Allridge v. Cockrell ( 2003 )

  •                                                          United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                  IN THE UNITED STATES COURT OF APPEALS              July 15, 2003
                             FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                 No. 01-11243
              Appeal from the United States District Court
                   for the Northern District of Texas
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
         Having been convicted of capital murder in Texas and sentenced
    to death, Petitioner James Vernon Allridge is before us by virtue
    of a certificate of appealability (COA) granted by the district
    court in connection with Allridge’s application for habeas corpus
    relief under 28 U.S.C. § 2254. We deny all relief sought.
            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    this opinion should not be published and is not precedent except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.
         In 1987, a Texas jury convicted Allridge of capital murder,
    after which the trial court imposed a sentence of death.                See
    Allridge v. State, 
    850 S.W.2d 471
    , 475 (Tex. Crim. App. 1991).            In
    this § 2254 habeas action, the district court granted Allridge a
    COA on two claims:       “(1) Petitioner’s claim that the trial court
    violated    the   Witherspoon   [v.   Illinois,   
    391 U.S. 510
    doctrine when it granted the State’s challenge for cause against
    prospective juror Martin Osborn, and (2) Petitioner’s ineffective-
    assistance-of-counsel claim.”         As Allridge’s appellate brief is
    limited to these two claims, the following recitation of the
    procedural history of this case is limited to issues relevant to
    A.   Trial
         1.      Voir Dire
         During voir dire, the State challenged venireman Martin Osborn
    for cause on the ground that his doubts about the propriety of the
    death penalty would “substantially impair” the performance of his
    duties as a juror in accordance with the court’s instructions and
    his oath.     Although the trial court initially denied the State’s
    motion, it eventually granted the motion after further testimony
    from Osborn.      This testimony will be discussed below at length in
    addressing Allridge’s Witherspoon arguments.
          2.     Guilt/innocence phase
          The trial evidence, as related by the Texas Court of Criminal
    Appeals (“CCA”), may be summarized as follows:                      On the night of
    February 3, 1985, Allridge and his older brother, Ronald, left
    their Fort Worth apartment with the intention of robbing a Circle
    K convenience store.            Allridge, 850 S.W.2d at 476.             Allridge was
    carrying a semi-automatic pistol, and Ronald drove Allridge’s car.
    Id.   Allridge had previously worked at the Circle K, was familiar
    with the store’s procedures, and knew where the combination to the
    safe was kept.            Id.     He also knew the clerk on duty, Brian
    Clendennen, having worked with him before. Id. At about midnight,
    Ronald dropped Allridge off around the corner from the targeted
    store.     Id.   Clendennen had already closed the store, but admitted
    Allridge     when    he    asked   for     change    to    use   the    phone.      Id.
    Clendennen made change, and Allridge “pretended to use the phone
    and left to rejoin Ronald.”                Id.      Ronald accused Allridge of
    “chickening out” and dropped Allridge off at the store again.                       Id.
    Clendennen       again    let   Allridge    into    the    store,      but   this   time
    Allridge pulled his gun and forced Clendennen into the storeroom.
    Id.   After tying Clendennen’s hands behind his back, Allridge
    emptied the safe.           Id.    Allridge heard sounds coming from the
    storeroom and discovered that Clendennen had moved.                      Id.   He made
    Clendennen “get back on his knees,” then shot him twice in the back
    of the head.        Id.    Allridge and Ronald left, and Clendennen died
    from the gunshot wounds the next day.                Id.
         3.     Punishment phase
         At the punishment phase, the State sought an affirmative
    finding on the “second special issue,” which addressed “future
    dangerousness” or whether the defendant would commit criminal acts
    of violence that would constitute a continuing threat to society.
    Id. at 487 (citing TEX. CODE CRIM. PROC. art. 37.071).                          The State
    presented evidence of several armed robberies committed by Allridge
    and Ronald in the two months following after their robbery of the
    Circle K and murder of Clendennen.                    See id. at 487-88.           In his
    defense, Allridge attempted to show that, since childhood, he had
    been intimidated and dominated by Ronald.                   Id. at 488.        In support,
    he called a psychologist, Dr. Richard Schmitt, to testify that
    Allridge    was    intelligent       and    competent       and   not     psychotic    or
    sociopathic.       Id.    The jury made affirmative findings as to both
    special issues, and the court sentenced Allridge to death.
    B.   Direct appeal
         On direct appeal, Allridge raised 21 points of error.                            See
    Allridge,   850        S.W.2d   at   476.       In    his   first   point,       Allridge
    contended   that       the   trial   court      had    violated     the    doctrine    of
    Witherspoon       v.    Illinois,    
    391 U.S. 510
        (1968),      by    excluding
    venireman Osborn for cause on the ground that his views on the
    death penalty would adversely affect his impartiality. Id. at 477.
    Allridge argued that Osborn’s answers during voir dire reflected
    that he could follow the law and not be controlled by his feelings
    about the death penalty. Id. After recounting Osborn’s testimony,
    the CCA determined that “it appear[ed] that Osborn was torn between
    the obligation to honestly comply with his oath as a juror and his
    strong feelings in opposition to the death penalty.”               Id. at 478.
    That court concluded:
                  Osborn’s   answers   that  those   feelings   would
                  influence his assessment of the evidence at
                  punishment and affect his ability to comply with
                  his oath support the trial court’s determination
                  that Osborn was substantially impaired in his
                  ability to perform his duties as a capital juror in
                  accordance with his instructions and oath.
    Id.    The CCA affirmed Allridge’s conviction and sentence, id.            at
    497,   and    the   United   States   Supreme     Court   denied   Allridge’s
    application for a writ of certiorari.           Allridge v. Texas, 
    510 U.S. 831
    C.     State postconviction proceedings
           In 1994, represented by a new attorney, Allridge filed a state
    postconviction application, raising a newly-discovered-evidence
    claim.    He argued that the “new” evidence consisted of statistical
    studies      showing   a   strong   correlation    between   the    Jehovah’s
    Witnesses religion, of which Allridge was a practitioner, and the
    commission of crimes.        Alternatively, Allridge contended that his
    trial counsel had performed ineffectively by failing to develop
    this exculpatory and mitigating evidence at trial.            Allridge also
    filed first and second amended applications raising additional
    arguments. One was that the State had made improper jury arguments
    when it stated that Allridge’s counsel had acted unethically by
    having Dr. Schmitt testify about Allridge without having conducted
    written psychological tests in person.
         The next fall, the state trial court issued findings of fact
    and conclusions of law recommending that Allridge’s claims be
    rejected.     A month later, the CCA denied Allridge’s application
    without a written order.       Later that year, the federal district
    court stayed Allridge’s execution so that an attorney could be
    appointed for his § 2254 habeas proceedings.
    D.   Federal habeas corpus proceedings
         Following his appointment, newly appointed federal habeas
    counsel filed Allridge’s § 2254 petition. In it Allridge contended
    that (1) the trial court violated the Witherspoon rule when it
    granted the State’s challenge to venireman Osborn for cause; (2)
    the court violated Allridge’s due process rights when it overruled
    his challenges for cause to three veniremen who allegedly would
    refuse to consider particular kinds of mitigating evidence at the
    punishment    phase;   and   (3)   his    trial   counsel     had   performed
    ineffectively at the punishment phase by (a) failing to present
    expert testimony about the nexus between Allridge’s so-called
    indoctrination in the Jehovah’s Witnesses (which he refers to as
    cult-like),    and   his   criminal   behavior,   and   (b)    allowing   his
    psychological expert, Dr. Schmitt, to base his testimony on the
    results of written tests that Allridge filled out in his jail cell
    without observation or supervision.
          The State filed an answer, contending that all of Allridge’s
    claims were meritless.        Id.   The State also argued that Allridge’s
    second ineffective-assistance claim had not been exhausted in the
    state courts and was thus procedurally defaulted. Allridge did not
    address procedural default in reply.
          The   magistrate   judge      issued   a   report    recommending   that
    Allridge’s § 2254 petition be denied, concluding that, by upholding
    the   State’s   challenge      to   venireman    Osborn,    the   trial   court
    implicitly found that his ability to act as a juror would be
    substantially impaired by his qualms about capital punishment.
    This finding was entitled to a presumption of correctness, which
    Allridge had failed to rebut by clear and convincing evidence.              The
    magistrate judge also concluded that Allridge’s claim that trial
    counsel performed ineffectively by failing to ensure that the
    written psychological tests were supervised by Dr. Schmitt had not
    been developed in state court and was thus procedurally defaulted;
    and that Allridge had not shown cause and prejudice to excuse this
    default.     The magistrate judge concluded that, in any event, the
    ineffectiveness claim was meritless because Allridge could not
    demonstrate prejudice:         There was no evidence that anyone other
    than Allridge had completed the tests and there was extensive
    additional    evidence   of    Allridge’s    future   dangerousness.        The
    magistrate judge also recommended that Allridge’s other claims be
    denied as meritless.
          Allridge      filed    lengthy        objections        to   this   report     and
    recommendation.       In a footnote, Allridge argued that the second
    ineffectiveness claim was exhausted because the CCA adopted the
    state habeas trial court’s finding that defense counsel had made
    reasonable strategic choices about how to present all possible
    mitigating factors in consultation with Dr. Schmitt and rendered
    effective assistance under the totality of the circumstances.                        The
    State filed a responding brief that addressed these objections.
          The district court adopted the magistrate judge’s findings and
    conclusions and denied Allridge’s § 2254 petition.                         The court
    issued its own findings and conclusions, which closely resembled
    those of the magistrate judge.
          Within 10 days following the entry of judgment, Allridge filed
    a FED. R. CIV. P. 59(e) motion to alter or amend the judgment.                        He
    continued     to    maintain     that    his       ineffective-assistance          claim
    regarding the written tests had been exhausted because, in his
    state application, he had included a general allegation that
    counsel   was      ineffective    in    presenting        psychiatric      mitigating
    evidence. The court denied Allridge’s Rule 59(e) motion, stressing
    that even if the claim at issue were not procedurally defaulted, it
    was meritless.
          Allridge      timely     filed    a       notice   of    appeal,    which      also
    functioned as a motion for a certificate of appealability (“COA”).
    As   noted,   the    district    court       granted     Allridge     a   COA   on   his
    Witherspoon claim regarding venireman Osborn and on his claim of
    ineffective assistance of counsel.             As to that latter claim, the
    district court did not specify that it was granting COA as to both
    of Allridge’s ineffective assistance claims or that the question of
    procedural default remained at issue.
           Under 28 U.S.C. § 2253(c)(2), our review is limited to the
    issues on which the district court granted COA.            Kiser v. Johnson,
    163 F.3d 326
    , 327 (5th Cir. 1999).            Although a habeas appellant may
    obtain review of issues not certified by the district court if he
    expressly requests from us, and we grant, a COA on such issues, see
    Ott v. Johnson, 
    192 F.3d 510
    , 512 n.6 (5th Cir. 1999), Allridge
    does   not    seek   review   of   non-certified     issues.    Furthermore,
    Allridge      has    abandoned     his    claim    that   counsel   performed
    ineffectively by failing to present statistical evidence regarding
    Jehovah’s Witnesses and crime; he does not brief this issue on
    appeal.      See Dowthitt v. Johnson, 
    230 F.3d 733
    , 742 n.6 (5th Cir.
           Allridge filed his § 2254 petition on April 15, 1996, just
    before the April 24, 1996, effective date of the Antiterrorism and
    Effective Death Penalty Act (“AEDPA”).             Consequently, the AEDPA’s
    amended standards of review do not apply to his claims.             Lockett v.
    230 F.3d 695
    , 699 (5th Cir. 2000); Lindh v. Murphy, 
    521 U.S. 320
    , 336 (1997). Under the pre-AEDPA standards, we review the
    district court’s legal conclusions de novo and the state courts’
    findings of fact for clear error.              See Soffar v. Cockrell, 
    300 F.3d 588
    , 592 (5th Cir. 2002) (en banc).               Under the applicable version
    of § 2254(d), we must accord a presumption of correctness to all
    findings of fact if they are supported by the record.                               Id.;
    see former § 2254(d)(1)-(d)(8) (listing eight exceptions to this
    rule).    The pre-AEDPA standards do not require a federal court to
    defer to the state courts’ legal conclusions.                        See Valdez v.
    274 F.3d 941
    , 949 (5th Cir. 2001), cert. denied, 123 S.
    Ct. 106 (2002).
    A.   Exclusion of venireman Osborn
         Allridge       contends      that   venireman        Osborn’s   dismissal      was
    improper under Adams v. Texas, 
    448 U.S. 38
     (1980), because the CCA
    relied   on    impermissible       reasons     for    upholding      the    dismissal.
    Allridge argues that, in its opinion on direct appeal, the CCA made
    “implicit” findings of fact that Osborn’s testimony that his
    feelings about the death penalty would “temper” his views of the
    evidence meant that those feelings would “influence” and “affect”
    his assessment of the evidence.                Allridge insists that we must
    defer    to   those    appellate     findings        of   fact    because    they   are
    supported by the record, even if we believe that the trial court
    gave the word “temper” a different meaning and based its ruling on
    a different ground. Allridge urges that, under Adams, the findings
    of the CCA that Osborn’s feelings would merely “influence” and
    “affect”      his     view   of    the    evidence         were    constitutionally
    insufficient to support his dismissal.   Allridge argues that the
    Adams violation is clear, emphasizing that Osborn never said that
    he could not participate in returning a verdict that would require
    the judge to impose the death penalty.
         Allridge acknowledges that the CCA and the federal district
    court cited other grounds for disqualification that might have been
    supported by the record.   He maintains, however, that these other
    grounds cannot be used to uphold the exclusion of Osborn because
    they are based on facts that did not constitutionally authorize the
         The State counters that Allridge is improperly raising his
    contention regarding the state appellate court’s implied findings
    of fact for the first time.    The State also denies that the CCA
    made its own factual findings, asserting that in actuality that
    court deferred to the trial court’s implied finding that Osborn’s
    feelings about the death penalty “substantially impaired” his
    ability to perform his duties as a capital juror.        The State
    maintains that, under Wainwright v. Witt, 
    469 U.S. 412
     (1985), the
    § 2254(d) standard of review should be applied specifically to the
    trial court’s findings.
         1.   The applicable law
         In Witherspoon, a direct appeal from a criminal conviction,
    the Supreme Court held that a death sentence cannot be carried out
    if it followed the exclusion of a venireman soley because he voiced
    general objections to the death penalty or expressed conscientious
    or religious scruples against its infliction.                    Witherspoon, 391
    U.S. at 521-22.       Witherspoon concerned (1) an Illinois capital-
    sentencing system in which the jury had broad discretion to impose
    the death penalty, and (2) an Illinois statute that permitted the
    prosecution     to    challenge     for     cause     any     venireman    who   had
    “conscientious scruples against capital punishment.”                      See id. at
    512, 519.
         In Adams, also a direct appeal, the Supreme Court held that a
    venireman     may    be   excused    if        his   “views    would   prevent    or
    substantially impair the performance of his duties as a juror in
    accordance with his instructions and his oath.” Adams, 448 U.S. at
    45 (emphasis added).       In Adams, the court addressed a Witherspoon
    claim in the context of Texas’s capital-sentencing system, under
    which jurors did not directly impose the death penalty but instead
    answered three special issues.            Id. at 40.     At that time, TEX. PENAL
    CODE ANN. § 12.31(b) stated that:
                Prospective jurors shall be informed that a
                sentence of life imprisonment or death is mandatory
                on conviction of a capital felony. A prospective
                juror shall be disqualified from serving as a juror
                unless he states under oath that the mandatory
                penalty of death or imprisonment for life will not
                affect his deliberations on any issue of fact.
    Id. at 42 (emphasis added).
         The Supreme Court in Adams concluded that this oath was
    applied to exclude prospective jurors on grounds impermissible
    under Witherspoon.        Id. at 49.           The Court reasoned that “it is
    apparent that a Texas juror’s views about the death penalty might
    influence    the   manner     in   which     he    performs     his   role    without
    exceeding the ‘guided jury discretion,’ . . . permitted him under
    Texas   law.”      Id.   at   46-47    (emphasis        added).       The   provision
    improperly excluded potential jurors “who stated that they would be
    ‘affected’   by    the   possibility       of     the   death   penalty,     but   who
    apparently meant only that the potentially lethal consequences of
    their   decision    would     invest    their      deliberations      with   greater
    seriousness and gravity or would involve them emotionally.” Id. at
    49.   “[N]either nervousness, emotional involvement, nor inability
    to deny or confirm any effect whatsoever is equivalent to an
    unwillingness or an inability on the part of the jurors to follow
    the court’s instructions and obey their oaths[.]”                       Id. at 50.
    “[T]o exclude all jurors who would be in the slightest way affected
    by the prospect of the death penalty or by their views about such
    a penalty would . . . deprive the defendant of [an] impartial jury”
    under the Sixth Amendment.             Id. (emphasis added). A State may,
    however, “bar from jury service those whose beliefs about capital
    punishment would lead them to ignore the law or violate their
    oaths.”   Id.
          In the context of a § 2254 habeas proceeding, the Supreme
    Court in Witt reiterated the holding of Adams that “[t]he proper
    standard for determining when a prospective juror may be excluded
    for cause because of his or her views on capital punishment . . .
    is whether the juror’s views would ‘prevent or substantially impair
    the performance of his duties as a juror in accordance with his
    instructions and his oath.’” Witt, 469 U.S. at 424 (quoting Adams,
    448 U.S. at 45).   The Court in Witt emphasized that, in a habeas
    context, the question of a challenge for juror bias is a “factual
    issue” covered by the standard of review in the former 28 U.S.C. §
    2254(d), under which the finding of the trial judge is “presumed
    correct” unless one of the reasons enumerated in the statute is
    present.   Id. at 426-27, 430, 431.   “[W]here the record does not
    indicate the [constitutional] standard applied by a state trial
    judge, he is presumed to have applied the correct one.”      Id. at
    431; see McFadden v. Johnson, 
    166 F.3d 757
    , 758 (5th Cir. 1999).
    To rebut this presumption, the petitioner must adduce “clear and
    convincing evidence that the factual determination by the State
    court was erroneous.”   Witt, 469 U.S. at 435; Kelly v. Lynaugh, 
    862 F.2d 1126
    , 1134 (5th Cir. 1988).
         In Witt, the Supreme Court made a number of observations about
    the trial judge’s duties in addressing a challenge for cause for
    bias and the very nature of that function.
               [D]eterminations of juror bias cannot be reduced to
               question-and-answer sessions which obtain results
               in the manner of a catechism . . . .         [M]any
               veniremen simply cannot be asked enough questions
               to reach the point where their bias has been made
               ‘unmistakably clear’. . . . Despite this lack of
               clarity in the printed record, however, there will
               be situations where the trial judge is left with
               the definite impression that a prospective juror
               would be unable to faithfully and impartially apply
               the law.
    Witt, 469 U.S. at 424-26.   The trial judge’s “predominant function
    in determining juror bias involves credibility findings whose basis
    cannot be easily discerned from the appellate record.”       Id. at 429.
    Accordingly, the trial judge is not required to “write out in a
    separate memorandum his specific findings on each juror excused,”
    nor is he “required to announce for the record his conclusion that
    [the dismissed] juror was biased, or his reasoning.”        Id. at 430.
         2.    Pre-AEDPA applicability of § 2254(d) to state appellate
               court findings
         In   the   face   of   Witt’s   deliberative   explication   of   the
    deference to be afforded a trial judge’s decision in this context,
    Allridge nevertheless contends that we are bound to defer solely to
    the CCA’s “implied” findings of fact that Osborn’s answers showed
    that his feelings would “influence his assessment of the evidence
    at punishment and affect his ability to comply with his oath.”2 See
    Allridge, 850 S.W.2d at 478 (emphasis added).         His contention is
    that, under Adams, such findings are not sufficient to support the
    dismissal of Osborn for cause.       Pretermitting the question whether
    the CCA’s reference to Osborn’s feelings having “affected” and
    “influenced” him even constituted “factual findings” within the
    meaning of § 2254(d), we address Allridge’s contention below and
    conclude that its basic premise is flawed.
             The State’s position that this matter is impermissibly
    raised for the first time on appeal is not well taken. Even if, in
    the district court, Allridge did not explicitly make the contention
    regarding deference to the CCA’s “implied factual findings,” he did
    argue in his § 2254 petition that the CCA erred when it stated that
    Osborn’s feelings would “influence” and “affect” his abilities as
    a juror, that these findings contradicted the Supreme Court’s
    admonitions in Adams, and that this “finding of fact” was not
    entitled to a presumption of correctness under § 2254(d).
          Allridge does not cite a single Supreme Court or Fifth Circuit
    decision holding that, in a Witherspoon habeas challenge, a federal
    court should defer solely to a state appellate court’s “factual
    determination” to the exclusion of addressing what happened in the
    trial court.     He cites Sumner v. Mata, 
    449 U.S. 539
     (1981), and
    Wainwright v. Goode, 
    464 U.S. 78
     (1983), for the proposition that
    we are required to defer exclusively to the CCA’s “factual finding”
    that Osborn’s feelings would merely “affect” and “influence” his
    duties.   As noted by the State, though, Mata was a habeas case in
    which the constitutional claim at issue had not even been raised in
    the trial court and was advanced for the first time before the
    state appellate court.        See Mata, 449 U.S. at 541-42.                     The
    appellate court’s findings in Mata were thus the only findings of
    fact available for review under § 2254(d).         See id. at 545-46.           The
    Supreme Court emphasized that the state appellate court had even
    held a “hearing,” within the meaning of § 2254(d), on the claim.
    Id. at 546.    Mata thus offers no guidance in the circumstances of
    Allridge’s case.
          Neither does Goode offer such guidance.            In Goode, a habeas
    petitioner    had   argued   ——   for     the   first    time   in     a    state
    postconviction application before the Florida Supreme Court —— that
    trial counsel had performed ineffectively by failing to challenge
    the trial court’s alleged reliance on a nonstatutory aggravating
    circumstance in imposing a death sentence.         See Goode, 464 U.S. at
    82.    The    Florida   Supreme   Court    reviewed     the   record       of   the
    sentencing hearing and determined that the trial court had not
    relied on the impermissible factor in the first place.                     Id.       In
    Goode’s subsequent § 2254 proceedings, the Eleventh Circuit Court
    of Appeals assumed arguendo that the Florida Supreme Court’s
    finding   (that    the    sentencing      court    had    not    relied        on    an
    impermissible factor) was entitled to a presumption of correctness
    under § 2254(d), but concluded that the state-court finding was
    “not fairly supported by the record as a whole.”                 Id. at 83.         The
    United States Supreme Court held that the Eleventh Circuit had
    erred in its finding, as the Florida Supreme Court’s determination
    “f[ou]nd fair support in the record.”             Id. at 85.     In Goode as in
    Mata, there were no state trial court factual findings to which the
    § 2254(d) standard of review could have been applied.
          We pause here to note that Allridge fails to compare his own
    case with the circumstances of Witt, wherein the Supreme Court
    closely   scrutinized      the   state    trial   court’s    resolution         of    a
    Witherspoon challenge in applying the § 2254(d) standard.                           The
    petitioner in Witt had raised a Witherspoon challenge in his direct
    appeal to the Florida Supreme Court, see Witt, 469 U.S. at 415, yet
    the United States Supreme Court apparently saw no reason to address
    the    Florida     Supreme        Court’s       “findings”        as      to        the
    Witherspoon challenge when the record included a detailed voir dire
    transcript   and   a     decision   by    the   state    trial    court    itself.
    Allridge has cited no legal authority to suggest why his case
    should be treated any differently.
         We shall, therefore, review the state trial court’s decision
    to exclude Osborn.      In so doing, we shall apply the § 2254(d)
    standard of review.3
         3.   Voir dire and the dismissal of Osborn
         When, during the voir dire questioning, Osborn was asked
    whether anything in his background would lead him to believe that
    he could not serve as a juror in Allridge’s case, Osborn answered,
    “Nothing specific.     I have a problem with the death penalty.”   He
    then explained that he had “spent time in Vietnam as a contractor
    and saw enough of that, that I don’t know that I could make that
    decision, in all honesty.”       Osborn described his feelings as
    “strong” and stated that, “even though we are not as a jury
    directly saying yes [with respect to the decision to impose the
    death penalty], it’s going to be the death penalty; indirectly,
    because of the questions and the answers, we are the responsible
    group, and I don’t know that I could, in all honesty, make that
    kind of a decision.”
            Even if we were to credit Allridge’s arguments that we
    should defer to the CCA’s “implied” findings of fact, we would see
    that Allridge has somewhat misrepresented those findings. It is
    true that the CCA stated that Osborn’s feelings would “influence”
    his assessment of the evidence and “affect” his ability to comply
    with his oath. See Allridge, 850 S.W.2d at 478. The court was
    merely explaining, however, that these findings “support[ed]” the
    trial court’s determination that Osborn was “substantially
    impaired” in his performance in his duties as a juror; it did not
    state that these factors, standing alone, supported the trial
    court’s finding.    Id.   Moreover, the CCA’s ultimate “factual
    finding” was that Osborn was “substantially impaired,” the key
    phrase from Adams.
         The following exchange then occurred:
                Q.: . . . Let me ask you this: Do you think that
                your feelings are so strong, or you classified them
                as strong, do you think these strong feelings would
                substantially impair your ability as a juror to
                follow the oath that you would take?
                A.     It would tend to bias my opinion, I think.
                Q.     . . .
                Let me ask you, Mr. Osborn, if -- say you were on
                this jury and as the foreperson, say you were
                elected foreman, could you sign a verdict that
                sentenced James Vernon Allridge to death?
                A.     I don’t think I could.    Honestly.
                Q. . . . Would you say that you had conscientious
                scruples against the infliction of punishment that
                resulted in death?
                A.   I don’t know if it would be conscientious or
                not, but [indicating] -- it is a gut feeling that I
                don’t know whether I could or not.
    The prosecutor then pointed out that jurors were required to take
    an oath to render a true verdict according to the law and the
    evidence and asked Osborn whether he could “assess the death
    penalty.”     Osborn answered, “I honestly don’t think I could” and
    that to take the oath would “create an awful lot of internal
    conflict.”    He also stated that he would feel “very uncomfortable”
    making a sentencing decision if he were the last undecided juror.
         Osborn      then   answered   several   questions   from   Allridge’s
    attorney about the general civic responsibilities of jurors, after
    which the prosecutor asked a specific question of Osborn:
                Q. . . . [I]f you were selected as a juror in this
                case, would you be able to follow your civic duty
              and sit down, set your feelings aside -- I am not
              saying ignore them, I am not saying deny their
              existence   --  but   sit  down   and  give   fair
              consideration to the evidence and then answer the
              questions from the evidence as your oath requires?
              A. I can make that decision, you know; whether I
              could actually sign to do what was necessary, I
              don’t know.
    Osborn subsequently stated that he “would answer them as honestly
    as I possibly could, but they are always going to be tempered by my
    basic instincts that I think it’s wrong for one person to take
    another person’s life.”   After a short argument session, the trial
    court denied the prosecutor’s challenge to Osborn for cause.
         The prosecutor then resumed his questioning of Osborn. Noting
    that the State was required to prove the special sentencing issues
    beyond a reasonable doubt, the prosecutor asked Osborn, “Before you
    could vote yes to any one of those questions, would you require
    there to be absolutely no doubt in your mind at all?”       Osborn
    replied, “I think I would have to have, you know, little or no
    doubt,” but then stated, “[n]ot having been put in that position
    before, I don’t know.” The prosecutor also asked Osborn whether he
    could “in [his] own mind imagine evidence that could be brought to
    [him] that could convince [him] that the answer to [special issue]
    number two should be yes[.]”   Osborn initially answered, “I don’t
    know if I can quantify that,” but when a nearly identical question
    was posed to him, he answered, “I can’t honestly think of anything,
    you know, that would make me make that decision.”   The prosecutor
    next asked, “None whatsoever?” to which Osborn replied, “I don’t
         Several minutes later, the following exchanged occurred:
              Q. Are your feelings -- are your strong feelings
              about the death penalty such that you are more
              inclined to be biased for Mr. Allridge as we start
              this case in that you know we are seeking the death
              A. I think it is going to temper any decision that
              I make. It’s got to bias it. I can’t say that
              it’s -- that I am starting off with a preconceived
              concept of guilt or innocence, but that has got to
              be, you know -- I mean, had I not known it
              beforehand, it would have come out eventually, but
              . . . .
              Q.   Yes.
              A.   Yeah.   It does tend to bias me, you know . . . .
              Q.   Against the death penalty and for the
              saving of a life?
              A.   Basically, yes.
    The prosecutor also asked whether Osborn’s assertion that his
    decision would be “temper[ed]” by his feelings “would substantially
    impair [him] from sitting as a juror in this particular case” or
    “in any capital murder case.”    Osborn replied, “I think it would be
    a consideration.   I mean -- like I said, I don’t know.   But I think
    it would, here again, tend to temper my decisions in how I perceive
    the evidence knowing what the consequences could be.”
         Again asking Osborn about the oath to render a “true verdict
    according to the law of Texas” and whether he could “honestly take
    that oath and then not do violence to [his] strong feelings” about
    the death penalty, Osborn stated, “I don’t think I could.”              Then
    this final exchange occurred:
              Q. Is it fair to say that any verdict you reached
              at the second phase of this trial might not be
              based solely on the law from the Judge and the
              facts that you’ve heard; might it be tempered by
              your strong feelings about the death penalty?
              A.    That’s entirely possible.
              Q. Might that -- those strong feelings change how
              you might view the evidence knowing what the
              result, the severe consequences of yes votes?
              A.    I think so.
    At this point, the prosecutor resubmitted the challenge, and the
    trial court granted it.
         The court nevertheless allowed Allridge’s counsel to ask
    Osborn a few more questions.     Defense counsel asked Osborn whether
    he could listen to the evidence at the guilt phase and decide
    whether the case had been proven beyond a reasonable doubt.            Osborn
    stated, “I could make that decision, yes, but knowing the possible
    consequences,   here   again,   that    decision   is   also   going   to   be
    tempered by the possible consequences later on.”          Finally:
              Q.   Well, I guess I have some trouble with
              temper. That is probably true for everybody.
              It may be tempered the other way for some
              Could you listen to the evidence presented both at
              the first stage and second stage, having found
              somebody guilty based on the evidence, and answer
              those questions under your oath and answer them
              based on what you thought the evidence showed?
              A. Not without involving my feelings for what I
              was doing.
    At this point the trial court cut off the questioning, stating,
    “The Court has listened to the answers of Mr. Osborn and observed
    his demeanor and his manner in answering the questions.       I think
    that I have made the determination in that regard, so I will grant
    the State’s challenge[.]”
         We conclude that, under the standards of review set forth by
    the Supreme Court in Witt, Osborn’s testimony supported the trial
    court’s sustaining of the State’s challenge for cause.4      As there
    is nothing in the record to suggest that the trial court applied
    any particular constitutional standard, it must be presumed that it
    applied the correct one.    Witt, 469 U.S. at 431.   That standard, as
    noted above, is whether the juror’s views would “substantially
    impair the performance of his duties as a juror and in accordance
    with his instructions and his oath.”     Id. at 424.
         As the Court noted in Witt, “there will be situations where
    the trial judge is left with the definite impression that a
             In arguing at length that we must defer to the CCA’s
    “implied findings of fact” that Osborn’s feelings would only
    “affect” and “influence” his performance, Allridge has essentially
    ignored the standards of review set forth in Witt.       In § 2254
    actions involving Witherspoon challenges, we have repeatedly
    applied those standards since the issuance of Witt. See, e.g.,
    Soria v. Johnson, 
    207 F.3d 232
    , 245-47 (5th Cir. 2000); McFadden,
    166 F.3d at 758-61; Fuller v. Johnson, 
    114 F.3d 491
    , 498-501 (5th
    Cir. 1997); Mann v. Scott, 
    41 F.3d 968
    , 980-82 (5th Cir. 1994);
    Nethery v. Collins, 
    993 F.2d 1154
    , 1159-60 (5th Cir. 1993); Drew v.
    964 F.2d 411
    , 416-17 (5th Cir. 1992); Granviel v. Lynaugh,
    881 F.2d 185
    , 187-89 (5th Cir. 1989); Ellis v. Lynaugh, 
    873 F.2d 830
    , 832-37 (5th Cir. 1989); Kelly, 862 F.2d at 1133-35; Bell v.
    828 F.2d 1085
    , 1092-93 (5th Cir. 1987); Riles v. McCotter,
    799 F.2d 947
    , 949-50 (5th Cir. 1986); Smith v. McCotter, 
    798 F.2d 129
    , 132-34 (5th Cir. 1986).
    prospective juror would be unable to faithfully and impartially
    apply the law,” even when there is a “lack of clarity” in the
    record.   Witt, 469 U.S. at 425-26.    The juror’s bias need not be
    “proved with unmistakable clarity.”     Id. at 424.    In addition,
    Osborn’s failure to state explicitly that his feelings about the
    death penalty would “substantially impair” his performance is not
    dispositive, because “[r]elevant voir dire questions . . . need not
    be framed exclusively in the language of” Adams.    Id. at 433-34.
         Allridge has not adduced clear and convincing evidence that
    the trial court’s sustaining of the prosecution’s challenge to
    Osborn for cause was erroneous.    “[T]he question is not whether a
    reviewing court might disagree with the trial court’s findings, but
    whether those findings are fairly supported by the record.”   Witt,
    469 U.S. at 434 (citing Marshall v. Lonberger, 
    459 U.S. 422
    , 432
    (1983)). Osborn made a number of statements that support the trial
    court’s finding.   He twice suggested that in following his oath as
    a juror, his feelings would bias his opinion.         He repeatedly
    expressed uncertainty and even doubt about whether he could make
    decisions that would result in imposition of the death penalty. He
    indicated that he could not think of anything that would cause him
    to vote “yes” as to the special issues.    Finally, Osborn conceded
    that he did not think that he could take the oath and not do
    violence to his strong feelings, and that it was entirely possible
    that a verdict he reached at the close of the punishment phase
    might not be based solely on the law from the Judge and the facts
    that he had heard.
         We acknowledge that the record in this case is not as clear-
    cut as those in other cases in which we have               rejected habeas
    claims   under   Witt.5   Still,    a    trial   court’s   findings   on   a
    Witherspoon challenge are based on “determinations of demeanor and
    credibility that are peculiarly within a trial judge’s province.”
    Witt, 469 U.S. at 428.       The trial court in Allridge’s case
    initially denied the State’s challenge for cause with respect to
    Osborn; however, after hearing additional testimony, the court
    sustained the challenge.      The        court emphasized that it had
    “listened to the answers of Mr. Osborn and observed his demeanor
    and his manner in answering his questions.” In the final analysis,
            Cf. McFadden, 166 F.3d at 759-60 (venireman agreed that he
    would “automatically” vote against the death penalty “[r]egardless
    of the facts and circumstances of the case”); Mann, 41 F.3d at
    980-81 & n.9 (veniremans flatly stated that they could not take
    “oath” to base answers to punishment-phase issues solely on
    evidence); Nethery, 993 F.2d at 1160 (at least one venireman would
    vote “no” on special issues, regardless of the evidence); Drew, 964
    F.2d at 416-17 (one venireman would hold State to burden of proof
    higher than reasonable-doubt standard, and another would vote “no”
    as to future-dangerousness special issue unless evidence showed
    that defendant would commit future murders); Ellis, 873 F.2d at
    834-36 (venireman could not take oath if it required him to answer
    “yes” to both special issues); Kelly, 862 F.2d at 1134 & n.15
    (venireman would answer “no” to both special issues “[n]o matter
    what the evidence is”); Bell, 828 F.2d at 1092 (venireman
    repeatedly stated that she could not impose death penalty “under
    any circumstances”); Smith, 798 F.2d at 133 (venireman would
    “ignore the law” or “violate [his] oath” in certain circumstances).
    But see Riles, 799 F.2d at 949 & n.2 (rejecting Witt challenge to
    venireman whose feelings about the death penalty would “influence”
    his “way of thinking” and who, if he had a “choice,” would “choose
    something less than death”).
    we are satisfied that the district court’s ruling on Allridge’s
    Witherspoon claim was correct and free of reversible error.     We
    therefore affirm the court’s ruling based largely on the standards
    of Witt.6
    B.   Ineffective assistance of counsel
         Allridge only briefly sets forth his claim that his trial
    attorney performed ineffectively by failing to supervise personally
    a psychological test that was given to Allridge at jail.7       He
    emphasizes that at the punishment phase, his psychological expert,
            We need not specifically address Allridge’s complaints that
    the CCA and the federal district court relied on “other grounds” to
    support Osborn’s exclusion. As noted above, the former § 2254(d),
    as discussed in Witt, does not require us to address alternative
    grounds that might have been cited by reviewing courts.
         In   any   event,   Allridge’s  grievances   regarding   these
    alternative grounds are without merit. He complains, for instance,
    that the prosecution asked Osborn questions about whether, as a
    jury foreman, he could sign a verdict that would result in the
    defendant’s execution, when Texas law states that any juror can
    refuse to serve as jury foreman.       It is true that whether a
    venireman could impartially sign a verdict is “immaterial to jury
    service under Witherspoon.” See Alderman v. Austin, 
    663 F.2d 558
    563-64 (5th Cir. 1981).      Aside from answers to the questions
    regarding their abilities as foremen, however, the excluded
    veniremen in Alderman had “evidenced no ‘unambiguous’ intent to
    oppose capital punishment either in principle or in the trial.”
    Id. at 563. In contrast, the record of Osborn’s voir dire is not
    nearly so clear.
              There   are    minor   inconsistencies   in    Allridge’s
    categorization of this claim at different times.       Although he
    refers to trial counsel’s own failure to supervise the
    psychological test,     we perceive the gravamen of Allridge’s
    inadequate investigation claim to be that counsel should have
    discovered before trial that his psychological expert, who gave the
    tests, had not remained present while the written protions were
    being completed; and that this led to the expert’s being
    discredited on cross-examination.
    Dr. Schmitt,8 testified that:       (1) Allridge had engaged in a crime
    spree with his brother Ronald, a classic sociopath, because Ronald
    had dominated him; (2) Allridge believed that his brother would
    kill him if he did not participate in the crimes; and (3) Allridge
    would not be violent in prison if removed from Ronald’s influence.
    Allridge asserts that this testimony was based in part on written
    psychological tests administered to Allridge, which, as revealed in
    the State’s cross-examination of Dr. Schmitt, Allridge completed by
    himself, without Dr. Schmitt’s presence or supervision.        Allridge
    contends   that   Dr.   Schmitt’s    mitigation   testimony   was   thus
    discredited and made virtually useless.      He blames this failure on
    counsel’s abrogation of his duty to investigate and maintains that
    prejudice resulted      because the failure doomed any chance of
    persuading the jury that Allridge did not present a future danger
    to society.
         1.    Procedural default
         Allridge does not address the State’s contention, and the
    district court’s conclusion, that this particular ineffective-
    assistance claim was procedurally defaulted when Allridge failed to
    raise it in the state courts.       Before we address the question of
    procedural default, however, we must first determine whether the
    issue is even properly before us.
             Dr. Schmitt’s name appears as “Schmidt” in the trial
    transcript and in some other pleadings, but is spelled “Schmitt” in
    his affidavit.
         The district court granted Allridge a COA on his ineffective
    assistance of counsel claim without elaborating further.          At least
    two circuits have held that, “[a]bsent an explicit statement by the
    district court, in cases where a district court grants a COA with
    respect to the merits of a constitutional claim but the COA is
    silent with respect to procedural claims that must be resolved if
    the panel is to reach the merits, [the court of appeals] will
    assume that the COA also encompasses any procedural claims that
    must be addressed on appeal.”     Jones v. Smith, 
    231 F.3d 1227
    , 1231
    (9th Cir. 2000); McCoy v. United States, 
    266 F.3d 1245
    , 1248 (11th
    Cir. 2001) (quoting Jones), cert. denied, 
    536 U.S. 906
     (2002).          We
    agree with this analysis and conclude that, under this standard, we
    should address the district court’s procedural-default ruling.
         The   procedural   default   doctrine    precludes   federal   habeas
    review when the last reasoned state-court opinion addressing a
    claim explicitly rejects it on a state procedural ground.           Ylst v.
    501 U.S. 797
    , 801, 803 (1991).        When the state court
    has relied on an independent and adequate state procedural rule,
    federal    habeas   review   is   precluded    unless     the   petitioner
    demonstrates either (1) cause and prejudice or (2) that a failure
    to address the claim will result in a fundamental miscarriage of
    justice.   Coleman v. Thompson, 
    501 U.S. 722
    , 750 (1991).
         Ordinarily, a habeas petition must be dismissed if any issue
    has not been exhausted in the state courts.         Rose v. Lundy, 
    455 U.S. 509
    , 513-19 (1982).     “When . . . state remedies are rendered
    unavailable by the petitioner’s own procedural default, federal
    courts are barred from reviewing those claims.”               Sones v. Hargett,
    61 F.3d 410
    , 416 (5th Cir. 1995).           “‘[I]f the petitioner failed to
    exhaust state remedies and the court to which petitioner would be
    required to present his claims in order to meet the exhaustion
    requirement would now find the claims procedurally barred, . . .
    [then] there is procedural default for the purposes of federal
    habeas. . . .’”    Id. (quoting Coleman, 501 U.S. at 735 n.1).                    A
    second state postconviction application by Allridge would almost
    certainly be barred by Texas courts as an abuse of the writ, and
    this bar   would   operate   as   an    adequate       and   independent       state
    procedural ground for procedural-default purposes.                      Finley v.
    243 F.3d 215
    , 219 (5th Cir. 2001).
         In the district court, Allridge denied that this particular
    ineffectiveness claim was unexhausted.              He argued that the CCA had
    adopted the state habeas trial court’s finding that defense counsel
    made reasonable strategic choices about how to present all possible
    mitigating factors in consultation with Dr. Schmitt and thereby
    rendered   effective   assistance           under     the    totality     of    the
    circumstances (citing Vela v. Estelle, 
    708 F.2d 954
    , 959 (5th Cir.
    1983)).    Although it has not disputed that he did not raise an
    ineffective-assistance claim specifically addressing his trial
    counsel’s failure personally to supervise the psychological test
    given to Allridge or to discover that the expert had failed to do
    so; neither has Allridge claimed that the Texas courts did not
    address this specific claim.   Instead, the state habeas court did
    express the general conclusion that, after a thorough investigation
    into all possible mitigating factors available to counsel at time
    of trial and in consultation with Dr. Schmitt, the defense made a
    reasoned, strategic, and effective presentation based on their
    professional assessment of those factors.
         To exhaust, a petitioner “must have fairly presented the
    substance of his claim to the state courts.”      Nobles v. Johnson,
    127 F.3d 409
    , 420 (5th Cir. 1997) (citing Picard v. Connor, 
    404 U.S. 270
    , 275-76 (1971)).   “‘It is not enough that all the facts
    necessary to support the federal claim were before the state courts
    or that a somewhat similar state-law claim was made.’”      Wilder v.
    274 F.3d 255
    , 259 (5th Cir. 2001) (quoting Anderson v.
    459 U.S. 4
    , 6 (1982)).
         Allridge cites Vela for the proposition that he successfully
    exhausted his current ineffective-assistance claim.     In Vela, the
    petitioner asserted three errors in his state habeas petition as
    grounds for a finding that counsel was ineffective, and later in
    his federal petition he urged several additional grounds supporting
    his claim.   Vela, 708 F.2d at 957-58.     We determined that Vela’s
    state habeas petition asserted ineffective assistance on the basis
    of counsel’s entire performance and that Vela’s three assertions of
    error were merely “singling out for comment certain strikingly
    prejudicial errors.”   Id. at 959.     We determined further that the
    state court conducted its own independent analysis of counsel’s
    performance based on a review of the record as a whole.                         Id.
    Concluding that “[c]haracterizing these allegations as ‘unexhausted
    claims’ would require us to find that the state habeas court failed
    in its duty to evaluate counsel’s performance on the basis of the
    record as a whole[,]” we held that Vela had exhausted his state
    remedies.     Id. at 960.
          In Thomas v. Collins, 
    919 F.2d 333
    , 334 (5th Cir. 1990),
    however, the petitioner asserted ineffective assistance of counsel
    in the state court, arguing specifically that his appellate counsel
    failed   to   notify   him      timely    of   his   right   to    petition     for
    discretionary review.           Id.      In federal court, the petitioner
    presented     an   entirely      new     claim   regarding        his   counsel’s
    ineffectiveness, arguing that counsel failed to assert on appeal a
    claim that the trial judge had failed to comply with TEX. CODE. CRIM.
    PROC. art. 1.15.    Id.   The petitioner suggested that exhaustion was
    met because his case was similar to Vela.                Id. at 334-35.          We
    distinguished Vela, determining that the “record does not support
    a finding that the state court ever reviewed counsel’s performance
    in light of the Article 1.15 violation.”               Id. at 335.        We thus
    affirmed the district court’s dismissal for failure to exhaust.
          The circumstances of Allridge’s postconviction proceeding
    approximate those in Thomas more closely than they approximate
    those in Vela.      Allridge did not raise a claim that counsel’s
    entire   performance      was    ineffective.        Neither      is    there   any
    indication that the state trial court conducted an independent
    review of the record as a whole.          Although we conclude that the
    district     court’s   order   granting   COA    included   a   certification
    regarding the question of procedural default, we also conclude that
    (1)    Allridge’s      particular   ineffective-assistance        claim   was
    unexhausted and thus was procedurally defaulted, and (2) Allridge
    has not shown cause or prejudice to excuse the default.                      We
    nevertheless address the merits of that claim in the alternative.
           2.    Merits of ineffective-assistance claim
           It is universally recognized that, to prevail on a claim of
    ineffective assistance of counsel, a petitioner must show (1) that
    his counsel’s performance was deficient in that it fell below an
    objective standard of reasonableness and (2) that the deficient
    performance prejudiced his defense.        Strickland v. Washington, 
    466 U.S. 668
    , 689-94 (1984).         When we assess whether an attorney’s
    performance was deficient, we “must indulge a strong presumption
    that counsel’s conduct falls within the wide range of reasonable
    professional assistance.”       Id. at 689; Andrews v. Collins, 
    21 F.3d 612
    ,   621   (5th   Cir.   1994).    To   show    Strickland    prejudice,    a
    petitioner must demonstrate that counsel’s errors were so serious
    as to “render[ ] the result of the trial unreliable or the
    proceeding fundamentally unfair.”         Lockhart v. Fretwell, 
    506 U.S. 364
    , 369 (1993).       “In the context of a claim that counsel rendered
    ineffective assistance by failing to present evidence at the
    punishment phase of a capital murder trial, the inquiry is whether
    there is a reasonable probability that, had the evidence been
    presented, it would have altered the punishment verdict.”               Harris
    v. Cockrell, 
    313 F.3d 238
    , 243 (5th Cir. 2002), petition for cert.
    filed, (U.S. Mar. 17, 2003) (No. 02-1433).            Failure to establish
    either    deficient   performance    or   prejudice   defeats     the   claim.
    Strickland, 466 U.S. at 697.
         To   the   extent   that   Allridge   classifies      his   ineffective-
    assistance claims as one involving a failure to investigate, “[a]
    defense     counsel’s    failure     to    engage     in    an    appropriate
    investigation of potential mitigating evidence in the punishment
    phase can support a claim of ineffective assistance of counsel.”
    Smith v. Cockrell, 
    311 F.3d 661
    , 668-69 (5th Cir. 2002) (citing
    Williams v. Taylor, 
    529 U.S. 362
    , 390 (2000)).               “[W]e focus on
    whether the investigation supporting counsel’s decision ... was
    itself reasonable.”      Wiggins v. Smith, 
    2003 WL 21467222
     *8 (U.S.)
    (emphasis in original).         “‘A defendant who alleges a failure to
    investigate on the part of his counsel must allege with specificity
    what the investigation would have revealed and how it would have
    altered the outcome of the trial.’”         Moawad v. Anderson, 
    143 F.3d 942
    , 948 (5th Cir. 1998) (citation omitted).
         At the punishment phase, trial counsel for Allridge called
    clinical psychologist Dr. Schmitt as an expert witness.                   Dr.
    Schmitt had conducted a two-hour clinical interview of Allridge at
    the jail and had administered and explained some psychological
    tests, which he left with Allridge and which were returned to Dr.
    Schmitt after Allridge had completed them.9         Dr. Schmitt had also
    interviewed Allridge’s parents and examined Allridge’s artwork.
    Dr. Schmitt testified that the results of all the tests showed that
    Allridge was not a sociopath, that he had demonstrated the ability
    to maintain relationships and to exhibit loyalty to other persons,
    and that he is an individual who exhibits remorse.           Dr. Schmitt
    expressed the opinion that Allridge’s brother, Ronald, has a
    classic sociopathic personality, and testified that Allridge had
    been picked on, physically intimidated, and beaten on a regular
    basis by Ronald.       Dr. Schmitt maintained that, aside from his
    relationship with Ronald, Allridge is basically a non-violent
         Dr. Schmitt admittedly was not present when the written tests
    were completed and did not have personal knowledge that they were
    in fact filled out by Allridge himself.        Dr. Schmitt nevertheless
    testified that he had every reason to believe that the tests were
    filled out by Allridge, and that the handwriting on the Sentence
    Completion   portion    was   very   similar   to   the   handwriting   on
    Allridge’s artwork.     Dr. Schmitt also confirmed that everything
    that he told the jury about Ronald was based on information related
    to him by either Allridge or his parents.
              The tests consisted of the Minnesota Multiphasic
    Personality Inventory (“MMPI”), a “commonly used personality test,”
    and a Sentence Completion Test, a test that permits the
    psychologist to determine people’s attitudes and ways of thinking
    about a wide variety of different subjects.
         Allridge has shown neither cause (deficient performance) nor
    prejudice. Although the cross-examination of Dr. Schmitt confirmed
    that he did not remain in the presence of Allridge after submitting
    the written tests to him, the State presented no evidence to
    suggest that any one other than Allridge had completed them.                In
    addition, Dr. Schmitt’s testimony about Allridge was based not
    merely on the written test results but also on his two-hour
    interview with Allridge, his interviews with Allridge’s parents,
    and his analysis of Allridge’s artwork. Allridge exaggerates when
    he contends that his attorney’s failure personally to supervise the
    written tests, or to investigate and determine before trial that
    Dr. Schmitt had not done so either, “destroyed the defense’s case
    in the sentencing phase.”           The record confirms that counsel’s
    investigation in regard to Dr. Schmitt was itself reasonable and
    that it was sufficient to support counsel’s decision to put on this
    mitigating evidence.          See Wiggins v. Smith, 
    2003 WL 21467222
    (U.S.).      He   has   not    overcome       Strickland’s   presumption   that
    counsel’s performance fell “within the wide range of reasonable
    professional      assistance.”     See    Strickland,    466   U.S.   at   689.
    Counsel’s investigation was more than adequate to support the
    factual decision to have Dr. Schmitt testify; and doing so was not
         Neither has Allridge demonstrated Strickland prejudice.                On
    direct appeal, Allridge challenged the sufficiency of the evidence
    to support the jury’s affirmative finding on the second special
    issue.   See Allridge, 850 S.W.2d at 487.         In rejecting Allridge’s
    challenge, the CCA emphasized that, when Allridge, Ronald, and two
    accomplices drove around Tarrant County committing robberies on the
    night of March 24, 1985, Allridge personally committed three
    robberies while the other three men waited in the car; and that the
    evening culminated with Ronald’s shooting and killing a customer at
    a Whataburger restaurant while Allridge waited in the car.              That
    court also stressed that, during the period of two months following
    the instant Circle K robbery-murder, Allridge personally committed
    several armed robberies in which Ronald was not involved at all;
    that the morning after the Whataburger robbery-murder, Allridge
    apparently used the proceeds of the prior evening’s robberies to
    pay his rent and to pay his attorney in a matter unrelated to the
    armed robberies; that the facts of the Circle K robbery-murder
    showed   Allridge’s   cool   calculation;    and     that   the    robberies
    afterwards showed his “remorselessness.”          Id. at 487-89.     The CCA
    noted Dr. Schmitt’s testimony regarding Ronald’s dominance of
    Allridge, but did not even mention his discussion of the written
    tests.     Id. at 488, 489.     The court discounted the testimony
    regarding Ronald’s domination on the ground that Allridge had
    committed several armed robberies in which Ronald was not involved.
    Id. at 489.
         The   evidence   supporting   a    finding    of   Allridge’s   future
    dangerousness was quite strong, and no evidence offered by the
    State suggested that the written psychological tests were performed
    by anyone other than Allridge.       We conclude that Allridge has not
    established a reasonable probability that counsel’s failure to
    oversee Allridge’s completion of the tests or to ensure that Dr.
    Schmitt personally administered the tests altered or affected the
    punishment verdict in any way.
         Based   on   the   foregoing   analysis,   we   are   convinced   that
    Allridge suffered no constitutional deprivation from his trial
    court’s exclusion of venireman Osborn from the jury and that no
    reversible error was committed by the trial or appellate courts of
    Texas in that regard.       We are likewise convinced that Allridge
    procedurally defaulted his claim of ineffective assistance of
    counsel; and, alternatively, that on the merits of that claim, he
    has not demonstrated either cause or prejudice under the test of
    Strickland, the failure to demonstrate either being fatal to such
    a claim. We therefore affirm the district court’s denial of habeas
    corpus relief to Petitioner Allridge and dismissal of his § 2254