Revised August 30, 2001

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No. 99-40539


                    RONFORD LEE STYRON, JR.,

                                               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 Eastern District of Texas


                         August 15, 2001
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     Ronford Lee Styron, Jr., seeks a certificate of appealability

(“COA”) on twelve issues to appeal the district court’s denial of

his application for habeas corpus and seeks relief from the denial

of his petition for habeas corpus.    The district court considered

and rejected a certificate on these twelve issues although it

granted a COA on four other issues.   For the reasons that follow,


                                1
we deny Styron’s requests for a COA, and we affirm the denial of

habeas relief.

                  I. Facts and Procedural History

     Appellant Ronford Lee Styron, Jr., was convicted of the

capital murder of his eleven-month old son, Lee Hollace Styron, and

sentenced to death.       The medical evidence introduced at trial

indicated that the victim died as a result of subdural hemorrhaging

caused by trauma to the head.     The evidence revealed that the child

had suffered at least three distinct blows to his head, any one of

which could have caused his death.        Medical testimony indicated

that the blows appeared to have been inflicted contemporaneously.

Styron testified that he punched the victim in the head one time

and did not offer any explanation as to how the victim received

multiple bruises on his head.

     Other medical evidence revealed the victim sustained retinal

hemorrhages consistent with repeated episodes of shaken-baby trauma

and multiple rib fractures within at least two weeks prior to his

death.    Testimony established that Styron squeezed the victim’s

stomach   approximately   three   weeks   before   his   death.   Other

testimony revealed that Styron had on numerous occasions physically

abused the victim.    The child had been taken to the hospital on

three prior occasions: once for a cut lip, once for a broken leg,

and once for treatment of a seizure disorder.

     Styron was indicted by the grand jury of the 75th District



                                    2
Court of Liberty County, Texas.   Count I of the indictment alleged

that Styron, on or about October 23, 1993, in Liberty County,

Texas, intentionally and knowingly caused the death of Lee Hollace

Styron, an individual under six years of age, by striking and

hitting the child’s head with his fist, by causing the child’s head

to strike and hit an object, and by manner and means unknown.

Count II of the indictment charged Styron with murder, alleging

essentially the same conduct as did Count I.     Count III alleged

injury to a child.   The 75th District Court found Styron to be

indigent and appointed Walter F. Fontenot to represent him on

November 2, 1993.

     At the request of the State, without notice to Styron or his

attorney and without a hearing, the action was transferred by the

75th District Court to the 253rd District Court of Liberty County.

On January 4, 1994, the 253rd District Court, on Styron’s motion,

appointed Gary W. Bunyard as additional counsel.     On January 5,

1994, Styron filed a pre-trial motion to quash the indictment

contending that the government manipulated the transfer to secure

a more favorable forum in which to prosecute the action.    On May

10, 1994, after a hearing, the trial court denied the motion to

quash.

     Styron was tried before a jury upon a plea of not guilty.   His

defense was based upon a lack of intent to harm or to kill the

child.   The defense presented evidence that Styron was in fact a

loving father to the victim; however, the jury convicted Styron of

                                  3
capital murder on October 24, 1994.

     On October 27, 1994, the punishment phase of the trial was

presented to the jury.        The State produced numerous witnesses who

testified    about    their    knowledge    of   Styron’s     reputation    and

behavior.   Four witnesses testified of his propensity to instigate

fights.    One witness testified that Styron provoked a fight with a

boy who could not fight back because of a bad arm, and that Styron

hit the boy several times before the witness grabbed Styron.

Styron’s    high   school     principal    and   assistant    principal    both

testified that he had a reputation for violence.              A Dayton police

officer,    Shannon   Spear,    testified    that    Styron    had   violently

attacked another boy while in the seventh grade, attacked a man on

a freeway, and punched his sergeant while in the Army.

     Curtis Wills, a psychologist called as a witness by the

defense, testified that he could not predict whether Styron was

likely to commit future criminal acts. On cross-examination, Wills

testified that the results of the Minnesota Multiphasic Personality

Inventory (MMPI) indicated that Styron was hostile, was aggressive,

and was a person who harbored grudges.              Wills further testified

that Styron was the type of person who tends to be diagnosed with

an anti-social personality.

     Dr. Gripon, a psychiatrist, testified for the State.              After a

review of the offense reports, Styron’s statements, and the results

of the MMPI, in response to a hypothetical question Dr. Gripon

testified that in his opinion Styron was a continuing threat to

                                      4
commit future acts of violence.

     After the hearing, the jury answered affirmatively the first

special sentencing issue as to whether Styron posed a continuing

threat to society. The jury answered negatively the second special

sentencing issue as to whether mitigating circumstances warranted

a sentence of life imprisonment rather than the imposition of a

death sentence.   Accordingly, the trial court sentenced Styron to

death in accordance with Texas law.

     Styron appealed to the Texas Court of Criminal Appeals.                The

conviction and sentence were affirmed in an unpublished opinion

issued October 30, 1996.       Styron v. State, No. 72,001 (Tex. Crim.

App. 1996).     The Court of Criminal Appeals appointed James F.

Keegan   to   represent   Styron    on      state    habeas   corpus     review.

Application for writ of habeas corpus was filed, raising forty-

three grounds for relief.      Ex parte Styron, No. 20,278-A.            Without

a hearing on the state writ, the state trial court adopted the

findings of fact and conclusions of law submitted by the State and

recommended that relief be denied.           The Court of Criminal Appeals,

without discussion or analysis, adopted the trial court’s findings

and conclusions in a one-page opinion and denied habeas corpus

relief in an unpublished order.            Ex parte Styron, No. 37,058-01

(Tex. Crim. App. 1998).

     Styron filed a federal petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254.      The United States District Court for

the Eastern    District   of   Texas       denied   his   motion   for   summary

                                       5
judgment and writ of habeas corpus, lifted the stay of execution,

and granted respondent’s motion for summary judgment.                       Styron v.

Johnson, No. 6:98 CV 338 (E.D. Tex. 1999).                        The district court

issued COA on four of twenty-one issues requested by Styron.

                            II. Application for COA

A.   Issues and Standard of Review

     Styron now seeks from this court COA for twelve additional

issues on which to appeal the district court’s denial of habeas

relief.       Since Styron filed his habeas application in the district

court after        April    24,   1996,   we   apply    the       Anti-Terrorism   and

Effective Death Penalty Act of 1996 (AEDPA).                  See Lindh v. Murphy,

, 336 (1997); Green v. Johnson, 

, 1119-20

(5th Cir. 1997).           The AEDPA provides that “[u]nless a circuit

justice or judge issues a certificate of appealability, an appeal

may not be taken to the court of appeals from -- (A) the final

order    in    a   habeas    corpus   proceeding       in    which    the   detention

complained of arises out of process issued by a State court . . .

.”   28 U.S.C. § 2253(c)(1)(A).                Only if the applicant makes a

“substantial showing of the denial of a constitutional right” may

a COA issue, and any such COA shall indicate the specific issue or

issues    that     satisfy    this    showing.         

     “A

‘substantial showing’ requires the applicant to ‘demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the


                                          6
questions      are    adequate   to    deserve    encouragement       to   proceed

further.’”     Drinkard v. Johnson, 

, 755 (5th Cir. 1996),

(quoting Barefoot v. Estelle, 

, 893 n.4 (1983)),

overruled on other grounds by Lindh v. Murphy, 

(1997);

see also Rudd v. Johnson, No. 00-11173, 

, *1 (5th Cir.

June 28, 2001); Dowthitt v. Johnson, 

, 740 (5th Cir.

2000)(citing Slack v. McDaniel, 

, 1603-04 (2000)).

“Our determination requires deference to the state habeas court's

adjudication of [Styron’s] claims on the merits, unless that

adjudication:        (1) ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States,’ § 2254(d)(1), or (2)

constituted an ‘unreasonable determination of the facts in light of

the   evidence       presented   in    the    State   court    proceeding,’     §

2254(d)(2).”     Wheat v. Johnson, 

, 360 (5th Cir. 2001).

“We resolve doubts about whether to grant a COA in [Styron’s]

favor,   and    we    may   consider    the    severity   of    his   penalty    in

determining whether he has met his ‘substantial showing’ burden.”

Hill v. Johnson, 

, 484 (5th Cir. 2000) (citing Fuller

v. Johnson, 

, 495 (5th Cir. 1997)).

      In this case, the district court declined to certify seventeen

of twenty-one issues advanced by the petitioner.                Styron seeks in

this court certification on twelve of those seventeen issues.                   The

twelve issues are as follows:

      Issue 1:       Styron’s conviction for capital murder pursuant to

                                         7
former Texas Penal Code § 19.03(a)(7) violated the prohibition

against ex post facto laws of Article I, § 10, Clause 1 of the

United States Constitution.

     Issue 2:    Conviction for capital murder pursuant to former

Texas Penal Code § 19.03(a)(7) denied Styron due process of law

guaranteed by the Fourteenth Amendment of the Constitution.

     Issue 3:   Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence   established   beyond   a   reasonable   doubt   that   all   the

elements of the offense were committed on or after September 1,

1993, violated the prohibition against ex post facto laws of

Article I, § 10, Clause 1 of the Constitution.

     Issue 4:   Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence   established   beyond   a   reasonable   doubt   that   all   the

elements of the offense were committed on or after September 1,

1993, denied Styron due process of law guaranteed by the Fourteenth

Amendment.

     Issue 5:   Failure of the trial court to instruct the jury that

a guilty verdict for capital murder could be returned only if the

evidence   established   beyond   a   reasonable   doubt   that   all   the

elements of the offense were committed on or after September 1,

1993, denied Styron the right to trial by jury guaranteed by the

Sixth and Fourteenth Amendments.

     Issue 6:   Transfer of cause No. 20,278 from the 75th District

                                      8
Court of Liberty County to the 253rd District Court of Liberty

County at the request of the State, but without notice to Styron or

his attorney, denied Styron due process of law guaranteed by the

Fourteenth Amendment.

     Issue 7:    His absence, in violation of Texas Code of Criminal

Procedure article 28.01, from the pretrial proceeding at which the

75th District Court granted the request of the State to transfer

his cause to the 253rd District Court denied Styron due process of

law guaranteed by the Fourteenth Amendment.

     Issue 8:    Transfer of the cause from the 75th District Court

to the 253rd District Court at the request of the State, but

without notice to Styron or his attorney, denied Styron the right

to counsel guaranteed by the Sixth and Fourteenth Amendments.

     Issue 9:    Attack by the State upon the integrity of attorney

Walter P. Fontenot denied Styron due process of law guaranteed by

the Fourteenth Amendment.

     Issue 10:     Attack by the State upon the integrity of attorney

Walter P. Fontenot denied Styron the right to counsel guaranteed by

the Sixth and Fourteenth Amendments.

     Issue   11:      In   violation       of   the   Sixth   and   Fourteenth

Amendments, Styron was denied effective assistance of counsel at

trial.

     Issue   12:      In   violation       of   the   Sixth   and   Fourteenth

Amendments, Styron was denied effective assistance of counsel on

appeal.

                                       9
     Of these twelve issues presently under consideration for COA,

none makes a substantial showing of the denial of a constitutional

right.

                              B.    Analysis

     For ease of discussion and analysis, similar issues will be

grouped together.

1.   Issues 1 through 5

     Styron complains that since the statute under which he was

convicted of capital murder became effective on September 1, 1993,

the failure of the trial court to instruct the jury that all

elements of the offense had to be committed on or after that date

operated to subject Styron to an ex post facto law and to deny him

due process of law.    However, the defense neither objected to the

jury charge nor requested an alternative charge along the lines

Styron now asserts as crucial.

     Styron’s assertion that “there was considerable evidence at

Styron’s trial that elements of the offense were committed before

September 1, 1993" is not supported by the record.            There was

evidence that the victim had suffered physical abuse for several

months prior to his death on October 26, 1993, but the medical

evidence    revealed   that   the     victim   suffered   three   nearly

simultaneous but distinct traumas to the head approximately three

days prior to his death, any of which could have caused the

fatality.   Styron admitted to punching the child once on October


                                     10
23, 1993, and there was no evidence that any acts of abuse prior to

this date contributed to the victim’s death.

     Moreover, the indictment properly alleged that the murder took

place “on or about” October 23, 1993, and the jury charge tracked

the language of the indictment:

     Now, if you find from the evidence beyond a reasonable
     doubt that on or about the 23rd day of October, 1993, in
     Liberty County, Texas, the defendant, RONFORD LEE STYRON,
     JR., did then and there intentionally or knowingly cause
     the death of an individual, namely, Lee Hollace Styron,
     an individual under six years of age, by striking or
     hitting the head of Lee Hollace Styron with Ronford Lee
     Styron, Jr.’s fist or by causing the head of Lee Hollace
     Styron to strike or hit an object or by manner and means
     unknown to the Grand Jury, then you will find the
     defendant guilty of capital murder as charged in Count I
     of the indictment.

There was no evidence from which the jury could have found that

actions by Styron prior to September 1, 1993, were the cause of

death.   The complained-of jury instruction properly charged the

jury as to the temporal element of the offense. Styron’s complaint

on these issues is without merit.

     Finally, in order for Styron’s conviction to violate the ex

post facto prohibition, the statute under which he was convicted

would have to punish as a crime an act previously legal when

committed, make more burdensome the punishment for a crime after

its commission, or remove a defense available according to the law

when the act was committed.   See Dobbert v. Florida, 

,

292 (1977) (citing Beazell v. Ohio, 

, 169-70 (1925)).

The statute under which Styron was tried and convicted did none of


                                  11
these things as the jury reasonably found that the offense was

committed after its effective date of September 1, 1993.

     In    sum,   these   issues   raised   by   Styron   do   not   make   a

substantial showing of the denial of a constitutional right as

required under the AEDPA.      A COA will not issue.

2. Issues 6 through 8

     Styron complains that the transfer of the cause from the 75th

District Court of Liberty County, the district court from which the

grand jury handed down the indictment, to the 253rd District Court

of Liberty County, at the request of the State, without notice to

or in the presence of either Styron or his attorney and without a

hearing, violated Styron’s rights to due process of law and to

counsel.

     Petitioner’s motion to quash the indictment on these grounds

was denied by the 253rd District Court after a hearing on May 2,

1994.   At that hearing testimony showed that between 1977 and 1991

indictments were assigned randomly by the district clerk to either

the 75th or the 253rd District Court. The testimony further showed

that in 1992 the district clerk began to assign indictments to the

court in which the prosecutor handling the case was assigned, and

that the District Attorney’s practice was to randomly assign cases

to prosecutors.    However, in this case, Prosecutor Anne Streit was

assigned to Styron’s case, and she was assigned to the 253rd

District Court.      The evidence suggests that when the District



                                    12
Attorney’s office informed the clerk that Streit was prosecuting

the case, the clerk’s office informed the judge in the 75th

District Court, who then transferred the case to the 253rd District

Court without a hearing and without notice to either Styron or his

attorney.

     The Texas Court of Criminal Appeals found that the transfer

was effected pursuant to prosecutorial discretion and that Styron

failed to produce exceptionally clear proof that the discretion had

been abused.

     The district court found no due process violation given that

Styron failed to demonstrate that he was in any way prejudiced by

the lack of hearing and notice of the transfer, and because the

trial court hearing on the motion and the appellate and state writ

process afforded Styron a full and fair hearing on this matter.

The district court also found no violation of the right to counsel

since an    administrative   act   transferring   the   case   was   not a

criminal proceeding in which the rights of Styron might be affected

because the act of transfer was not a “critical stage” in the

prosecution.

a. Right to Counsel

     The right to counsel attaches “at or after the initiation of

adversary judicial proceedings against the defendant.”               United

States v. Gouveia, 

, 187 (1984).      This right extends to

critical pretrial proceedings as “the accused is guaranteed that he



                                   13
need not stand alone against the State at any stage of the

prosecution, formal or informal, in court or out, where counsel’s

absence might derogate from the accused’s right to a fair trial.”

United States v. Wade, 

, 226 (1967).         The court must

“analyze whether potential substantial prejudice to defendant’s

rights inheres in the particular confrontation and the ability of

counsel to help avoid that prejudice.”        

    In Gouveia,

the Supreme Court characterized the situations where the right

extends as instances where “the results of the confrontation ‘might

well settle the accused’s fate and reduce the trial itself to a

mere 

(internal citations omitted).

As such, the Court has found a violation of the right to counsel

where counsel was not notified or allowed to confer with his client

prior to   a    pretrial   psychiatric   interview   later   used    at   the

sentencing phase.    Estelle v. Smith, 

(1981); see also

Mempa v. Rhay, 

, 135 (1967) (holding that counsel must

be appointed at a proceeding where certain legal rights like appeal

may be lost).

     The transfer of Styron’s case was an administrative matter and

not a “critical” proceeding.      Counsel’s absence did not derogate

from a fair trial; indeed, Styron does not even argue that he was

denied a fair trial or that the effect of the transfer pervaded the

entire proceeding.     See Satterwhite v. Texas, 

, 257

(1988)(distinguishing cases “in which the deprivation of the right

to   counsel    affected–-and    contaminated-–the     entire       criminal

                                   14
proceeding” and applying harmless error standard). He merely makes

an amorphous argument that he required aid in knowing whether to

oppose a transfer.    Styron has failed to show prejudice or that the

presence of counsel would have eliminated any prejudice.          There is

no indication of misconduct, animus, or discrimination by the

prosecution.

       This court has refused to find a violation of the right to

counsel at a pretrial confrontation during which a defendant was

photographed outside the presence of counsel because “the right to

counsel at all stages of the proceedings is not absolute.”            Smith

v. Puckett, 

, 583 (5th Cir. 1990).         Likewise, here the

right is not absolute. The transfer did not affect any substantial

rights, see 

, because Styron was still

afforded a fair trial.        See Childress v. Johnson, 

,

1225   (5th   Cir.   1997).     The   mere   absence   of   counsel   at   an

administrative process is not sufficient to show a deprivation of

a constitutional right.        Accordingly, no COA will issue because

Styron has failed to make the requisite substantial showing of the

denial of a constitutional right.

b. Due Process

       “The constitutional right to presence is rooted to a large

extent in the Confrontation Clause of the Sixth Amendment, but we

have recognized that this right is protected by the Due Process

Clause in some situations where the defendant is not actually



                                      15
confronting witnesses or evidence against him.”               United States v.

Gagnon, 

, 526 (1985).            However, the Supreme Court has

limited this right by holding that there is a due process right to

be present “‘whenever his presence has a relation, reasonably

substantial, to the fulness of his opportunity to defend against

the charge . . .    [T]he presence of a defendant is a condition of

due process to the extent that a fair and just hearing would be

thwarted by his absence, and to that extent only.”                   

v. Massachusetts, 

, 105-06, 108 (1934)).                 Having

recognized this limit, the Court in Gagnon held that the presence

of   four   defendants    and   their    attorneys   during     an    in   camera

discussion between a judge, juror, and another attorney was not

required    to   ensure    “fundamental       fairness   or    a     ‘reasonably

substantial . . . opportunity to defend against the charge.’”                 

(internal citations omitted).           In Kentucky v. Stincer, 

, 745 (1987), the Court determined that a defendant’s due

process right is the right to be present “at any stage of the

criminal proceeding that is critical to its outcome if his presence

would contribute to the fairness of the procedure.”                  In Stincer,

there was no violation of due process for a defendant to have been

excluded from a competency hearing concerning two witnesses because

the defendant gave no indication that his presence “would have been

useful in ensuring a more reliable determination as to whether the

witnesses were competent to 

.

      Styron has failed to show deprivation of a constitutional

                                        16
right.    Although he argues that he was not given notice or an

opportunity to object to the transfer, he nevertheless fails to

demonstrate    “that   his   presence    at   the      [transfer]     would   have

contributed to the fairness of the proceeding.               He thus fails to

establish, as an initial matter, the presence of a constitutional

deprivation.”     

n.21.                 As the district

court    acknowledged,   the   transfer      was   a    purely    administrative

matter, and Styron’s presence would not have had a reasonably

substantial relation to his opportunity to defend against the

charge.    See 

.

     This court has faced a similar issue in United States v. Osum,

(5th Cir. 1991).           There, the court addressed the

propriety of a transfer requested by the government to a judge who

had previously presided over the trial of codefendants.                   

    First   recognizing    that    a    defendant     does    not   have   a

constitutional right to trial within a particular division of a

judicial district, and, a fortiori, before a particular judge, the

court emphasized that a court may not transfer a case if a

defendant makes a strong showing of prejudice.               

     The

court held the transfer to be valid, even though the government

specifically chose the transferee judge.               

   “Although

the transfer of a case to a different judge upon request of the

government is not something we would endorse as routine practice,

we cannot in this case, given the existence of a valid reason

supporting transfer and no showing of prejudice by the defendant,

                                    17
say that the district court abused its discretion.”    

case, the transfer was an administrative matter, and unlike Osum,

the transferee court’s only connection to the matter was the fact

that the prosecutor to whom the case was randomly allotted was

assigned to that court. Styron makes no showing of prejudice based

on the transfer or his lack of presence thereat.   See United States

v. Allen, 

, 1294 (9th Cir. 1980) (“They have no basis,

however, to advance as error any alleged violation of the Northern

District of California’s Random Assignment Plan unless they can

show actual prejudice.”).

     Therefore, applying the proper standard under the AEDPA, we

conclude that Styron has failed to make the requisite substantial

showing of the denial of a constitutional right under the Sixth and

Fourteenth Amendments.   Accordingly, no COA will issue on Styron’s

claims related to the transfer.

3. Issues 9 and 10

     Styron complains that testimony at the guilt/innocence phase

of the trial by Wallace Clark, Styron’s brother, that Styron’s

attorney (Walter P. Fontenot) had told Clark to lie to the grand

jury, and that playing a portion of a recording of Clark’s grand

jury testimony to that effect, denied Styron due process of law and

the right to counsel.

     Prosecutorial misconduct is not a ground for relief unless it

casts serious doubt upon the correctness of the jury’s verdict.

See United States v. Hernandez-Guevara, 

, 874 (5th Cir.

                                  18
1998).     This court has previously identified three factors to be

considered: 1) the magnitude of the prejudicial effect of the

remarks; 2) the efficacy of any cautionary instruction given by the

judge;    and    3)       the   strength    of     the   evidence    supporting     the

conviction.      United States v. Casel, 

, 1308 (5th Cir.

1993), vacated on other grounds by Reed v. United States, 

    (1994).           Only    where    improper       prosecutorial        comments

substantially affect the defendant’s right to a fair trial do they

require reversal. See United States v. Diaz-Carreon, 

,

956 (5th    Cir.      1990).       Under    these    standards      and   viewing    the

testimony       as    a    whole    in     its    proper    context,      the   alleged

prosecutorial         misconduct     did     not    so     infect   the    trial    with

unfairness as to deny due process of law.

       Styron objects to the content of the statements made by Clark.

However, this testimony was elicited by the prosecutor as prior

inconsistent statements for impeachment purposes.                         Because the

testimony was admissible evidence under Rule 801(e)(2)(D) of the

Texas Rules of Evidence, because the injurious statements were made

by the witness and not by the prosecutor, and because cross-

examination of Clark by the defense mitigated the prejudice by

pointing out that Clark had erred in attributing to Fontenot the

statements of another attorney not involved in the defense, the

alleged misconduct did not infect the trial with unfairness in

violation of due process.

       As a result, Styron fails to make the showing required under

                                             19
the AEDPA for the issuance of a COA on the claim of a due process

violation.      Finally, as the alleged misconduct did not in any way

prejudice Styron’s right to counsel under the Sixth Amendment, that

claim has no merit.

4. Issues 11 and 12

      Styron complains that he was denied effective assistance of

counsel at trial because of his counsel’s failures to object (1) to

certain voir dire statements by the State regarding punishment (the

weighing of mitigating evidence against aggravating factors); (2)

to   Styron’s    trial   pursuant     to    a   capital   murder   statute   not

effective at the time all elements of the crime were committed or

to jury instructions that did not expressly condition guilt upon

the finding beyond a reasonable doubt that all elements were

committed after the statute’s effective date; and (3) to the

State’s impeachment of Clark.         He further complains that on appeal

his appellate counsel failed to pursue these issues or to allege

ineffective assistance of counsel at trial, and that such failures

constitute ineffective assistance of counsel on appeal.

      To establish ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that the

deficient performance prejudiced his defense--that the errors were

so serious as to deprive the defendant of a fair trial, that is, a

trial   the   result     of   which   is    reliable.     See   Strickland    v.

Washington, 

, 687 (1984). Only a “showing that counsel

made errors so serious that counsel was not functioning as the

                                       20
‘counsel’ guaranteed by the Sixth Amendment” suffices.            

has concluded that only if counsel’s acts “fell beneath an

objective standard of reasonable professional assistance” has he

failed to function as counsel guaranteed by the Sixth Amendment.

Gray v. Lynn, 

, 268 (5th Cir. 1993).

       There is a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance or

sound trial strategy.         See 

.            The

petitioner must identify the acts or omissions of counsel that are

alleged   to   be   outside   the   bounds   of   reasonable   professional

judgment, and the court must then determine whether, in light of

all of the circumstances, the identified acts or omissions were

outside the range of professionally competent assistance.               

       Because a criminal defendant is constitutionally entitled to

the effective assistance of counsel on direct appeal as of right,

see Lombard v. Lynaugh, 

, 1479 (5th Cir. 1989), the

Strickland standard applies to claims of ineffective assistance of

counsel by both trial and appellate counsel.          See 

; United States v. Merida, 

, 202 (5th Cir.

1993).

       We adopt the district court findings that in light of all of

the circumstances and considering the affidavit of Styron’s trial




                                     21
counsel, Gary W. Bunyard,1 the identified acts and omissions were

within the wide range of reasonable professional assistance or

sound trial strategy.    Styron has failed to show that counsel’s

trial performance was deficient, that it prejudiced his defense, or

that he was deprived of a fair trial therefrom.

     Each of the grounds underlying the alleged errors by counsel

on appeal have been discussed previously and found to lack merit.

Therefore, appellate counsel’s failure to pursue relief on those

bases does not constitute ineffective assistance of counsel since

no prejudice resulted therefrom and because the reliability of the

result of the appeal was not undermined thereby.

     Accordingly, as each of the grounds raised to establish

ineffective assistance of counsel at trial and on appeal have been

resolved against Styron by this court, Petitioner has failed to

make a substantial showing of the deprivation of a constitutional

right.   No COA will issue with respect to these issues.

                 III.   Review of Certified Issues



     1
       Mr. Bunyard’s affidavit affirmed the following: he and Mr.
Fontenot were of the view that the voir dire statement by the
prosecution that the second issue called for a weighing of the
mitigating circumstances against the aggravating circumstances was
a proper statement of the law under Texas Code of Criminal
Procedure article 37.071 § 2(e) and that the jury charge given
accurately tracked this provision; no ex post facto challenge was
made because the evidence of life threatening injuries occurred in
late October 1993, after the criminal statute’s effective date;
and, the trial strategy adopted by Fontenot and Bunyard to counter
the impeachment testimony of Clark was to call Fontenot as a
witness during the defense case in chief since Clark’s testimony
had been impeached to the point of being unreliable.

                                 22
A. Cruel and Unusual Punishment Challenges

      A COA was granted on the issue of whether Styron’s conviction

violated the cruel and unusual punishment clauses of the Eighth and

Fourteenth Amendments.         In Arave v. Cheech, 

, 470

(1993), the Supreme Court held that “to satisfy the Eighth and

Fourteenth Amendments, a capital sentencing scheme must ‘suitably

direc[t] and limi[t]’ the sentencer’s discretion ‘so as to minimize

the risk of wholly arbitrary and capricious action.’” (citing Lewis

v. Jeffers, 

(1990)).           The Court has set out a two-part

test to determine the constitutionality of a death penalty scheme,

examining both the eligibility decision and selection decision.

Tuilaepa v. California, 

(1994).                   As Styron attacks

only the eligibility requirement, only that portion of the test is

relevant. “To render a defendant eligible for the death penalty in

a homicide case, we have indicated that the trier of fact must

convict   the     defendant    of    murder    and    find     one    ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty

phase.”   

(internal citations omitted).

“As we have explained, the aggravating circumstance must meet two

requirements.       First the circumstance may not apply to every

defendant convicted of a murder; it must apply only to a subclass

of   defendants    convicted    of   murder.         Second,    the   aggravating

circumstance may not be unconstitutionally vague.”                   

omitted).

      Styron argues that former Texas Penal Code § 19.03(a)(7), now

                                       23
Texas Penal Code § 19.03(a)(8),2 violates the prohibition against

cruel and unusual punishment because the age of a victim does not

establish a principled basis for distinguishing defendants under

the constraints of Arave.     He asserts that there is no principled

basis for distinguishing between a defendant who murdered a child

under the age of six from one who murdered an older child.         We

disagree.    Under the test presented in Tuilaepa, the aggravating

circumstance for capital murder of murdering a child under the age

of six is constitutionally sufficient.   First, it does not apply to

every defendant convicted of murder; it applies only to a certain

subclass of defendants.    See 

.   Second, it

is not unconstitutionally vague.       See Henderson v. State, 

, 563 (Tex. Crim. App. 1997) (“The child-murder provision

meets both tests: murderers of children under six is a subclass of

murderers in general, and ‘children under six’ is a clear and

definite category.”).     On the contrary, the statute is very clear

unlike other statutes which the Supreme Court has found to be

vague.     See, e.g., Maynard v. Cartwright, 

(1988)

(holding “especially heinous, atrocious, or cruel” to be vague).

The “vagueness review is quite deferential.” 

.

       Styron misses the mark when he argues that under the Eighth


       2
      Texas Penal Code § 19.03(a)(8) provides: “A person commits an
offense [of capital murder] if he commits murder as defined under
Section 19.02(b)(1) and: the person murders an individual under six
years of age.”

                                  24
Amendment, conviction and imposition of the death penalty for the

murder of a child under six years old is arbitrary.           “A vague

propositional factor used in the sentencing decision creates an

unacceptable risk of randomness, the mark of the arbitrary and

capricious sentencing process prohibited by Furman v. Georgia.”

(emphasis added).        Texas Penal Code § 19.03(a)(7),

now Texas Penal Code § 19.03(a)(8), has no such vague propositional

factor and is not arbitrary.   See Godfrey v. Georgia, 

,

428 (1980) (“A capital sentencing scheme must, in short, provide a

‘meaningful basis for distinguishing the few cases in which [the

penalty] is imposed from the many cases in which it is not.        This

means if a State wishes to authorize capital punishment it has a

constitutional responsibility to tailor and apply its law in a

manner that avoids arbitrary and capricious infliction of the death

penalty.   Part of a State’s responsibility in this regard is to

define the crimes for which death may be the sentence in a way that

obviates   ‘standardless   [sentencing]      discretion.’”)   (internal

citations omitted).

     On a more general level, the Supreme Court upheld the Texas

death penalty scheme insofar as it narrowed the definition of

capital murder to circumstances in which there was “at least one

statutory aggravating circumstance in a first-degree murder case

before a death sentence may even be considered.”       Jurek v. Texas,

, 276 (1976).       Murdering a child under six is a

sufficiently narrow statutory aggravating factor. Therefore, we do

                                  25
not find a violation of the prohibition against cruel and unusual

punishment.

B. Equal Protection Challenge

     Styron contends that conviction for capital murder under

former Texas Penal Code § 19.03 (a)(8) denied him equal protection

under the Fourteenth Amendment when it limited capital murder to

circumstances where the victim is under six years old.            First, he

contends that the statute should be reviewed under strict scrutiny

because it impinges on a nebulous right of “freedom from the

arbitrary and capricious infliction of punishment.”                However,

besides our resolution of the arbitrary and capricious issue, the

Supreme Court has never afforded this “right” the protection of

strict scrutiny.     The Fifth Circuit, led by the Supreme Court’s

decision in Gregg v. Georgia, 

(1976), was convinced

that “equal protection clauses do not require a higher level of

scrutiny for legislative classifications that may result in the

death penalty.      Thus, [petitioner’s] claims are to be assessed

under a rational basis test.”      Gray v. Lucas, 

, 1104

(5th Cir. 1982).    Despite Styron’s argument that age-based capital

murder   statutes   should   be   reviewed   under   a   strict   scrutiny

analysis, “[a]ge classifications, unlike governmental conduct based

on race or gender, cannot be characterized as ‘so seldom relevant

to the achievement of any legitimate state interest that laws

grounded in such considerations are deemed to reflect prejudice and

antipathy.’”     Kimel v. Florida Bd. of Regents, 

, 83

                                    26
(2000) (quoting Cleburne v. Cleburne Living Center, Inc., 

, 440 (1985)). “[A]ge is not a suspect classification under the

Equal Protection Clause.         States may discriminate on the basis of

age   without    offending       the   Fourteenth      Amendment     if   the   age

classification in question is rationally related to a legitimate

state interest.”     

omitted).

      Styron next contends that the Texas statute cannot withstand

even rational basis scrutiny because Texas has no legitimate

interest in granting greater protection to children under six than

to other children and adults.          Rational basis scrutiny was clearly

set out in 

.               “States may discriminate on the

basis of age without offending the Fourteenth Amendment if the age

classification in question is rationally related to a legitimate

state interest . . . .           [W]e will not overturn such [government

action] unless the varying treatment of different groups or persons

is so unrelated to the achievement of any combination of legitimate

purposes that we can only conclude that the [government’s] actions

were irrational.” 

omitted).

      The Texas Penal Statute is constitutional under rational basis

scrutiny.       First,   there    is   a    clear    governmental    interest   in

protecting young children.         As the Texas Court of Criminal Appeals

has eloquently stated, “Children are deemed to warrant protection

because of their inexperience, lack of social and intellectual

development, moral innocence, and vulnerability.”                  

.     Secondly, the decision of the Texas legislature to

                                           27
declare the age limit of six years is rationally related to the

interest of protecting children.            It is inherently difficult to

draw a line of demarcation, id.; however, the Texas legislature

cannot be said to have acted irrationally.                  As was testified

concerning this statute, children under six are usually still at

home and are vulnerable to caregivers, as exactly was the case

here.    See SB 13, Public Hearing, Senate Criminal Jurisprudence

Committee, March 3, 1993.            Using the six-year age limit is a

rationally related means to accomplish Texas’s end: protecting

young children.

     Alternatively, we agree with the district court that this

claim is barred by Teague v. Lane, 

(1989), as it seeks

application of a new constitutional rule of criminal procedure.



C.   Due process and fair and impartial jury challenges

     A   COA   was   granted   on    the    issues   of   whether    an   alleged

misstatement by the prosecution during voir dire denied Styron a

fair and impartial trial as guaranteed by the Sixth and Fourteenth

Amendments     and   due   process    as    guaranteed    by   the   Fourteenth

Amendment.     Eight of twelve jurors were told during voir dire that

the second question submitted in the punishment phase of the trial

should only be answered affirmatively if the mitigating evidence

outweighed the aggravating evidence.             Texas Criminal Procedure

Article 37.071 actually instructs the court to answer the following

issue:

                                       28
     Whether, taking into consideration all of the evidence,

     including      the   circumstances      of     the   offense,    the

     defendant’s character and background, and the personal

     moral culpability of the defendant, there is a sufficient

     mitigating circumstance or circumstances to warrant that

     a sentence of life imprisonment rather than a death

     sentence be imposed.

Styron contends that a mitigating circumstance might be sufficient

to warrant life imprisonment without outweighing the aggravating

circumstances.

     However, Styron, as he readily admits, failed to object to the

voir dire questioning.        “The ‘Texas contemporaneous objection rule

constitutes    an    adequate    and    independent       state   ground    that

procedurally bars federal habeas review of a petitioner’s claims.’”

Jackson v. Johnson, 

, 652 (5th Cir. 1999) (internal

citations omitted).       “In all cases in which a state prisoner has

defaulted   his     federal   claims   in   state    court   pursuant      to   an

independent and adequate state procedural rule, federal habeas

review of the claims is barred unless the prisoner can demonstrate

cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of

justice.”     Coleman v. Thompson, 

, 750 (1991).                    If

Styron overcomes the procedural bar, he still must demonstrate that

“the prosecutors’ comments ‘so infected the trial with unfairness

                                       29
as to make the resulting conviction [or sentence] a denial of due

process.”      Rogers v. Lynaugh, 

, 608 (5th Cir. 1988)

(internal citations omitted).             “This Circuit has developed the

following test of constitutional error when a generic due process

violation is asserted: ‘The test applied to determine whether a

trial error makes a trial fundamentally unfair is whether there is

a reasonable probability that the verdict might have been different

had the trial been properly conducted.’”                 

(quoting

Kirkpatrick v. Blackburn, 

, 278-79 (5th Cir. 1985)).

     Although he never clearly addresses cause or prejudice, Styron

does assert that his attorney failed to object to the voir dire

questioning because he misunderstood the question and thought that

the state was presenting accurate law.               This reason, however, is

not sufficient cause.           The Fifth Circuit found that if an attorney

“had ‘no reasonable basis upon which to formulate a constitutional

question,’ the default is excusable.”           Landry v. Lynaugh, 

,   1120      (5th   Cir.   1988).    An   attorney’s   personal   alleged

misconceptions about the law do not rise to the level of a “change

in federal law.”          

fails to demonstrate

prejudice.        The state never referred back to voir dire in its

closing arguments, and the court submitted the special issue as

dictated     by     Texas   Criminal     Procedure    Article   37.071.     In

interpreting the mitigation issue, a Texas court has described it

as “the weighing of mitigating evidence[,] . . . a subjective

determination undertaken by each juror.”                Morris v. State, 940

                                         

, 614 (Tex. Crim. App. 1996).

     Styron also fails to show a risk of fundamental miscarriage of

justice. Although he argues that the evidence presented during the

punishment phase concerning his dysfunctional childhood and history

of abuse was considerable, nevertheless the jury still received the

proper instruction immediately before punishment deliberations.3

See Thompson v. Lynaugh, 

, 1061 (5th Cir. 1987)

(holding, despite prosecutor’s misstatement of the law during voir

dire, there was no constitutional error because the court properly

instructed the jury in accordance with law).    Because Styron has

failed to overcome the procedural bar, we decline to address the

merits of his claim of violation of his right to a fair and

impartial jury and right to due process.

                          IV. Conclusion

     For the foregoing reasons, we deny Styron’s request for a COA

on all issues, and we affirm the district court’s denial of habeas

relief on the issues of the prohibition against cruel and unusual

punishment, equal protection, fair and impartial jury, and due

process.

Application DENIED; judgment AFFIRMED.




     3
      Styron even admits that the jurors took a poster board
printed with Texas Criminal Procedure Article 37.071 § (2)(e) on it
with them into the jury room during their deliberations.

                                31