                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 30, 2006
                        FOR THE FIFTH CIRCUIT
                        _____________________            Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-70042
                        _____________________

PATRICK BRYAN KNIGHT,

                                            Petitioner - Appellant,

                               versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
           for the Northern District of Texas, Amarillo
                      USDC No. 2:99-CV-00085
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

     Patrick Bryan Knight (“Knight”) was convicted of capital

murder and sentenced to death for the 1991 murders of Walter and

Mary Ann Werner. This court granted a certificate of appealability

(“COA”) authorizing Knight to appeal the district court’s denial of

habeas relief on his Brady and ineffective assistance of counsel

claims.   We AFFIRM.




     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this opinion should not be published and is not precedent except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.
                                   I

     Knight and a companion, Robert Bradfield, broke into the home

of Knight’s neighbors, Walter and Mary Ann Werner, on Monday

morning, August 26, 1991, after the Werners had left for work.

When the Werners came back home that evening, Knight and Bradfield

locked them in the basement of their home.    The Werners were held

captive in their basement that night and the next day, during which

Knight and Bradfield drove around in the Werners’ vehicles. Around

midnight on Tuesday, Knight bound, gagged, and blindfolded the

couple, forced them into their own van, and drove them to a

location in the country about four miles away from their home.   He

made them get out of the van and kneel, and then he shot each of

them in the back of the head, execution-style.    He dragged their

bodies into a ditch on the side of the road and returned to his

trailer house and went to sleep.

     During their investigation into the Werners’ disappearance,

law enforcement officers questioned Knight, who lived in a trailer

house next door to the Werners’ home.     Although Knight initially

denied involvement, he eventually confessed and led the officers to

the location of the victims’ bodies.     Knight was incarcerated in

the Randall County Jail from the time of his arrest in 1991 until

he was moved to death row in 1993.     Deputy Sheriff Cindy Risley,

one of Knight’s jailers, developed a personal relationship with

Knight, who began calling Risley “Mom”.



                                   2
     At the punishment phase of the trial, the State presented the

following evidence:    Knight was on probation for the burglary of a

grocery store at the time of the murders.      He had stolen money from

a convenience store cash register while the clerk was away from the

register.    On the day of the murders, Knight went to Ted Ramirez’s

home and threatened to kill him.       He also went to Deborah Martin’s

home that day and told her he would “get” her and her boyfriend for

accusing him of stealing.       Knight told other inmates that he

planned to avoid prison by pretending that he was insane when he

killed the Werners, and he asked them for advice on what kind of

statements and behavior could result in a diagnosis of insanity.

He had problems getting along with other inmates in the jail and

threatened to kill his cellmates with a shank made from a coat-

hanger.   He hid razor blades, scissors, sharpened paper clips, and

rope in his cell, and kept contraband cleaning powder in a baby

powder container in his cell.    A jury list was found in his cell.

He threatened to kill himself and others rather than be sent to

prison.     He staged a suicide attempt while in jail.      Because of

these incidents, he was kept isolated in a single cell for almost

the entire two years he was in jail prior to trial.

     Knight’s counsel did not call any witnesses at the punishment

phase.    However, they elicited the following mitigating evidence

through cross-examination of the State’s witnesses:       Although the

State’s witnesses were aware of verbal threats by Knight, none of

them had observed Knight commit any violent acts against anyone

                                   3
else; Knight did not threaten to injure his cellmates at the county

jail with the shank, but instead intended to harm himself with it;

Knight did not injure any of his cellmates; prior to his arrest, no

one had observed Knight in possession of a weapon; Knight’s prior

crimes    did     not   involve     physical      harm    to    anyone;   Knight          had

cooperated with the police; Knight had a history of alcohol abuse;

and the district clerk had given Knight a copy of the jury list

pursuant to state law.            In closing argument, defense counsel also

noted Knight’s young age (23) at the time of the murders.

      Knight was convicted of capital murder and sentenced to death.

His conviction and sentence were affirmed on direct appeal. Knight

v.   State,     Cause    No.     71,795   (Tex.    Crim.       App.   March     6,   1996)

(unpublished).          Knight did not file a petition for a writ of

certiorari.

      The     state     habeas    court     denied      Knight’s      request       for   an

evidentiary hearing and denied his application for state habeas

relief.     The Texas Court of Criminal Appeals adopted the trial

court’s findings and conclusions and denied relief.                             Ex parte

Knight,     No.     40,236-01       (Tex.       Crim.    App.     March       10,    1999)

(unpublished).

      Knight filed a preliminary federal habeas petition in March

1999, and an amended petition in May 1999.                     The magistrate judge

held an evidentiary hearing and recommended that relief be denied.2

      2
      The magistrate judge stated that the federal evidentiary
hearing was conducted, in large part, because of Knight’s

                                            4
The district court overruled Knight’s objections and adopted the

magistrate judge’s recommendation.     The district court denied

Knight’s request for a COA.

     Knight requested a COA from this court to appeal the denial of

relief as to four claims.      Based on our “threshold inquiry”,

consisting of “an overview of the claims in the habeas petition and

a general assessment of their merits,” Miller-El v. Cockrell, 537

U.S. 322, 327, 336 (2003), this court granted a COA for three of

the four claims:   (1) whether Knight’s right to due process was

violated by the prosecution’s suppression of mitigating evidence on

future dangerousness; (2) whether Knight’s trial counsel rendered

ineffective assistance at both phases of his trial by failing to

adequately investigate and present evidence of Knight’s mental

condition and other mitigating circumstances; and (3) whether

Knight’s rights were violated when the trial judge granted the

State’s challenge for cause and excluded a prospective juror.

     The parties were given an opportunity to file supplemental

briefs with respect to the merits of the claims for which a COA was

granted.   Both parties declined, stating that they had nothing to

add to the briefs on the COA application.    Having considered the

arguments of counsel and based on our review of the record of the



allegations that he was unable to present Deputy Risley’s testimony
and/or statements to the federal habeas court because of
interference by law enforcement. The State does not argue that the
federal evidentiary hearing was inappropriate or that the evidence
presented at the hearing is unexhausted.

                                 5
state court trial, and the state and federal habeas proceedings, we

conclude that the state court’s decision to deny relief on these

claims is not based on an unreasonable determination of the facts

in the light of the evidence presented, and is neither contrary to,

or an unreasonable application of clearly established federal law.

We therefore AFFIRM the district court’s denial of federal habeas

relief, for the reasons that follow.

                                   II

     Knight is not entitled to federal habeas relief on his claims

unless the state court’s adjudication of the claims

               (1) resulted in a decision that was
          contrary to, or involved an unreasonable
          application of, clearly established Federal
          law, as determined by the Supreme Court of the
          United States; or

               (2) resulted in a decision that was based
          on an unreasonable determination of the facts
          in light of the evidence presented in the
          State court proceeding.

28 U.S.C. § 2254(d).     The state court’s factual determinations

“shall be presumed to be correct”, and the petitioner “shall have

the burden of rebutting the presumption of correctness by clear and

convincing evidence.”   28 U.S.C. § 2254(e)(1).

                                   III

                                    A

     Knight claims that the prosecution, which he argues included

Deputy Risley as a member of its team, violated his right to due

process   by   suppressing   her    mitigating   evidence   on   future


                                    6
dangerousness.              This    claim         is    reviewed    under    the    clearly

established law of Brady v. Maryland, 373 U.S. 83 (1963).                          “The Due

Process Clause of the Fourteenth Amendment requires prosecutors to

disclose    to    a    defendant,            on    request,   any    evidence      which   is

favorable and material to the issue of guilt or punishment.”

Titsworth v. Dretke, 401 F.3d 301, 306 (5th Cir. 2005).                                 “This

disclosure requirement imposes a duty to learn of any favorable

evidence known to the others acting on the government’s behalf in

the   case,   including            the   police.”          Id.     (internal     quotations

omitted).        To    establish         a    Brady      claim,    the    petitioner     must

demonstrate:           “(1)    the       prosecutor        suppressed       evidence,      (2)

favorable to the defense, and (3) material to guilt or punishment.”

Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir. 2005) (citing Brady,

373 U.S. at 87).        “The suppressed evidence is material if there is

‘a reasonable probability that, had the evidence been disclosed to

the   defense,        the    result      of       the   proceeding       would   have    been

different.’”      Id. (quoting United States v. Bagley, 473 U.S. 667,

682 (1985)).      However, “[t]he State has no obligation to point the

defense toward potentially exculpatory evidence when that evidence

is either in the possession of the defendant or can be discovered

by exercising due diligence.”                     Id. (quoting Rector v. Johnson, 120

F.3d 551, 558-59 (5th Cir. 1997)).

                                                   B

      Knight asserts that Deputy Cindy Risley was aware of, and

could have testified, that he was emotionally disturbed and needed

                                                   7
treatment; that his family abandoned him at an early age and he had

no support from anyone while awaiting trial; that he was a loner,

housed in a seclusion cell, but she was not afraid of him; that he

was not dangerous in all situations, but existed well within a

structured environment; that she spoke with him about the murders

and observed his remorse; that he did not intend to use the weapons

found in his cell, but made and hid them because he was bored; that

he showed her the weapons, allowing her to take credit for finding

them; that he was obsessive about keeping his cell clean; that he

tried to protect his jailers; that he told her that his co-

defendant, Bradfield, had participated in the murders, but that he

was going to take the blame for Bradfield because he did not think

that Bradfield or his family could handle the death penalty; that

Bradfield was violent and had stabbed one inmate in the jail and

had broken another inmate’s ribs; and that, in her opinion, Knight

would not be violent in the future if he received a life sentence.

Knight contends that, even though Risley did not express her

opinions about Knight to anyone, her opinions were nevertheless

suppressed by the State because Risley was employed as a law

enforcement officer by the county that prosecuted him and was,

therefore, a member of the prosecution team.   He contends that the

suppressed evidence is material because it provided alternative and

reasonable explanations for the same evidence that the prosecution

relied on to obtain a death sentence.



                                8
     It should be noted that Risley was in fact called as a witness

for the State at the punishment phase of Knight’s trial.                    She

testified that she had been a Deputy Jailer for the Randall County

Sheriff’s Department for sixteen months, and had seen Knight

regularly during that entire time. According to Risley, the inmates

viewed her as a mother figure and a lot of them called her

“Mother”. She testified that Knight has a violent temper, but that

she was not really scared of him when he was mad because there was

a thick metal wall between them.           However, if the wall was not

there, she testified that she would be afraid of him if he was mad.

She testified that Knight had never threatened her.          She testified

further that she had found various contraband items in his cell,

including a screwdriver that he was making into a shank during the

week of jury selection, razor blades, sharpened paper clips,

medication, a rope, and a baby powder container containing Comet

cleanser.    She also found in his cell a jury list with Knight’s

handwritten notations, and a drawing of a cartoon character with

the name “Mary Werner” written beside it.            On cross-examination,

Risley testified that she was aware that the law required the

district    clerk   to    give   capital   murder   defendants   a   list    of

prospective jurors, and that there was nothing threatening written

on the jury list.        She also testified that Knight had not made any

violent use of the screwdriver or sharpened paper clips, and no

violent use of the razor blades, other than hurting himself.                She

testified that she “got along fine” with Knight.

                                      9
                                   C

     In support of his state habeas application, however, Knight

submitted Risley’s unsigned affidavit, along with an affidavit of

habeas   counsel   explaining   that   Risley   refused   to   sign   the

affidavit.   In rejecting Knight’s Brady claim, the state habeas

court made the following findings of fact and conclusions of law:

                         [Findings of Fact]

                2. The court finds that the affidavit of
           Cindy Risley, a jailer with the Randall County
           Jail in Canyon, Texas, attached to Applicant’s
           writ, is not signed nor sworn to.

                3.   The court finds that, assuming the
           Risley affidavit is competent evidence, Cindy
           Risley might possibly have testified to
           certain conclusions and impressions based
           entirely on her conversations with Applicant
           while incarcerated in the Randall County Jail
           awaiting trial on his capital murder charges
           and her observations of him as an inmate in
           the jail. Her testimony might have included
           opinions such that Applicant was lonely and
           bored.   She might also have testified that
           Applicant was “abandoned” by his family and
           that, as a consequence, he had no family
           support.   Risley might have testified that
           Applicant told her that he was accepting
           responsibility for killing both victims, even
           though his co-defendant had killed one of the
           two named victims, since the co-defendant’s
           family “couldn’t handle the death penalty.”
           Risley might have testified to Applicant’s
           loss of control and manifestations of rage and
           anger while housed as an inmate in the Randall
           County Jail but that she believed such
           exhibitions to be an “act.”    She also might
           have testified that Applicant made and stored
           illegal weapons in jail out of boredom and
           that “discovering” these weapons and turning
           them over to jail personnel would have
           afforded him some form of “credit” in the eyes
           of the jailers.

                                  10
     ....

     5. The court finds that Cindy Risley was
fully available for pre-trial interview with
Applicant’s lawyers.     The court finds no
evidence in the record to suggest that Risley
was   prevented   from    communicating   with
Applicant’s lawyers or instructed not to do so
with the defense team.      The court further
finds that the totality of Risley’s opinions,
beliefs and observations were based entirely
on her dealings with Applicant as an inmate in
the   Randall   County   Jail   and   on   her
conversations solely with Applicant while he
was incarcerated.

     6.   The court finds that those matters
described within the unsigned Risley affidavit
having to do with her feelings, beliefs,
observations and opinions was information not
in exclusive possession of law enforcement or
the prosecution. The court further finds that
this information was fully available to the
defense,   by  way   of   full  and   complete
interviews with Risley or candid exchange
between Applicant and his lawyers.

     ....

            [Conclusions of Law]

     7.   The court finds that the source of
information allegedly possessed by Cindy
Risley was Applicant himself and that the
circumstances Risley could have testified to -
his alienation from his family, his need for
attention and approval from jail personnel,
his motivations behind the production of
homemade weapons, his disclosure of same to
the jailers and his apparent lack of violent
tendencies when in Risley’s company - were
known to Applicant and thus were known to his
lawyers and defense staff as well. The rule
of Brady v. Maryland, supra, and its progeny
does not apply to situations where the
information or evidence in question was known
to the defense.... Thus, the prosecution did
not violate its duty to disclose favorable
evidence to the defense in this case when the

                     11
         evidence about Applicant’s tendencies and his
         platonic relationship with Risley was already
         available and vicariously known to the
         defense....

               8. Because the record is barren of any
         evidence tending to show that the State
         possessed exclusive rights to this evidence or
         that it was suppressed or otherwise withheld
         from Applicant, his discussion of what Risley
         could have testified to constitutes a post-
         conviction bill of exception, a procedure
         which    does    not    comport    with    the
         contemporaneous objection rule....

              9. Moreover, even if one were to assume
         arguendo that the prosecution had failed to
         disclose evidence from Risley which was
         favorable in terms of Brady and its progeny,
         Applicant has not sustained his burden of
         proving that such evidence was “material.”...
         In this regard, Applicant has failed to
         establish affirmatively that there is a
         reasonable probability that, had such evidence
         been disclosed to the defense, the result of
         the trial would have been different or that
         there is a reasonable probability sufficient
         to undermine confidence in the outcome of the
         trial as a result of the information provided
         by Risley. The determination and evaluation
         of the “materiality” of Risley’s information
         must be made in light of the entire record and
         in the context of the overall strength of the
         State’s case.... When consideration is given
         to the entire record and the overall,
         overwhelming strength of the prosecution’s
         case, there has been no showing by Applicant
         of a probability sufficient to undermine
         confidence in the outcome of the trial or more
         specifically, the answers reached by the jury
         in response to the special issues submitted to
         them, as a result of the information or
         opinions of Cindy Risley.

                               D

    In the federal court proceedings, Knight submitted Risley’s

signed affidavit and she was called as a witness by Knight.   She

                               12
testified that she signed the affidavit after she was no longer

working for Randall County and did not have to worry about losing

her   job.    She     testified      that       Knight    was   kept     in   solitary

confinement for the safety of himself and others; that Knight had

emotional problems and had been abandoned by his family; that he

called her “Mom”; that he made and hid weapons because he was

bored, but never used the weapons on anybody in the jail; that in

her opinion, Knight would not be dangerous under structured,

controlled circumstances; and that, if she had been contacted by

the   defense,     she    would   have     talked    to    them   and     would   have

testified.   On cross-examination, Risley acknowledged that she did

not know of any reason why Knight would be placed in a private cell

if sentenced to life imprisonment; and, therefore, she was unable

to say whether Knight would be dangerous in the less structured

environment of imprisonment in the general population rather than

in a private cell.

      Risley testified that when she approached her supervisor about

state habeas counsel’s request to sign an affidavit, he advised her

to remember that she was an “at will” employee.                    Her supervisor

testified    for    the    State,    and    denied       making   that    statement.

Witnesses from the Sheriff’s Office testified that there was no

policy that prohibited employees from speaking with defense counsel

or signing an affidavit.            Knight’s lead trial counsel testified

that he thought his investigator had interviewed Risley prior to

trial, and that he knew that Knight was fond of Risley.

                                           13
      Following the federal evidentiary hearing, the magistrate

judge concluded that most, if not all of the information known to

Risley, that would have been admissible at trial, was already known

to Knight, and that Risley’s opinions were, in large part, based on

speculation and hearsay.        Therefore, Knight failed to rebut the

presumptively correct state habeas court finding that Risley’s

information was available to the defense.               The magistrate judge

also observed the inconsistency between Knight’s allegation, on the

one hand, that he developed a very close personal relationship with

Risley during the two years he was incarcerated in the Randall

County Jail, and his contradictory allegation, on the other hand,

that he was not aware of her existence as a potential defense

witness,   or   that   she   had   a    favorable     opinion   of   him.     The

magistrate judge concluded that Risley’s testimony would have been

of   questionable   evidentiary        value,   and   that   there   was    not a

reasonable probability that her testimony would have affected the

outcome of this case in the light of the overwhelming evidence

against Knight, including the heinous execution-style murders of

the victims after holding them hostage for an extended period of

time.   According to the magistrate judge, the evidence of Knight’s

acts, while incarcerated awaiting trial, including threats against

other inmates, plans to fake insanity, and his concealment of

weapons in his cell, greatly outweighed evidence of Risley’s

opinion that he would not constitute a continuing threat to society



                                        14
if   given    a    life    sentence.    The   district       court    adopted   the

magistrate judge’s recommendation.

                                         E

      Based on our review of the state and federal habeas records,

we conclude that the state court’s decision to deny relief is not

an unreasonable application of Brady.               The evidence presented at

the federal evidentiary hearing merely reinforces the state habeas

court’s determination that Risley’s information was available to

the defense and, therefore, was not suppressed by the State.

Accordingly, we affirm the district court’s denial of habeas relief

on this claim.

                                        IV

                                         A

      Next,       Knight   contends    that   his    trial    counsel     rendered

ineffective assistance by failing adequately to investigate and

present evidence of Knight’s mental condition and other mitigating

circumstances.         Knight contends that trial counsel or counsel’s

investigator had in their files substantial mitigating evidence

that was never developed, including the following:                   he drowned as

a child and suffered anoxia; he grew up in dysfunctional and

disadvantaged circumstances; he suffered personality disorders and

probably an organic brain condition that limited his ability to

control inappropriate impulses; the psychological expert retained

for trial (Dr. Price) was not aware of an earlier psychological

evaluation by Dr. Rumage that suggested the possibility that Knight

                                        15
suffered from organic brain damage;3 counsel failed to interview

Risley; and, although counsel was not hampered by a lack of

resources, Knight was not tested or psychologically evaluated until

after jury selection began.

      Knight    asserts     that   Dr.   Paula     Lundberg-Love,      the    expert

retained by his habeas counsel, could have testified that Knight

suffers from psychoactive substance abuse and passive-aggressive

personality disorder; that Dr. Rumage’s evaluation of Knight at age

nine suggested that he suffered from organic brain dysfunction;

that Dr. Price’s clinical notes raise a suspicion of organic brain

dysfunction (Knight suffered a number of head injuries as a child,

he drowned when he was a child, and he had been diagnosed with

attention      deficit     disorder);    that      organic    brain   dysfunction

prevents the brain from functioning properly and removes the

ability to control impulses; that what little control Knight had

was   erased    by   his    consumption       of   alcohol;   that    his    medical

condition (attention deficit disorder) creates a propensity to

      3
      Dr. Rumage evaluated Knight when he was nine years old. In
her report, she requested a comprehensive neurological evaluation
to determine the existence of organic brain dysfunction and
possible treatment. Although Knight asserts that such testing was
not done, the medical records attached as exhibits to the State’s
answer in the state habeas proceedings contradict that assertion.
Knight    further   asserts   that   trial    counsel’s   retained
neuropsychologist, Dr. Price, was not given a copy of the Rumage
report, because they did not find a copy of the Rumage report in
his file. However, trial counsel’s affidavit, which was credited
by the state habeas trial court, states that Dr. Price was given a
copy of the Rumage report and the other medical records, including
the follow-up neurological testing performed on Knight at Dr.
Rumage’s request.

                                         16
abuse alcohol; that, because of his medical condition, Knight was

unable to suppress his emotional impulses; that his condition is

treatable; and that, with the right medication and abstinence from

alcohol,    he      can      control    his        impulses    and    there   is   little

probability that he would be a continuing threat to society.

      Lisa Milstein, the investigator retained by Knight’s habeas

counsel, submitted an affidavit to the state habeas court in which

she stated that she found the following mitigating evidence:

Knight grew up in a disadvantaged environment and had a background

of abuse and emotional neglect -- his mother and father divorced;

his   mother      and     step-father         divorced;       his    mother   failed   to

discipline her children and ignored them; no one in Knight’s family

visited him while he was in jail awaiting trial; and Knight’s

family was centered on money and efforts to please his grandmother,

who had money.

      Knight asserts that Risley also had mitigating evidence and

that, although her name appeared on the prosecution’s witness list,

his trial counsel did not interview Risley and did not know whether

his court-appointed investigator had interviewed her.

                                               B

      To prevail on his ineffective assistance claim, Knight must

show that counsel rendered deficient performance, and that the

defense     was     prejudiced         by     the    deficiency.        Strickland     v.

Washington, 466 U.S. 668, 687 (1984).                      Counsel’s performance was

deficient      if       it    “fell         below     an   objective      standard     of

                                               17
reasonableness.”       Id. at 688.     “The proper measure of attorney

performance      remains   simply    reasonableness    under     prevailing

professional norms.”       Id.

           [S]trategic   choices  made   after   thorough
           investigation of law and facts relevant to
           plausible      options      are     virtually
           unchallengeable; and strategic choices made
           after less than complete investigation are
           reasonable precisely to the extent that
           reasonable professional judgments support the
           limitations on investigation. In other words,
           counsel has a duty to make reasonable
           investigations or to make a reasonable
           decision that makes particular investigations
           unnecessary. In any ineffectiveness case, a
           particular decision not to investigate must be
           directly assessed for reasonableness in all
           the circumstances, applying a heavy measure of
           deference to counsel’s judgments.

Id. at 690-91.         “[O]ur principal concern in deciding whether

[Knight’s counsel] exercised reasonable professional judgment is

not whether counsel should have presented a mitigation case.

Rather, we focus on whether the investigation supporting counsel’s

decision   not    to   introduce    mitigating   evidence   of   [Knight’s]

background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510,

522-23 (2003) (internal quotations and brackets omitted; emphasis

in original).       “In assessing counsel’s investigation, we must

conduct an objective review of their performance, measured for

reasonableness under prevailing professional norms, which includes

a context-dependent consideration of the challenged conduct as seen

from counsel’s perspective at the time.”           Id. at 523 (internal




                                      18
quotations omitted).           We now turn to recount the investigation

conducted by counsel.

                                              C

      Jon     Waggoner,      who    was    Knight’s       lead   counsel    at    trial,

submitted an affidavit in the state habeas proceedings.                          In that

affidavit, he stated that he retained an investigator, Kathy

Garrison, to assist him in locating mitigating evidence.                      Based on

their interviews with Knight, they learned that he had spent his

formative years in southern Louisiana, around the New Orleans area.

Waggoner and Garrison traveled to New Orleans in early August 1993

to interview people who knew Knight and to secure medical and

educational records. Waggoner stated that he interviewed a nun who

had taught Knight.        She told Waggoner that Knight was a disruptive

child   who    had    behavioral         problems,       but   normal   intelligence.

Garrison reported to Waggoner that she had talked to some of

Knight’s friends and an elementary school teacher.                         While those

people expressed some sympathy toward Knight, they also remembered

many unpleasant things about Knight, including multiple allegations

of   theft,    lying,     loss      of    temper,    rage,     behavioral    problems,

threatening behavior, lack of empathy for others, and disciplinary

problems      in   school.         Garrison       also   obtained   educational      and

aptitude testing records from schools and health care providers.

Waggoner stated that he reviewed those records and concluded that

they were of little probative, mitigating value.                        Waggoner also

obtained Knight’s medical records from the Naval Regional Medical

                                            19
Center in New Orleans covering the period April 14, 1975, through

August 25, 1977.      Those records showed that Knight had been

referred for a neurological work-up due to his poor performance in

school.   Waggoner stated that the test results were “normal”, but

that he provided a copy of the psychological test report performed

by Dr. Rumage to Dr. Price, the neuropsychologist he retained to

evaluate Knight.

     Waggoner stated that he and Garrison concluded that none of

the individuals    they   contacted    would   be   able   to   provide   any

substantive mitigating evidence and that, even if they could be

called to testify, the risk was too great for fear of opening the

door to damaging testimony regarding Knight’s admittedly anti-

social behavior as a child.

     Waggoner stated in his affidavit that he also visited with

Knight’s mother and grandmother, neither of whom were helpful.

Knight’s mother stated that she did not wish to help her son, and

his grandmother felt the same way.         Prior to the beginning of

Knight’s trial, Knight’s mother and grandmother moved from Amarillo

during the middle of the night, and Waggoner did not know where

they went and thus could not contact them.

     Waggoner stated that he retained Dr. J. Randall Price, a

neuropsychologist from Dallas, to examine Knight for the purpose of

developing mitigating evidence.        He stated that he and Garrison

provided Dr. Price with copies of all of the documentation they

collected during their trip to New Orleans, including the medical

                                  20
records    from       the   Naval    Regional     Medical    Center       and    the

psychological evaluation by Dr. Rumage.            Dr. Price examined Knight

in the Randall County Jail in early September 1993.                 Waggoner met

with Dr. Price after the examination.            Dr. Price told Waggoner that

he believed that Knight exhibited a classic anti-social personality

disorder and that, if pressed, he would be compelled to testify

accordingly.      Dr. Price described Knight’s statements about how he

liked to be “scared” and that he enjoyed going into people’s homes

and cars for the money and excitement.              Dr. Price felt that the

results    of   the    personality    test   administered     to    Knight      were

exaggerated, suggesting that Knight had engaged in malingering.

Dr. Price also pointed out that Knight’s conduct in jail was not

good, including threats against other inmates and possession of a

shank and other contraband.          Dr. Price did not believe that Knight

was brain-damaged. He based that opinion on the fact that Knight’s

IQ scores were not remarkable and that, if there had been brain

damage, there would have been much more deviation in those scores.

Dr. Price believed that Knight had a learning disability that

probably accounted for his terrible academic performance in school.

Waggoner    stated      that   Dr.   Price      informed    him    that    further

neurological testing was not justified.              Dr. Price told Waggoner

that, if called to testify, he would have to opine that Knight

could be termed a future danger to others.

     Waggoner explained his decision not to present any evidence at

the punishment phase as follows:

                                        21
               At trial, I was faced with a difficult
          situation. In actuality, I had no mitigating
          evidence on behalf of Knight.      His family
          abandoned him.    The medical and educational
          records covering his early years in the New
          Orleans area revealed no objective evidence of
          brain damage or mental illness. If anything,
          the records revealed several instances of
          classic anti-social behavior.    Even his own
          friends from the New Orleans area would, if
          compelled to, testify to a variety of anti-
          social behaviors which would have militated in
          favor of the death penalty.         Dr. Price
          recommended no additional testing.         Mr.
          Knight’s behavior in jail was replete with
          instances of rules violations, threats against
          other inmates and possession of weapons.
          Relying on Dr. Price’s recommendations and the
          totality of my experience in over 100 jury
          trials, it was my studied decision not to
          present any of the evidence which we had
          discovered (for fear of opening the door to
          even more damaging evidence) and rest at
          punishment without calling any witnesses.

               ....

               I believe that I and my investigator
          followed up on all leads and that we acted
          fully on the mitigating evidence which we
          possessed both before and during trial.      I
          know for a fact that I provided a copy of the
          Nancy Rumage report to Dr. Price prior to his
          evaluation of Knight and that my decision not
          to follow-up with any additional psychological
          testing was the direct result of my reliance
          on the advice and opinions given to me by Dr.
          Price. I and Kathy Garrison investigated all
          possible mental health issues existing at the
          time prior to trial.

     Kathy Garrison, the private investigator who was appointed to

assist Waggoner with Knight’s defense, also submitted an affidavit

in the state habeas proceedings.    She stated that she talked to

Knight’s family friends, former teachers, and boyhood friends, all


                               22
of   whom   described   Knight’s   unacceptable   behavior,   including

stealing, temper tantrums, chronic and habitual lying, disruptive

behavior in the classroom, and fighting.          She also interviewed

Philip Wagner, who professed to be a good friend of Knight, but who

described Knight as a “compulsive liar” who had engaged in an

escalating pattern of criminal activity during the time Wagner

spent with him.    Wagner told her that he feared Knight and that

Knight had no remorse for anything.     She also interviewed Knight’s

mother and grandmother, neither of whom wanted to help Knight.

                                    D

      The state habeas trial court made the following findings of

fact with respect to Knight’s ineffective assistance claim:

                 9.    The court finds that Dr. Paula
            Lundberg-Love is not a forensic psychologist
            but rather a psychological assistant with
            licensure occurring in 1986.    Her field of
            expertise is in pharmacology and drug/alcohol
            abuse.

                 10. The court finds that Dr. Randy Price
            is an experienced forensic neuropsychologist
            who has been qualified as an expert in the
            district courts of both Potter and Randall
            counties.

                 11. The court finds that trial counsel
            Jon Waggoner had in his possession before he
            retained the services of Dr. Price the medical
            records from the Naval Regional Medical Center
            in New Orleans, dated April 14, 1975 through
            August 25, 1977.... These records contained
            certain findings of medical tests conducted by
            medical personnel there at the Naval Regional
            Medical Center as well as a psychological
            report completed by Nancy Rumage, dated August
            17, 1977.


                                   23
     12.   The court finds that Jon Waggoner
provided these records to Dr. Price prior to
his examination of Applicant in the Randall
County Jail in early September of 1993.

     13. The court finds that Applicant made
full and frank disclosure to Dr. Price during
the interview process and admitted to the
elements of the crime.      The court further
finds that Applicant made certain statements
to Dr. Price that can only be characterized as
evidence of anti-social behavior and thought
processes, particularly the comments that
Applicant enjoyed breaking into people’s homes
and cars because he “liked the excitement and
the money was great.”

      14.  The court finds that Dr. Price’s
representations to Jon Waggoner that Applicant
was not brain-damaged and that he most likely
represented a future danger to society are
adequately supported by the record in this
case, particularly in the clinical findings
contained   within    the   medical    records
indicating normal IQ scores, his anti-social
statements made to Dr. Price and other inmates
who testified at trial, his documented bad
behavior while incarcerated in the Randall
County Jail and the skewed scores on the MMPI
administered by Dr. Price, a deviation Dr.
Price attributed to malingering on Applicant’s
part.

     15.    The court finds that no further
neurological or psychological testing was
necessary in this case, particularly after Dr.
Price’s examination in September of 1993 and
after his report made to Jon Waggoner shortly
thereafter.

     16. The court finds that if Dr. Price
had been called as a witness by Applicant, he
could have been compelled to testify before
the jury that Applicant might very well commit
future acts of criminal violence against
others and therefore be considered a future
danger to others.



                     24
     17. The court finds that Lundberg-Love’s
conclusion that Applicant may have experienced
anoxia which could have resulted in brain
damage to be anecdotal in nature only and not
supported by any available medical records.
The court finds that Lundberg-Love found
Applicant’s IQ scores to be in the low-normal
range and that he may have a learning
disability, a finding confirmed by Dr. Price.
The court further finds that the 1977 Rumage
report does not contain indicia that Applicant
exhibited signs of brain damage and that any
conclusions drawn by Lundberg-Love [not]
confirming that conclusion are not credible or
supported by the record.

     18. The court finds that Lundberg-Love’s
opinion that the MMPI-2 test results collected
by Dr. Price were invalid is not credible.
The court further finds that Lundberg-Love is
not professionally qualified to interpret
these results and does so only by guesswork
and supposition. The court further finds that
Dr.   Price’s  notes   do   not  support   the
conclusion that there is the presence of
organic brain damage or cerebral dysfunction,
notwithstanding Lundberg-Love’s feelings.

     19. The court finds that Lundberg-Love’s
opinion that Applicant suffers from an organic
brain dysfunction, otherwise referred to as
Cognitive Disorder Not Otherwise Specified
(NOS), is anecdotal in nature and not
supported by objective findings in the record.

     20. The court finds that Applicant had
abused alcohol in the past and probably could
be considered an alcoholic. The court finds
that the Price notes support the conclusion
that Applicant drank alcohol heavily during
the commission of the offense for which he was
convicted.

     21. The court finds that court-appointed
trial counsel Jon Waggoner traveled to New
Orleans, Louisiana in August of 1993 in an
effort   to   investigate    any   mitigating
circumstances in the life and background of
Applicant. In this endeavor, trial counsel,

                     25
along with his court-appointed investigator
Kathy Garrison, sought to secure documentation
along these lines as well as interview
individuals who knew Applicant or who had any
interaction with him through family, schooling
or employment.

     22.   The court finds that Waggoner and
Garrison talked to several individuals in and
around the New Orleans area who had either
been a childhood friend, a teacher or relative
of Applicant.     These individuals expressed
sympathy for Knight’s plight but all described
Applicant’s behavior as unacceptable and that
he was involved in stealing, loss of temper
and emotional control, chronic and habitual
lying, disruptive and inappropriate behavior
while in a schoolroom setting and fighting
with others.    The court further finds that
Garrison interviewed one good friend of
Applicant who described Applicant as a
“compulsive liar” and one who was engaged in
an escalating pattern of criminal activity.
The court also finds that Waggoner and
Garrison obtained limited medical records on
Applicant   from    which  little,   if   any,
mitigating evidence could be derived, a
conclusion confirmed by the opinions reached
by Dr. Price after his independent review of
the records the succeeding month.

     23. The court finds that Waggoner also
made   contact   with    Applicant’s   family,
specifically   his   biological   mother   and
grandmother, in an effort to develop some
mitigating evidence for the punishment phase
of the trial.     The court finds that both
Applicant’s mother and grandmother openly
refused to assist defense counsel in any
meaningful manner and did, in fact, physically
remove themselves from the jurisdiction at the
time of trial so as to refuse to assist
Applicant. The court finds that Applicant’s
mother and grandmother left no information
behind which would have assisted Waggoner in
locating them for purposes of testifying at
trial.



                     26
     24.    The court finds that neither
Waggoner nor Garrison were able to secure
employment records from the New Orleans area
or from anywhere else because Applicant had
never worked long enough at a given job so as
to give rise to an employment record.

     25. The court finds that Waggoner had in
his possession summaries of his interviews
with family members, associates, teachers and
childhood   friends   of   Applicant;    medical
records on Applicant from a naval clinic in
New Orleans dating back to 1975-77; and the
summaries   of   Garrison’s    interviews   with
individuals there in the New Orleans-Slidell
area when he met with Dr. Randy Price in
September, 1993. The court further finds that
Waggoner shared these materials with Dr. Price
at the time of Price’s evaluation of Applicant
there at the Randall County Jail in September,
1993. The court finds that Waggoner, having
provided this information to his retained
expert,   appropriately     relied    upon   the
recommendations made by Dr. Price and that
these recommendations and observations made by
Dr. Price have ample support in the record.
The court further finds that the failure to
secure additional psychological testing was
grounded on the absence of evidence suggesting
the need for same as well as upon the clear
recommendation made by Dr. Price.

      26. The court finds that Waggoner was
not required to seek professional, expert
assistance until and when he could find one
who would testify consistent with those
opinions and beliefs held by Paula Lundberg-
Love.

     27. The court finds that Applicant and
the State differ significantly on the meaning
of the scant medical evidence in this case.
However, the court further finds that the
existing medical evidence was provided to
Applicant’s duly appointed trial counsel and
retained expert and that trial counsel’s
strategic decision not to present the evidence
he and his investigator had uncovered during
the discovery phase of pre-trial preparation

                      27
was plausible for the reason that [t]o have
done so would have opened the door to
additional, damaging punishment evidence.
Trial counsel’s decision to forego the
introduction of any of this evidence was
additionally plausible given his good faith
reliance on the opinions of his qualified,
experienced retained expert.

      28. The court finds that regardless of
the decision to forego introduction of any of
the potential mitigating evidence discovered
by Waggoner and Garrison prior to trial, trial
counsel nevertheless developed some evidence
in support of the following themes which he
argued to the jury in an effort to persuade
the panel to answer the special issues in such
a manner so as to avoid the death penalty:
that there was insufficient evidence to
justify imposition of the death penalty based
on the plain facts of the case; that there was
a paucity of overt violence [in] Applicant’s
past, excluding the offense for which he was
convicted; that Applicant’s jail tenure was
free of any violence specifically directed
toward any identifiable jailer or inmate; that
Applicant’s criminal background consisted of
property offenses; that Knight was a very
young man who stood a good chance of being
rehabilitated if assessed a sentence of life
in prison; that the jury could exercise any
degree of residual doubt that they might
harbor in favor of Applicant, given the role
of his co-defendant in the crime (for which he
received a life sentence, thereby prompting a
proportionality review from the jury which
might have resulted in a life sentence); and
finally reminding the jury that it had the
power    to engage   in   a   form  of   “jury
nullification” and grant Applicant mercy,
notwithstanding   the   weight   of   evidence
suggesting imposition of the death penalty.
The court finds that these jury arguments were
properly made and were supported by evidence
in the trial record.

     29. The court finds that trial counsel
and his investigator followed up on all
possible investigatory leads and acted fully

                     28
          and completely on the mitigating evidence
          which either possessed before and during
          trial.    The court finds that Waggoner and
          Garrison investigated all possible mental
          health issues at the time and prior to trial.
          The court further finds that Waggoner and
          Garrison    did   not  fail    to    investigate
          adequately and/or present evidence concerning
          Applicant’s dysfunctional family life because
          Applicant’s family refused to cooperate with
          Applicant’s trial counsel and his investigator
          prior to and during trial. The court finds
          that   the   presentation   of    any   evidence
          concerning Applicant’s alleged “dysfunctional”
          family   life    would   have    required    the
          cooperation of both his mother and grandmother
          and any other immediate family members, none
          of whom had any positive, helpful information
          to share with the defense.

     Applying Strickland, the state habeas trial court concluded

that Knight had failed to show deficient performance, much less

harm, stating:

          The affidavits of Jon Waggoner and Kathy
          Garrison establish that trial counsel and
          those   under   his   direction  and  control
          instituted a diligent investigation into the
          circumstances and background of Applicant.
          They followed up on all identifiable sources
          which did or could have led to the discovery
          of relevant mental health information. Trial
          counsel adequately investigated all known
          mental health sources before Applicant’s
          trial. He relied on representations made to
          him by Applicant, Applicant’s family members
          and   the   available   documentary  evidence
          existing at that time. Applicant’s complaints
          about trial counsel’s performance center on
          the manner in which trial counsel and his
          retained expert interpreted the available
          mental health information and to what use, if
          any, this evidence could have been utilized.
          It is also apparent from the affidavits and
          documentary exhibits included within the
          record that defense counsel did act upon the
          available mental health information when they

                                29
provided same to the retained psychological
expert Dr. Price.        Waggoner’s affidavit
dispels any doubt that this report and other
relevant information was not provided to Dr.
Price. The available affidavits and exhibits
also make clear that trial counsel was
informed by his own expert that there was
sufficient information and evidence to support
findings that Applicant did not suffer from
brain damage, that the MMPI scores were not
valid (not due to the timing of the
administration of the test but rather to
malingering on Applicant’s part) and that
Applicant’s background and thought processes
were   consistent    with   a   diagnosis    of
sociopathy.   Thus, trial counsel’s decision
not to pursue further psychological testing
was an informed one and represented a logical,
plausible decision under all the facts and
circumstances existing at that time. Further,
his decision not to present any expert
testimony through Dr. Price was indeed
plausible and sound since Dr. Price had
informed trial counsel that he would render an
opinion, if called upon, that Applicant could
very well be considered to be a future danger
to others. By electing to forego presenting
Dr. Price, trial counsel avoided opening the
door to damaging evidence as illuminated
within Dr. Price’s handwritten notes and
further, avoided having his own retained
expert compelled to give an opinion totally
antithetical to the thrust of Applicant’s
defense during the punishment phase.      Trial
counsel’s actions and decisions taken during
this phase of pre-trial and trial were
eminently reasonable. They constituted sound
trial strategy, notwithstanding Applicant’s
complaints.

     .... [T]he undisputed facts in the record
establish that trial counsel entered the
punishment phase of the trial knowing that
Applicant’s family had abandoned him, his own
expert had concluded that Applicant’s behavior
was perfectly consistent with that of a
sociopath,   that  there   was   insufficient,
objective evidence to support an argument that
Applicant suffered from any somatic condition

                      30
which might explain his violent or otherwise
aberrant behavior, that Applicant had no
employment history nor possessed any special
talents, that Applicant’s own friends could be
compelled to testify to a wide range of
antisocial acts and behavior and that his
behavior in the Randall County Jail was very
poor, regardless of any ameliorating effect
that Cindy Risley’s anticipated testimony
might have provided.     Given the fact that
those family members in the best position to
provide    mitigating   testimony    regarding
Applicant’s   regrettable   family  life   had
refused to assist trial counsel (and had in
fact physically moved from without the
jurisdiction during trial, presumably to avoid
testifying altogether), it is understandable
that no such family life evidence was
presented since there was no competent witness
to so testify, save and except Applicant
himself. Moreover, even if it is accepted for
purposes of argument, that trial counsel
should have known of Risley’s anticipated
testimony, those matters set out in the
unsigned Risley affidavit in no way offset or
neutralize Applicant’s bad behavior while
incarcerated in the Randall County Jail.
Trial counsel’s decision to forego any
punishment   evidence   was   reached   in   a
professional      manner     after    careful
deliberation.    This decision was prudent.
Moreover, the punishment argument made by
trial counsel was likewise a proper response
to the totality of the evidence presented by
the State and was supported by the record.
Trial counsel’s assistance was not deficient
nor can it be concluded that his performance
prejudiced Applicant’s punishment case. There
is simply no evidence to indicate that the
result of this trial would have been different
if such alleged mitigating evidence regarding
family life or jail behavior identified by
Applicant had, in fact, existed and counsel
had presented it.

                      E




                     31
       At the federal evidentiary hearing, Risley testified that she

was not contacted by defense counsel or his investigator. Waggoner

testified that he knew prior to trial that Knight was fond of

Risley and that he thought his investigator had interviewed Risley.

He conceded that, in hindsight, it would not have been a bad idea

for him to have interviewed Risley. He testified further, however,

that he did not see a great deal of value in the information

presented in Risley’s affidavit.

       The district court held that Knight had failed to show that

trial counsel acted unreasonably in accepting Dr. Price’s report

and following Dr. Price’s recommendation when he decided not to

offer evidence of Knight’s mental condition.                   The court explained

that trial counsel sought and obtained a mental evaluation by a

competent professional; he was faced with potential evidence from

his    own     expert     that    Knight     exhibited     classic    anti-social

personality traits and that he was not brain-damaged; and his

expert, if pressed, could testify that he was a future danger to

others. The court stated that it could not say, even in hindsight,

that counsel erroneously decided that the potential detriment in

offering such evidence outweighed any possible benefit to offering

it.

       The    district    court     also    concluded     that    Knight   was   not

prejudiced, because any evidence of mental defect, if offered, and

assuming it did not backfire, would not have affected the outcome

of    the    punishment    phase.     With      respect   to    Risley’s   proposed

                                           32
testimony, the district court held that Knight failed to show that

it was material.       The court stated that much of the testimony

Risley could have provided was based on hearsay statements made by

Knight; and the portion of her testimony that might have been

admissible    at    trial    would      not   have     constituted    sufficient

mitigation    evidence      to   be    material   to    the   issue   of   future

dangerousness and certainly would not have had any impact on the

jury’s determination of the special issues.               The court noted that

Risley also admitted that she had filed an incident report against

Knight for a disciplinary infraction in June 1993, shortly before

his trial.    The court reasoned that, by allowing the State to call

Risley as a witness at trial and then eliciting testimony from her

on cross-examination that Knight had not used any of the weapons

found in his cell against anyone and that she got along fine with

him, trial counsel was able to limit the State’s questioning on

redirect and avoid introduction of the damaging evidence of future

dangerousness that the State adduced on cross-examination at the

federal evidentiary hearing.

     The district court noted that trial counsel and his private

investigator had traveled to Louisiana to investigate Knight’s

background, seeking potential mitigating evidence.               Despite their

efforts, no useful mitigating evidence was discovered.                 Witnesses

interviewed    by   counsel      and   his    investigator,    while   somewhat

sympathetic to Knight’s predicament, possessed knowledge which, if



                                         33
developed at trial, could potentially assist the prosecution in

presenting Knight as anti-social.

                                   F

     Based on our review of the record, we conclude that the state

court   did   not   unreasonably   apply   Strickland.   The   record

establishes that Knight’s counsel and his investigator conducted a

diligent and thorough investigation of Knight’s background.       The

fact that they were unable to find any useful mitigating evidence

does not render counsel’s performance deficient.         Furthermore,

counsel did not perform deficiently by relying on the expert

neuropsychologist’s recommendation that no further testing needed

to be performed.    In sum, Knight’s counsel had very little to work

with, and made an informed strategic decision that Knight’s case

would not have been helped by the presentation of the evidence

uncovered during his investigation, because it would have opened

the door to even more damaging evidence about Knight’s anti-social

behavior.

     We further conclude that, even if counsel had presented the

evidence uncovered by his habeas counsel, there is not a reasonable

probability that the jury would have answered the special issues in

a different way.      The evidence of the kidnaping, robbery, and

brutal execution of the Werners is simply so horrible and cruel

that it is extremely unlikely that a reasonable juror would have

been willing to spare Knight’s life, even if presented with the

evidence that he now says trial counsel should have presented.     We

                                   34
therefore affirm the district court’s denial of habeas relief on

Knight’s ineffective assistance claims.

                                      V

     The final claim for which we granted a COA is Knight’s

contention that his rights were violated when the trial judge

granted the State’s challenge for cause and excluded prospective

juror David Johnson.     The Supreme Court has held that prospective

jurors may be excluded for cause if they “would automatically vote

against the imposition of capital punishment without regard to any

evidence that might be developed at the trial of the case before

them, or ... that their attitude toward the death penalty would

prevent   them   from   making   an       impartial   decision   as   to   the

defendant’s guilt.”      Witherspoon v. Illinois, 391 U.S. 510, 522

n.21 (1968).     Furthermore, a challenge for cause is properly

granted if a prospective juror’s personal feelings about the death

penalty would “prevent or substantially impair the performance of

[his] duties as [a juror] at the sentencing phase of the trial.”

Lockhart v. McCree, 476 U.S. 162, 165 (1986).          A prospective juror,

however, may not be excluded for cause simply because he may be

“hesitant in [his] ability to sentence a defendant to death.”

Morgan v. Illinois, 504 U.S. 719, 732 (1992) (citing Witherspoon,

391 U.S. at 522 n.21).     The trial court's finding of juror bias is

entitled to a presumption of correctness and the petitioner has the

burden of rebutting that finding by clear and convincing evidence.



                                      35
See 28 U.S.C. § 2254(e)(1); Cardenas v. Dretke, 405 F.3d 244, 250

(5th Cir. 2005).

      Knight argues that, although Johnson stated that he personally

had reservations about the death penalty, he also stated that, if

the evidence demanded it, he could answer the punishment issues in

a manner that would require imposition of the death penalty.

According to Knight, Johnson’s answers wavered only after the

prosecutor repeatedly questioned him and attempted to confuse him.

Knight contends    that   the   state   court     and   the   district   court

unreasonably applied Supreme Court precedent by failing to consider

the voir dire examination as a whole and by not considering the

probable effect of the prosecutor’s obvious attempts to cause

Johnson to vacillate.

      On direct appeal, the Texas Court of Criminal Appeals examined

Johnson’s voir dire testimony as a whole, quoting it at length.

The court noted that, throughout lengthy questioning, Johnson was

unable to answer the question whether he could put aside his

personal reservations about the death penalty when answering the

special issues.    In addition, when the prosecutor asked Johnson

whether he would require the State to meet a higher burden in

proving the special issues than the reasonable doubt standard,

Johnson answered that he would require proof “beyond any doubt.”

The   court   further   noted   that    defense     counsel’s    attempt   to

rehabilitate Johnson on the burden of proof led to further confused

and sometimes contradictory answers and, in fact, Johnson again

                                   36
stated that he would not be able to answer the special issues

according to his oath and the trial court’s instructions.        The

court concluded that the trial court did not abuse its discretion

in granting the State’s challenge for cause because Johnson’s views

on the death penalty would prevent or substantially impair the

performance of his duties as a juror in accordance with the court’s

instructions and his oath.

     Based on our review of Johnson’s voir dire testimony, we

conclude that Knight has failed to rebut the state court’s factual

finding that Johnson’s views about the death penalty would prevent

or substantially impair the performance of his duties as a juror in

accordance with his oath and the instructions of the court.      We

conclude further that the state courts did not unreasonably apply

clearly established federal law in rejecting Knight’s claim.     We

therefore affirm the district court’s denial of habeas relief.

                                VI

     For the foregoing reasons, the judgment of the district court

is

                                                         AFFIRMED.




                                37
