texas Court of Criminal Appeals rejected the second

claim he presents here, the excusing of the venire member by the

presiding trial judge. Then, in a March 7, 2001 unpublished order,

the Texas Court of Criminal Appeals rejected Black’s collateral

attack. This order denied any relief to Black upon his first claim

of ineffective assistance of counsel.              As we will explain, the

state trial judge conducted an evidentiary hearing on Black’s

habeas petition and filed detailed findings of fact and conclusions

of law, the basis for the denial of habeas relief by the Court of

Criminal Appeals and its rejection of Black’s claim of ineffective



      2
        Slack v. McDaniel, 529 U.S. 473, 484 (2000). If we were to grant the
COA, to prevail on his habeas claim Black would have to show that the denial of
his claims on their merits by the Texas state courts was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Williams v. Taylor, 529 U.S. 362, 367, 386 (2000)
(internal quotation marks omitted).

      3
          Black v. State, 26 S.W.3d 895 (Tex. Crim. App. 2000).

                                          3
assistance of counsel.

                                     II

     A claim of ineffective assistance of counsel must be judged

with eyes directly upon the reality of the situation facing defense

counsel at the time of the acts and not years later.                     This

discipline best assures faithful application of the objective

measure of whether the decisions of defense counsel are within the

range of those a reasonably competent lawyer might have made under

those same facts and circumstances.       It also takes us far along in

judging its prejudice, if that inquiry is required.          We begin with

that important setting.

     Judge Joe Carroll of the 27th Judicial District Court of Bell

County presided at trial and at the later evidentiary hearing on

Black’s state habeas petition.        At the outset of the case Judge

Carroll appointed Frank Holbrook and Bob Odom, criminal defense

lawyers with combined experience of more than sixty years, as

counsel to Black.     Faced with little or nothing with which to

challenge the state’s case at the guilt stage, their efforts at

trial were directed toward avoiding the death penalty.              At the

guilt   phase,   defense   counsel   worked   with   their   eyes   on    the

punishment phase, attempting to elicit testimony on cross that

might suggest or support the picture they hoped they would later be

able to paint, a picture of a man with a distinguished military

record distraught over his marital problems who erupted in an

episode so horrendous and self-destructive as to itself suggest

                                     4
that it was not the act of a man likely to be dangerous in a prison

environment. Their judgment was that an effort to resist a verdict

of guilt would risk loss of their credibility with the jury and

make   more    difficult   the   task   facing   them   at   the    inevitable

punishment phase.     This they did, even waiving argument.           The jury

found Black guilty of capital murder in a matter of minutes,

circled the table in the vernacular, but deliberated over seven

hours before returning its answer to the three questions required

to be asked at the punishment phase by Article 37.071, Texas Code

of Criminal Procedure.

       After the trial, Judge Carroll appointed John R. Duer as

appellate counsel.      Following his direct appeal, Black filed his

application for a writ of habeas corpus, and on October 17, 2000,

Judge Carroll conducted an evidentiary hearing.          At its outset the

trial judge observed: “The issues designated for hearing this

morning are, one, did the applicant’s attorneys refuse to allow him

to testify at his trial; number two, did the applicant’s attorneys

follow a trial strategy that he did not consent to or agree with;

and number three, did the applicant’s attorneys follow a trial

strategy that was forced upon him.”         There were three witnesses:

Black, Holbrook, and Odom.       Black was asked directly why he did not

testify.      He responded, “For several reasons.       One, the attorneys

were relying heavily on the testimony of Dr. Reid.”                Dr. Reid, a

psychiatrist, testified at the punishment phase as a defense

witness.      Black testified that he told Holbrook and Odom that he

                                        5
could “rebut” the testimony of his ex-wife by denying that he ever

hit her, or that he used her alien status by threatening to report

her to the INS; he could have denied that he pointed his gun at

Deidre Blackburn, who was in the house when he shot his wife and

who testified against him in the guilt stage. He also testified

that he wanted to explain the tapes that had been introduced at the

guilt stage, although he was unclear what his explanation would

have been.    Black denied that his counsel told him he had a right

to testify, or that he was otherwise aware of his right to do so.

     Holbrook and Odom had a very different recall of these events.

Both testified that they had explained Black’s rights to him at

length and that he understood them; that the decision to not

testify was made by Black.   On November 28th, Judge Carroll filed

detailed findings of fact and conclusions of law rejecting Black’s

version of events and finding “that the Applicant’s attorneys did

not refuse to allow him to testify at the guilt/innocence or

punishment stage of his trial, but advised him that testifying

would not be in his best interest.”    He also found “that the ...

attorneys discussed with [Black] on more than one occasion the law

of the case, the State’s burden in the case, and their trial

strategy; and that he understood this strategy and it was not

forced upon him in any way.”

     These findings were adopted by the Texas Court of Criminal

Appeals.     In turn, the reviewing federal court was required to

presume that they are correct absent any “clear and convincing”

                                  6
evidence that would show otherwise.4                  Black’s first claim is

without merit and reasonable jurists would not disagree with its

rejection by the state court and the court below.

                                      III

     Black claims constitutional error in Judge Carroll’s decision

to excuse out of his and all counsel’s presence a late arriving

member of the venire who asked not to serve because she was hard of

hearing.     The argument is that he was thus deprived of counsel in

violation of the teachings of United States v. Cronic.5                Black’s

counsel objected to the release of the member of the venire in their

absence.     Judge Carroll immediately explained, “There was a lady

that came up and couldn’t hear.                And she said she had a doctor’s

excuse with her. I interviewed her and determined she couldn’t hear

and so I let her go.       And she promised me that she would bring her

excuse back.      And I am sorry that I didn’t do that in the presence

in here awhile ago.       It just caught me off-guard.”         He later found

in his habeas findings of fact and conclusions of law that “[s]ince

a Trial Court has broad discretion to excuse jurors for other than

economic reasons without the parties being present, the trial court

did not abuse its discretion in granting a juror’s request that she

be excused because she could not hear out of the presence of counsel




     4
         28 U.S.C. § 2254(d)(2), (e)(1).
     5
         466 U.S. 648 (1984).

                                           7
for either side or the applicant.”6        The judge also pointed out that

she was accompanied by a caretaker companion.            Since Black cannot

show prejudice, his contention must persuade that this is a Cronic

case and not a Strickland case.7

     Black’s contention relies upon a dubious principle of law.              At

the least, it is by no means clearly established.           Cronic speaks to

the absence of counsel at a critical stage of a trial.              It is not

clear that here recognizing an inability of the prospective member

of the venire to sit on any jury because of a physical disability

was such a critical stage.         Judges by practical necessity summon

large numbers of persons as members of a venire where they hear such

petitions of delay and relief from service entirely out the presence



     6
         Citing, inter alia, TEX. GOV’T CODE ANN. §§ 62.110, 62.1041(b) (Vernon
2000).
     7
         We have explained:

     To sustain a claim of inadequate assistance of counsel, a defendant
     usually must meet the standards of Strickland v. Washington, [466
     U.S. 668, 687 (1984)], which requires proof that (1) “counsel’s
     performance was deficient” and (2) “the deficient performance
     prejudiced the defense” so gravely as to “deprive the defendant of
     a fair trial, a trial whose result is reliable.”       “There are,
     however, circumstances that are so likely to prejudice the accused
     that the cost of litigating their effect in a particular case is
     unjustified.” United States v. Cronic, [466 U.S. 648, 658 (1984).]
     In such cases, where the defendant is constructively denied
     assistance of counsel, prejudice is automatically assumed and need
     not be proven.

Johnson v. Cockrell, 301 F.3d 234, 237-38 (5th Cir. 2002) (some citations
omitted); cf. Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc)
(upholding a Cronic claim in a case where the defendant’s lawyer was asleep
during parts of the trial because “[u]nconscious counsel equates to no counsel
at all. Unconscious counsel does not analyze, object, listen or in any way
exercise judgment on behalf of the client”), cert. denied, 122 S. Ct. 2347
(2002).

                                       8
of any lawyers.      This because a panel from which a petit jury will

be selected is often cut from a large pool periodically summoned.

That pool may be summoned and qualified for jury service by a

presiding judge before an indictment is even drawn for cases to

come.     Where the critical stage in a trial is reached in this

progression from the first pool to the panel for a particular case

is uncertain.      At the least, extending Cronic to this circumstance

would call forth a new and Teague-barred rule.8

     Requests for COA are rejected, and the judgment of the district

court dismissing the petition for federal habeas is AFFIRMED.




     8
         Teague v. Lane, 489 U.S. 288 (1989).

                                        9
