Revised January 13, 1999

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                            ____________

                            No. 97-50606
                            ____________


          LYNN MURPHY CREEL,


                               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 Western District of Texas

                         December 23, 1998

Before POLITZ, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:

     Lynn Murphy Creel appeals the district court’s denial of his

petition for habeas corpus relief under 28 U.S.C. § 2254.   A Texas

jury convicted Creel of capital murder and sentenced him to life

imprisonment.   He argues that the district court erred in ruling

(1) that a lesser-included-offense instruction was not warranted;

(2) that undisclosed perjury of a witness was not material to his
case; (3) that the state did not violate his Sixth Amendment right

to counsel; (4) that an evidentiary hearing should not be held on

his claim of actual innocence; and (5) that his trial counsel did

not render ineffective assistance.      We affirm.

                                   I

     Creel met Wilson Smith (“Smith”), the man whom Creel was

later convicted of murdering, through Irene Plangman.      Plangman

had become acquainted with Mrs. Joan Smith (“Joan”) through

business dealings, and Plangman lived briefly with the Smiths.

During that time, Plangman and Creel were sexually intimate.

Creel sold Joan some jewelry, and Plangman acted as an

intermediary in the transaction.       When Joan was unable to raise

the purchase price, Creel became angry over the sale and

Plangman’s friendship with the Smiths.      Creel contacted Julie

Woodley about posing as a potential buyer for some property that

the Smiths had for sale.   According to Woodley, Creel wanted to

talk to the owners about money owed to him.      Woodley arranged by

telephone for Smith to meet her, and then called Creel to tell

him of the arrangement.    The next morning, Smith left to meet the

potential buyer; Joan never saw Smith again.

     Creel arrived later that day at Plangman’s house and told

her he had Smith in his van.   He wanted her assistance and advice

in deciding what to do with Smith.      When Plangman expressed

disbelief, Creel declared he “would handle things himself.”       At

Plangman’s suggestion that he let Smith go, Creel responded that

                                 -2-
he, “wasn’t going to spend the rest of his life in jail for

kidnaping someone and then [having the victim] talking about it

later.”   When Creel called Plangman the next day he told her,

“Well it’s all over.   It’s finished.”    Creel remarked, “what

happened to a person as they got older, did they just give up the

fight to live, or did they just not care, or did they just become

hard and--refused to fight for life.”

      While borrowing the van a few days later, Plangman found

some of Smith’s jewelry and belongings in a side pocket.     When

questioned about the jewelry, Creel stated he intended to sell

it.   An employee at a local jewelry store, Charles Goodnough,

testified that Creel sold him a ring similar to one Smith was

wearing when he disappeared.

      Joan reported Smith’s disappearance and gave Adolpho

Cuellar, a Texas Ranger, the names of Plangman and Creel as

possible suspects.   Cuellar interviewed Plangman, who became his

chief source of information.   Plangman related the jewelry

discovery to Cuellar the day after it occurred.

      Others testified against Creel.    Randal Graham testified

that prior to Creel’s arrest, Creel stated, “I’ve killed a man

and I’ve got his body in the back of the van, and I need you to

help me get rid of it.”   Graham’s wife Catherine corroborated

this testimony.   The Grahams left, declining to aid Creel.

      After Medina County charged Creel with aggravated kidnapping

and aggravated robbery, Plangman disclosed communications she had

                                -3-
with Creel while he was incarcerated.    Plangman testified that

Creel’s letters to her contained coded instructions on how to

dispose of Smith’s body.    Creel received information from his

cell mate, Jay Martinez, regarding the appropriate mix of acids

to dissolve a body.    Creel then directed Plangman to give a

friend of his, David Wolf, information on buying acids to

dissolve the body.    Wolf testified that Plangman attempted twice

to give him maps, reportedly from Creel, that led to the body.

He looked at the second map briefly before throwing it away.      In

response to Cuellar’s repeated requests for the location of

Smith’s body, Plangman insisted she did not know.

     The Medina County Grand Jury returned indictments for

aggravated robbery and aggravated kidnaping of Smith.    At a

meeting the next day, Cuellar questioned Plangman about the

body’s location and Plangman said, “Let’s just drive.”    She

directed Cuellar to a rural residence in disrepair in Bexar

County and suggested the possibility that the body was buried

there.   She told Cuellar she led him there because she had been

there with Creel.    Cuellar returned the next day and found

Smith’s body in a barn.    Plangman also returned the next day and,

upon hearing that Cuellar found Smith’s body, said, “I did it.”

She testified later that her statement was caused by the

emotional stress and shock of finding the body.

     The chief medical examiner testified about the results of

the autopsy on Smith’s body, which was identified by his

                                 -4-
dentures.   Smith’s severely decomposed body did not reveal trauma

such as bullet holes or fractures.    Silver-colored duct tape

covered the mouth but not the nose area; however, rodents had

eaten the nose, making it impossible to know whether the tape

originally covered all breathing passages.    Removing the duct

tape revealed a knotted red cloth wedged in the mouth.    Based on

the state of decomposition, the examiner testified that the body

had been buried for months.

     The medical examiner expressed the opinion that the manner

of death was “homicide,” based upon the fact that the person was

bound, the mouth was stuffed with a gag, and the hands and feet

were tied and bound.   Although the autopsy revealed that Smith

suffered from moderate coronary artery disease and the examiner

admitted it was possible that heart failure caused the death, the

examiner insisted he would still classify the death as a

homicide.   According to the examiner, the gag in the mouth was

more dangerous than the duct tape, because a gag typically works

its way back to block the airway and eventually causes death by

choking.

     A jury convicted Creel of capital murder in the 144th

District Court of Bexar County, Texas.    At the sentencing phase

of trial, the jury sentenced Creel to life imprisonment.    After

his conviction was affirmed on direct and state collateral

review, Creel filed a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254.

                                -5-
     A magistrate held an evidentiary hearing on five of Creel’s

alleged grounds for relief.    Much of the evidence concerned

Plangman.   Cuellar testified Plangman had begun acting as an

informant six days before Creel’s arrest, and that, although

Cuellar did not instruct Plangman to obtain information, he was

hopeful she would supply it to him. Creel testified that when he

was in jail Plangman urged him to write her letters.    Creel

argued Plangman assisted Cuellar in finding Woodley in exchange

for Cuellar’s help in getting the jewelry returned from Joan.

Creel testified he did not know Plangman provided information to

Cuellar until Cuellar later named her as an informant at a court

hearing.

     Creel also presented newly discovered evidence of his

alleged innocence.    Creel proffered evidence that Smith had

signed a document transferring title to a car after Creel had

been arrested.    Creel argued that, because he was in jail, he

could not have killed Smith.

     The district court adopted the magistrate’s recommendation

to deny habeas.    Creel appeals this denial, having obtained a

Certificate of Probable Cause (“CPC”) from the district court.1


     1
       The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
is inapplicable to Creel’s case, because he filed his first
petition for habeas relief prior to April 24, 1996, the effective
date of the AEDPA. See Lindh v. Murphy, 

, __ , 117 S.
Ct. 2059, 2063, 

. 481 (1997). We apply pre-AEDPA law
to his claims. See Green v. Johnson, 

, 1120 (5th Cir.
1997).

                                 -6-
In considering a federal habeas corpus petition by a prisoner in

state custody, federal courts must generally accord a presumption

of correctness to any state court factual findings.     See Mann v.

Scott, 

, 973 (5th Cir. 1994)(citing 28 U.S.C. §

2254(d)). We review the district court’s findings of fact for

clear error, but decide questions of law de novo.     See 

argues that the district court erred in finding he was

not entitled to a lesser-included-offense instruction.    The state

trial court denied Creel’s request for an instruction on the

lesser included offense of felony murder, which differs from

capital murder in that felony murder does not require the

prosecution to prove an intent to kill.   See Creel v. State, 

, 211 (Tex. Crim. App. 1988)(en banc)(explaining

capital and felony murder differ only in culpable mental state).

Compare TEX. PENAL CODE ANN. § 19.03(a)(2)(West 1994)(capital

murder), with TEX. PENAL CODE ANN. § 19.02(b)(3) (felony murder).

     Creel argues that due process requires that juries in

capital murder cases receive a lesser included offense

instruction when it is supported by the evidence.   Creel cites

Beck v. Alabama, 

, 

, 

(1980), which held invalid a provision of the Alabama death

penalty statute that precluded a jury instruction on a lesser

included noncapital offense.   The statute forced the jury either


                                -7-
to convict, in which case the death penalty was imposed

automatically, or to acquit, in which case the defendant would

escape all penalties.   See 

100 S. Ct. at 2385.

The Court stated that the failure to give the jury the “third

option” of convicting on a lesser included offense decreases the

reliability of the verdict, because when “the defendant is

plainly guilty of some offense, the jury is likely to resolve its

doubts in favor of conviction.”     

100 S. Ct. at 2388

(quoting Keeble v. United States, 

, 213, 

, 1995, 

(1973)).    This risk “cannot be

tolerated in a case in which the defendant’s life is at stake.”

100 S. Ct. at 2389.

     We have applied Beck to cases in which a state trial court

refuses a lesser-included-offense instruction.2    See Cordova v.

Lynaugh, 

, 767 (5th Cir. 1988).     Beck itself endorsed


     2
       The State argues that Creel relies mistakenly on Beck,
because in Livingston v. Johnson, 

, 313 (5th Cir.),
cert. denied, __ U.S. __, 

, 

(1997),
we held that Beck does not apply to the Texas sentencing scheme.
Although the trial court in Livingston instructed the jury on
capital murder and the lesser included offense of murder,
Livingston challenged the trial court’s failure to instruct
additionally on felony murder. We rejected Livingston’s challenge
because the jury had a “third option”: to convict on the lesser
included offense of murder.    We did not extend Beck, which was
concerned with the all-or-nothing scheme, to cases in which the
defendant did have the benefit of a third option. See 

(citing Allridge v. Scott, 

, 220 (5th Cir. 1994)(stating
Beck inapplicable when jury had option to choose murder over
capital murder)). Livingston is inapposite because the jury that
convicted Creel did not have a third option to consider.

                                  -8-
no particular standard under which a court must give a lesser-

included-offense instruction.    See Reddix v. Thigpen, 

, 511 (5th Cir. 1986)(“The Beck Court . . . appeared to accept

the variation in standards.”)(citation omitted).    However, in

Cordova we equated the standards described approvingly in Beck

with the standard used in federal trials.    See 

(“[W]e conclude that the federal standard . . . is

equivalent to the Beck standard that a lesser included

instruction must be given when the evidence would have supported

such a verdict.”).    The federal rule, “that the defendant is

entitled to an instruction on a lesser included offense if the

evidence would permit a jury rationally to find him guilty of the

lesser offense and acquit him of the greater,” comports with

federal due process.    

, 100 S. Ct. at 2388

(citation omitted).

       Creel maintains that the trial evidence supported the “third

option” of an instruction for felony murder.    Creel argues that a

jury could rationally convict him of felony murder and acquit him

of capital murder, because the evidence is consistent with

accidental death and does not establish intent to kill Smith.      He

points to the autopsy report that indicates heart failure as a

possible cause of death, the absence of tape on Smith’s nose, and

the possible use of the gag to quiet Smith, rather than to kill

him.    He states his comment to the Grahams that “he killed a man”


                                 -9-
does not establish it was intentional, and that his comments to

Plangman were inconclusive due to their vagueness.   He argues

that, because a jury could acquit him of capital murder, he was

entitled to an instruction on the “third option” of felony

murder.

     The State argues that, because Creel is sentenced to life

imprisonment rather than death, we should treat the case as a

non-capital case.   The cases since Beck in which we have

considered entitlement to a lesser-included-offense instruction

have been “purely” capital cases in which a jury convicted a

defendant and sentenced him to death.   See, e.g., Linceum v.

Collins, 

, 1273, 1275 (5th Cir. 1992); 

.   This case presents, therefore, the novel issue of

whether a case in which a defendant who initially faces capital

charges, but is ultimately sentenced to life imprisonment, should

be classified as capital or non-capital for Beck purposes.3


     3
       Creel contends we should not review this issue because the
State did not argue it to the district court. We resolve the issue
because uncertainty exists with respect to a pure question of law.
See Singleton v. Wulff, 

, 121, 

, 2877, 

. 826 (1976)(“The matter of what questions may be taken up
and resolved for the first time on appeal is one left primarily to
the discretion of the court of appeals, to be exercised on the
facts of individual cases.”); Roosevelt v. E.I. Du Pont de Nemours
& Co., 

, 419 n.5 (D.C. Cir. 1992)(citation omitted)
(noting discretion will be exercised in circumstance of uncertain
state of the law). This purely legal uncertainty distinguishes
this case from those in which we apply plain error review to the
issues presented first to the appellate court.        See Rhett R.
Dennerline, “Pushing Aside the General Rule in Order to Raise New
Issues on Appeal,” 64 Ind. L.J. 985, 999 (1989)(explaining how

                               -10-
     Several circuits classify cases in which the death penalty

is sought, but not imposed, as noncapital cases.   See Pitts v.

Lockhart, 

, 112 (8th Cir. 1990) (finding case should

be treated as noncapital case for purpose of due process);

Trujillo v. Sullivan, 

, 602 (10th Cir. 1987)(same).

The concerns in Beck, that a defendant should not be sentenced to

death automatically if a jury cannot convict on a lesser offense,

are absent in cases in which the death penalty is not imposed

ultimately.   These cases do not implicate directly the Eighth

Amendment’s prohibition on cruel and unusual punishment, which

courts interpret to require greater procedural safeguards in

capital cases.   See 

, 602 (stating

Eighth Amendment values not implicated).   Creel did not receive

the death sentence, and therefore his case is analytically more

similar to a noncapital case.

     Creel urges us to treat his case as a capital one because

the judge must decide, before any sentence is imposed, whether to

instruct on a lesser included offense.   The imposition of a life

sentence, Creel contends, does not change the nature of the case

at the stage where the jury determines guilt.   We reject Creel’s


characterizing an issue as one of “pure law,” which raises a new
theory, differs from characterizing it as “plain error,” which
alleges trial error to which there was no objection, but could be
clearly resolved); cf. United States v. Calverley, 

, 163
(5th Cir. 1994) (en banc) (holding plain error review appropriate
where the error was clear under current law at the time of trial).


                                -11-
argument.   The only circuit to treat these cases as capital

cases, as Creel urges, also performs a harmless-error analysis.

See Rembert v. Dugger, 

, 303 (11th Cir. 1988)

(treating these cases as capital cases).      In Rembert, because

“[t]he danger of an unwarranted death sentence ended when Rembert

was given life,” the court concluded that the constitutional

error was rendered harmless.    

   Creel received a life

sentence under a bifurcated sentencing scheme.     Thus, even if we

were to consider the case a capital one, any error would be

harmless.   See Wiggerfall v. Jones, 

, 1549-50 (11th

Cir. 1990) (explaining that when defendant receives life sentence

pursuant to bifurcated sentencing scheme, error in failing to

instruct on lesser included offense is harmless).

     We hold that a case in which the death penalty is sought but

not imposed ultimately is classified as a noncapital case for the

purposes of a Beck analysis.    “In a non-capital murder case, the

failure to give an instruction on a lesser included offense does

not raise a federal constitutional issue.”      See Valles v.

Lynaugh, 

, 127 (5th Cir. 1988); Alexander v.

McCotter, 

, 601 (5th Cir. 1985)(holding lesser

included offense instruction is not a federal constitutional

matter in non-capital cases).   The Texas Court of Appeals

concluded that the evidence did not support instruction on felony

murder.   Absent a violation of the Constitution, we defer to the


                                -12-
state court interpretation of its law for whether a lesser-

included-offense instruction is warranted.    See 

.

                                III

     Creel alleges that the state used perjured testimony when it

allowed Plangman to testify that she lacked knowledge of the

body’s location prior to when it was found.     A state denies a

criminal defendant due process when it knowingly uses perjured

testimony at trial or allows untrue testimony to go uncorrected.

See Giglio v. United States, 

, 154, 

,

766, 

(1972); Napue v. Illinois, 

,

269, 

, 1177, 

(1959).    The

defendant must show that (1) the testimony was false, (2) the

state knew it was false, and (3) the testimony was material.       See

Kirkpatrick v. Whitley, 

, 497 (5th Cir. 1993).     This

test presents a mixed question of law and fact, and thus we

review the underlying facts for clear error and the conclusions

from the facts de novo.   See Ornelas v. United States, 

, 699, 

, 1663, 

(1996); United

States v. O’Keefe, 

, 894 (5th Cir. 1997), cert.

denied, )) U.S. )), 

, 

(1998).

     Creel argues that Plangman testified falsely at trial that

she did not know the location of the body, and that the state

knew the falsity of the testimony.    Cuellar’s police progress


                               -13-
report, which Creel obtained after his conviction, is “hardly a

font of clarity or consistency,” as the district court

acknowledged.   The report states: “She was asked if she knew

where the body was and she stated she had no idea where it might

be and she refused to tell.    She further stated that she had

learned it’s [sic] location just recently by taking messages to

David Wolf from Lynn Creel who is in jail.”    Creel argues that

the report evidences Plangman’s perjury, and that, on direct

examination at trial, prosecutors elicited testimony in which

Plangman denied knowing the body’s location prior to when the

police discovered the body.

     The State responds that, even though Plangman testified

falsely, it did not knowingly use perjured testimony.    Former

Bexar County Assistant District Attorney Raymond Fuchs, one of

the members of the prosecution team, testified at the federal

evidentiary hearing that they were concerned that Plangman was

not a credible witness.   He found her explanation that a lucky

guess enabled her to direct Cuellar to the body almost

“preposterous” and “awfully peculiar.”    Fuchs testified further

that, although Plangman was unresponsive to questions, he knew of

no evidence that she committed perjury at trial.    Although there

is no evidence that the prosecutors in this case had seen

Cuellar’s report, Cuellar testified that he prepared the report

and placed it in his file.    This serves to create constructive



                                -14-
notice of the contents of the file.    See United States v.

Miranne, 

, 989 (5th Cir. 1982) (considering whether

notice, actual or constructive, of perjury could be attributed to

the government).

       To find a violation of due process, however, the perjury

must have been material to Creel’s conviction.    “The mere

possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the

trial, does not establish ‘materiality’ in the constitutional

sense.”    United States v. Agurs, 

, 109-10, 

, 2400, 

342 (1976)(emphasis added).    Perjury is

material, and a new trial is required, if “‘there is any

reasonable likelihood that the false testimony could have

affected the judgment of the jury.’” 

(citing 

, 96 S. Ct. at 2397 (footnote

omitted))(emphasis added); 

, 92 S. Ct. at

766.

       Creel advances two principal reasons that Plangman’s perjury

was material.    Creel alleges first that, if the perjury had been

disclosed, it would have affected Plangman’s credibility as a key

witness.    Plangman’s testimony regarding whether she knew the

body’s location was not probative that Creel murdered Smith, and

there was no genuine dispute at trial about the circumstances

surrounding the discovery of the body.    See United States v.


                                -15-
Washington, 

, 1282 (5th Cir. 1995)(finding that

whether perjurious statements concern a completely collateral

matter unrelated to defendant’s guilt is important to

materiality).    In addition, the jury had the opportunity to

observe Plangman and Cuellar while each was cross-examined

extensively.    As the district court noted, “Plangman’s trial

testimony on this and many other points were internally

inconsistent, contradicted by the testimony of other prosecution

witnesses, and, in many instances, wholly unworthy of belief.”

The impeachment evidence would have been cumulative in nature and

the jury’s impression of Plangman’s credibility probably would

not have changed upon learning of the perjury.    Further, the

testimony of many witnesses complements Plangman’s testimony

regarding the issue of Creel’s guilt.    Martinez testified that

Creel asked him repeatedly for information on dissolving a human

corpse with acid.    The state presented Creel’s letters to

Plangman.   The Grahams testified that Creel stated he killed a

man and needed help disposing of the body.    Woodley testified

that she set up the meeting with Smith pursuant to Creel’s

request.    Goodnough testified that Creel sold him a ring similar

to Smith’s.    Considering the independent evidence of Creel’s

guilt, we cannot say that the jury’s judgment would have been

affected had the defense possessed further evidence that could

have been used to impeach Plangman.



                                -16-
     Creel alleges second that the perjury was material because

disclosing the perjury could have convinced the jury that

Plangman was the murderer and that she lied to frame Creel.4

Creel suggests this theory best explains Plangman’s utterance of

“I did it” upon the discovery of the body.     Based on Plangman’s

explanation that she made this utterance in shock, and the

substantial circumstantial evidence from the other witnesses,

there is not a reasonable likelihood that the jury would have

acquitted Creel, believing that Plangman committed the murder.

Further, if the jury believed the police report, then they would

believe merely that Plangman learned the body’s location from

Creel’s letters, and not that she framed Creel.

     We find that there does not exist a reasonable likelihood

that Plangman’s perjury could have affected the judgment of the

jury.    See 

.   Whether Plangman

actually knew of the body’s location is a collateral matter and

does not bear directly on Creel’s guilt.     The state presented

substantial other circumstantial evidence that established

Creel’s guilt and that corroborated much of Plangman’s testimony.

The perjury is unlikely to have changed the jury’s impression of



     4
       We reject also Creel’s contention that we consider the
perjury in light of what a skilled lawyer would have done with the
evidence.   See 

(rejecting standard of materiality that focuses on the impact that
undisclosed evidence would have on defendant’s ability to prepare
for trial).

                                -17-
Plangman’s general tendency to veracity.   We conclude that the

state’s knowing use of Plangman’s perjured testimony did not

violate due process because the testimony was not material to

Creel’s conviction.

                                 IV

     Creel contends that Plangman, acting as an agent of the

state, obtained incriminating information from Creel in violation

of his Sixth Amendment right to counsel.   The district court

ruled that Plangman did not act as an agent of the state and that

it was not error to introduce information she had received from

Creel.   We have yet to address the standard of review for

determining whether a person is an informant or agent under the

Sixth Amendment.   Some courts consider the determination a

factual one.    See United States v. Malik, 

, 1165

(7th Cir. 1982); United States v. Van Scoy, 

, 260 (3d

Cir. 1981).    Other courts review for clear error only the factual

determination of the relationship or understanding between the

police and informant.   These courts review de novo whether the

relationship, as found by the district court, is such that the

informant’s questioning is considered government interrogation

for constitutional purposes.5   See United States v. Johnson, 4


     5
       The state habeas court made no factual findings on this
issue, and so 28 U.S.C. § 2254(d) is inapplicable. Creel alleges
the district court’s ruling on the claim is open to plenary review;
however, we review the district court’s fact findings for clear
error.

                                -18-
F.3d 904, 910 (10th Cir. 1993); United States v. Surridge, 

, 252 (8th Cir. 1982).    We find it unnecessary to decide

which standard to apply because, regardless of which standard we

use, Plangman was not an agent of the government.

     In Massiah v. United States, 

, 206, 

, 1203, 

(1964), the Supreme Court held that

the accused has a Sixth Amendment right to be free of questioning

by an undisclosed government agent without counsel being present.

The Sixth Amendment is implicated whenever government agents

“deliberately elicit[]” incriminating statements after indictment

and in the absence of counsel.    

a Sixth Amendment

violation, Creel must prove (1) that Plangman was a government

agent, and (2) that Plangman “deliberately elicited”

incriminating statements from Creel.

     Before we consider whether Plangman “deliberately elicited”

statements from Creel, we must find, apart from Plangman’s status

as an informant, that she acted as a government agent.     See,

e.g., United States v. Taylor, 

, 1015 (10th Cir.

1986)(holding Sixth Amendment inapplicable to statements made to

informant who is not an agent).    The district court created a

two-pronged test for determining whether an agency relationship

existed, requiring the defendant to show that the informant: (1)

was promised, reasonably led to believe, or actually received a

benefit in exchange for soliciting information from the


                                 -19-
defendant; and (2) acted pursuant to instructions from the State,

or otherwise submitted to the State’s control.

     Creel objects to the test, asserting that each prong is

contrary to Supreme Court precedent.   According to Creel, Maine

v. Moulton, 

, 176, 

, 487, 

(1985), stands for the principle that, instead of requiring a

quid pro quo, the relevant determination should be whether the

State made an arrangement to obtain information from the accused

prior to when the informant contacted the accused.   See 

106 S. Ct. at 487 (“[I]t is clear that the State violated

Moulton’s Sixth Amendment right when it arranged to record

conversations.”).   Creel’s reliance on Moulton is misplaced

because Moulton, which involved a clear case of agency, addressed

the different issue of whether the prohibition on using

undisclosed agents to “deliberately elicit” information extended

to where the accused initiates contact with the agent.    Creel

objects also to the second prong, which requires us to consider

whether the state controlled Plangman.   Instead, citing to United

States v. Henry, 

, 272 n.10, 

, 2187,

(1980), Creel argues that we should consider

whether Plangman “was charged with the task of obtaining

information from an accused.”    Henry involved also a clear case

of agency, and the Court only considered if the agent were

“charged with the task of obtaining information from an accused”


                                -20-
to determine whether the agent “deliberately elicited” the

information.   Creel’s objections both fail for the same reason,

namely that the agency inquiry is precedent to and distinct from

determining whether an agent “deliberately elicits” information.

     Having disposed of Creel’s specific objections to the test,

we address whether Plangman can be considered a government agent

under the first prong, a quid pro quo agreement.    Plangman is a

State agent, Creel argues, because Plangman received benefits in

exchange for her aid to Cuellar.    Specifically, the authorities

never prosecuted Plangman and, in exchange for Woodley’s name,

Plangman received Cuellar’s help in retrieving jewelry from Joan.

Creel presented no evidence, however, that anyone promised

Plangman not to pursue charges in exchange for her assistance or

testimony.   The district court found further that no credible

evidence existed that Cuellar undertook to return the jewelry in

exchange for Plangman’s agreement to solicit incriminating

evidence.    No credible testimony existed regarding when Plangman

first learned Woodley’s name or that she learned of Woodley from

Creel.   The district court notes that Creel’s counsel stated in a

pretrial motion that Cuellar had secured information establishing

Woodley’s identity during a search a Creel’s residence.

     Creel alleges Plangman received other benefits in exchange

for her assistance.   Plangman testified at trial that she had

romantic liaisons with Cuellar.    Cuellar denied the sexual



                                -21-
involvement, and testified that Plangman told him that she had

fabricated the story.   Plangman testified at trial that she

received conjugal visits with Creel in jail, as a result of

special leniency in visitation rules.   Prison officials testified

that Plangman’s visits with Creel were supervised.    Creel

admitted that his letters to Plangman contradict his testimony

regarding the dates on which he had sexual relations with

Plangman.   The district court found the testimony regarding

Plangman’s involvement with Cuellar and the conjugal visits with

Creel to be “wholly incredible.”

     The district court found no credible testimony or other

evidence that the government promised or gave Plangman a benefit

in exchange for soliciting statements from Creel.    Creel

presented no evidence that Plangman’s motivation was anything

other than her desire to assist in locating the decedent’s body.

Thus, considering the evidence presented at the federal

evidentiary hearing, the district court’s factual finding on the

first prong, that Plangman was not promised and did not receive a

benefit, was not clearly erroneous.

     We consider next whether Plangman is an agent under the

second prong, that is, whether Plangman acted pursuant to

instructions from the State, or otherwise submitted to the

State’s control.   Creel argues that Cuellar began directing

Plangman when, in response to her offer to bring Creel’s van for

Cuellar to search, Cuellar told her that he would instead use her

                               -22-
information to obtain a warrant to search Creel’s house.    Creel

alleges that, on the day of Creel’s arrest, Cuellar asked

Plangman to go to Creel’s house to “see if [she] could find the .

. . jewelry” belonging to Smith.    These incidents cannot be

considered Sixth Amendment violations because they occurred prior

to Creel’s arrest when he invoked his Sixth Amendment right to

counsel.   See United States v. Howard, 

, 201 (5th

Cir. 1993)(“No judicial proceeding had been initiated against

Howard, therefore, he had no right to counsel under the Sixth

Amendment.”).

     Creel argues also that Plangman became an agent when she

helped Cuellar locate Smith’s body.     Plangman testified that one

of her reasons for visiting Creel was to “help seek any

information to find the body.”    Yet, the fact that Plangman

wanted to help the police to solve a murder case does not

necessarily make her an agent for Sixth Amendment purposes.       See

(refusing to extend agency to individual

acting on own initiative); cf. Coolidge v. New Hampshire, 

, 487, 

, 2048, 

(1971)

(stating individual not an agent for Fourth Amendment if she

acted wholly on her own initiative).     Plangman also said that an

officer told her that she “was the nearest one to [Creel], and if

anyone could get the information, [she] could.”    The district

court found that this statement did not constitute direction by


                                 -23-
the government.   The fact that Plangman learned of the body’s

location and disclosed it to the government in no way indicates

that the State directed or controlled her in learning of that

information.   Thus, the finding of the district court, that no

credible testimony existed to establish that the government

directed Plangman, was not clearly erroneous.

     On the facts of this case, Plangman was not a government

agent.   Creel failed to meet the two-pronged test formulated by

the district court.6   Plangman did not receive, nor was she

promised, any benefits in exchange for eliciting information from

Creel.   Plangman acted at her own discretion in her dealings with

Creel.   In the absence of a quid pro quo between Plangman and

Cuellar, and in the absence of instruction or control by the

State, we hold that Plangman was not a government agent.   Even if

Plangman had “deliberately elicited” incriminating information

from Creel, his right to counsel was not violated because she was

not an agent of the state.   See 

, 84 S.

Ct. at 1203.

                                 V

     Creel alleges that the district court should have extended

the federal evidentiary hearing to include his claim of actual

innocence based on newly discovered evidence.   Irrespective of



     6
        We decline to address whether a defendant must prove both
prongs of the test, because Creel failed to prove either prong.

                               -24-
whether a case is capital or noncapital, we have reaffirmed that

newly discovered evidence of innocence, “absent an independent

constitutional violation occurring in the underlying state

criminal proceeding,” is not a ground for habeas relief.       Jacobs

v. Scott, 

, 1324 (5th Cir. 1994)(quoting Herrera v.

Collins, 

, 400, 

, 860, 

(1993)).    The district court correctly denied Creel an

evidentiary hearing on this issue because Jacobs forecloses

Creel’s argument.

                                 VI

     Creel argues lastly that the district court erred in finding

that his trial lawyer Charles Conaway was not ineffective.      In

order to prove ineffective assistance of counsel, Creel must show

that (1) Conaway’s representation “fell below an objective

standard of reasonableness” and (2) that the performance resulted

in actual prejudice.    Strickland v. Washington, 

,

689, 692, 

, 2055, 2067, 

(1984).

Both prongs of the Strickland test present a mixed question of

law and fact.   We review independently whether counsel’s

representation passes constitutional muster.   We apply the §

2254(d) presumption of correctness to factual findings of the

state courts and review factual findings of the federal court for

clear error.    See Mattheson v. King, 

, 1438 (5th

Cir. 1985).


                                -25-
     Creel contends first that Conaway rendered ineffective

assistance because he failed to raise a jurisdictional defect.

Medina County indicted Creel on kidnaping and robbery charges;

after the police discovered Smith’s body in Bexar County, Creel

was indicted and convicted of capital murder in Bexar County.

The Texas Code of Criminal Procedure provides that “[w]hen two or

more courts have concurrent jurisdiction of any criminal offense,

the court in which an indictment or a complaint shall first be

filed shall retain jurisdiction.”     TEX. CODE CRIM. P. ANN. art.

4.16 (West 1977).   Conaway failed to move to dismiss the Bexar

County proceedings on the ground of Medina County’s priority of

jurisdiction, which operated as a waiver of the jurisdictional

defect.   See Reynosa v. Segall, 

, 888 (Tex. Ct.

App.))El Paso 1989, no pet.)(“[T]he accused may file for and

insist on action by the originating court.”); Mills v. State, 

, 835 (Tex. Ct. App.))Dallas 1987, no pet.)(“A

defendant who does not interpose a plea to the jurisdiction may

waive the right to question jurisdiction under article 4.16.”).

Creel argues that Conaway’s failure to move to dismiss

constituted ineffective assistance of counsel.

     To determine whether Conaway provided ineffective

assistance, we must decide whether the jurisdictional waiver was

prejudicial.   See 

, 104 S. Ct. at 2069

(“If it is easier to dispose of an effectiveness claim on the


                               -26-
ground of lack of sufficient prejudice . . . that course should

be followed.”).   To prove prejudice, Creel must show that (1)

there is a reasonable probability that, but for counsel’s errors,

the ultimate result of the proceeding would have been different,

see 

104 S. Ct. at 2068, and (2) that counsel’s

deficient performance rendered the trial fundamentally unfair,

see Lockhart v. Fretwell, 

, 372, 

, 844,

(1993).

     Conaway’s failure to move to dismiss could not have affected

the proceedings because the charges in Medina and Bexar County

were not for the same offense, which renders Article 4.16

inapplicable.   Creel argues that the kidnaping and robbery

charges should be considered lesser charges of the capital murder

charge, and that double jeopardy would have barred his capital

prosecution in Bexar County under Article 4.16.   Texas courts

interpret the statute differently:

     [W]e are not here dealing with a question of double jeopardy
     . . . . Article 4.16 refers to courts having concurrent
     jurisdiction ‘of any criminal offense’ as opposed to
     jurisdiction of the transaction out of which several
     offenses may develop.

Flores v. Texas, 

, 126 (Tex. Crim. App. 1972).      We

defer to this interpretation of the statute.   See Weeks v. Scott,

, 1063 (5th Cir. 1995)(“[W]e defer to the state

court’s interpretation of the Texas . . . statute.”).   Conaway

could not have succeeded in a motion to dismiss under Article


                               -27-
4.16, because kidnaping and robbery are different offenses than

capital murder.   Thus, we find that Creel has not shown that, had

Conaway moved to dismiss, the proceedings would have been

different or that, absent that motion, his trial was

fundamentally unfair.

     Creel alleges that Conaway’s failure to investigate evidence

of Creel’s innocence also rendered his assistance ineffective.

He cites Conaway’s failure to investigate the bankruptcy of a

company owned by Smith.   When Creel investigated the company

later,7 he discovered evidence indicating that someone had signed

Smith’s name to a truck title while Creel was incarcerated.

Creel argues that the evidence proves his innocence because it

proves that Smith was killed while Creel was in jail.   The

evidence does not establish, however, that Smith personally

signed the truck title on that date.   Creel has not shown how

investigating Smith’s bankruptcy would have benefitted his

defense, because the evidence does not exculpate him.   See United

States v. Green, 

, 1003 (5th Cir. 1989)(stating

defendant must prove how investigation would have altered outcome

of trial).   Moreover, the facts at trial point overwhelmingly to

Creel’s guilt, so that even the most competent attorney would be



     7
        Creel has explained that, while in jail, he located a San
Antonio Police Department report pertaining to a theft of one of
Smith's business vehicles.   This led Creel to seek a certified
Texas title history of the truck.

                               -28-
unlikely to have obtained an acquittal.    See Wilkerson v.

Whitley, 

, 68 (5th Cir. 1994)(stating ineffectiveness

claim fails if most competent attorney could not obtain acquittal

due to abundance of evidence).

     We cannot say the attorney rendered ineffective assistance.

Creel has not proven the objective unreasonableness of Conaway’s

actions or that they prejudiced him.    The district court

correctly denied Creel’s claim.

                                  VII

     We AFFIRM all rulings of the district court.




                                 -29-