IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10616
ANDRE ANTHONY LEWIS Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent-Appellee,
- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas (93-CV-0329-G) - - - - - - - - - - September 13, 2000
Before KING, Chief Judge and DAVIS and WIENER, Circuit Judges.
WIENER, Circuit Judge:*
Petitioner-Appellant Andre Anthony Lewis appeals the district
court’s denial of his petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. This case is before us on a certificate of
probable cause (CPC). Lewis puts forward thirteen claims, the
three most substantial of which are that (1) he is entitled to an
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. evidentiary hearing, (2) he received ineffective assistance of
counsel, and (3) the state knowingly introduced false testimony.
Our principal focus will be on those three, but we shall
nevertheless identify and briefly address all thirteen claims.
I. Facts and Proceedings
Andre Anthony Lewis was convicted of capital murder in the
course of robbing a convenience store in Carrollton, Texas. He was
aided in the robbery by two other men, including his uncle, Willie
Charles Berry. During the robbery, the murder victim, Matt McKay,
innocently entered the store as a potential customer and was
immediately ordered by Lewis to lie on the floor (presumably so
that he would not be able to identify the robbers). When the
frightened and confused McKay hesitatingly failed to respond, Lewis
shot him in the abdomen, then punched him and kicked him three
times as he lay on the floor. Lewis and one of his cohorts then
completed the robbery and left in a get-away car driven by Berry.
The events of the robbery were captured on videotape by the store’s
security camera and were also witnessed by the store clerk and a
number of customers.
Lewis was not arrested until more than six months later and
then as a result of statements made by Berry, who at the time was
incarcerated on an unrelated charge. Lewis was tried on capital
murder charges, found guilty, and sentenced to death. He appealed
this conviction to the Texas Court of Criminal Appeals, which
affirmed his conviction and sentence. Rehearing was denied. The
2 United States Supreme Court denied a petition for a writ of
certiorari. Lewis then filed a state habeas petition which the
state court denied the next day. Approximately one month later,
the Texas Court of Criminal Appeals issued an order denying Lewis’s
habeas application. He then filed a petition for a writ of habeas
corpus in federal district court and sought a stay of execution
pending his application for collateral relief. The district court
granted his motion for stay of execution but subsequently denied
his habeas petition, based largely on the recommendations of the
magistrate judge. The district court granted CPC, and this appeal
followed.
II. Analysis
A. Standard of Review
Lewis filed his petition for habeas relief in the district
court in 1993, before the passage of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”).1 Consequently, this claim
is reviewed under our pre-AEDPA standard of review, pursuant to
which we review “the district court’s determinations of law de novo
and its findings of fact for clear error.”2 “[W]e presume all
state court findings of fact to be correct in the absence of clear
and convincing evidence” to the contrary.3
B. Entitlement to a full and fair evidentiary hearing
1 28 U.S.C. § 2254. 2 Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997). 3 Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994).
3 Lewis claims that in the state and federal habeas courts he
was denied the due process guaranteed to him under the Fourteenth
Amendment. He argues that this deprivation resulted from his being
accorded only insufficient “paper hearings.” Lewis claims that the
district court’s findings quoted extensively from the findings of
the state habeas court which, Lewis contends, were written by the
state prosecutors and merely rubber-stamped by the state habeas
court the day after the habeas petition was filed. He further
asserts that, as the state habeas judge was not the trial judge and
the habeas petition involved several credibility issues and other
factual questions, the habeas judge should not only have taken more
time but should have held “live” hearings on these issues. Lewis
thus advances that these hearings were not “full and fair,” so the
district court should not have deferred to the state court’s
findings of fact.
“A federal habeas court must allow discovery and an
evidentiary hearing only where a factual dispute, if resolved in
the petitioner’s favor, would entitle him to relief and the state
has not afforded the petitioner a full and fair evidentiary
hearing.”4 Thus Lewis must show not only that he was not accorded
a full and fair opportunity to have his factual disputes
adjudicated but also that he was prejudiced by that deprivation.
He fails on both counts.
4 Ward v. Whitley, 21 F. 3d 1355, 1367 (5th Cir. 1994).
4 Although Lewis is able to point to some areas where the facts
might be in doubt, he fails to demonstrate that he has not been
afforded a full and fair hearing. His strongest contention is that
the state habeas judge was not the state trial judge and thus was
not in a position to make informed decisions on such questions as
witness credibility. This is admittedly an important factor in
determining whether a paper hearing is sufficient, yet it “is but
one factor to consider.”5 We must decide, on a case-by-case basis,
whether in light of all the circumstances the defendant received a
full and fair opportunity to have his factual disputes weighed on
state habeas review.6
Lewis provides at best weak evidence of factual errors by the
trial court, largely in the form of unsworn, unsigned affidavits or
statements of experts who appeared only after the trial. Lewis
also offers no convincing proof that the state habeas judge, even
if convinced of the reliability of the “evidence” presented by
Lewis, would have found the shooting to have been the result of
impulse or that it was anything less than deliberate and
specifically intended. As the entire crime was captured on
videotape, the state habeas judge was reasonably unpersuaded by
Lewis’s “proof.” Irrespective of whether the judge actually
watched the tape or merely reviewed the state’s detailed
description of the events captured on it, none contest that the
5 See Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996). 6 See id.
5 state accurately described the incident. The judge was thus
undoubtedly aware that Lewis aimed the gun, cocked the hammer, shot
the victim, kicked and punched him, and then calmly turned back to
complete the robbery, which the shooting had interrupted. The
district court did not err in granting deference to the state’s
As for prejudice, Lewis has also failed to show that if the
factual disputes he alleges had been resolved in his favor, the
result at either phase of the trial would likely have been
different. As we demonstrate in subsequent parts of this opinion,
Lewis cannot show that the jury, in either the guilt or punishment
phase, would have reached a different verdict even if the jurors
had concluded that his factual assertions are true. We cannot
stress enough how clearly the videotape of the crime, as
corroborated by eyewitness testimony, disproves Lewis’s contention
that he lacked the requisite mental state to commit capital murder
or that his actions were involuntary. Neither could he expect to
dissuade the jurors with mitigating evidence when they saw for
themselves the way that he calmly and deliberately conducted
himself throughout the course of the robbery and the murder, and
the way that he exhibited no remorse after the shooting. We reject
Lewis’s claim that he is entitled to a full-blown, “live”
evidentiary hearing and to discovery.
6 C. Ineffective Assistance of Counsel
Lewis claims that his Sixth Amendment rights were violated by
the ineffective assistance provided by his counsel at both the
guilt and punishment phases of his trial. Specifically, he alleges
that his counsel failed to investigate and thus to introduce
evidence of his alleged abusive childhood and exposure to lead
poisoning. Lewis insists that such evidence would have
demonstrated to the jury that he shot the victim as the result of
an impulsive reaction and not with specific intent to do so, or at
least cast reasonable doubt on the issue. Lewis also argues that
this evidence would have had a mitigating effect that in turn would
have influenced the jury not to impose a sentence of death.
To prevail on a claim of ineffective assistance of counsel, a
habeas petitioner must show that “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.”7 This test is disjunctive, so failure to succeed on
either prong is fatal to a petitioner’s claim.8
1. Performance of Counsel: Cause.
To prove that counsel’s performance was deficient, petitioner
must show that it “fell below an objective standard of
reasonableness.”9 In addressing this claim, our scrutiny “must be
7 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). 8 See id. 9 Id. at 688.
7 highly deferential:...A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.”10 There is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.”11 We also must keep in mind that “[t]he
central purpose in examining any claim of ineffective assistance of
counsel is to ensure that the defendant was accorded due process,
‘not to grade counsel's performance.’”12
Lewis contends that counsel’s performance was reversibly
deficient because of failure to put on psychiatric evidence at the
guilt or punishment phase of the trial. Specifically, Lewis
alleges that he has “frontal lobe syndrome,” a condition, he
insists, that affects one’s judgment, motor skills, and ability to
control impulse. Lewis urges that if the jury had been aware of
this condition, they could have concluded that his shooting of the
victim was the result of an impulse reaction and was not a
deliberate, intentional act.
Defense counsel was not likely aware of any such mental health
deficiency, for Lewis neither so informed counsel nor exhibited any
10 Id. at 688. 11 Id. at 689. 12 Bouchillon v. Collins, 907 F.2d 589, 594 (5th Cir. 1990) (quoting Strickland, 668 U.S. at 697).
8 signs or symptoms of it during the videotaping of the robbery. On
the contrary, Lewis conducted himself in a cool, collected manner
throughout the entirety of the ten-minute robbery, including the
final minutes following the shooting. In fact, as customers
entered the store, Lewis even played the role of store clerk,
operating the register, making change on a gasoline purchase,
selling cigarettes, and providing directions to a nearby hotel.
The videotape clearly refutes any contention that Lewis’s actions
during the shooting demonstrated an involuntary reflex action or
anything else that should have alerted counsel to a positive mental
or neurological problem.
Nothing in these facts would prompt reasonable counsel to
wonder about Lewis’s mental or neurological condition, much less
suspect that he suffers from some sort of defect rendering him
unable to control his impulses. Even if some lawyers might
routinely initiate inquiries into their capital murder clients’
psychological and physiological states, we cannot say that in every
capital case counsel is professionally obligated to investigate for
the possibility of psychological or neurological deficiencies of
his client absent some reason to suspect that the client “suffered
from a mental defect at the time of the offense or trial.”13 More
importantly in this case, counsel could have reasonably assumed
that the jury would not have been swayed by such an argument after
13 Barnard v. Johnson, 958 F.2d 634, 642 (5th Cir. 1992).
9 witnessing Lewis’s performance during the robbery and shooting, and
might even have reacted by way of backlash against such tactics.
Lewis also contends that counsel’s assistance was ineffective
in failing to put on mitigating evidence of his abusive childhood
and mental defects caused by lead exposure. At the time of Lewis’s
trial, evidence of such abuse was not admissible relative to
Texas’s special issues at the punishment phase.14 And counsel did
put on mitigating evidence intended to humanize Lewis: His
grandmother testified that he was remorseful after killing the
victim, but answered in the negative when asked if she had ever
seen Lewis’s father beat him. Lewis’s grandmother did testify that
he was neglected by his father, suffered bruises, was often afraid
to go home, and had a generally unhappy childhood. Even though the
grandmother subsequently signed an affidavit in which she avers
that Lewis’s father was a brutal man who regularly beat his
children,15 neither she nor Lewis has offered an explanation for her
failure to testify about these matters at trial. Thus it cannot be
said that Lewis’s counsel failed to adduce this evidence, only that the witness failed to provide it.
14 Lewis was found guilty on June 2, 1987, well prior to the Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) which set forth the current rule allowing evidence of abuse at the punishment phase of a capital trial. 15 Specifically, the affidavit alleges that Odell Lewis (Lewis’s father) once beat Lewis in the face with a piece of firewood, and that making his children strip naked, he would tie them up and whip their private parts with switches or extension cords.
10 A trial counsel’s “strategic choices made after thorough
investigation of the law and facts relevant to plausible options”
are to be reviewed with great deference and, in fact, are
“virtually unchallengeable.”16 Counsel did put on mitigating
evidence but either chose, for tactical reasons, not to put forward
the argument regarding Lewis’s lead exposure or was excusably
unaware of the exposure and its alleged effect on Lewis. As such,
this “failure” to put on evidence cannot be construed as
ineffective assistance of counsel.
2. Prejudice
But even if we assume arguendo that Lewis’s attorneys failed
to provide effective legal assistance, we would conclude that Lewis
was not prejudiced. To prove that his defense has been prejudiced
by the deficiencies of counsels’ performance, Lewis must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”17 With regard to the alleged errors of counsel at the sentencing phase, we ask “whether there is
a reasonable probability that, absent the errors, the sentencer ——
including an appellate court, to the extent that it independently
16 Id. at 690-91, 2066. 17 Strickland, 668 U.S. at 694.
11 reweighs the evidence —— would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.”18
Lewis claims, as noted above, that the evidence his counsel
should have adduced would have shown that the killing was the
result of an impulse reaction and thereby soften the sentiments of
the jurors toward him. Lewis has not proven, however, that the
evidence of his abusive childhood or his exposure to lead poisoning
would have had this psychological or neurological effect and,
moreover, he has not shown that this evidence would have dissuaded
the jury from sentencing him to death. As observed earlier, the
jury actually watched the crime play out, presumably weighing
Lewis’s behavior throughout, and deciding first-hand whether his
action in shooting the victim was a deliberate and intentional act
or merely an involuntary reflexive one. Testimony of an abusive
childhood or exposure to lead is unlikely to have convinced the
jurors that the shooting was an impulse reaction when they could
see quite clearly for themselves that Lewis cooly turned aside from
his robbing and deliberately cocked the gun and pulled the trigger. They also saw that rather than reacting as one whose unintended
reflex had produced the fatal wounding of another, Lewis further
assaulted the victim as he lay on the floor then returned to his
larcenous pursuit with equal equanimity.
Likewise, the jury was not likely to have bought Lewis’s claim
of remorse for his actions or to have their feelings “softened”
18 Id. at 695.
12 toward him after they watched him kick and punch the victim while
he writhed on the floor with a bullet wound in his abdomen, then
proceed to play-act the storekeeper role as he completed the
robbery. The jurors were also aware that, after completing the
instant robbery, Lewis and his cohorts went to a pool hall and
drank beer, and that less than a month after the instant robbery,
Lewis proceeded to rob another store. These are hardly the actions
of a man overcome with remorse for an unintentional, involuntary
killing. In light of Lewis’s behavior in both the immediate and
extended wake of the shooting, sympathy for Lewis would not be the
expected emotion of the jurors. Quite simply, Lewis has not shown
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”19
D. Alleged False Testimony of Willie Berry
Lewis alleges that the prosecution knowingly introduced and
relied on the false testimony of his uncle, Willie Berry,
specifically Berry’s denial that he made a “deal” with the prosecution in return for his testimony against Lewis, thereby
denying Lewis of due process. The state habeas court made findings
of fact which, in relevant part, stated unequivocally that no deal
existed between the State and Berry at the time of his testimony,
only that —— as Berry himself testified —— the prosecution
indicated that it would take into consideration any truthful
19 Id. at 695.
13 testimony Berry gave in cooperation with the State when considering
the charges against him.
In reviewing pre-AEDPA capital cases, we presume “state court
findings of fact to be correct in the absence of clear and
convincing evidence” to the contrary.20 In light of Berry’s
testimony, the prosecution’s affidavits, and the indisputable fact
that the charges against Berry were not dismissed until two months
after he testified against Lewis, we are convinced that Lewis has
failed to produce such clear and convincing evidence.
Consequently, the evidence put forth by Lewis purporting to prove
the existence of a deal and to show that Berry’s contrary testimony
was false is not sufficient to render the state habeas court’s
reliance on these findings of fact unreliable or to convince us
that a mistake has been made.21
E. Other Claims
1. Special Issues, as Interpreted and Applied in this Case, Are Unconstitutionally Vague
Lewis contends that the two Texas special sentencing issues,
as instructed to the jury, were unconstitutionally vague because the jurors were not furnished clear meanings of the core terms
20 Williams, 35 F.3d at 161. 21 Lewis’s main evidence is an unsigned, unsworn statement by Berry attached to the affidavit of Joseph D. Ward, a Capital Defense Investigator for the Texas Resource Center; that document specifies that Berry refused to sign an affidavit swearing that he received a deal from prosecutors prior to his trial testimony. Lewis also offered two unverified memoranda from the prosecutor’s office which, on their faces, do not show that a deal had been made prior to Berry’s testimony.
14 “deliberately” and “probability.” This issue has been disposed of
both by the Supreme Court and by this court on numerous occasions.
The Supreme Court has held that factors for sentencing are
sufficiently clear if each factor has some “common-sense core of
meaning...that criminal juries should be capable of understanding”22
and has held specifically that the wording of the Texas special
issues meet this standard.23 In addition, we have addressed and
rejected complaints asserting vagueness of specific words and
phrases in the special issues, including the terms “deliberately”
and “probability.”24 The magistrate judge correctly reached these
conclusions and we thus affirm the order of the district court,
adopting his Findings, Conclusions, and Recommendation.
2. Inclusion of a Mentally Disabled Juror at the Guilt Phase
Lewis alleges that his rights to a fair trial under the Sixth
and Fourteenth Amendments were violated by the inclusion of a
mentally disabled juror at the guilt phase of his trial. He seeks
a new evidentiary hearing, contending that the hearing held on this
question was not “full and fair.”25 Juror Number 7, Herbert May, suffered a mental breakdown between the guilt and punishment phases
22 Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 2636 (1994) (citing Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959 (1976) (White, J., concurring in judgment)). 23 See Jurek, 428 U.S. at 279. 24 See Woods v. Johnson, 75 F.3d 1017, 1034 (5th Cir. 1996). 25 See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757 (1963); Perillo, 79 F.3d at 447.
15 of the trial and was excused from the punishment phase, which was
conducted with the remaining eleven jurors without objection from
Lewis. A hearing was held before commencement of the punishment
phase to ascertain whether May was fit to continue serving as a
juror for the remainder of the proceedings and to determine whether
his inclusion in the guilt phase had tainted those proceedings.
After examining the evidence, especially the testimony of Dr. Cliff
Cornette, an expert introduced by the State who had examined May,
the court determined that although May could not continue to serve
as a juror, he had exhibited no clear signs of mental disability
prior to his breakdown which occurred after the verdict of guilty.
Lewis now proffers “evidence,” in the form of a conversation of
counsel with May’s widow, to the effect that May had in fact
exhibited such signs earlier in the trial. It is unlikely,
however, that even if such evidence had been adduced, it would have
overcome the diagnosis of the psychiatrist that May had suffered
only a “brief reactive psychosis” and had no prior mental
disability. The statements of counsel regarding an alleged conversation with May’s widow are insufficient to constitute
“substantial new evidence.”26 Lewis has not shown that his rights
to a full and fair hearing on this issue were violated.27 We thus
affirm the district court’s order adopting the magistrate judge’s
Findings, Conclusions, and Recommendation.
26 Townsend, 372 U.S. at 313. 27 See id.
16 3. The Batson Claim
Lewis alleges that the prosecution used its peremptory strikes
in a racially discriminatory manner, in violation of defendant’s
Fourteenth Amendment rights as set forth in Batson v. Kentucky.28
We have considered this position in light of the briefs and
pertinent portions of the record. Considering the race-neutral
explanations offered by the prosecution for its challenges and the
voire dire record, the magistrate judge correctly found that Lewis
failed to show that there was clear and convincing evidence
disproving the trial court’s findings. Finding no reversible error
of fact or law, we agree with the district court’s disposition of
this claim for essentially the reasons stated in the magistrate
judge’s Findings, Conclusions, and Recommendation.
4. Punishment Phase Decisionmakers Acted with a Racially Discriminatory Purpose
Lewis alleges that the jury acted with a racially
discriminatory purpose in sentencing him to death. He bases this claim on statistical data and anecdotal evidence published in a
newspaper article some eighteen months prior to the trial. He has
proffered no discrete evidence, however, to show that these jurors
or this prosecutor acted with racial animus. We have considered
this claim in light of the briefs and pertinent portions of the
record. Having done so, we find no reversible error and affirm the
28 476 U.S. 79, 106 S.Ct. 1712 (1986).
17 district court’s disposition of the claim for essentially the
reasons stated in the magistrate judge’s Findings, Conclusions, and
Recommendation. Specifically, the magistrate judge properly found
that Lewis has failed to demonstrate by credible evidence, as is
necessary to show a constitutional violation, that the particular
decisionmakers or the prosecution acted with a discriminatory
purpose in this case.
5. Presentation of False and Misleading Testimony by the State
Lewis claims that the prosecution intentionally introduced and
secured false testimony against him. Specifically, he alleges that
Willie Berry falsely testified during the punishment phase that
Lewis had participated in a previous robbery in Mesquite, Texas,
testimony that Lewis claims Berry has since recanted. According to
Lewis, the testimony was given in response to pressure asserted by
the prosecution. Lewis also claims that the prosecution secured
the testimony of an imposter playing the role of “Kenneth
Nichols.”29 Our consideration of these claims in light of the
briefs and pertinent portions of the record leads us inescapably to conclude that neither the record nor the putative new evidence
proffered by Lewis supports these claims. The magistrate judge
correctly found that the unsigned, un-notarized “affidavit” of
29 In support of this claim, Lewis offers only an unsworn, unsigned affidavit of fact from Willie Berry, and Lewis’s counsels’ report of a purported conversation with the “real” Kenneth Nichols, who claims never to have testified at Lewis’s trial.
18 Berry is insufficient to outweigh the presumed veracity of Berry’s
sworn testimony. Similarly, Lewis’s unexplainedly belated
presentation of the affidavit of Kenneth Nichols, as well as the
tenuous content of the affidavit itself, is insufficient to
overcome the presumption of correctness accorded the state findings
of fact which assert that the Kenneth Nichols who testified at
trial was the “real” one. As such there was no reversible error,
so we affirm the district court, again for essentially the reasons
stated in the magistrate judge’s Findings, Conclusions, and
Recommendation.
6. Refusal to Admit Evidence of Defendant’s Remorse at Punishment Phase
Lewis next asserts that his right to due process was violated
by the trial court’s refusal to admit a portion of the punishment
phase testimony of Lewis’s grandmother when the court sustained
hearsay objections to that testimony. Although the court did
refuse to admit Lewis’s grandmother’s hearsay statements, it
allowed her to testify that Lewis had cried and shown great remorse
for killing Matt McKay. Our consideration of this assignment of
error in light of the briefs and the record produces no sign of
reversible error, so we again affirm the district court for
essentially the reasons set forth in the Findings, Conclusions, and
Recommendation of the magistrate judge. The magistrate judge
correctly found that our precedent does not require the admission
19 of hearsay evidence at the punishment phase of capital trials,
Lewis’s contentions to the contrary notwithstanding.
7. Preclusion of Relevant Background and Character Evidence from Jury Consideration
Lewis contends that, in violation of the rule of Penry v.
Lynaugh,30 the jury was precluded from considering his character and
background, thereby violating his right to an individualized
sentencing determination. Specifically, Lewis objects to the court’s refusal to allow testimony that (1) he was “only” nineteen
years old at the time of the offense, (2) he confessed to the
robbery and the “accidental” shooting at the time of his arrest,
(3) he demonstrated great remorse for his conduct and for the death
of the victim, and (4) he had suffered physical and psychological
abuse as a child and was raised in a troubled, un-nurturing
environment. The record of this case and the applicable law
undermine Lewis’s position on this issue. The magistrate judge
properly found that the proffered evidence Lewis sought to have
introduced was not reasonably likely to have weighed successfully
against the imposition of the death penalty or, in the case of the
testimony of his grandmother, was already within the effect of the
jury. Therefore, no constitutional violation occurred. Agreeing
with the reasons stated in the magistrate judge’s Findings,
Conclusions, and Recommendation, we adopt them by reference and
affirm the district court.
30 492 U.S. 302, 109 S.Ct. 2934 (1989).
20 8. Prosecutorial Misconduct During Trial
Lewis argues that his trial was rendered fundamentally unfair
by the misconduct of the prosecution. Specifically, he insists
that the prosecutor injected his personal opinion during the
closing argument of the guilt phase and again during the penalty
phase of the trial, thereby improperly shifting the burden of proof
to the defense. Our careful review of the transcripts of the pertinent portions of the trial reveals no reversible error of fact
or law in this regard. The magistrate judge found all but one of
Lewis’s claims to be procedurally barred by Lewis’s failure to
object contemporaneously to these alleged improprieties at trial.
Further, Lewis failed to show, as he must to prove that his
constitutional rights were violated, that the remarks amounted to
persistent and pronounced misconduct or that they likely influenced
the outcome of the trial. To the extent any of the statements were
improper, their effect was harmless, as more fully explained by the
magistrate judge in his Findings, Conclusions, and Recommendation, with which we agree.
9. Allegedly Involuntary Nature of Lewis’s Statement
Lewis contends that his confession was involuntary and thus
was improperly admitted at the trial. Once again, the explanation
contained in the magistrate judge’s Findings, Conclusions, and
Recommendation dispels any doubt that Lewis’s contentions in this
21 regard are without merit. This claim is procedurally barred as
Lewis failed to contest the admission of his statement on direct
appeal. Moreover, even if the claim were not procedurally barred,
we agree with the magistrate judge that it is without merit and
unsupported by the record or the state court’s findings of fact.
10. Inclusion of a “Voice-print” Examiner
Lewis would assign error to the admission of a voice-print
examiner, insisting that it constituted violation of Texas law. We agree with the magistrate judge’s opinion, as set forth in his
Findings, Conclusions, and Recommendation, that this claim is
without merit. Lewis has not shown that this admission violated
Texas state law. Moreover, the admission of the testimony of the
voice-print expert violated no constitutional right and did not
render Lewis’s trial fundamentally unfair.
III. Conclusion
For the foregoing reasons we affirm the district court’s order
denying Lewis’s petition for habeas corpus.
AFFIRMED.