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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20334
_______________
1
ROBERT ANTHONY CARTER,
2
Petitioner-Appellant,
3
VERSUS
4
GARY L. JOHNSON,
5
Director, Texas Department of Criminal Justice,
6
Institutional Division,
7
Respondent-Appellee.
8
_________________________
9
10
Remand from the Supreme Court
11
of the United States
12
_________________________
13
December 12, 1997
14
Before KING, SMITH, and BENAVIDES, Circuit Judges.
15
JERRY E. SMITH, Circuit Judge:
16
Robert Carter appeals the denial of his petition for a writ of
17
habeas corpus filed under 28 U.S.C. § 2254 (1996). We affirm the
18
judgment and vacate the stay of execution.
19
I.
20
Carter was convicted of capital murder and sentenced to death
21
in March 1982. His case, which languished in the Texas courts for
22
over a decade and recently reached the Supreme Court, has now been

23
remanded to this court for further action.
24
A.
25
Carter was arrested in 1981 and charged with the murder of
26
Sylvia Reyes, who was fatally wounded during the robbery of a
27
service station.1 Carter confessed in great detail to the murder
28
but stated that the shooting had been accidental and denied any
29
intent to kill Reyes. Pursuant to this confession, the police
30
obtained the murder weapon identified by Carter, and ballistic
31
experts confirmed that the revolver had been used in the murder.
32
B.
33
At trial, a witness identified as "David Josa" testified that
34
he was entering the service station when he heard gunshots inside
35
and observed two individuals leave it immediately thereafter. The
36
first fled but returned when the police arrived. The second, a
37
young black man fitting Carter's description, emerged from the
38
store with "a wad of money" in his left hand and fled. Josa
39
observed this person for only a few seconds but did not see a gun,
40
nor was he able subsequently to identify Carter as the second man.
41
Another witness, Arthur Mallard, corroborated Josa's
42
testimony. Mallard identified himself as the first person out of
43
the station and testified that he had observed a man fitting
44
Carter's description reach across the counter to take money from
1 The first opinion of the Texas Court of Criminal Appeals summarizes the
facts at length. See Carter v. State, 717 S.W.2d 60, 62-66 (Tex. Crim. App.
1986), cert. denied, 484 U.S. 970 (1987).
2

45
the cash register. When the station attendant resisted, Mallard
46
heard a gunshot and fled the store. He was unable to identify
47
Carter as the man he had seen.
48
The defense offered no evidence to rebut the state, and the
49
jury returned a verdict of guilty to capital murder. At the
50
penalty stage, the state called witnesses to establish that Carter
51
had committed another murder six days prior to the charged offense.
52
Although none of the witnesses directly observed the second murder,
53
one identified Carter as the man she observed fleeing the scene.
54
Finally, the state introduced Carter's confession, in which he
55
confessed to the second murder, once again.
56
In rebuttal, defense counsel offered the testimony of three
57
witnessesSSCarter, his mother, and a family friendSSto establish
58
Carter's good character. Carter testified that he had not
59
intentionally killed the two victims and pledged to rehabilitate
60
himself if sentenced to life imprisonment rather than death.
61
Finally, in response to the character evidence, detective L.B.
62
Smith testified that Carter's reputation as a peaceful and law-
63
abiding citizen was "bad." After brief deliberation, the jury
64
affirmatively answered the three special issues submitted pursuant
65
to TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981), and the trial
66
court imposed the death sentence.
67
C.
68
In 1990, Carter filed his first state habeas petition. In
69
August 1995, the state trial court recommended that state habeas
3

70
relief be denied, and the Texas Court of Criminal Appeals denied
71
this first habeas petition in December 1995.
72
In August 1995, while the original state habeas petition was
73
pending, Carter filed his second state habeas application, alleging
74
that the length of time between his sentencing and his scheduled
75
execution rendered his death sentence cruel and unusual punishment
76
in violation of the Eighth Amendment. The state trial court
77
recommended that habeas relief be denied, and the Court of Criminal
78
Appeals denied this second application in January 1996.
79
Having finally exhausted his state remedies, Carter filed the
80
instant federal habeas petition in January 1996, followed soon
81
thereafter by a motion for discovery, a motion for an evidentiary
82
hearing, and an application for stay of execution. On March 20,
83
1996, the federal district court entered final judgment, denying
84
habeas relief. Carter appealed, and the district court issued a
85
certificate of probable cause ("CPC") on April 19, 1996.
86
We affirmed on April 9, 1997. See Carter v. Johnson, 110 F.3d
87
1098 (5th Cir. 1997). On June 23, 1997, the Supreme Court decided
88
Lindh v. Murphy, 521 U.S. ___, 117 S. Ct. 2059 (1997). Carter then
89
petitioned for writ of certiorari, raising, as his sole issue,
whether the Supreme Court, "under its customary 'GVR' practice,[2]
90
91
should remand this case for further proceedings in light of Lindh
92
v. Murphy . . . ." (Citation omitted.) The Court in fact did so,
2 The acronym "GVR" refers to the Supreme Court's practice of granting
certiorari, vacating, and remanding for further consideration in light of some
intervening development. The practice is thoroughly explained in Lawrence v.
Chater, 516 U.S. 163, ___, 116 S. Ct. 604, 606-10 (1996) (per curiam).
4

93
vacating and remanding "for further proceedings in light of Lindh
94
. . . ." (Citation omitted.) See Carter v. Johnson, 1997 U.S.
95
LEXIS 6758, 66 U.S.L.W. 3336 (U.S. Nov. 10, 1997).
96
II.
97
A.
98
Our initial opinion, 110 F.3d at 1103, involved an
99
interpretation of the Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996),3
100
101
that has since been rejected by the Supreme Court. In Lindh, the
102
Court rejected the argument that the procedural rules established
103
in chapter 153 of the AEDPA, 28 U.S.C.A. § 2254(d) (1997), could be
104
applied to cases initiated before the AEDPA's effective date. See
105
Lindh, 521 U.S. at ___, 117 S. Ct. at 2068.
106
In our initial opinion, we held that the AEDPA's procedural
107
provisions could be applied to Carter's habeas petition despite the
108
fact that his case was initiated before the effective date.
109
Carter, 110 F.3d at 1103. On the basis of this holding, we applied
110
a highly deferential standard of review to the state and district
111
habeas courts' conclusions regarding questions of law and mixed
112
questions of law and fact. We assume that the Supreme Court
3 The AEDPA significantly altered the landscape of federal habeas corpus
jurisprudence. First, it imposed a jurisdictional prerequisite on appeal from a
final order in a federal habeas proceeding, prohibiting the appeal unless a circuit
justice or judge issues a "certificate of appealability" ("COA"). See AEDPA § 102
(codified at 28 U.S.C. § 2253(c)(1)). Second, the AEDPA amended the procedures
governing collateral review of state convictions in federal court. See AEDPA §§
101-106 (codified at 28 U.S.C. §§ 2241-2255). And finally, the AEDPA provides for
expedited procedures governing federal habeas petitions in capital cases. See AEDPA
§ 107 (codified at 28 U.S.C. §§ 2261-2266).
5

113
remanded so that we may apply the correct standard of review to
114
Carter's appeal.
115
B.
116
Before reaching the merits, we must decide whether we have
117
jurisdiction to entertain the appeal. Although neither party has
118
challenged our jurisdiction, we are obliged to raise the issue sua
sponte.4
119
120
The AEDPA became effective April 24, 1996, five days after
121
Carter's CPC was issued. Under similar circumstances, we recently
122
held that the AEDPA's requirement of a COA does not apply to habeas
123
applicants who obtained CPC's prior to the statute's effective
124
date. See Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).
125
Accordingly, we have jurisdiction.
126
III.
127
A.
128
When we initially decided this case, we followed Drinkard v.
129
Johnson, 97 F.3d 751, 764-66 (5th Cir. 1996), cert. denied,
130
117 S. Ct. 1114 (1997), and held that the amended standards of
131
review established in § 104(3)of the AEDPA (codified at 28 U.S.C.
132
§ 2254(d) (1997)) are procedural in nature and therefore apply
133
immediately to all habeas petitions pending on the effective date
4 See, e.g., United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995);
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir. 1993).
6

134
of the AEDPA. See Carter, 110 F.3d at 1103. Under Lindh,
135
however, this was error, and § 104(3) of the AEDPA does not apply
136
to this case. Accordingly, we must take a fresh look at Carter's
137
appeal, applying traditional standards of review to the district
court's conclusions of law and applications of law to fact.5
138
139
140
IV.
141
Carter alleges that the state introduced the fraudulent
142
testimony of an "imposter witness" at trial, thereby incriminating
143
him and undermining the integrity of the verdict. To succeed on
144
such a claim, Carter must establish three elements: first, that
145
false testimony was presented at trial; second, that the
146
prosecution had actual knowledge that the testimony was false; and
147
third, that the testimony was material. May v. Collins, 955 F.2d
148
299, 315 (5th Cir. 1992). Carter cannot satisfy this standard.
149
A.
150
The sole evidence Carter offers to establish the first element
151
is the affidavit of David Josza. Josza, who was identified as an
152
eyewitness during the murder investigation, avers that he did not
153
testify at Carter's trial. Nevertheless, the trial transcript
154
indicates that an individual identified as "David Josa" testified
5 Lindh holds that while Congress did not intend immediate application of
chapter 153 of the AEDPA, it did intend immediate application of chapter 154, which
provides for expedited procedures in qualifying states. See Lindh, 521 U.S. at ___,
117 S. Ct. at 2063. We have previously determined, however, that the State of Texas
has not yet qualified for the expedited procedures governing habeas corpus petitions
in capital cases. See Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated
in part on other grounds, 105 F.3d 209 (5th Cir. 1997). Accordingly, we did not
apply those procedures when we initially heard this case, and will not do so now.
7

155
for the prosecution, offering substantially the same testimony as
156
the statement given by Josza during the investigation. Therefore,
157
Carter concludes that the witness who testified at trial must have
158
been an imposter. Even if we assume, arguendo, that the testimony
159
was fraudulent, the introduction of fraudulent testimony is
insufficient by itself to entitle Carter to habeas relief.6
160
161
B.
162
The Fourteenth Amendment is implicated by the introduction of
163
fraudulent or perjured testimony only if the prosecution has actual
164
knowledge of the perjury. 7 We have consistently stated that this
165
requirement imposes a strict burden of proof on a federal habeas
166
petitioner. See, e.g., May, 955 F.2d at 315; Koch v. Puckett,
167
907 F.2d 524, 531 (5th Cir. 1990). Carter cannot satisfy this
168
burden.
169
Carter relies exclusively on circumstance and inference,
170
arguing that an "imposter witness" could not possibly testify at
171
trial without the substantial complicity of the prosecution. To
172
rebut this inference, the state introduced the affidavit of then-
173
prosecutor Brian Rains, which the state court found to be credible,
6 Concluding that it was impossible to verify the identity of the
challenged witness ten years after the fact, neither the state habeas court nor
the federal district court found that David Josza did actually testify at trial.
Because we hold that Carter failed to establish either knowledge or prejudice,
however, we need not determine whether the contested testimony indeed was
fraudulent.
7 See, e.g., United States v. Agurs, 427 U.S. 97, 103 (1976); Napue v.
Illinois, 360 U.S. 264, 269 (1959); accord Spence v. Johnson, 80 F.3d 989, 996 (5th
Cir.), cert. denied, 117 S. Ct. 519, and cert. denied, 117 S. Ct. 519 (1996).
8

174
averring that he would not knowingly or intentionally present an
175
imposter witness at trial. After weighing this competing evidence,
176
the state court concluded there was no evidence that the state had
177
knowingly or intentionally presented an "imposter witness" at
178
trial.
179
These factual findings are entitled to a presumption of
180
correctness.8 The state court reasonably determined that Carter
181
had not satisfied his burden to prove that the prosecution
182
knowingly or intentionally presented perjured testimony at trial.
183
We have no reason to doubt either the fairness of the state court's
184
procedure or the correctness of its result.
185
C.
186
Both the state habeas court and the federal district court
187
dismissed the perjury claim on the ground that the alleged perjury
188
was not material to the outcome of the trial. For the perjury to
189
be material, Carter must show that "there was any reasonable
190
likelihood that the false testimony could have affected the
191
judgment of the jury."9 Under the circumstances of this case,
192
Carter cannot make such a showing.
193
Given that the star witness for the prosecution was Carter,
194
whose confession was introduced into evidence, there is no
8 See 28 U.S.C. § 2254(d) (1988) (stating the presumption of correctness that
was in effect before enactment of the AEDPA); Buxton v. Lynaugh, 879 F.2d 140, 144
(holding that findings made on the basis of affidavits are entitled to presumption
of correctness).
9 Agurs, 427 U.S. at 103; accord Spence, 80 F.3d at 997; see also Kyles v.
Whitley, 514 U.S. 419, 433 n.7 (1995) (approving Agurs's materiality test).
9

195
reasonable likelihood that Josa's allegedly false testimony
196
affected the verdict. The prosecution did not rely on Josa's
197
testimony to establish the essential elements of the offense, but
198
merely to corroborate the confession. Moreover, the contested
199
evidence was cumulative of other evidence, particularly Mallard's
200
testimony.
201
Carter has failed to establish that the prosecution knowingly
202
and intentionally presented material false evidence. Accordingly,
203
we find no error in the state court's determination on this issue.
204
V.
205
Carter contends that the district court erred by failing to
206
conduct a nunc pro tunc evidentiary hearing to determine his
207
competency to stand trial. We disagree.
208
A.
209
The trial and conviction of a defendant while he is mentally
210
incompetent constitute a denial of due process. See Cooper v.
211
Oklahoma, 517 U.S. 348, ___, 116 S. Ct. 1373, 1376 (1996). The
212
constitutional standard for competency to stand trial is whether
213
the defendant "has sufficient present ability to consult with his
214
lawyer with a reasonable degree of rational understandingSSand
215
whether he has a rational as well as a factual understanding of the
216
proceedings against him." Dusky v. United States, 362 U.S. 402,
217
402 (1960); accord Godinez v. Moran, 509 U.S. 389, 396 (1993).
218
Carter claims that he adduced sufficient evidence in the state
10

219
courts to warrant a federal nunc pro tunc evidentiary hearing on
the question of whether he was incompetent in fact.10
220
221
A habeas petitioner is entitled to a nunc pro tunc evidentiary
222
hearing for the purpose of proving that he was incompetent at the
223
time of trial only "when he makes a showing by clear and convincing
224
evidence to raise threshold doubt about his competency." Lokos v.
225
Capps, 625 F.2d 1258, 1261 (5th Cir. 1980). In order for him to
10 The issue of competency may arise in two distinct contexts. See United
States v. Williams, 819 F.2d 605, 607-09 (5th Cir. 1987); Lokos v. Capps,
625 F.2d 1258, 1261-62 (5th Cir. 1980). We must distinguish between them for
purposes of the present case.
First, a habeas petitioner may allege that state procedures were inadequate
to ensure that he was competent to stand trial. A trial court must conduct an
inquiry into the defendant's mental capacity sua sponte if the evidence raises
a bona fide doubt as to competency. Pate v. Robinson, 383 U.S. 375 (1966). If
the trial court receives evidence, viewed objectively, that should raise a
reasonable doubt as to competency, yet fails to make further inquiry, this
constitutes a denial of a fair trial. See Lokos, 625 F.2d at 1261.
If a Pate violation is established, the federal habeas court must consider
whether a meaningful hearing can be held nunc pro tunc to determine
retrospectively the petitioner's competency as of the time of trial. Id. at
1262. If so, the petitioner bears the burden of proving his incompetence by a
preponderance of the evidence; if not, the habeas writ must issue, subject to
retrial at the state's discretion. Id. This Pate procedural guarantee is not
before us, having been expressly abandoned by Carter on appeal.
Second, a habeas petitioner may collaterally attack his state conviction
by directly alleging incompetence at the time of trial, thereby claiming a
violation of the substantive right not to be tried and convicted while
incompetent, rather than of the procedural guarantee of a competency hearing in
the event that a bona fide doubt arises at trial as to competency:
It is always open for the defendant to later assert his actual
incompetence at trial in a subsequent collateral proceeding, but the
substantive claim should not be confused with a defendant's
procedural rights under Pate to a hearing whenever a bona fide doubt
as to competence surfaces at trial.
Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir.1979).
Although Carter originally claimed both (1) that the state trial court
violated his due process rights by failing to conduct an evidentiary hearing on
his competency to stand trial sua sponte and (2) that the federal district court
should conduct a nunc pro tunc evidentiary hearing to determine his competency
at the time of trial, he has abandoned the former claim on appeal. Therefore,
the issue before us is restricted to the question whether the district court
erred by failing to conduct a nunc pro tunc evidentiary hearing on the question
of competency at the time of trial.
11

226
raise such doubt, he must present facts sufficient "to positively,
227
unequivocally and clearly generate a real, substantial and
228
legitimate doubt" concerning his mental capacity.11 "When federal
229
habeas is sought on the ground that the defendant was in fact
230
incompetent at the time of trial, the petitioner's initial burden
231
is substantial." Enriquez v. Procunier, 752 F.2d 111, 114 (5th
232
Cir. 1984).
233
Both the state habeas court and the federal district court
234
concluded that a nunc pro tunc evidentiary hearing was not required
235
to decide whether Carter was incompetent at trial. Indeed, the
236
state habeas court expressly concluded that Carter was competent:
237
"The Court finds that the applicant's testimony during the
238
punishment stage of the trial shows a factual, as well as rational
239
understanding of the proceedings against him." Moreover, the state
240
habeas court entered the following conclusion: "The applicant
241
fails to show that he was legally incompetent to stand trial, i.e.,
242
that he was unable to consult with counsel with a reasonable degree
243
of rational understanding or that he lacked a factual, as well as
244
rational, understanding of the proceedings against him." These
245
findings are more than adequate to justify the district court's
246
conclusion that "the state court found that there was no evidence
11 United States v. Williams, 819 F.2d 605, 609 (5th Cir. 1987); Bruce v.
Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973), subsequent opinion, 536 F.2d 1051,
1058-59 (5th Cir. 1976). This threshold burden of proof is "extremely heavy."
Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983); accord Williams, 819 F.2d at
609.
12

that Petitioner was actually incompetent to stand trial."12
247
248
Under 28 U.S.C. § 2254(d), the findings are entitled to a
249
presumption of correctness. The petitioner must rebut this
250
presumption by clear and convincing evidence, and a federal court
251
may not issue a writ unless the petitioner can demonstrate by such
252
evidence that the state decision was based on an incorrect
253
determination of the facts. Furthermore, the factual determination
254
of the state habeas court, finding that Carter failed to establish
255
he was legally incompetent to stand trial, must be afforded the
presumption of correctness.13
256
12 Carter claims that the state habeas court entered findings of fact and
conclusions of law exclusively on the procedural Pate claim, not the substantive
incompetency claim, thereby forfeiting the presumption of correctness afforded
state court factual findings under 28 U.S.C. § 2254(d) (1988) for the latter
claim. Although the findings of fact are not exhaustive, it is significant that
the findings entered by the state habeas court are not limited to the narrow
question of whether a bona fide doubt existed at trial concerning Carter's
competency, but also support the conclusion that he was "competent in fact" at
the time of trial.
13 See Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (assuming that
competency is a factual determination entitled to the presumption of correctness);
see also Miller v. Fenton, 474 U.S. 104, 113 (1985) (citing Maggio for the
proposition that competency is a question of fact entitled to the presumption of
correctness); Flugence v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (same); Williams,
819 F.2d at 607-08 (same). The mere fact that the state court dismissed the
habeas petition on the basis of affidavits, without granting an evidentiary
hearing, does not disturb the presumption of correctness under § 2254(d). We
have consistently recognized that, to be entitled to the presumption of
correctness, a state court need not hold an evidentiary hearing; to the contrary,
findings of fact based exclusively on affidavits are generally sufficient to
warrant the presumption. See May v. Collins, 955 F.2d 299, 309-15 (5th Cir.
1992); see also Sawyer v. Collins, 986 F.2d 1493, 1504-05 (5th Cir. 1993)
(affording presumption of correctness to factual findings rendered solely on the
basis of affidavits); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990)
(same); Buxton v. Lynaugh, 879 F.2d 140, 143-47 (5th Cir. 1989) (same).
Furthermore, although our prior decisions have characteristically involved
cases in which the state habeas judge was the same judge who presided at trial,
see, e.g., May, 955 F.2d at 314; Buxton, 879 F.2d at 146, we have never held that
this is a prerequisite to according the presumption of correctness to factual
findings based solely on affidavits. To the contrary, we have recognized that
"it is necessary to examine in each case whether a paper hearing is appropriate
to the resolution of the factual disputes underlying the petitioner's claim."
May, 955 F.2d at 312. In the instant case, we are satisfied that the facts were
(continued...)
13

257
B.
258
Given the combined weight of the presumption of correctness
259
and the high burden of proof necessary to justify a nunc pro tunc
260
evidentiary hearing on the question of competency, Carter has
261
failed to demonstrate that the state habeas court erred in denying
262
his allegation of incompetency. Carter relies primarily on the
263
affidavit of Dr. Dorothy Lewis, his board-certified psychiatrist,
264
who concluded that a history of head injuries, mental retardation,
265
and brain damage impaired his ability to make mature judgments,
266
appreciate the consequences of his behavior, and reflect in advance
267
on the appropriateness of his actions. The fact that neither the
268
state habeas court nor the district court discussed this expert
269
opinion does not overcome the presumption of correctness.
270
First, Lewis did not offer her opinion that Carter was unable
271
to consult with his lawyers with a reasonable degree of rational
272
understanding or was unable to command a rational or factual
273
understanding of the proceedings against himSSthe minimum standard
274
for a finding that he was incompetent. Therefore, it was not
275
unreasonable for the state habeas court to find this expert
276
testimony unpersuasive.
277
Furthermore, the state habeas court is entitled to find a
278
defendant competent, despite the introduction of psychiatric
279
testimony diagnosing him as incompetent, without ordering an
280
evidentiary hearing. See, e.g., Maggio, 462 U.S. at 113-18.
(...continued)
adequately developed in the record and the affidavits, and the state habeas court
was entitled to render a factual determination based solely on the affidavits.
14

281
Therefore, we previously have found similar expert psychiatric
282
testimony insufficient to satisfy the petitioner's extremely heavy
283
burden of proving a "real, substantial and legitimate doubt"
284
concerning his competency, as required to warrant a nunc pro tunc
285
evidentiary hearing. See, e.g., Williams, 819 F.2d at 607-09.
286
Hence, the Lewis affidavit is not sufficient, without more, to
287
establish the requisite "clear and convincing evidence" necessary
288
to overcome the presumption of correctness, nor does it demonstrate
289
the "real, substantial and legitimate doubt" necessary to warrant
290
a nunc pro tunc evidentiary hearing on the question of competency.
291
To the contrary, the state habeas court expressly found that
292
Carter's testimony established that he possessed a rational and
293
factual understanding of the proceedings against him. Such a
294
conclusion by a state court, based upon a defendant's testimony, is
295
entitled to a presumption of correctness. See Holmes v. King,
296
709 F.2d 965, 968 (5th Cir. 1983).
297
Finally, Carter corroborates his claim of incompetency with
298
evidence of physical abuse and neglect and with anecdotal comments
299
made by the prosecutor and defense counsel at trial. Nevertheless,
300
the state habeas court found credible and persuasive the affidavits
301
offered by Carter's court-appointed trial counsel, who stated that
302
they believed he was competent to stand trial and did not think his
303
prior head injuries had impaired his mental competency during the
304
trial. These factual findings are entitled to the presumption of
305
correctness, and the anecdotal evidence is insufficient to overcome
306
this presumption by clear and convincing evidence.
15

307
VI.
308
Carter did not contest the voluntariness of his confession,
309
and it thus was admitted into evidence without objection.
310
Nevertheless, he now collaterally attacks the admissibility of the
311
confession on the ground that it was involuntary. His claim is
312
meritless.
313
A.
314
A federal court entertaining a collateral challenge to the
315
voluntariness of a confession is obliged to afford a presumption of
316
correctness to state court findings of fact if fairly supported in
317
the record but is authorized to exercise de novo review over the
318
ultimate conclusion of whether, under the totality of the
319
circumstances, the confession was "voluntary."14
320
321
B.
322
Pursuant to Jackson v. Denno, 378 U.S. 368 (1964), the trial
323
court conducted a hearing on the voluntariness of the confession
324
and entered factual findings, concluding that the confession was
325
freely and voluntarily made. Therefore, we must presume correct
326
the factual determination that the police offered Carter no
327
improper inducements to obtain his confession, nor did they
328
threaten him in order to coerce it. The determination of whether
329
officers engaged in coercive tactics to elicit a confession is a
14 Thompson v. Keohane, 116 S. Ct. 457, 465 (1995); Miller v. Fenton, 474 U.S.
104, 110-18 (1985); accord West v. Johnson, 92 F.3d 1385, 1402-03 (5th Cir. 1996),
cert. denied, 117 S. Ct. 1847 (1997).
16

330
question of fact, and the state court's factual findings are
entitled to deference if supported in the record.15
331
332
Likewise, the state habeas court entered extensive factual
333
findings concerning the voluntariness of the confession, finding,
334
inter alia, that Carter was timely advised of his Miranda rights;
335
that he understood his rights, yet declined to request the presence
336
of either an attorney or a family member while in custody; that he
337
was offered no inducements to confess and suffered no threats or
338
coercion to extract a confession while in custody; that he was
339
mentally competent and cooperative at the time he made his
340
confession; and that he acknowledged that his statement was made
341
voluntarily. These factual findings are entitled to the
342
presumption of correctness under 28 U.S.C. 2254(d) (1988). To
343
overcome the presumption, Carter must rebut these factual findings
344
by clear and convincing evidence. Id. This he cannot do.
345
In his federal habeas petition, Carter sought to overcome the
346
factual findings by raising charges of coercion, intimidation, and
347
mental retardation. The district court found, however, that his
348
allegations of coercion and duress were conclusional and
349
unsupported by the evidence adduced at trial or presented by
350
affidavit, and likewise found that the allegation of mental
351
retardation was without merit. This factual determination is
352
adequately supported by the record. Therefore, we must accept as
15 Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993); Self v. Collins,
973 F.2d 1198, 1204 (5th Cir. 1992); see also Miller, 474 U.S. at 112 (noting that
subsidiary questions such as whether the police engaged in coercive tactics are
afforded the presumption of correctness); Hawkins v. Lynaugh, 844 F.2d 1132, 1137
(5th Cir. 1988) (same).
17

353
conclusive the state court factual determination that the
354
challenged confession was given voluntarily, not as a product of
355
coercion or intimidation.
356
C.
357
Accepting these subsidiary facts as true, we must reach the
358
ultimate question whether Carter's challenged confession was
359
voluntary or constitutionally infirm. The state trial and habeas
360
courts concluded that it was voluntary. Applying pre-AEDPA law,
361
the ultimate question whether a confession is voluntary is a
362
question of law, to be reviewed de novo. See United States v.
363
Scurlock, 52 F.3d 531, 536 (5th Cir. 1995).
364
Coercive police conduct is a necessary prerequisite to the
365
conclusion that a confession was involuntary, and the defendant
366
must establish a causal link between the coercive conduct and the
367
confession. See Colorado v. Connelly, 479 U.S. 157, 163-67 (1986).
368
Although mental condition may be a significant factor in the
369
voluntariness calculus, "this fact does not justify a conclusion
370
that a defendant's mental condition, by itself and apart from its
371
relation to official coercion, should ever dispose of the inquiry
372
into constitutional 'voluntariness.'" Id. at 164.16 Consequently,
373
in the absence of any evidence of official coercion, Carter has
16 Consequently, Carter's allegations concerning his state of mind at the
time of the confession are unavailing, for "while mental condition is surely
relevant to an individual's susceptibility to police coercion, mere examination
of the confessant's state of mind can never conclude the due process inquiry."
Connelly, 479 U.S. at 165; see also Raymer, 876 F.2d at 386-87 (noting that
mental condition does not render a confession involuntary in the absence of state
coercion).
18

374
failed to establish that his confession was involuntary. See
375
United States v. Raymer, 876 F.2d 383, 386 (5th Cir. 1989).
376
VII.
377
Carter raises a litany of ineffective-assistance-of-counsel
378
claims, urging that his court-appointed trial counsel were
379
constitutionally defective at both the guilt and punishment stages
380
of the trial. Carter is unable, however, to overcome the rigorous
381
burden of proof required to demonstrate ineffective assistance.
382
A.
383
A habeas petitioner alleging ineffective assistance must
384
demonstrate both constitutionally deficient performance by counsel
385
and actual prejudice as a result of such ineffective assistance.
386
See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also
387
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing
388
the Washington standard of review). Failure to prove either
389
deficient performance or actual prejudice is fatal to an
390
ineffective assistance claim. Washington, 466 U.S. at 687.
391
To establish deficient performance, the petitioner must prove
392
that the performance of counsel fell below an objective standard of
393
reasonableness. Id. at 688. Therefore, courts may not fall prey
394
to "the distorting effect of hindsight" but must be "highly
395
deferential" to counsel's performance. Id. at 689-90. Hence,
396
there is a strong presumption that the performance "falls within
397
the wide range of reasonable professional assistance." Id. at 689.
19

398
Carter has the burden to overcome this presumption.
399
Moreover, even if counsel's performance was deficient, Carter
400
must affirmatively demonstrate actual prejudice. To do so, he must
401
establish that the attorneys' errors were so deficient as to render
402
the verdict fundamentally unfair or unreliable. See Lockhart v.
403
Fretwell, 506 U.S. 364, 369 (1993); Washington, 466 U.S. at 687.
404
In evaluating claims of ineffective assistance during the guilt
405
stage of the trial, the petitioner must show a "reasonable
406
probability" that the jury would have otherwise harbored a
407
reasonable doubt concerning guilt. Regarding the sentencing phase,
408
the petitioner must establish a "reasonable probability" that the
409
jury would not have imposed the death sentence in the absence of
410
errors by counsel. Id. at 695. "A reasonable probability is a
411
probability sufficient to undermine confidence in the outcome."
412
Id. at 694.
413
For purposes of federal habeas review, state court findings of
414
fact made in the course of deciding an ineffectiveness claim are
415
entitled to a presumption of correctness. See 28 U.S.C. § 2254(d)
416
(1988); see also Washington, 466 U.S. at 698 (noting that findings
417
of fact are afforded deference); Motley, 18 F.3d at 1226 (same).
418
Unless Carter rebuts them by clear and convincing evidence,
419
therefore, we are required to accept, as conclusive, both the
420
factual findings and the credibility choices of the state courts.
421
See Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990).
422
The
ultimate
determination
whether
counsel
was
423
constitutionally ineffective is a mixed question of law and fact
20

424
that federal habeas courts have traditionally reviewed de novo.
425
See, e.g., Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996);
426
United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Given
427
the holding in Lindh, we must apply this traditional de novo
428
standard to Carter's appeal.
429
B.
430
1.
431
Carter avers that his trial counsel were ineffective because
432
they failed to challenge his competency to stand trial. The state
433
habeas court, however, accorded credibility to counsel's
434
affidavits, averring that they had no reason to believe that Carter
435
was mentally incompetent at the time of trial. Furthermore, the
436
state habeas court found there was insufficient evidence to
437
conclude that Carter was mentally incompetent.
438
These findings of fact and credibility determinations are
439
entitled to a presumption of correctness, and Carter has not
440
introduced the requisite clear and convincing evidence to prove
441
that they are erroneous. Therefore, because the factual
442
determination that Carter was competent to stand trial is
443
conclusive and binding on us, it necessarily follows that his trial
444
counsel were not constitutionally ineffective in their failure to
445
contest the competency of the defendant to stand trial. "There can
446
be no deficiency in failing to request a competency hearing where
447
there is no evidence of incompetency." McCoy v. Lynaugh, 874 F.2d
448
954, 964 (5th Cir. 1989).
21

449
2.
450
Carter alleges that his counsel might have exposed the alleged
451
"imposter witness" if they had interviewed David Josza prior to
452
trial. Carter did not raise this argument explicitly in the
453
district court, but argues that it is subsumed within his argument
454
that counsel were ineffective in failing to interview government
455
witnesses and adequately to prepare for trial. This vague
456
allegation was not sufficient to place the district court on notice
457
of the claim that Carter now urges, however, and thus the claim is
deemed abandoned.17
458
459
Furthermore, Carter's argument that his trial counsel "might"
460
have exposed the alleged "imposter witness" is pure speculation,
461
insufficient to overcome the strong presumption of competency and
462
the high burden of actual prejudice required to prove ineffective
463
assistance of counsel. Indeed, given that the contested testimony
was merely cumulative and immaterial to the outcome of the trial,18
464
465
we cannot conclude that there is a reasonable probability that the
466
jury would have harbored a reasonable doubt about guilt, even if
467
the alleged "imposter witness" had been "exposed" by trial counsel.
468
The voluntary confession precluded any such reasonable doubt, so
469
Carter is entitled to no relief on this claim.
470
3.
17 See Nichols v. Scott, 69 F.3d 1255, 1285 (5th Cir. 1995), cert. denied, 116
S. Ct. 2559 (1996); United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990).
18 See supra part IV.
22

471
Carter alleges that his trial counsel were ineffective in
472
failing to challenge the admissibility of his confession. But, as
473
we noted previously, the state habeas court accorded credibility to
474
counsel's affidavits, finding that the attorneys were justified in
475
their conclusion that the confession had been given voluntarily and
476
that there were no grounds to object to admissibility. Moreover,
477
both the state trial court and the state habeas court found that
478
the confession was voluntary.
479
The presumption of correctness attaches to these factual
480
findings and credibility determinations, and Carter cannot overcome
481
it. At a minimum, we cannot conclude that the performance of
482
counsel was "objectively unreasonable." See Washington, 466 U.S.
483
at 688. Therefore, counsel did not render ineffective assistance
484
of counsel by failing to object, when objection would have been
485
futile.
486
4.
487
Carter claims that his trial counsel were defective in their
488
presentation of the "accidental death" defense, whereby they argued
489
that Carter had not actually intended to kill Reyes but had
490
accidentally discharged the weapon during a brief struggle at the
491
cash register. Carter contends that his counsel denigrated the
492
"accidental death" defense during their closing arguments.
493
Furthermore, he argues that his counsel were deficient for failing
494
to propose a jury instruction on the question of accident. These
495
allegations were not adequately presented to the district court,
23

496
however, and they are deemed waived. See Nichols, 69 F.3d at 1285;
497
Smith, 915 F.2d at 964.
498
5.
499
Carter claims that his defense counsel were deficient in
500
failing adequately to investigate the facts of the case and
501
Carter's background; he claims that such an investigation would
502
have produced numerous character witnesses who would have testified
503
during the punishment stage of the trial, as well as expert
504
testimony concerning his mental incapacity. Therefore, Carter
505
contends, the deficient performance of counsel deprived him of
506
mitigating evidence that would have significantly influenced the
507
jury's decision whether to impose the death penalty. The state
508
habeas court found, however, that the testimony of such character
509
witnesses would have been cumulative and would not have been
510
sufficient to change the verdict. We have no reason to question
511
this conclusion.
512
Given Carter's confession to the crime of murder, we can
513
hardly conclude that the testimony of character witnesses to his
514
reputation as a "good and peaceful person" would have sufficiently
515
impressed the jury to avoid the sentence of death. Consequently,
516
the conclusion of the state habeas court that Carter failed to
517
demonstrate prejudice resulting from the absence of such character
518
witnesses was not error.
519
As to the allegation that defense counsel were deficient in
520
their failure adequately to investigate mental capacity and to
24

521
secure expert witnesses who would offer mitigating evidence at the
522
punishment stage, that claim is foreclosed by the factual
523
conclusion that defense counsel were justified in believing that
524
Carter was mentally competent at the time of trial.19 Furthermore,
525
the state habeas court found that there was insufficient evidence
526
to warrant the conclusion that Carter was incompetent in fact at
527
the time of trial, necessarily foreclosing any claim of ineffective
528
assistance predicated on the failure to investigate such alleged
529
incompetency. See Motley, 874 F.2d at 964.
530
The duty of trial counsel to investigate is tempered by the
531
information provided to counsel by the defendant. When, as here,
532
the defendant has given counsel reason to believe that certain
533
investigations would be fruitless or harmful, the failure to pursue
534
such investigations may not later be challenged as unreasonable.
535
"In any ineffectiveness case, a particular decision not to
536
investigate must be directly assessed for reasonableness in all the
537
circumstances, applying a heavy measure of deference to counsel's
538
judgments." Washington, 466 U.S. at 190-91. Given that the state
539
courts have concluded that Carter was mentally competent at the
540
time of trial, it necessarily follows that the failure to
541
investigate his mental competency in preparation for trial, or to
542
elicit expert testimony concerning his mental state during the
543
punishment phase of trial, was not ineffective assistance.
19 See Byrne v. Butler, 845 F.2d 501, 513 (5th Cir. 1988); accord Barnard v.
Collins, 958 F.2d 634, 642 (5th Cir. 1992).
25

544
6.
545
Carter argues that his defense counsel were defective in
546
failing to object to the admissibility of his confession to the
547
murder of R.B. Scott, an extraneous offense that was introduced by
548
the prosecution during the punishment stage to justify the
549
imposition of the death penalty. Carter claims there was
550
insufficient evidence to corroborate this confession and insists
551
that it would have been excluded from the jury on a proper
552
objection. Carter concedes, however, that he did not raise this
553
issue in the district court. Therefore, it is deemed waived. See
Nichols, 69 F.3d at 1285; Smith, 915 F.2d at 964.20
554
555
7.
556
Carter claims that his trial counsel were deficient in failing
557
to instruct the jury that "deliberate" conduct requires proof of
558
something more than "intentional" conduct under Texas law.21 Carter
559
failed to raise this issue before the district court, however,
560
thereby abandoning it. See Nichols, 69 F.3d at 1285; Smith,
561
915 F.2d at 964.
20 Carter pleads for an exception to this rule, claiming that a miscarriage
of justice will result from our refusal to address his argument. This claim is
meritless, however, given the absence of any colorable reason to question his
factual guilt. The corroboration requirement serves the function of assuring
that confessions represent a truthful representation of the facts, thereby
confirming factual guilt. See Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim.
App. 1994). Carter has suggested no reason to question the truth of his
statement, nor does he deny his factual guilt of Scott's murder.
21 See, e.g., Motley v. State, 773 S.W.2d 283, 289 (Tex. Crim. App. 1989);
Heckert v. State, 612 S.W.2d 549, 552-53 (Tex. Crim. App. 1981); see also Earvin
v. Lynaugh, 860 F.2d 623, 627 (5th Cir. 1988) ("It is clear that something more
than intentional conduct must be found at the punishment phase of the trial on
the issue of 'deliberateness.'").
26

562
8.
563
Carter charges that defense counsel demonstrated a personal
564
antipathy toward him during their closing arguments in the
565
punishment phase of the trial, thereby prejudicing the jury.22 The
566
state habeas court, however, summarized in great detail counsel's
567
closing arguments, noting that counsel pleaded for mercy and
568
compassion, summarized the arguments against the death penalty, and
569
urged the jury to sentence Carter to life imprisonment rather than
570
death. Therefore, defense counsel did not abdicate their role as
571
advocates, and the state habeas court concluded that their closing
572
arguments did not transgress the "objective standard of
573
reasonableness." Washington, 466 U.S. at 688. Having reviewed the
574
record, we agree.
575
In considering whether counsel's closing argument was
576
ineffective, we consider the closing statements in their entirety.
577
Teague v. Scott, 60 F.3d 1167, 1173 (5th Cir. 1995). Furthermore,
578
counsel may make strategic decisions to acknowledge the defendant's
579
culpability and may even concede that the jury would be justified
580
in imposing the death penalty, in order to establish credibility
581
with the jury.23 Although, at the penalty phase, Carter's attorneys
582
acknowledged his culpability and the need for punishment, they also
22 For example, defense counsel implied that Carter might have committed
other criminal acts, questioned whether he couldSSand shouldSSlive in society,
wondered aloud whether death was a greater punishment than life imprisonment, and
conceded that the jury could sentence him death with a clear conscience.
23 See Kirkpatrick v. Butler, 870 F.2d 276, 284-85 (5th Cir. 1989); see also
Washington, 466 U.S. at 689 (strong presumption that the strategic decisions of
counsel are not ineffective).
27

583
pleaded for mercy and urged the jury to sentence him to life
584
imprisonment rather than death. Consequently, the argument fell
585
within "the wide range of reasonable professional assistance," id.
586
at 689, and did not constitute ineffective assistance.
587
VIII.
588
Carter argues that execution of his death sentence, more than
589
fourteen years after his conviction, would violate the Eighth
590
Amendment. We have previously held, however, that such a delay
591
does not offend the Constitution.24 Concluding that the district
592
court correctly refused to issue the writ of habeas corpus, we
593
AFFIRM the judgment and VACATE the stay of execution.
24 See Lackey v. Johnson, 83 F.3d 116, 117 (5th Cir.), cert. denied,
117 S. Ct. 276 (1996); White v. Johnson, 79 F.3d 432, 437-40 (5th Cir.), cert.
denied, 117 S. Ct. 275 (1996); Lackey v. Scott, 52 F.3d 98 (5th Cir.), cert.
dismissed, 514 U.S. 1093 (1995). Likewise, every other court to address the
question thus far has ruled against the petitioner. See, e.g., Stafford v. Ward,
59 F.3d 1025 (10th Cir.), cert. denied, 515 U.S. 1173 (1995); Turner v. Jabe,
58 F.3d 924 (4th Cir.), cert. denied, 515 S. Ct. 1017 (1995); McKenzie v. Day, 57
F.3d 1461 (9th Cir. 1995).
28