UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 01-11387


                        ROGER DALE VAUGHN,

                                             Petitioner-Appellant,

                              versus

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

                                             Respondent-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (7:98-CV-005-R)
_________________________________________________________________
                           July 25, 2002

Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.

PER CURIAM:*

     Federal habeas relief having been denied for Roger Dale

Vaughn’s Texas capital murder conviction and death sentence, at

issue is whether a certificate of appealability (COA) should issue

for the following claims: the jury should have been informed that,

had Vaughn been sentenced to life in prison, he would not have been

eligible for parole for 35 years; the evidence is insufficient to

support the jury’s future dangerousness finding; and his counsel

were ineffective in two respects.   COA DENIED.


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                     I.

      On 14 October 1991, Vaughn escaped from the jail in Lubbock

County, Texas.      He sought out a friend, Shaw; told him he had been

recently released from prison; and asked if Shaw would drive him

“to a few places in town”.

      Shaw agreed.     Later that evening, when Shaw offered to loan

Vaughn money, Vaughn replied that Shaw “didn’t need the money where

he   was   going”    and   struck   him    on   the   head,   rendering   him

unconscious.

      Shaw regained consciousness and jumped from their moving

automobile. Vaughn caught up with him; again beat him unconscious;

and left him in a field, partially paralyzed.           Vaughn stole Shaw’s

identification and fled Lubbock in Shaw’s automobile.

      The next evening (15 October), Vaughn visited friends in

Electra, Texas.     That night, he telephoned another friend, the son

of the 84-year-old victim.          Instead, the victim answered the

telephone.   Vaughn told her he would be in Vernon, Texas, the next

evening around dinner time, and asked whether he could visit her

home.   The victim agreed.     She told a companion present during the

telephone conversation that her son’s friend was stopping by, but

that she would not prepare dinner for him.

      After arriving the next day (16 October) in Vernon, Vaughn

burglarized the Pucketts’ home (his aunt and uncle), stealing two

pairs of boots and two rifles.            He pawned the rifles in Wichita

Falls, Texas, and returned to Vernon.

                                      2
     That evening, between 6:30 and 7:00 p.m., Vaughn entered the

victim’s home in Vernon.        Later inspection showed:          the home had

been ransacked and property, including the victim’s checkbook,

driver’s license, and jewelry, was missing; the victim had been

strangled;   and   her   body   had   been    dragged    across    the   floor.

(Although the evidence indicated the victim had been sexually

assaulted, this was not a theory upon which Vaughn was indicted or

upon which the State relied.)

     Vaughn traveled again to Wichita Falls and pawned the victim’s

jewelry, including her wedding ring. Vaughn also cashed several of

her checks, telling one vendor he was the victim’s son and telling

another he was her husband.

     The next day (17 October), Vaughn was arrested in Wichita

Falls after he attempted unsuccessfully to cash another of the

victim’s checks.    When he was arrested, he was wearing one of the

pairs of boots stolen from the Pucketts; and he also had in his

possession   the   victim’s     driver’s     license    and   checkbook.     In

addition, several pawn receipts were found in his pocket, with the

claim checks made out to Shaw.        (In fact, a pawn broker refused to

loan Vaughn money because he did not fit the physical description

provided on Shaw’s identification. The merchant copied the license

plate number of Vaughn’s vehicle; it was later identified as

belonging to Shaw.)

     In 1992, Vaughn was convicted of capital murder in violation

of TEX. PENAL CODE ANN. § 19.03(a)(2) (defining capital murder as,

                                      3
inter alia, a “murder in the course of committing or attempting to

commit ... burglary [or] robbery....”) and was sentenced to death.

     In 1995, the conviction and sentence were affirmed by the

Texas Court of Criminal Appeals and certiorari was denied by the

Supreme Court of the United States.           Vaughn v. State, No. 71,495

(Tex. Crim. App. 

) (unpublished) (Vaughn),                   cert.

denied, 

(1995).

     Vaughn sought state habeas relief; the trial court recommended

denial.   Ex parte Vaughn, No. 8938-A (46th Dist. Ct. of Wilbarger

County, Tex. 31 Oct. 1997) (unpublished) (Ex parte Vaughn).                  The

Texas Court of Criminal Appeals accepted the           recommendation.        Ex

parte   Vaughn,    No.   29,416-01   (Tex.    Crim.   App.   10   Dec.   1997)

(unpublished).

     In June 1998, Vaughn filed for federal habeas relief.            In July

2001, the petition was referred to the magistrate judge, who

recommended denial.       Vaughn v. Johnson, No. 7:98-CV-005-R (N.D.

Tex. 31 July 2001) (Vaughn-USDC).          The district judge accepted the

recommendation and later denied a COA.

                                     II.

     At issue is whether Vaughn is entitled to a COA for any of

three claims:      the jury should have been instructed on his parole

eligibility   if    sentenced   to   life    in   prison;   the   evidence    is

insufficient to support the jury’s future dangerousness finding;

and his counsel were ineffective in not objecting on a certain

                                      4
basis to extraneous offense evidence and not interviewing a claimed

alibi witness.

     The Antiterrorism and Effective Death Penalty Act (AEDPA)

applies, because Vaughn’s federal petition was filed after AEDPA’s

1996 effective date.      See Lindh v. Murphy, 

, 336

(1997).   Under AEDPA, Vaughn must be granted a COA in order to

appeal the habeas-denial.     28 U.S.C. § 2253(c)(1)(A).

     A COA may issue only upon “a substantial showing of the denial

of a constitutional right”.     28 U.S.C. § 2253(c)(2).     To meet this

standard, Vaughn must show “reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further”.            Slack v.

McDaniel, 

, 484 (2000) (citation and internal quotation

marks omitted).

     For a claim denied on the merits, Vaughn must demonstrate

“reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong”.       

     The ruling on whether a COA should issue “must be made by

viewing   ...    [Vaughn]’s   arguments   through   the    lens   of   the

deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.

Johnson, 

, 772 (5th Cir. 2000), cert. dismissed, 

(2001).    Under that scheme, a federal habeas court must


                                   5
defer to the decision of a state court where it has adjudicated a

claim on the merits, unless the state court’s decision is “contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; or ... resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding”.   28 U.S.C. § 2254(d)(1)

& (2).

     A state court decision is “contrary to [] clearly established

Federal law, as determined by the Supreme Court of the United

States ... if the state court arrives at a conclusion opposite to

that reached by th[e] Court on a question of law or if the state

court decides a case differently than th[e] Court has on a set of

materially indistinguishable facts”.   Williams v. Taylor, 

, 412-13 (2000).

     A state court decision “involve[s] an unreasonable application

of [] clearly established Federal law, as determined by the Supreme

Court of the United States ... if the state court identifies the

correct governing legal principle from th[e] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s

case”.   

questions, as well as whether the state court

decision was based on an unreasonable determination of the facts in

the light of the evidence presented in the state proceeding, the


                                6
state court’s findings of fact are presumed to be correct unless

that presumption is rebutted by “clear and convincing evidence”.

28 U.S.C. § 2254(e)(1).

                                A.

     Vaughn contends that, under Simmons v. South Carolina, 

(1994), his Fifth and Eighth Amendment, as well as his

Fourteenth Amendment due process, rights were violated because the

jury was not instructed about his parole eligibility.         As of

Vaughn’s 1992 conviction, a person convicted of capital murder, but

who received a life sentence, became eligible for parole after

serving 35 years.   TEX. CODE CRIM. PROC. ANN. art. 42.18, § 8(b)(2)

(Vernon 1992).

     In Simmons, the Supreme Court held that, where

          the State rests its case for imposing the
          death penalty at least in part on the premise
          that the defendant will be dangerous in the
          future, the fact that the alternative sentence
          to   death  is   life   without  parole   will
          necessarily undercut the State’s argument
          regarding the threat the defendant poses to
          society.    Because truthful information of
          parole eligibility allows the defendant to
          “deny or explain” the showing of future
          dangerousness, due process plainly requires
          that he be allowed to bring it to the jury’s
          attention by way of argument by defense
          counsel or an instruction from the 

(emphasis added).    But, for “a State in which

parole is available [such as Texas], how the jury’s knowledge of

parole availability will affect the decision whether ... to impose

the death penalty is speculative, and we shall not lightly second-

                                 7
guess a decision whether ... to inform a jury of information

regarding parole”.      

(emphasis added).

       The state habeas trial court held this claim foreclosed by

Smith v. State, 

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

(1995), which held that, under the Texas death penalty

scheme, Simmons does not require a parole eligibility instruction.

Ex parte Vaughn, at 3.

       In considering this claim, the district court relied on Wheat

v. Johnson, 

, 361 (5th Cir.), cert. denied, 

(2001), and Allridge v. Scott, 

, 221-22 (5th Cir.

1994), cert. denied, 

(1995).      Wheat stated that our

circuit has “repeatedly recognized that the Simmons rule applies

only    where   there     is   a   life-without-possibility-of-parole

alternative to the death penalty, an alternative that does not

exist in 

(emphasis added); and Allridge

read Simmons to hold that

            due process requires the state to inform a
            sentencing jury about a defendant’s parole
            ineligibility when, and only when, (1) the
            state argues that a defendant represents a
            future danger to society, and (2) the
            defendant is legally ineligible for parole.
            Because Texas did not statutorily provide for
            parole ineligibility at the time of [the
            petitioner’s]   conviction,   we  find   [the
            petitioner’s] reliance on Simmons to be
            unavailing.




                                    

(emphasis added; footnote omitted).    See Ramdass v.

Angelone, 

, 166 (2000) (“The parole-ineligibility

instruction is required only when, assuming the jury fixes the

sentence at life, the defendant is ineligible for parole under

state law.” (Emphasis added.)).

     In district court, Vaughn also asserted that, although he

would have been eligible for parole after 35 years had he been

given a life sentence, such a sentence is a de facto life-without-

the-possibility-of-parole sentence and should be subject to the

Simmons holding.    The district court rejected this contention,

holding that Vaughn was asking the court to adopt a new rule of

constitutional law, which it could not do under Teague v. Lane, 

, 301 (1989).    In so ruling, the district court again

relied on Wheat, which stated:        “To hold that a lengthy parole

ineligibility is the de facto equivalent of a life sentence without

the possibility of parole ... would create a new rule under the law

of our 

.      Accordingly, Wheat held the

contention Teague-barred.   

asserted in his state and federal petitions that

the absence of a parole eligibility instruction violates the Eighth

Amendment. The district court, however, did not address this issue

separately.   In his COA request, Vaughn continues to advance this

contention.



                                  9
     Simmons granted relief on due process grounds and “express[ed]

no opinion on ... whether the result reach[ed] ... [was] compelled

by the Eighth 

n.4.   Our court has

consistently held, however, that, with respect to the Texas death

penalty scheme, the Eighth Amendment does not require a parole-

eligibility instruction.    See, e.g., Tigner v. Cockrell, 

, 525 (5th Cir. 2001) (“the Fifth Circuit has held that neither

the due process clause nor the Eighth Amendment requires a state

court to give jury instructions regarding parole ineligibility in

Texas.”), cert. denied, 

(2002).

     Ultimately, Vaughn reargues the above-discussed merits of this

parole-eligibility claim in his COA request.      As discussed, his

contentions are foreclosed by circuit precedent.        He has not

addressed, much less satisfied, the earlier described COA-merits-

standard.

                                 B.

     At the punishment phase, the jury affirmatively answered the

special issue for whether it found “from the evidence beyond a

reasonable doubt that there is a probability that [Vaughn] would

commit criminal acts of violence that would constitute a continuing

threat to society”.   For future dangerousness, Vaughn contends the

evidence proffered by the State is legally insufficient.

     In considering this claim on direct appeal, the Court of

Criminal Appeals employed the standard from Jackson v. Virginia,


                                 10


, 319 (1979) (emphasis added):                 whether “any rational

trier of fact could have found the essential elements of [Vaughn’s

future dangerousness] beyond a reasonable doubt”.                     Vaughn, at 1.

It also noted that a jury may consider, inter alia, the following

factors in assessing future dangerousness:                (1) “the circumstances

of   the   capital    offense”;       (2)    “the   calculated       nature    of    the

defendant’s      acts”;   (3)      “the      forethought       and   deliberateness

exhibited by the crime’s execution”; (4) “the existence of a prior

criminal record, and the severity of the prior crimes”; (5) “the

defendant’s age and personal circumstances at the time of the

offense”; (6) “whether the defendant was acting under duress or the

domination     of   another   at    the      time   of   the    commission     of    the

offense”; (7) “psychiatric evidence”; and (8) “character evidence”.

Keeton v. State, 

, 61 (Tex. Crim. App. 1987).

      After     considering     the      circumstances         leading    up   to    and

surrounding     the   murder,      the      Court   of   Criminal        Appeals    also

considered Vaughn’s extensive criminal past.                    Vaughn, at 3-4.

              On February 28, 1973, [Vaughn] was court
              martialed and found guilty by the Army for
              being absent without leave.... On April 23,
              1973, [Vaughn] was discharged from active duty
              for “unsuitability - character and behavior
              disorders”.   On December 14, 1977, he was
              convicted of burglary of a habitation and
              placed on 10 years probation. Two and a half
              months later on February 28, 1978, that
              probation was revoked for the aggravated
              assault of two individuals whom he cut with a
              knife. There was no final conviction for the
              aggravated assaults.


                                            11
                 On February 24, 1986, [Vaughn] was found
            guilty of receiving stolen property in
            Wyoming....   Five months later on June 4,
            1986, [Vaughn] was convicted of forgery....

                 On August 8, 1991, [Vaughn] was arrested
            for forgery and robbery in Lubbock, Texas.
            The victim in the robbery case was an 86 year
            old woman.   As [Vaughn] fled the scene, he
            threatened several of the bystanders. It was
            for these charges that [Vaughn] was being held
            in the Lubbock County Jail [when he escaped
            and committed the subject murder].

    The Court of Criminal Appeals denied relief on this

issue, concluding:

            [Vaughn’s] extensive criminal past included
            both violent and non-violent acts. The events
            leading up to the instant crime also indicate
            a propensity for escalating and continued
            violence. The evidence of the crime itself,
            together with [Vaughn’s] long history of
            sometimes   violent  criminal   activity,  is
            sufficient to support a rational jury finding
            that [Vaughn] represents a continuing threat
            to society.

  this   claim,   the   district   court   reviewed

Vaughn’s extensive criminal history and then set forth in detail

his actions leading up to, during, and after the murder:

            Looking ... at the facts surrounding the
            crime, it is clear that Vaughn acted alone in
            a manner that was both calculated and brutal.
            His deliberate actions took place - not in the
            heat of the moment - but over the course of
            two days.    As described by the [Court of
            Criminal Appeals], Vaughn viciously attacked
            Shaw twice, after Shaw had tried to help him,
            and then left him for dead after stealing his
            identification. Next, after arranging a visit
            with his eighty-four year-old victim, he
            strangled her, dragged her body across the

                                    12
           kitchen floor, and may have sexually assaulted
           her.   Evidence at trial also revealed what
           appeared to be a bite mark on [the victim’s]
           cheek.    After murdering [the victim] and
           leaving her in a pool of blood, Vaughn stole
           and then pawned her jewelry including her
           wedding ring.

Vaughn-USDC, at 13-14 (internal citations omitted).           Accordingly,

the district court denied relief on this issue.

     Once again, Vaughn does not address the COA-merits-standard;

instead,   he   attempts   to   reargue   the   merits   of   this   claim.

Essentially, he contends that a balancing of the eight factors

identified in 

, “militate against imposition of the

death penalty in this case”, and “[u]nder these circumstances, the

evidence does not enable a rational trier-of-fact to conclude

beyond a reasonable doubt a probability that [he] would commit

criminal acts of violence against society”.

     Vaughn maintains, inter alia, that:         the “present case does

not involve torture, disfigurement, necrophilia, body mutilation,

or other traditional circumstances that would justify a death

sentence without additional evidence”; his age at the time of

trial, 37, should have been a mitigating factor because at “thirty-

seven, [Vaughn] had not yet entered the mellowing years of his

middle-age”; and, concerning his prior criminal record, “[Vaughn’s]

general record of law-abiding behavior exhibits an unaggressive,

non-violent character associated with reform and rehabilitation”.




                                    13
      To say the least, these contentions are totally without merit.

In any event, Vaughn has not satisfied the COA-merits-standard.

                                         C.

      Vaughn next claims counsel were ineffective in not objecting,

pursuant to Texas Rule of Criminal Evidence 403, to extraneous

offense evidence, and in not investigating a claimed alibi witness.

For the COA-merits-standard for each of the two claimed independent

bases for ineffective-assistance, Vaughn must address both parts of

the well-known ineffective-assistance test:                 (1) whether counsel’s

performance was deficient in that it “fell below an objective

standard     of    reasonableness”;      and    (2)       whether    the    deficient

performance resulted in prejudice — “a reasonable probability that,

but   for    counsel’s     unprofessional       errors,      the    result    of    the

proceeding would have been different”.                Strickland v. Washington,

, 687-88, 694 (1984).

                                         1.

      At trial, the State introduced evidence of Vaughn’s escape

from prison shortly before the murder, his burglary and assault of

Shaw, and his burglary of the Pucketts’ (his aunt and uncle) home.

Vaughn,     at    6.    This   was   offered    to    demonstrate      that   Vaughn

formulated       the   requisite     intent    to   rob    the     victim   prior   to

murdering her. 

Although Vaughn’s counsel objected under

Texas   Rule      of   Criminal    Evidence    404(b),      Vaughn    maintains      an

objection should have also been made under Texas Rule of Criminal


                                         14
Evidence 403.     In numerous other instances, counsel did object

pursuant to that Rule.     (“Effective March 1, 1998, the Texas Rules

of Criminal Evidence and the Texas Rules of Evidence were merged

into the new Texas Rules of Evidence.          Rule 403 of the Rules of

Evidence is the same as former Rule 403 of the Rules of Criminal

Evidence.   Thus, the scope and application of the new rule would be

the same as under the old one.       Because the case was tried before

the effective date of the new rules, however, we will apply the

former Texas Rules of Criminal Evidence.”           Mozon v. State, 

, 844 n.2 (Tex. Crim. App. 1999).)

     As   of   Vaughn’s   trial,   Rule   of   Criminal   Evidence   404(b)

provided:

            Evidence of other crimes, wrongs, or acts is
            not admissible to prove the character of a
            person in order to show that he acted in
            conformity therewith.   It may, however, be
            admissible for other purposes, such as proof
            of motive, opportunity, intent, preparation,
            plan, knowledge, identity, or absence of
            mistake or accident....

TEX. R. CRIM. EVID. 404(b) (West 1992).        Rule of Criminal Evidence

403 provided:

            Although relevant, evidence may be excluded if
            the   probative    value   is    substantially
            outweighed by the danger of unfair prejudice,
            confusion of the issues, or misleading the
            jury, or by considerations of undue delay, or
            needless presentation of cumulative evidence.

TEX. R. CRIM. EVID. 403 (West 1992) (emphasis added).




                                    15
     On direct appeal, Vaughn challenged the admission of this

evidence under Rules 404(b) and 403.             Vaughn, at 6, 9.       In

considering whether the evidence was admissible under Rule 404(b),

the Court of Criminal Appeals first noted that, at trial, “defense

counsel postulated that [Vaughn] never formed the ‘intent’ to rob

the victim until after the commission of the murder”.             

(emphasis   added).    The   court    then   acknowledged   the    State’s

contention that the “evidence of the extraneous offenses was

relevant to establish [Vaughn] formulated the intent to rob [the

victim] before he killed her”.       

     The court upheld admission under Rule 404(b):

            While the State ... could have relied solely
            upon the circumstantial evidence to persuade
            the jury of [Vaughn’s] intent, they were not
            prevented   from   producing  other   relevant
            evidence   to   strengthen   that   inference.
            [Vaughn’s] escape from the Lubbock County
            Jail, the robbery of a friend, and the
            burglary of his relatives’ home during the
            short hours before the instant offense, all
            make it less probable that his entry into [the
            victim’s] home, whether consensual or not, was
            a purely social call.

     Concerning Vaughn’s claim that the evidence was inadmissible

under Rule 403, the court held that, because he had not objected at

trial on that basis, any error was not preserved.      

(citing

Montgomery v. State, 

, 388 (Tex. Crim. App. 1991)).

(During trial, as noted, counsel had repeatedly raised Rule 403

objections to other evidence.)

                                     16
      In his state habeas application, Vaughn claimed ineffective

assistance for not objecting under Rule 403.     The state courts

rejected this claim, holding that the “proffered evidence was

admissible” and that, based upon counsels’ affidavits, the

          acts or admissions were not outside the range
          of professional competent assistance, and even
          if [they] were, there is not a reasonable
          probability that the result of the trial would
          have been different absent the deficient
          conduct, if any.

Ex parte Vaughn, at 4.

      Concerning this claim, and relying on Montgomery, 

, the district court discussed the mechanics of Rule 403.    It

first noted that, although evidence may be admissible under Rule

404(b), it may be excluded under Rule 403 “on the ground that the

probative value of the evidence ... is nevertheless substantially

outweighed by ... the danger of unfair prejudice”. Vaughn-USDC, at

28 (emphasis in original; internal quotation marks omitted).    It

also noted “that in balancing the probative nature of the evidence

against its prejudicial effect ... the presumption is ... that

probativeness is the weightier consideration”.       

(internal quotation marks omitted).    And, it observed that “the

approach under Rule 403 [is] to favor the admissibility of relevant

evidence, and ... a presumption exist[s] under the Rule that

relevant evidence will be more probative than prejudicial”. 

                                17
     After considering this presumption, the context in which the

extraneous offense evidence was introduced, and the above-discussed

Court of Criminal Appeals holding concerning the relevancy of the

evidence under Rule 404(b), the district court held there was

neither deficient-performance nor prejudice.

     Concerning deficient-performance, it stated:

          In light of the highly relevant nature of the
          extraneous crimes evidence to the crucial
          issue in the case of when Vaughn formed the
          intent   to   rob   [the   victim]   and   its
          admissibility to aid the State in meeting its
          burden of proof on this issue, the Court finds
          that any objections by Vaughn’s attorneys
          under Rule 403 would likely have been futile.

see Emery v. Johnson, 

, 198 (5th Cir. 1997)

(“failure to assert a meritless objection cannot be grounds for a

finding of deficient performance”), cert. denied, 

(1998).

     As for prejudice, the district court stated that Vaughn’s

          argument presupposes that the trial court
          would have sustained the Rule 403 objection
          and kept the evidence out.    In view of the
          extremely probative nature of the extraneous
          crimes evidence to Vaughn’s intent to commit
          capital murder and Rule 403's presumption of
          admissibility,   the  Court  finds   Vaughn’s
          assumption   ...   to   be  based   on   mere
          speculation.

Vaughn-USDC, at 33.
     In his COA application, Vaughn states: “Was the testimony

regarding the extraneous offenses relevant to the issue of who

killed the victim in the instant capital murder case?   Contrary to


                                18
the Magistrate’s finding ..., Petitioner asserts that it was not”.

Along this line, he maintains: “Did the evidence of the extraneous

offenses ‘make more or less probable a fact of consequence?’            No,

it did not.   Whatever [Vaughn] did, or did not, do to Mr. Shaw and

the Pucketts had little or no bearing on what he allegedly did

subsequently to [the victim]”.      Fatal to this contention, however,

as 

and recognized by the district court, is the

evidence’s relevancy to Vaughn’s intent vel non to rob the victim

prior to committing murder.

     Ultimately, Vaughn contends that this evidence was damning and

that, in a capital murder prosecution, counsel is ineffective for

not making a Rule 403 objection to such evidence.          This conclusory

allegation does not satisfy the COA-merits-standard.

                                     2.

     For his second ineffective assistance claim, Vaughn contends

trial   counsel   failed    to   interview   a   claimed   alibi   witness.

According to Vaughn:       his counsel did not discover this witness,

Green, until after the conclusion of the guilt phase; had counsel

“conducted an independent investigation into the facts”, they would

have known sooner of this witness; and had Green testified at the

guilt phase, he would have testified that he was with Vaughn at the

time of the murder.    (As discussed infra, Green did testify during

the punishment phase as a rebuttal witness for the State.)




                                     19
     Vaughn raised this issue in his state habeas application. The

trial court required Vaughn’s counsel to submit an affidavit

responding to, inter alia, this claim.    In their affidavit, they

stated:

           VAUGHN never mentioned ... Green ... in our
           initial interviews as an alibi for ... VAUGHN.
           In April, 1992 shortly before trial, ...
           VAUGHN mentioned ... Green for the first time
           as a possible alibi witness.         This was
           inconsistent    with   ...  VAUGHN’S   earlier
           narrative to counsels as to his whereabouts at
           the time of ... [the] murder. We attempted to
           contact ... Green through Jackie Vaughn
           [Vaughn’s brother] and our investigator. Our
           investigator spoke with ... Green prior to the
           conclusion of the guilt/innocence phase of the
           trial. Based upon this interview we felt that
           ... Green’s testimony could not provide a
           credible alibi and would hurt ... VAUGHN
           because      it     helped    establish      a
           robbery/theft/burglary motive for the murder.
           Also, we felt that there was a good chance
           that the jury would perceive ... Green’s
           testimony as perjured testimony which would
           further anger the jury towards ... VAUGHN with
           a greater likelihood of a death sentence. See
           attached statement of ... Green.

Attached to counsels’ affidavit was Green’s 7 May 1992 statement

(the guilt phase of Vaughn’s trial began three days earlier, on 4

May).   In that statement, Green recounts the following:

                On October 16, 1992 [should be 1991],
           sometime in the afternoon. I saw Roger Vaughn
           in the flats in Electra [Texas] at a café. We
           drank and talked for a couple of hours. He
           said he ran out of money and had to go to
           Vernon [Texas] to get some money. He went to
           Vernon [Texas] before dark. He came back to
           my girlfriend’s house ... about 9:00 p.m. He
           acted nervous and asked my girlfriend to
           drive....   The next morning he left early.


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            After he left, I found out that the police
            were looking for him by watching T.V. Until
            today, May 7, 1992, I never have talked to the
            police or law authorities about this.

                 About three or four weeks ago, Jackie
            Vaughn [Vaughn’s brother] offered me five
            hundred dollars to testify that Roger and I
            were doing crack all the day that he killed
            the lady. I said no. I never told the police
            or law authorities about this until today.

      After considering counsels’ affidavit, the state trial court

recommended denial because “[i]nvestigation was done after [Vaughn]

belatedly requested it, and a strategy decision [was] made by

counsel ther[e]after”.       Ex parte Vaughn, at 4.     Furthermore, the

court found that Vaughn’s “court appointed trial counsel did not

fail to properly investigate [Vaughn’s] alleged alibi defense”.

.

      In considering this claim, the district court, under the

deferential AEDPA standard of review, deferred to the state court’s

findings of fact because Vaughn had failed to demonstrate by clear

and convincing evidence that they were incorrect.           Vaughn-USDC, at

35-36; see 28 U.S.C. § 2254(e)(1). Accordingly, the court presumed

“the facts contained in the attorneys’ affidavit[] and found

credible by the state habeas court to be correct”.          Vaughn-USDC, at

36.

      In holding no deficient-performance, the court first noted

that Vaughn’s counsel could not be faulted for not investigating

Green   earlier,   because    Vaughn   had   not   timely   provided   this


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information to them.        

   Concerning their not further

investigating, after their investigator interviewed Green, the

court stated that “counsel concluded that not only could Green not

provide a credible alibi for Vaughn, but that Green’s testimony

would aid the State in establishing a motive for the murder”.           

   The district court concluded:     “Under these circumstances,

Vaughn’s attorneys’ failure to use Green constituted a rational

tactical decision warranting ‘a heavy measure of deference’”; and

the “soundness of their decision not to use Green is reinforced by

Green’s    affidavit   in   which   he   accuses   Vaughn’s   brother    of

attempting to bribe him for favorable testimony”.         

prejudice, the district court first noted that, based

upon Green’s affidavit, any testimony would have been more harmful

than helpful. 

reviewing Green’s testimony given

as a rebuttal witness for the State during the punishment phase,

the district court noted Green testified as follows: he and Vaughn

were drinking together in Electra, Texas, for three to five hours

beginning at approximately 2:30 p.m., id.; Vaughn left to travel to

Vernon, Texas, to “get some money”; and, when Vaughn returned to

Electra, he was not acting “normal ... like he was when he left”,

     According to the district court, Green’s testimony,

            which places Vaughn in Vernon, where the
            murder took place, on the evening of the
            murder is not at all helpful to Vaughn and


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          further weakens his argument that he was
          prejudiced by his counsels’ failure to use
          Green as a witness.

     In his COA request, Vaughn maintains Green “testified [during

the penalty phase] that he was with [Vaughn] at the time that the

[victim] was murdered” and that had “counsel interviewed ... Green,

they could have offered his exculpatory testimony”.        Green’s

testimony, however, was that he was with Vaughn for between three

and five hours beginning at 2:30-3:00 p.m. the day of the murder;

it does not preclude Vaughn’s committing the murder between 6:30

and 7:00 p.m.

     Other than this contention, Vaughn does not address the

district court’s holding concerning this claim.       He fails to

satisfy the COA-merits-standard.

                               III.

     For the foregoing reasons, a COA is

                                                        DENIED.




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