REVISED

                 UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 94-10605



MICHAEL EUGENE SHARP,
                                                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

                          February 26, 1997
Before POLITZ, Chief Judge, KING and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

     Michael Eugene Sharp, a Texas death row inmate, appeals the

district court’s denial of habeas corpus relief.     For the reasons
assigned, we affirm.

                             Background

     Late in the evening on Friday, June 10, 1982, Sharp forcibly

abducted Brenda Kay Broadway and her two daughters, Selena Elms,

then 14 years of age, and 8-year-old Christy Elms, from a car wash

near Kermit, Texas.    Sharp then drove them to an isolated location

where he forced Broadway and Selena Elms to perform oral sex on
each other and then stabbed Broadway and Christy Elms to death.

Selena managed to escape and, after she spent the night alone in

the woods, oil field workers discovered her the next morning,

unclothed and suffering from exposure.

     Sharp was arrested on June 16, 1982.   On June 19, 1982, he was

placed in a police line-up and Selena identified him as the

murderer of her mother and sister.     On June 21, 1982, a Winkler

County grand jury returned three indictments charging Sharp with

the capital murders of Brenda Kay Broadway and Christy Elms and the

aggravated kidnaping of Selena Elms.

     Upon motion for change of venue the defendant's trial was

moved to Lubbock, Texas where Sharp was tried and convicted of the

murder of Christy Elms.   Because of a defect in the indictment the

death penalty could not be imposed and Sharp was sentenced to life

imprisonment.   On November 17, 1982, the Winkler County Grand Jury

returned a new indictment charging Sharp with the capital murder of

Brenda Kay Broadway.   The defense moved for change of venue and the

case was transferred to Crockett County.

     Several months later Sharp was interviewed by Detective Jerry

Smith of the Odessa Police Department.   Smith, who had interviewed

Sharp prior to his first trial, was investigating the disappearance

of Blanca Arreola, a young, pregnant Odessa woman who had been

missing since May of 1982. Although the record is somewhat unclear

whether Sharp admitted to murdering Arreola, he led authorities to

her buried body in a remote location in Ector County.   The position

and location of 18-year-old Arreola's naked body was exactly as


                                 2
described in Sharp’s statement to Smith.

     At Sharp’s trial for Broadway’s murder the state presented

testimony from several women that Sharp had attempted to lure them

into his truck on the evening of the murders.   This testimony was

followed by that of Selena Elms, by far the most compelling

evidence against Sharp, who unqualifiedly identified Sharp as the

murderer of her mother.    The state also offered evidence that

Sharp's truck contained hairs matching that of the three victims,

that mud at the scene of the crime was consistent with mud at the

oil rig where Sharp worked, and that traces of human blood had been

found on Sharp's knife.

     On May 19, 1983, Sharp was found guilty of murdering Broadway

and the punishment phase of the trial began.    The state presented

evidence of the Broadway and Christy Elms murders and of Sharp’s

four prior state felony convictions, including two convictions for

aggravated robbery with a deadly weapon.    The state also offered

the testimony of Detective Smith regarding Sharp’s involvement in

the Arreola murder. Defense counsel’s objection to this testimony,

on the grounds of surprise and its nature as an extraneous offense,

was overruled.

     The defense presented no evidence during the punishment phase.

The jury returned affirmative answers to the two special issues

that same day and Sharp was sentenced to death. Sharp's conviction

and death sentence were affirmed on direct appeal by the Court of




                                3
Criminal Appeals.1       On May 2, 1989, Sharp filed for postconviction

relief in state court.       The trial court denied relief and the Court

of Criminal Appeals affirmed in an unpublished order which adopted

the trial court's findings and conclusions.2

     Sharp then filed a habeas corpus petition in the federal

district court.        The magistrate judge, after several evidentiary

hearings, filed findings of fact and legal conclusions, ultimately

adopted by the district court, which recommended that Sharp's

petition for habeas relief be dismissed.            The district court

granted Sharp a certificate of probable cause to appeal.3          This

appeal followed.

                                  Analysis

     We note at the outset that the magistrate judge found Sharp

had not procedurally defaulted any of his claims because the Texas

Court of Criminal Appeals, the last state court to review Sharp's

case, stated no grounds for its denial of writ.           The state has

proffered on appeal, however, and the defendant confirms, that the

Court of Criminal Appeals issued an unpublished opinion along with


          1
       Sharp v. State, 

(Tex.Crim.App. 1986) (en
banc), cert. denied, 

, 

(1988).
          2
              Ex Parte Sharp, No. 20, 189-02 (Tex.Crim.App. April 23,
1990).
      3
       Brown v. Cain, _____ F.3d _____, slip op. 1633 (Jan. 21,
1997). The certificate of appealability requirements of the AEDPA
do not apply herein because of the grant of a certificate of
probable cause before the effective date of the said Act. Were we
to conclude otherwise, however, a COA appropriately would issue
herein. Assuming without deciding that the standards of the AEDPA
are applicable, and applying same to the facts of record, today’s
result would be the same.

                                      4
its order in which it adopted the findings and conclusion of the

state district court, including rulings on a number of procedural

defaults.   This written order is of record and constitutes a clear

and express reliance on state procedural bars by the last Texas

court to consider Sharp’s case.4     Accordingly, we must apply the

doctrine of procedural default, as dictated by that order, to the

issues raised in this appeal.

     We first consider Sharp’s claim that evidence of Blanche

Arreola’s murder, an unadjudicated prior offense, was presented

during the punishment phase of Sharp's trial in violation of

Sharp's fifth, sixth, and fourteenth amendment rights. This issue,

insofar as the contemporaneous objections by counsel were not based

upon the grounds urged on appeal, is procedurally barred.   Because

our recent decision in Amos v. Scott5 forecloses Sharp’s argument

that the Texas contemporaneous objection rule is not an independent

and adequate state ground upon which to base a procedural bar to

federal review, Sharp is relegated to showing cause and prejudice

for his procedural default.6

     To show cause, Sharp must demonstrate that “‘some objective

factor external to the defense impeded counsel’s efforts’” to lodge



     4
      Ylst v. Nunnemaker, 

, 

(1991).
     5
      

(5th Cir.), cert. denied, 

(1995).
     6
      Wainwright v. Sykes, 

, 

, 

(1977). Sharp advances no claim of actual innocence regarding
his conviction or sentence.    Schlup v. Delo, 

, 

, 

(1995); Sawyer v. Whitley, 

,

, 

(1992).

                                 5
timely the appropriate objection in the trial court.7      Sharp urges

that trial counsel was surprised by the evidence of the Arreola

murder because the prosecution withheld the relevant files and

denied in a pretrial hearing that such evidence existed.      Assuming

these allegations of prosecutorial obstruction to be true, it

cannot be gainsaid that the evidence of the Arreola murder was

known to Sharp.     He gave the police statements about the murder and

led them to the remote location where Arreola was buried, assisting

them in the recovery of the body.       Because Sharp possessed at the

time of trial sufficient information upon which to base a proper

objection irrespective of the state’s conduct, we find no cause for

the failure to lodge a proper and timely objection.8

     Sharp also contends that trial counsel’s failure to preserve

this error constitutes ineffective assistance of counsel under the

two-pronged test of Strickland v. Washington,9 thus establishing

cause for the procedural default.10        We find neither deficient

     7
      McCleskey v. Zant, 

, 493, 

, 1470,

(1991) (quoting Murray v. Carrier, 

,
488 (1986)).
     8
      

U.S. 668, 

, 

(1984). The
first prong of the Strickland test requires us to stand in
counsel’s shoes and determine whether, under the circumstances
counsel faced, his or her decisions and actions were objectively
reasonable in light of prevailing professional norms of conduct.
Motley v. Collins, 

(5th Cir.), cert. denied,     U.S.
  , 

, 

(1994). If under this standard
we adjudge counsel’s performance to have been deficient, then we
must determine whether there exists a reasonable probability that
but for the complained-of error the outcome of the trial or appeal
would have been different. 

                                    6
performance      nor       prejudice   in       this    instance.          Again,     the

circumstances surrounding the discovery of the Arreola murder

evidence were well known to Sharp; thus, any error which occurred

due to Sharp’s withholding this information from his attorney was

not    the   fault     of    counsel   and      did    not    constitute       deficient

performance.11         Furthermore,      in     light    of    the    other     evidence

introduced during the guilt and punishment phases demonstrating

Sharp’s savage and depraved disposition and the escalating nature

of his depredations, we cannot conclude that but for the admission

of the Arreola murder evidence there was a reasonable probability

that the jury would have responded differently in the penalty

phase.

       We next address Sharp’s contention that he was denied his

sixth, eighth        and    fourteenth   amendment           rights   to   a   fair   and

impartial trial due to pretrial publicity and its effect upon the

jury panel.     Sharp's counsel did not move for a change of venue or

a mistrial; thus, the issue was adjudged procedurally defaulted in

state court.     As cause to justify this default Sharp again invokes

ineffectiveness of counsel under Strickland.

       Our review of the record reveals that counsel’s performance

was not objectively unreasonable; only 15 of 72 prospective jurors

had an opinion about Sharp's guilt and all of the jurors who


      11
     As we have noted previously, “[c]riminal defense counsel need
not be omniscient, and they are not always omnipotent with respect
to the protection of a client’s rights.” Childs v. Collins, 

, 69 (5th Cir.), cert. denied, 

(1993); see
also McCleskey at 

; Drew v. Collins,

(5th Cir. 1992), cert. denied, 

(1993).

                                            7
ultimately sat on Sharp's trial were accepted by Sharp's counsel

only after lengthy and probing questioning.              While it is true that

trial counsel allowed onto the jury four jurors who knew Sharp had

been convicted of Christy Elms’ murder, the record reveals, and the

magistrate judge found, that the trial counsel’s confidence in the

ability of those jurors to act impartially was well-founded and

objectively reasonable in light of their sworn responses during

voir dire.      In light of this finding, and given the deference

customarily owed to the tactical decisions of trial counsel in jury

selection,12 we cannot conclude that counsel’s performance was

deficient.

       We next consider whether trial counsel was ineffective in

failing to discover and present relevant mitigating evidence at the

punishment phase.     The mitigating evidence involved is that Sharp

was    a   family   man   and   a   good     son.       Given   the   horrendous

circumstances surrounding the murder for which he was on trial, and

the other evidence presented at the punishment phase, even if we

assume deficient performance we cannot conclude that the prejudice

prong of Strickland has been satisfied.             Simply put, we do not find

it    reasonably    probable    that   the     meager     mitigating    evidence

discussed in Sharp’s brief, put in its best possible light, likely

would have caused Sharp’s jury to reconsider its answers on the

           12
          “Our scrutiny of counsel’s performance [is] ‘highly
deferential,’ and we must make every effort ‘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.’”      Motley at 1226 (quoting
Strickland at 689); see also Anderson v. Collins, 

(5th
Cir. 1994).

                                       8
penalty phase issues.13

     We next consider whether Sharp’s trial counsel was ineffective

by failing to preserve for direct appeal a Texas procedural defect

that would have mandated per se reversal of Sharp's conviction.

The first two subsections of Texas Code of Criminal Procedure

article 36.01(a) provide that, after the jury has been impaneled,

the indictment must be read to the jury by the prosecutor and the

defendant must enter a plea in open court.     At the time of Sharp’s

conviction, failure to comply with this procedure, if properly

preserved, resulted in automatic reversal.14

     After Sharp had been convicted and sentenced, he raised the

absence of the required procedures in a motion for a new trial.15

      13
       Cf. Callins v. Collins, 

, 279 (5th Cir. 1993)
(“the wantonness of the murder and Callins’ violent escapades after
it ... would have overwhelmed the minimal mitigating evidence that
Callins now argues should have been introduced at the capital
sentencing phase”), cert. denied, 

, 

,

(1994); Wilkerson v. Collins, 

(5th
Cir. 1992) (school records and other evidence of impaired mental
ability and prior good behavior insufficient, in light of state’s
showing during punishment phase, to establish prejudice), cert.
denied, 

, 

, 

(1993);
Crockett v. McCotter, 

(5th Cir.) (attorney error
resulting in the admission of four prior convictions insufficient
to establish prejudice in light of the record), cert. denied, 

, 

, 

(1986).
      14
       Essary v. State, 

(Tex.Crim.App. 1908). The
purpose of this provision is to inform the accused of the charges
against him, to inform the jury of the precise terms of the
particular charge against the accused, and to allow the jury to
hear for itself that the accused refutes or admits the charges.
Barnes v. State, 

(Tex.App. 1990, no pet.).
     15
      The judgment signed by the trial court and the docket sheet
recited, without objection, that the procedures required by art.
36.01(a)(1)   and  (2)   were  followed.      Nonetheless,  in   a
postconviction hearing in state court the trial judge testified
that the indictment had not in fact been read and the plea had not

                                9
Attached to this motion was an affidavit by the court reporter

consisting of a transcript of the defendant's arraignment outside

of the jury’s presence at the beginning of trial.16 This transcript

excerpt purported to demonstrate that, although Sharp’s plea had

been taken during the arraignment, after the arraignment the trial

proceeded without the required reading of the indictment or the

taking of the plea in the jury’s presence.            The trial court denied

this motion, and the case was appealed.

     The Court of Criminal Appeals began by stating that the motion

for new trial was "a proper method to show error in the record."17

The court also noted, however, that article 44.24(a) of the Code of

Criminal     Procedure    created   a   presumption    that   the   prescribed

procedures had been followed.18              The affidavit and transcript


been taken in the jury’s presence.       The trial judge further
testified that he had told several people that he thought the case
would probably get reversed because of this oversight.         The
transcript of this testimony was made part of the federal record.
     16
      Arraignment is provided for in article 26.02 of the Code of
Criminal Procedure; its purpose is to determine the identity and
plea of the person charged. Tex. Crim. Proc. Code Ann. art. 26.02.
The proper procedure would have been to seat the jury after the
arraignment and at that time read the indictment and take the plea.
Collins v. State, 

(Tex.Crim.App. 1976), cert.
denied, 

(1977).
     17
          Sharp at 616.
    18
      Code of Criminal Procedure article 44.24(a) read as follows:

  (a) The Court of Criminal Appeals shall presume that the venue
  was proved in the court below; that the jury was properly
  impaneled and sworn; that the defendant was arraigned; that he
  pleaded to the indictment; that the court’s charge was
  certified by the judge and filed by the clerk before it was
  read to the jury, unless such matters were made an issue in
  the court below, or it otherwise affirmatively appears to the
  contrary from the record.

                                        10
excerpt        were    adjudged     insufficient     to   rebut   this    presumption

because, addressing only the arraignment at the start of trial,

they   failed         to     demonstrate     affirmatively   that   the   prescribed

procedures had not been followed at some other juncture. The court

thereafer applied the article 44.24(a) presumption of regularity to

dispose of Sharp’s claim.

       Sharp’s original brief is unclear regarding the particular

acts or omissions of trial counsel which constituted the alleged

ineffective assistance of counsel.                   In oral argument, however,

Sharp's habeas counsel focused upon the failure of trial counsel to

attach the correct affidavit to the motion for new trial.                       Habeas

counsel contends that if the error had been preserved in such a way

as to obviate the appellate court's ability to rely upon the

presumption of regularity in the lower court proceedings, the

result would have been automatic reversal.                   Based upon our review

of Texas jurisprudence we conclude that Sharp’s counsel did not

perform deficiently because a reasonably competent attorney could

not have known, prior to the Court of Criminal Appeals’ decision in

this   case,          that    the   motion    for   new   trial   would    be   deemed

insufficient to preserve the error adequately.19


Although repealed several months after the Court of Criminal
Appeals decided this case, this article was incorporated nearly
verbatim in Rule 80 of the Texas Rules of Appellate Procedure.
          19
        Pertinent to our inquiry is the line of jurisprudence
absolving counsel who fail to comply with legal mandates which are
uncertain, vague, or undecided at the time of the allegedly
deficient conduct. See United States v. Rothrock, 

, 713
(7th Cir. 1994) (counsel not deficient for failing to anticipate
how a certain drug would be treated under Sentencing Guidelines,
because "this was a difficult, unresolved legal issue"); Clark v.

                                              11
      Code of Criminal Procedure art. 44.24 applied a presumption of

regularity unless a departure from standard procedure was "made an

issue in the [trial] court" or "otherwise affirmatively appears to

the contrary from the record."       The effect of this presumption on

review of the procedural error which occurred during Sharp’s trial,

however, is, at the very least, muddled in the jurisprudence.             It

is well-settled that the issue may be preserved for appeal by a

timely objection during trial or by a motion for new trial, bill of

exception, or motion to arrest judgment.20           Prior to Sharp’s appeal

the rule appeared to be that any of these methods sufficed to "make

issue" in the trial court.21 The Court of Criminal Appeals’ opinion

in   Sharp,     however,   holds   that   if   the    objection   is   lodged

postverdict, as a motion for a new trial or arrest of judgment

necessarily must be, then an "affirmative" showing of the error on

the record is required to overcome the presumption of regularity.

If Sharp's case had been resolved according to the line of cases

which appear to hold that postverdict preservation of error in the

trial court, e.g. a motion for a new trial, is sufficient to “make


Collins, 

(5th Cir.) (counsel not deficient by failing
to object to racially-motivated peremptory strikes before Batson
decided), cert. denied, 

(1994); United States v.
Zweber, 

, 712 (9th Cir. 1990) (counsel not deficient
for failing to predict impact of collateral conduct when Sentencing
Guidelines "were in initial stages of interpretation by the
courts").
      20
           Mays v. State, 

(Tex.Crim.App. 1907).
      21
      Johnson v. State, 

(Tex.Crim.App. 1931); Mays;
Noble v. State, 

(Tex.Crim.App. 1907); Thompson v.
State, 

(Tex.Crim.App. 1904); Webb v. State, 

(Tex.Crim.App. 1900). Mays and Noble were both cited by the Court
of Criminal Appeals in Sharp’s direct appeal. Sharp at 616.

                                     12
issue in the trial court,” there would have been no need for Sharp

to    demonstrate      that   the     trial        court's    failure   "appeared

affirmatively" from the record and the Court of Criminal Appeals

could have reached the merits of his claim.                   But that was not to

be.

       In Sharp, the Court of Criminal Appeals states that Sharp

"made no objection at trial, so the only part of Art. 44.24(a) that

is applicable is whether there exists an affirmative showing to the

contrary in the record."22           In support of this proposition, the

court cited Warren v. State.23 Warren, however, held only that when

the error is discovered after the trial, reintroduction of the

prosecution’s evidence, the method usually employed to cure the

absence of the indictment/plea procedure,24 is impracticable, and

a new trial is the appropriate remedy.

       More importantly, in Warren the error complained of, the

prosecutor’s       failure    to    read        enhancement    paragraphs   of   an

indictment to the sentencing jury, was raised by a motion for

mistrial after sentence had been rendered and the jury had been

dismissed.       These circumstances, dispositive in Sharp’s case, were

treated differently by the Warren court:

       While appellant's objection was not the 'proper' trial
       objection, it did raise the issue before the trial court. The
       jury had been dismissed and a motion for new trial would have
       [been] the appropriate remedy: but since appellant presented

       22
            Sharp at 616.
       23
            

(Tex.Crim.App. 1985).
      24
     Castillo v. State, 

(Tex.Crim.App. 1976); Limon
v. State, 

(Tex.App.1992, pet. filed).

                                           13
     the 'issue' to the court at that time, it had the same effect
     as a motion for new trial. Thus, a motion for new trial was
     unnecessary. It matters not that the showing was subsequent
     to the conviction.25

Warren     went   on   to    declare   that   in   moving   for   a   mistrial

postverdict, a procedure which the Warren court had already avowed

had the "same effect" as a moving for a new trial, "appellant 'made

an issue' of the failure to read the indictment and enter a plea in

the court below."26         Despite this plain language, the Sharp court

cited Warren as authority for the proposition that Sharp’s motion

for a new trial was insufficient to make an issue of the procedural

defect in the trial court.

     We must conclude that Texas law addressing the issue at bar at

least was conceptually amorphous and unsettled at the time of

Sharp’s conviction and appeal.27        For this reason, we conclude that

Sharp’s counsel did not perform deficiently by failing to attach



     25
          Warren at 416.
     26
          

addition to the jurisprudential vagaries noted above, our
research reveals some cases in which the reviewing court simply
fails to distinguish at all between the "make issue" and "appear
affirmatively" requirements for applying the presumption of
regularity.     See, e.g., Peltier v. State, 

(Tex.Crim.App. 1981). Further inconsistency and ambiguity is found
regarding whether the indictment/plea error may even be raised for
the first time on appeal. Compare Hazelwood v. State, 

(Tex.App. 1992, no pet.), with Reed v. State, 

(Tex.Crim.App. 1973). The point we make in this opinion is not
that Texas courts are necessarily wrong; in the absence of
constitutional limitations they may, of course, interpret Texas law
as they see fit. Rather, we find only that counsel's approach to
preserving the error on appeal was not an unreasonable one from his
perspective in light of the prevailing professional norms in force
at that time.

                                       14
the elusive correct affidavit to his motion for a new trial.28 This

conclusion is based on the fact that reasonable investigation into

the applicable law, involving of course a review of relevant prior

jurisprudence at the time of Sharp’s trial, would have taught that

the raising of the issue in a motion for new trial, without more,

was sufficient to "make issue in the trial court," thus preserving

the issue for appeal.          Such a determination would have removed any

consideration whether it was also necessary to demonstrate the

error        affirmatively     on   the     record   to   avoid   the    statutory

presumption of regularity.                This is particularly true, as the

preceding discussion reveals, if the cases cited in Sharp itself

are examined.

       Furthermore, it is clear from trial counsel’s testimony at the

evidentiary hearing that his decision to wait until after the

verdict to raise the violation was a calculated move.                      Had he

lodged an objection prior to the verdict the traditional remedy for

preverdict violations of the plea/indictment rule, i.e. compliance

with    the      procedural     rule      followed   by   resubmission    of   the

prosecution’s case,29 would have no doubt been applied. The error


        28
       See Garland v. Maggio, 

, 207 (5th Cir. 1983)
("’Clairvoyance is not a required attribute of effective
representation’") (quoting Cooks v. United States, 

(5th Cir. 1972)).      Our resolution of this issue makes it
unnecessary to discuss whether Sharp was prejudiced by this alleged
failure of counsel. See Tex.R.App.P. 81(b)(2) (harmless error rule
for review of Texas criminal cases); Lockhart v. Fretwell, 

, 

, 

(1993) (state may take
advantage of beneficial changes in the law occurring after
conviction and sentence are final).
       29
            Castillo; Limon.

                                            15
would have been trumped.         The result would have been the loss of a

claim which offered the real prospect of a new trial, either in the

trial court or on appeal.           By waiting until the motion for new

trial to raise his claim, Sharp’s counsel sought to pursue what he

reasonably perceived to be the wisest possible strategy. The trial

judge apparently considered that it had merit.             That the Court of

Criminal Appeals derailed this strategy does not retroactively

render counsel’s performance constitutionally deficient.

       The procedural defect involved herein is a matter purely of

state, not federal, law, and therefore is in and of itself not

cognizable on federal habeas corpus review.30

       Finally, we find no merit whatever in Sharp’s mere speculation

that        counsel   was   ineffective    for   failing   to   secure   expert

assistance relative to the hair found in the truck or the blood on

his knife.

       Because Sharp has not raised a cognizable constitutional

issue, which we may address in this federal habeas review, which

puts into question the federal constitutional fairness of his trial

or its result, our result is mandated.

       The judgment of the district court is AFFIRMED.

       30
      28 U.S.C. § 2254. A federal constitutional violation occurs
in this context only if the error complained of is such as to
deprive the state court of jurisdiction over the crime.         See
Fransaw v. Lynaugh, 

(5th Cir.), cert. denied, 

, 

, 

(1987).             In Texas,
jurisdiction is conferred upon the trial court by the filing of an
indictment; "it is the filing of the indictment, not its reading,
which invests the trial court with jurisdiction." Santos v. State,
834 SW.2d 953, 956 (Tex.App. pet. ref’d) (citing Tex.Const. art. V,
§ 12); see also Studer v. State, 

(Tex.Crim.App.
1990) (discussing purpose and role of indictment in Texas law).

                                          16