REVISED, November 6, 1998


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 98-20507
                         _____________________


WILLIAM PRINCE DAVIS,

                                 Petitioner-Appellant,

          v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                 Respondent-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                         October 21, 1998

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

     William Prince Davis, a Texas death row inmate, requests a

certificate of appealability in order to appeal the district

court’s dismissal of his writ of habeas corpus.    In resolving

this appeal, we must decide an issue of first impression for this

circuit, namely, whether the one-year limitations period for the

filing of federal habeas claims by state prisoners is a statute

of limitations subject to equitable tolling or is a

jurisdictional bar.    We conclude that the limitations period does

not circumscribe federal jurisdiction, and can be equitably

tolled in appropriate, albeit extraordinary circumstances.
However, because we find that Davis has not made a substantial

showing of the denial of a constitutional right, we deny Davis

leave to appeal on all issues presented for appellate review.

                 I.   FACTS AND PROCEDURAL HISTORY

     In September 1978, William Prince Davis (Davis) was tried in

the 209th District Court of Harris County, Texas for a capital

offense, murder occurring during a robbery.   The Texas Court of

Criminal Appeals summarized the facts of Davis’s underlying crime

as follows:

     On the evening of June 2, 1978, [Davis] appeared at the
     door of the office of the Red Wing Ice Cream Company,
     just as several of the company drivers were turning in
     their day’s receipts. The proprietor, Richard Lang,
     aware that something was amiss, began to approach
     [Davis]. [Davis] shot Lang once in the lower chest
     with a .32 calibre pistol, and then ordered the drivers
     up against the wall. He escaped with more than $700
     and a shotgun. Lang died. At the time of this offense
     [Davis] was twenty-one years old.

Ex parte Davis, 

, 237 (Tex. Crim. App. 1993) (en

banc).   The guilt-innocence phase of Davis’s trial lasted only

one day, and on September 18, 1978, the jury found Davis guilty

of capital murder.

     During the punishment phase of Davis’s trial, the prosecutor

introduced evidence of Davis’s extensive criminal history.    On

September 19, 1978, the jury returned affirmative answers to two

special questions, asked pursuant to the capital sentencing

scheme employed by the State of Texas at the time of Davis’s

trial.   In their answers, the jury found that Davis acted

“deliberately” and that he probably would be dangerous in the



                                 2
future.1    On October 2, 1978, the trial court sentenced Davis to

death.

     On direct appeal, the Texas Court of Criminal Appeals

affirmed Davis’s conviction and death sentence, see Davis v.

State, 

(Tex. Crim. App. 1980) (en banc), and the

United States Supreme Court declined to grant a writ of

certiorari, see Davis v. Texas, 

(1980).

     After failing in his efforts on direct appeal, Davis filed a

state application for a writ of habeas corpus in 1989, which the

Court of Criminal Appeals denied in a one-page unpublished

opinion.    Davis then filed a second state application for habeas

relief in 1991, raising essentially the same issues as he does in

this federal petition.    Two years later, the 209th District Court

issued findings of fact and conclusions of law and recommended

that habeas relief be denied.    The Court of Criminal Appeals then

denied habeas relief.    See Ex parte 

.

     On February 13, 1997, Davis requested an appointment of

counsel because his state habeas counsel had become

incapacitated.    Two weeks later, Davis moved for an extension of

     1
         Specifically, the special issues read:

     Issue No. 1: Do you find from the evidence beyond a
     reasonable doubt that the conduct of the defendant,
     William Prince Davis, that caused the death of the
     deceased was committed deliberately and with the
     reasonable expectation that the death of the deceased
     or another would result?
     Issue No. 2: Do you find from the evidence beyond a
     reasonable doubt that there is a probability that the
     defendant, William Prince Davis, would commit criminal
     acts of violence that would constitute a continuing
     threat to society?

                                  3
time to file a federal habeas petition.    On March 4, the district

court appointed counsel in the federal proceedings and granted

Davis an extension to file his petition until May 26, 1997.     On

February 18, 1998, the district court granted a further extension

allowing Davis to file his petition by April 20, 1998.2   On April

6, 1998, the district court granted Davis’s motion to extend his

filing deadline to May 8, 1998.    On May 8, Davis filed his

federal habeas petition, raising several ineffective assistance

of counsel claims.   Respondent Johnson filed a motion in the

district court to dismiss the petition as time-barred, claiming

that Davis filed his petition after the applicable one-year

statute of limitations had run.

     On June 2, 1998, the district court denied Davis habeas

relief on alternative grounds.    First, the court found that

Davis’s petition was untimely because it was filed after the

applicable one-year limitations period.    It ruled that it was

“without the power to resurrect the petition” after the filing

period had lapsed and that it therefore may have erred by

previously granting Davis extensions of time to file beyond the

statutory period.    Davis v. Johnson, 

, 900 (S.D.


     2
       Davis claims that the district court did not notify
appointed counsel of his appointment until February 9, 1998.
This lack of notice, Davis argues, justifies equitably tolling
the applicable limitations period in this case to allow his
habeas petition to proceed. Because we assume without deciding,
infra, that the circumstances of this case justify equitably
tolling the one-year statute of limitations, it is not necessary
for this court to remand for factual findings concerning when
Davis’s attorney received notice of his appointment, and, more
generally, whether equitable tolling would be warranted.

                                  

).   Second, the district court analyzed the merits of

Davis’s ineffective assistance of counsel claims and found them

to be lacking.   Based on these findings, the court dismissed the

habeas petition.   The district court also denied Davis a

certificate of appealability (COA) to appeal his denial of habeas

relief to this Court.

                             II.   DISCUSSION

     Davis claims that the district court should have equitably

tolled the applicable one-year limitations period rather than

dismiss his petition as time-barred.        He also argues that he is

entitled to a COA to appeal claims related to his underlying

state-court conviction based on the Sixth Amendment right to the

effective assistance of counsel.         Specifically, Davis argues that

his attorney was ineffective in three situations--first, by

failing to object to prosecutorial statements concerning youth as

a mitigating factor; second, by inadequately defining the term

“deliberate” for the jury; and third, by failing to offer certain

testimony during the punishment phase of the trial.        We consider

each issue in turn.

                        A.   Standard of Review

     Under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Davis must obtain a COA in order to appeal the

denial of his habeas petition.3      A COA may only be issued if the

prisoner has made a “substantial showing of the denial of a

     3
       Because Davis filed his § 2254 petition in May 1998, the
COA requirement of AEDPA applies to his case. See Green v.
Johnson, 

, 1119-20 (5th Cir. 1997).

                                     5
constitutional right.”   28 U.S.C. § 2253(c)(2).   “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 questions are

adequate to deserve encouragement to proceed further.’”     Drinkard

v. Johnson, 

, 755 (5th Cir. 1996) (quoting Barefoot v.

Estelle, 

, 893 n.4 (1983)), cert. denied, 

(1997).

     Davis’s first contention is that the district court erred by

dismissing his federal habeas claim as barred by the statute of

limitations.   “When the district court dismisses a petition on

procedural, nonconstitutional grounds, we employ a two-step COA

process.”   Robison v. Johnson, 

, 263 (5th Cir. 1998)

(reviewing district court dismissal of habeas petition as

procedurally barred); see Murphy v. Johnson, 

, 11 (5th

Cir. 1997) (reviewing district court dismissal for non-exhaustion

of state-court remedies).   First, we must determine if Davis has

made a credible showing that his claim should not have been

dismissed as time-barred.   See 

; 

.   If Davis meets that requirement, we can then

decide if his contentions regarding his underlying state court

conviction raise a substantial showing of the denial of a

constitutional right.    See 

; 

.




                                 6
                    B.   Statute of Limitations

     Section 101 of AEDPA, incorporated as 28 U.S.C.

§ 2244(d)(1), included a one-year period of limitations within

which state prisoners could file federal habeas corpus

petitions.4   Specifically, § 2244(d) was amended to read:

     (1) A 1-year period of limitation shall apply to an
     application for a writ of habeas corpus by a person in
     custody pursuant to the judgment of a State court. The
     limitation period shall run from the latest of--
          (A) the date on which the judgment became final
          by the conclusion of direct review or the
          expiration of the time for seeking such review;
          (B) the date on which the impediment to filing an
          application created by State action in violation
          of the Constitution or laws of the United States
          is removed, if the applicant was prevented from
          filing by such State action;
          (C) the date on which the constitutional right
          asserted was initially recognized by the Supreme
          Court, if the right has been newly recognized by
          the Supreme Court and made retroactively
          applicable to cases on collateral review; or
          (D) the date on which the factual predicate of
          the claim or claims presented could have been
          discovered through the exercise of due diligence.
     (2) The time during which a properly filed application
     for State post-conviction or other collateral review
     with respect to the pertinent judgment or claim is
     pending shall not be counted toward any period of
     limitation under this subsection.

In this case, the Supreme Court denied Davis a writ of certiorari

on direct appeal in 1980, and his last state petition for a writ

of habeas corpus was decided in 1993.   Thus, under a literal

reading of § 2244(d), Davis’s right to petition a federal court

for habeas relief terminated years before he filed his petition

     4
       The addition of a period of limitations for federal habeas
claims altered the habeas landscape significantly; before AEDPA
there was no defined time limit on bringing § 2254 habeas claims.
See Lonchar v. Thomas, 

, 327 (1996); Brown v.
Angelone, 

, 371-72 (4th Cir. 1998).

                                 7
in May 1998.   However, in United States v. Flores, 

,

1006 (5th Cir. 1998), we held that for § 2254 petitions, “one

year, commencing on April 24, 1996, presumptively constitutes a

reasonable time for those prisoners whose convictions had become

final prior to the enactment of the AEDPA to file for relief.”5

We formulated the Flores rule to ensure that federal habeas

claims were not retroactively time-barred before the effective

date of AEDPA.   See 

      Thus, Davis had until April 24,

1997 to petition a federal court for habeas relief.        See Flanagan

v. Johnson, 

, 202 (5th Cir. 1998) (holding that the

limitations period for convictions becoming final before AEDPA’s

effective date ends April 24, 1997); accord Ross v. Artuz, 

, 103 (2d Cir. 1998).

     Davis failed to file his federal habeas claim until May

1998, after the limitations period had run, and the district

court therefore dismissed his petition as time-barred.       Davis

argues that the district court failed to consider whether the

AEDPA limitations period should have been equitably tolled, and

that his case presents an appropriate circumstance in which to

equitably toll the statute of limitations to allow his habeas

claim to proceed.

     In order to decide the question of whether the AEDPA

limitations period should have been equitably tolled in this


     5
       Although Flores arose in the context of a § 2255 habeas
claim, and not a § 2254 petition, as is the case here, we noted
in that opinion that the April 24, 1996 finality date applied to
both sections. See 

n.7.

                                    8
case, we must first determine whether the period is a statute of

limitations or a jurisdictional bar.   If the one-year filing

period in § 2244(d)(1) is a limitation on the jurisdiction of

federal courts, then federal courts lack the power to extend the

period to allow for late adjudication of claims.    However, if the

AEDPA period is a statute of limitations, courts can, in

extraordinary circumstances, allow late claims to proceed under

the doctrine of equitable tolling.   “The doctrine of equitable

tolling preserves a plaintiff’s claims when strict application of

the statute of limitations would be inequitable.”    Lambert v.

United States, 

, 298 (5th Cir. 1995) (citing Burnett

v. New York Cent. R.R. Co., 

, 428 (1965)).

     Whether AEDPA’s one-year limitations period limits federal

court jurisdiction or is subject to equitable tolling is a

question of first impression for this circuit.     See Henderson v.

Johnson, 

, 653 (N.D. Tex. 1998).    The only circuit

courts to have considered the question have held that the AEDPA

limitations period is not a jurisdictional bar.     See Miller v.

New Jersey State Dep’t of Corrections, 

, 618 (3d Cir.

1998); Miller v. Marr, 

, 978 (10th Cir.), cert.

denied, No. 98-5195, 

(Oct. 5, 1998); Calderon v.

United States Dist. Court, 

, 1289 (9th Cir. 1997),

cert. denied, 

(1998); cf. 

(holding that the limitation is not a jurisdictional bar);

Parker v. Bowersox, 

, 1252 (W.D. Mo. 1997)

(adopting the Calderon rationale and holding that the AEDPA


                                9
period is not jurisdictional).    We now join our sister circuits

in concluding that AEDPA’s one-year statute of limitations does

not operate as a jurisdictional bar and can, in appropriate

exceptional circumstances, be equitably tolled.

     “The objective of a court called upon to interpret a statute

is to ascertain congressional intent and give effect to

legislative will.”    Johnson v. American Airlines, Inc., 

, 992 (5th Cir. 1984) (citing Philbrook v. Glodgett, 

, 713 (1975)).    The clearest indication of congressional

intent is the words of the statute itself.     See Hall Fin. Group,

Inc. v. DP Partners, Ltd. Partnership (In re DP Partners Ltd.

Partnership), 

, 670 (5th Cir.), cert. denied, 118 S.

Ct. 63 (1997).   When the language of a statute is unambiguous we

must follow its plain meaning.     See Stiles v. GTE Southwest Inc.,

, 907 (5th Cir. 1997).

     A plain reading of the language of § 2244, which contains

the AEDPA limitations period, leads to the conclusion that

Congress intended that the limitations period be interpreted as a

statute of limitations.    The limitations period does not “speak

in jurisdictional terms” and does not explicitly refer to any

limitations on jurisdiction.     Zipes v. Trans World Airlines,

Inc., 

, 394 (1982).    Instead, § 2244(d)(1) states

only that “a 1-year period of limitation shall apply” and does

not contain any restrictive language that would imply a limit on

federal court jurisdiction.    The Supreme Court has held that

limitations periods with even more limiting language than the


                                  10
AEDPA provision could be equitably tolled.    See 

(holding that a limitations period mandating that “no

action shall be maintained . . . unless commenced within three

years from the day the cause of action accrued” was subject to

equitable tolling).    In addition, the limitation period does not

establish an absolute outside limit within which suits must be

filed, as in the ERISA limitations period we recently found to be

a statute of repose.    See Radford v. General Dynamics Corp., 

, 400 (5th Cir. 1998).   In that case, we found that a

limitations period mandating that “[n]o action may be commenced .

. . after the earlier of” six years after the last violation or

three years after discovery of the violation should be

interpreted as a statute of repose that could not be equitably

tolled.   29 U.S.C. § 1113; see 

; see also

Underwood v. Wilson, 

, 295 (5th Cir. 1998) (holding

that because a provision requiring that potential plaintiffs

exhaust administrative remedies before bringing § 1983 civil

rights suits did not use “sweeping and direct” language limiting

federal jurisdiction, the provision was not a jurisdictional

bar).   Section 2244(d)(1) does not prohibit the courts from

entertaining actions after the statutory limit has passed;

instead, it merely sets forth the relevant statute of

limitations.   Therefore, the statutory language of § 2244(d)(1)

indicates that Congress did not intend the limitations period to

divest federal jurisdiction.




                                 11
     This interpretation of § 2244(d)(1) is consistent with a

plain reading of AEDPA’s placement within the federal habeas

statute.   When Congress amended the habeas corpus provisions by

enacting AEDPA, it took care to separate jurisdiction provisions

from this limitations-period provision.    The explicit grant of

jurisdiction to the district courts relating to the habeas writ

is contained in 28 U.S.C. § 2241.     Congress chose to insert the

AEDPA limitation amendment into § 2244, which concerns the

finality of determinations and contains provisions relating to

non-jurisdictional limitations, such as restraints on duplicative

and frivolous litigation.   This plain reading of the statute as a

whole implies that Congress did not intend by its choice of

language and placement to limit federal jurisdiction through

adoption of a one-year limitations period for federal habeas

claims.

     AEDPA’s statutory language and construction clearly evinces

a congressional intent to impose a one-year statute of

limitations for the filing of federal habeas claims by state

prisoners.   We hold, therefore, that the one-year period of

limitations in § 2244(d)(1) of AEDPA is to be construed as a

statute of limitations, and not a jurisdictional bar.    As such,

in rare and exceptional circumstances, it can be equitably

tolled.    See Conaway v. Control Data Corp., 

, 361-62

(5th Cir. 1992) (finding that because a limitations period is not

a jurisdictional requirement, “the limitation statute is subject

to estoppel and equitable tolling”) (citing 

393); see also 

(“[AEDPA’s] one-year

timing provision is a statute of limitations subject to equitable

tolling, not a jurisdictional bar.”).

     We are persuaded that reasonable juries might differ with

regard to equitably tolling the statute of limitations based on

the extraordinary circumstances present in this case.     Davis has

therefore made a credible showing that the district court erred

in dismissing his federal habeas petition as untimely.     Following

Robison and Murphy, we can now consider whether Davis has made a

substantial showing of the denial of a constitutional right with

respect to his underlying state court conviction.      See 

; 

.

              C.   Ineffective Assistance of Counsel

     Davis also claims that his trial counsel’s performance

denied him the effective assistance of counsel guaranteed by the

Sixth Amendment.   Davis asserts that his counsel rendered

ineffective assistance by--first, failing to object when the

prosecutor committed jurors to disregarding Davis’s youth as a

potential mitigating factor in deciding Davis’s punishment;

second, failing to object when the prosecutor equated the

“intentional” standard used in the guilt-innocence phase of the

trial with the “deliberate” standard used in the punishment

phase; and third, failing to introduce certain oral testimony

during the punishment phase of the trial.

     To prevail on his ineffective assistance of counsel claims,

Davis must demonstrate that his attorney’s performance was


                                13
deficient, and that the deficiency prejudiced his defense.       See

Strickland v. Washington, 

, 687 (1984).      An

attorney’s performance is deficient only when the representation

falls below an objective standard of reasonableness.       See 

  Our review of the performance of Davis’s attorney must

be “highly deferential,” and we must make every attempt to

“eliminate the distorting effects of hindsight.”       

    We

must also maintain a “strong presumption that . . . the

challenged action might be considered sound trial strategy.”          

marks omitted).

     To prove that his attorney’s conduct prejudiced his defense,

Davis “must show that there is a reasonable probability that, but

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

would have been different.”      

  Davis must therefore

show that, absent his counsel’s deficiencies, there is a

reasonable probability that the jury would not have sentenced him

to death.     See 

  A reasonable probability is a

probability “sufficient to undermine confidence in the outcome.”

     The Texas Court of Criminal Appeals, in Davis’s state habeas

proceeding, has already considered the merits of and denied

relief on each of Davis’s Sixth Amendment claims.       See Ex parte

Davis, 

(Tex. Crim. App. 1993).      We have previously

found that an explicit denial of relief on the merits by the

Texas Court of Criminal Appeals is an “adjudication on the




                                   14
merits” entitled to deference under AEDPA.    28 U.S.C. § 2254(d);

see Jackson v. Johnson, 

, 523-24 (5th Cir. 1998).

       We have determined that both prongs of the Strickland test

involve mixed questions of law and fact.     See Nobles v. Johnson,

, 418 (5th Cir. 1997), cert. denied, 

(1998).    Under the AEDPA deference scheme, a federal court will

not disturb a state court’s application of law to facts unless

the state court’s conclusions involved an “unreasonable

application” of clearly established federal law as determined by

the Supreme Court.     28 U.S.C. § 2254(d)(1); see Corwin v.

Johnson, 

, 471 (5th Cir. 1998); 

.    An application of federal law is unreasonable when

“‘reasonable jurists considering the question would be of one

view that the state court ruling was incorrect.’”     

(quoting 

).    In addition,

any state-court factual determinations must be presumed correct

unless rebutted by clear and convincing evidence.     See 28 U.S.C.

§ 2254(e)(1); 

.

       With this standard in mind, we now consider Davis’s

arguments.

                  1.   Youth as a mitigating factor

       Davis’s trial attorney did not object when the prosecutor

instructed the jury on two occasions that Davis’s youth could not

be considered to be a mitigating factor in the punishment

determination.    First, during voir dire, Davis’s counsel did not

object to the prosecutor obtaining commitments from each eventual


                                  15
juror that he or she would not consider Davis’s “youthful

appearance and age,” and commitments from one-half of the jurors

not to consider any evidence of youth at all during punishment

deliberations.    Second, Davis’s attorney also failed to object

during the prosecutor’s summation during the punishment phase of

the trial, when the prosecutor reminded each juror of his or her

commitment not to consider youth in selecting a punishment.6

Davis argues that these failures constituted ineffective

assistance of counsel in violation of the Sixth Amendment.

     The Texas Court of Criminal Appeals held that this conduct

by Davis’s attorney did not prejudice Davis’s defense.       See Ex

parte 

.    The court noted that youth is

only relevant as a mitigating factor to the second special issue,

whether Davis would be dangerous in the future, and that a jury

may find youth mitigating within that context only if it could

find that a defendant’s “violent conduct is a product of his

youth, [and that] he may be expected to outgrow it.”       

(citing Johnson v. Texas, 

, 368 (1993)).       The state

court found that the wealth of evidence presented during the

punishment phase of the trial concerning Davis’s extensive

criminal past foreclosed any reasonable probability that the jury


     6
         In relevant part, the prosecutor told the jury:

     You promised me on voir dire that the age of the
     defendant was irrelevant, that the youthful appearance
     of a defendant was irrelevant. You told me that you
     could answer the questions based upon the evidence and
     not merely your personal desire. . . . My purpose in
     this argument is to hold you to that promise.

                                 16
would have found Davis capable of reforming his conduct as he

matured.7    See 

  Because “no other mitigating

aspect of youth need have been considered,” the court found that

Davis’s defense was not prejudiced and he therefore was not

deprived of effective assistance of counsel under the Sixth

Amendment.    

.   We cannot say that this state-court

conclusion involved an unreasonable application of the Strickland

test.

     The Supreme Court, in Johnson v. Texas, 

, 368

(1993), articulated that “[t]he relevance of youth as a

mitigating factor derives from the fact that the signature


     7
         Specifically, the Court of Criminal Appeals recounted
that:

     the punishment phase of trial revealed that by the time
     he was ten years old [Davis] was skipping school and
     stealing bicycles. At twelve he was sent to a
     detention home for boys for a year, and before he was
     fifteen he returned there twice. At fifteen [Davis]
     landed in the reformatory at Gatesville for eighteen
     months. At seventeen he was convicted of three
     instances of aggravated robbery and one instance of
     burglary of a habitation, and was assessed four
     concurrent six year sentences. In one of the
     aggravated robberies [Davis] used a pistol, and when
     police tried to apprehend him, he took a hostage. In
     another aggravated robbery he wielded a butcher knife.
     At the time of his arrest for the instant offense
     [Davis] confessed that between the time of his parole
     and his arrest he committed at least five robberies and
     thirteen burglaries. Only five days after killing
     Lang, [Davis] returned to burglarize the Red Wing Ice
     Cream Company. [Davis] estimated that from the age of
     twelve up to the day of trial he had spent only a year
     and a half outside institutional walls. He admitted
     that in this brief time he committed over twenty
     violent or potentially violent felony offenses.

Ex parte 

.

                                  17
qualities of youth are transient; as individuals mature, the

impetuousness and recklessness that dominate in younger years may

subside.”   Thus, the state court did not err in determining that

the relevant question under Strickland is whether the jury would

have decided not to impose the death penalty after considering

whether Davis’s crime was a product of youthful immaturity.     The

prosecutor legitimately presented detailed evidence concerning

Davis’s extensive criminal past during the punishment phase of

the trial that could have reasonably persuaded jurors that

Davis’s crime was not a product of his youth.   Based on this

evidence, we cannot say that the state court’s determination that

Davis’s defense was not prejudiced by his attorney’s failure to

object to the prosecutor’s statements was unreasonable.   This

conclusion was not “so clearly incorrect that it would not be

debatable among reasonable jurists.”    

;

see Brock v. McCotter, 

, 1158 (5th Cir. 1986)

(finding no Sixth Amendment violation after prosecutor improperly

told juror that youth could not be considered a mitigating

factor, as “where no reasonable person would view a particular

fact as mitigating it may properly be excluded as irrelevant”).

Therefore, we decline to issue Davis a COA on this ground.

             2.   Intentional versus deliberate conduct

     Davis next claims that because his counsel inadequately

maintained the distinction between an intentional and a

deliberate killing, he was denied effective assistance of counsel

under the Sixth Amendment.   The prosecutor told eight eventual


                                 18
jurors that “deliberate” meant nothing more than purposeful, and

during his punishment-phase summation, he told the jurors that

because they had found Davis’s killing to be intentional in the

guilt-innocence phase of the trial, they had already decided that

the killing was deliberate.   Davis’s attorney failed to object to

these prosecutorial statements.    Davis also claims that his

attorney did not distinguish between the two terms during his

cross-examination of Davis during the punishment phase of the

trial and that he confused the terms in his final summation.

     The Texas Court of Criminal Appeals found that the failure

of Davis’s attorney to distinguish between “intentional” and

“deliberate” was not deficient under the first Strickland prong.

See Ex parte 

.    The state court found

that at the time of Davis’s trial in 1978, Texas courts had not

yet explicitly articulated a distinction between the two terms.

See 

  Therefore, the failure of Davis’s attorney to

distinguish between them was objectively reasonable and could not

constitute constitutionally defective assistance of counsel.      See

  We find that this state-court conclusion is a

reasonable application of Strickland.

     It was not until 1981, when the Texas Court of Criminal

Appeals decided Heckert v. State, 

(Tex. Crim. App.

1981), that Texas law clearly distinguished “deliberate” from

“intentional” conduct.8   Before that time, even the Texas Supreme

     8
       The Heckert court found that the two standards were not
identical. See 

. Later Texas cases
have made clear that “deliberate” is a higher standard than

                                  19
Court used the terms interchangeably.   See Blansett v. State, 

, 327 n.6 (Tex. Crim. App. 1977); see also Morin v.

State, 

, 271 (Tex. Crim. App. 1983) (Clinton, J.,

dissenting) (noting that before Heckert, the terms were not

precisely distinguished).   Given the lack of clarity between the

two terms at the time of Davis’s trial, we cannot say that the

state court was unreasonable in holding that Davis’s attorney was

not deficient under Strickland.    See Williams v. Scott, 

, 164 (5th Cir. 1994) (finding that because “no definite

distinction between deliberately and intentionally had been

authoritatively expressed” before defendant’s 1981 trial,

defendant’s counsel was not deficient for failing to object to

statements equating the two terms); cf. Motley v. Collins, 

, 1227 (5th Cir. 1994) (finding no Strickland violation

when defendant’s attorney failed to object during voir dire to

prosecutor’s statements equating intentional and deliberate where

the defendant “has not shown how a more favorable definition of

‘deliberately’ would have caused at least one juror to return a

negative answer to the first special issue”) (footnote omitted);

Landry v. Lynaugh, 

, 1120 (5th Cir. 1988) (finding

no Strickland prejudice when attorney did not object to

prosecutor’s voir dire statements equating intentional and

deliberate).   Davis’s request for a COA on this issue is

therefore denied.


“intentional,” only encompassing conduct that results from a
“determination on the part of an actor to kill.” Cannon v.
State, 

, 677 (Tex. Crim. App. 1985).

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              3.   Failure to introduce oral testimony

       Lastly, Davis complains that his trial counsel was

ineffective because he did not attempt to introduce certain oral

testimony during the punishment phase of the trial.       During the

guilt-innocence portion of the trial, Davis’s attorney attempted

to introduce the testimony of Detective John Deloney, the

detective to whom Davis orally confessed the day before Davis

made a written statement.    The testimony Davis’s attorney

attempted to elicit related to Davis’s state of mind at the time

of the shooting.    Specifically, Deloney would have testified that

Davis told him he thought Lang, the victim, was coming after him

to take the gun, and that Davis had remarked, “I had to shoot the

man.    He was going to take the gun away from me.”   These

assertions were not in Davis’s written confession.       The trial

judge excluded the testimony as irrelevant to the issue of guilt

or innocence, and Davis’s counsel did not attempt to introduce

the testimony during the punishment phase of the trial.

       Davis asserts that Deloney’s testimony was relevant to the

first capital sentencing issue of deliberateness.     He contends

that the testimony evidences a lack of premeditation and planning

concerning the killing, and therefore the jury should have been

able to consider the testimony and credibility of the detective.

The failure of his attorney to introduce the testimony, Davis

argues, amounted to ineffective assistance of counsel in

violation of the Sixth Amendment.




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     The Texas Court of Criminal Appeals disagreed, finding that

Davis had not overcome the Strickland presumption that the

decision not to call Deloney was part of his attorney’s trial

strategy.   See Ex parte 

.   The state

court noted that Davis’s attorney had already introduced

testimony similar to Deloney’s proposed testimony during both the

guilt and punishment phases of Davis’s trial.   See 

found that the attorney’s decision not to elicit Deloney’s

testimony during the punishment phase was consistent with his

apparent trial strategy of having Davis “acknowledge all guilt as

a predicate to rehabilitation” in an effort to persuade the jury

that Davis would not be dangerous in the future.     

of Criminal Appeals then denied Davis relief because he did not

overcome the presumption, explicit in Strickland, that his

attorney “‘made all significant decisions in the exercise of

reasonable professional judgment.’” 

466

U.S. at 690).

     We find the state court’s conclusion that Davis was not

denied effective assistance of counsel because of his attorney’s

failure to introduce Deloney’s testimony to be a reasonable

application of Strickland.   The Court of Criminal Appeals stated

that Davis’s counsel “was clearly attempting to paint his client

as a penitent, willing to take responsibility for his offense,

and therefore capable of rehabilitation.”   

   Deloney’s

testimony implied that after the killing, Davis thought the death

was the victim’s fault--he stated that he “had to shoot [Lang]”


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because “[h]e was going to take the gun away from me.”   The state

court did not unreasonably apply Strickland in indulging a strong

presumption that Davis’s attorney’s failure to introduce

Deloney’s statement therefore “might be considered sound trial

strategy.”   

(internal quotation marks

omitted); see also Duff-Smith v. Collins, 

, 1183

(5th Cir. 1992) (finding that decision not to offer potentially

damaging testimony was protected as trial strategy).   Because

Davis has not attempted to rebut this presumption, after applying

AEDPA’s deferential standard of review we cannot say that the

state court erred in denying Davis’s requested relief, and we

decline to issue a COA on this issue.   Cf. Teague v. Scott, 

, 1172 (5th Cir. 1995) (“A decision regarding trial

tactics cannot be the basis for a claim of ineffective assistance

of counsel unless counsel’s tactics are shown to be so ill chosen

that it permeates the entire trial with an obvious unfairness.”)

(internal quotation marks omitted).



                         III.   CONCLUSION

     For the foregoing reasons, we DENY Davis’s request for a

certificate of appealability and VACATE our grant of a stay of

his execution.




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