Petitioner-Appellant Bernard Eugene Amos, a Texas death row inmate, appeals the district court's grant of summary judgment in favor of Respondent-Appellant Wayne Scott, Director of the Texas Department of Criminal Justice (the State), denying and dismissing with prejudice Amos' petition for a writ of habeas corpus. For the reasons set forth below, we affirm the judgment of the district court.

* FACTUAL HISTORY

The full factual history for this appeal is detailed in the opinion of the Texas Court of Criminal Appeals (TCCA) affirming Amos' conviction and sentence.1 Summarized briefly, that history is as follows. On January 14, 1988, Amos and his cousin, Gary Von Bennett, drove to a Dallas apartment complex looking for something to steal or an apartment to burglarize. After the two men burglarized one apartment and returned to their car to cache the stolen goods, they were approached by James Joe, an off-duty Dallas police officer and part-time apartment complex security guard. Joe, who was wearing a Dallas Police Department sweatshirt and police badge, identified himself and proceeded to question Amos and Bennett. Amos became upset during the exchange with Joe, and at some point "flinched," turned, drew a pistol, and shot Joe in the chest at point blank range. Bennett eventually testified that he immediately ran toward one of the apartment buildings, ducked down, heard three or four more shots, and then nothing. When Bennett returned to the car, he saw both Amos and Joe lying on the ground.

Bennett was told by Amos that he had been shot and needed help. Bennett helped Amos into the car and drove to a neighboring apartment complex. When the police arrived at that apartment complex, Bennett ran and hid. Amos, who was unable to run, got out of the car and tried to hide under a parked truck. The police found Amos, arrested him, and transported him to a hospital for treatment.

Amos was indicted for the capital murder of James Joe in the course of committing and attempting to commit burglary. Amos entered a plea of "not guilty" to the offense and a trial followed. Bennett, as the State's key witness, testified to the foregoing facts at the guilt-innocence phase of Amos' trial. Amos also testified in his own defense, admitting in the course thereof to seven prior felony convictions, one misdemeanor conviction, and four incarcerations in the Texas Department of Corrections. The jury returned a verdict of guilty as charged in the indictment. After a separate hearing on punishment, the jury, in response to the Texas special issues submitted to it, sentenced Amos to death by lethal injection. Amos' motion for a new trial was denied following a hearing on that motion.

Amos' conviction and sentence were automatically appealed to the TCCA, the state's highest appellate court for criminal appeals. In an en banc decision, that court affirmed Amos' conviction and sentence.2 The United States Supreme Court denied Amos' petition for writ of certiorari.3

Amos filed his first petition for writs of habeas corpus simultaneously in the TCCA and the Criminal District Court of Dallas County (state habeas court or trial court, depending on context). The state habeas court denied Amos' petition in an order adopting the State's proposed findings of fact and conclusions of law and adding the court's own supplemental findings of fact and conclusions of law. The TCCA also denied Amos' petition, holding that the findings entered by the trial court were supported by the record.

Amos filed a petition for federal writ of habeas corpus and stay of execution in the district court, which granted the stay pending its examination of Amos' habeas petition. In response to Amos' petition, the State filed an answer and a motion for summary judgment. Following oral argument, the district court granted summary judgment in favor of the State, dismissing Amos' petition and vacating the stay of execution. In rejecting Amos' petition, the district court held that (1) six of Amos' eleven grounds for relief were procedurally barred under state law;4 (2) Amos' claim that the State failed to disclose material impeachment evidence and to correct perjured testimony was meritless; (3) Amos did not satisfy the standard necessary to establish his claim of ineffective assistance of counsel on the grounds that counsel failed to a) conduct a reasonable punishment phase investigation, b) adequately voir dire the jury panel, and c) present evidence that Amos did not knowingly waive his Fifth Amendment rights; and (4) Amos showed no basis for relief on his claim challenging the Texas special issues, as interpreted and applied in his case. Amos' motion to alter or amend the district court's judgment was denied.

Amos timely filed notice of appeal to this court but the district court denied a certificate of probable cause (CPC) to appeal. Amos filed a second notice of appeal as well as another motion for CPC. Again, the district court denied Amos' motion for CPC. Amos then filed a request for CPC with this court, which was carried with this appeal. We grant Amos' request for a CPC, and proceed to the merits of his appeal.

Amos asserts on appeal that the district court erred in (1) relying on the Texas contemporaneous objection rule as an "independent and adequate state-law ground" barring federal court review of his claim that the totality of circumstances surrounding his trial violated his Sixth Amendment right to a fair trial;5 (2) denying him an evidentiary hearing on his claim that the State failed to disclose material impeachment evidence and knowingly presented false testimony; and (3) denying him an evidentiary hearing on his claim that his counsels' failure to investigate and present mitigating evidence during the punishment phase of his trial constitutes ineffective assistance of counsel. Amos did not re-urge on appeal his challenge to the Texas special issues.

In reviewing the habeas proceedings of petitioners in state custody, we must accord a presumption of correctness to state court findings of facts.6 We review the district court's findings of fact for clear error and decide any issues of law de novo.7 A district court's denial of federal habeas review based on a state procedural ground presents a legal question that we review de novo.8

B. TEXAS' CONTEMPORANEOUS OBJECTION RULE--INDEPENDENT AND ADEQUATE?

Amos contends that the district court erroneously relied on the Texas contemporaneous objection rule as an independent and adequate state-law ground on which to deny review of many of his federal habeas claims.9 Amos insists vigorously that the state procedural rule is not an adequate state-law ground, advancing two fundamental reasons: (1) the rule and its exceptions are not strictly or regularly followed by the TCCA, and (2) the rule is an inherently discretionary rule of procedure and therefore is per se inadequate.

1. Strictly or Regularly Followed?

A federal court will not review a question of federal law decided by a state court if the decision of that state court rests on a state ground that is both independent of the merits of the federal claim and adequate to support that judgment.10 This "independent and adequate state law" doctrine applies to both substantive and procedural grounds and affects federal review of claims that are raised on either direct or habeas review.11

Procedural default does not bar federal court review of a federal claim raised in a habeas petition unless the last state court rendering a judgment in the case has "clearly and expressly" indicated that its judgment is independent of federal law, e.g., rests on a state procedural bar.12 Relevant to this appeal in this regard is a recent Supreme Court case, Sochor v. Florida,13 in which the Court held that a state court opinion expressing that "none of the complained-of jury instructions were objected to at trial, and thus, ... are not preserved for appeal," indicates with "requisite clarity" the rejection of a federal claim based on an alternative state-law ground.14 We note in particular that the Court reached this conclusion even though the state court opinion also expressed that, "[i]n any event, [the] claims ... have no merit."15

In addition to being independent of federal law, a state procedural rule barring federal habeas review of a federal claim must be adequate. In general, the test for the adequacy of such a rule is that it is strictly or regularly followed by the cognizant state court.16 The Supreme Court has further defined this concept of adequacy, however, to include a state procedural ground that is strictly or regularly applied evenhandedly to the vast majority of similar claims.17

Federal courts will presume that there is no independent and adequate state ground for a state court decision when that decision " 'fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.' "18 Nevertheless, a judgment resting on an independent and adequate state rule of procedural default will bar federal habeas review of a federal claim if the habeas petitioner cannot show "cause" for the default and "prejudice attributed thereto," or demonstrate that the federal court's failure to review the defaulted claim will result in a "fundamental miscarriage of justice."19

a. The Texas Rule

Amos contends that the Texas contemporaneous objection rule is not an adequate state procedural ground on which to base a denial of federal habeas review of his claims because the rule is neither strictly nor regularly followed. To support his contention, Amos lists a number of cases in which, he asserts, the TCCA has expressly--and inconsistently--excused a criminal defendant's non-compliance with the procedural rule and proceeded to reach the merits of the otherwise defaulted claim.20

Amos essentially argues that the TCCA fails to follow strictly or regularly the contemporaneous objection rule whenever it first notes a defendant's failure to comply with the rule, then "nevertheless" or "in the interest of justice" goes on to excuse the procedural default and consider the substantive merits of the claim. Amos insists that the fact that the state court prefaces its discussion of the merits with such transitional terms as "nevertheless" or "however" demonstrates the court's clear intent to excuse the procedural error and deny relief solely on the merits.21 Amos deduces, therefore, that the state court's "unambiguous intent to excuse" the defendant's failure to observe the contemporaneous objection rule constitutes that court's failure to follow strictly or regularly the rule.

At the outset we note that, in challenging the adequacy of the Texas contemporaneous objection rule, Amos attacks the rule in its entirety, as it has been applied to myriad claims in capital and non-capital cases from 1972 to the present. What Amos fails to do in his zealous attempt to discredit the rule, however, is to direct us to cases in which the rule has been applied--either evenhandedly or unevenhandedly--to claims identical or similar to his own Sixth Amendment claim of an unfair trial.22

Unfortunately for Amos, our research on this precise Sixth Amendment claim--and presumably his as well--reveals that, on the limited occasions in which a Texas appellate court has applied Texas Rule 52(a) to a similar claim, the court has applied the rule evenhandedly.23 Because Amos has not demonstrated that the TCCA does not strictly or regularly apply the contemporaneous objection rule to claims identical or similar to his Sixth Amendment claim, we are convinced that the rule is an adequate state-law ground, regardless of whether that court may be less than strict or regular in applying the rule to dissimilar claims.

Even if we were to look outside Amos' particular context, we would find that Texas courts apply the contemporaneous objection rule strictly and regularly. The vast majority of cases on which Amos relies do not reflect instances in which the TCCA has failed to follow strictly or regularly the contemporaneous objection rule; quite the opposite, the substantial majority reflect instances in which the state court first held that a defendant's claims were procedurally barred and then addressed the merits of the defaulted claim in an alternative holding.24

Given the Supreme Court's conclusion in Sochor that the state court opinion in that case indicated with requisite clarity that the defendant's federal claim was rejected on alternative grounds--state procedural default and federal merits--it follows that here, when the TCCA uses similar language for the same purpose, such language must be viewed as signaling an alternative holding independent of federal law, not as an indication that the state court is excusing the procedural default.

The fact that from time to time the state court uses any one of an infinite variety of particularized transitional phrases to signal alternative holdings--language that Amos' characterizes as demonstrating the court's unambiguous intent to excuse the procedural default--is irrelevant in this instance. Harking to the Supreme Court's dicta in Coleman v. Thompson,25 we remind ourselves--and Amos--that "we have no power to tell state courts how they must write their opinions. We encourage state courts to express plainly ... the grounds upon which their judgments rests, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim...."26

We decline today to impose on the TCCA the need to pronounce some shibboleth or incant some magic words guaranteeing safe passage from a holding based on a state procedural bar to an alternative holding on the merits without infecting the opinion with "excuse" and thus dooming it to inadequacy. We likewise decline Amos' invitation to hold that a court's particular choice of words or phrases to reflect the shifting of its focus from a holding grounded on independent state law to an alternative holding based on federal law is dispositive when determining whether that state-law ground is adequate.

We remain satisfied instead that when the TCCA holds that a criminal defendant's federal claim is procedurally barred, then proceeds to address the merits of the defaulted claim and voice a second holding, the opinion is properly viewed as stating alternative holdings. Only if the TCCA should clearly and unequivocally excuse the procedural default will we view the opinion as one decided on the merits only.

As we discern that all but a de minimis few of the cases cited by Amos reflect occasions in which the Texas state court has rendered alternative holdings rather than excused the procedural default, it follows that the TCCA strictly or regularly enforces the contemporaneous objection rule. The handful of cases upon which Amos relies as typifying the TCCA's disregard of the contemporaneous objection rule are either insufficient to undercut the adequacy of the Texas rule or inapplicable.27

We acknowledge with approval the principle that an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate;28 after all, "regularly" is not synonymous with "always" and "strictly" is not synonymous with "unanimously." In Bass v. Estelle,29 we determined that

... we do not regard an occasional act of grace by the Texas court in entertaining the merits of a claim that might have been viewed as waived by procedural default to constitute such a failure to strictly or regularly follow the state's contemporaneous objection rule as permits us to disregard that rule generally or where the state court has not done so.30

In Bass, we distinguished the appellant's contention that the contemporaneous objection rule was not strictly or regularly followed from a challenge of the same ilk that had proved successful in Barr v. Columbia.31 The Supreme Court in Barr refused to accept the state "generality of exceptions" rule as an independent and adequate state law barring federal habeas review after the Court's review of the state jurisprudence identified four separate decisions rendered by the same state court--just weeks before the petitioner's appeal--in which the state court had held that identical "general" exceptions were sufficient.

In distinguishing--and rejecting--the issue raised in Barr from the "adequacy issue" posed in Bass, we essentially determined that the petitioner in Bass had not presented the same type of clearly identifiable disregard of the state rule as had the petitioner in Barr. We noted that "[u]ntil such constructional legerdemain as occurred in Barr is drawn before us," we would have no occasion to re-examine our prior holding that "we will not excuse a procedural default in a case where state courts have not done so."32

We are satisfied that, despite his strenuous efforts to marshall cases in which the TCCA has failed to apply the contemporaneous objection rule, Amos has not presented to us a situation in which we should conclude that the contemporaneous objection rule--as applied by the TCCA to Amos' specific claims, as well as to essentially identical claims in other cases--is not strictly or regularly followed. We find to the contrary, then, that it is thus followed.

b. The Exceptions

In a variation of his theme composed to "undercut the adequacy"33 of the contemporaneous objection rule, Amos argues that a state court's failure to apply, consistently and rationally, recognized exceptions to a procedural default rule will render the larger procedural rule an inadequate state law ground in all cases.34 Specifically, Amos contends that the TCCA does not strictly or regularly apply its two recognized exceptions--the "right not recognized" exception and the "fundamental error" exception--to the contemporaneous objection rule, as a result of which the rule as a whole is not an adequate state-law ground.

i. Right Not Recognized Exception

Amos cites several cases in which he asserts the TCCA has not consistently applied the "right not recognized" exception to the contemporaneous objection rule to claims based on Penry v. Lynaugh,35 and Estelle v. Smith.36 As we cannot read the cases on which Amos relies to support this contention, however, we remain convinced that, in the vast majority of cases, the TCCA strictly and regularly applies both the contemporaneous objection rule and its "right not recognized" exception. First, we reject out of hand as wholly inapposite those cases in which the TCCA barred Penry claims before that court even recognized that such claims could be raised as a right not recognized.37 Amos asserts nevertheless that even after the TCCA recognized Penry claims as a right not recognized, that court disregarded the exception and held that such claims were procedurally barred.

Amos relies on Sawyers v. Collins,38 yet that case offers no support to his argument.39 As we determined in Sawyers that the TCCA did not deny Sawyers' Penry claim on the basis of procedural default, but rather on the merits, it does not follow--as Amos urges--that Sawyers presents an occasion in which the state court failed to apply strictly the right not recognized exception to a Penry claim.

Amos cites but a single case in support of his contention that the TCCA does not consistently and rationally apply the right not recognized exception to Estelle v. Smith claims.40 Amos' reliance on this one case is misplaced, however, as the relevant opinion was rendered in 1995. We do not consider as dispositive of our review of the application of the contemporaneous objection rule in 1992, a case that applied (or allegedly excused) the rule in 1995.

ii. Fundamental Error Exception

Amos next contends that, even though the TCCA has not developed a defined, consistently-applied fundamental error exception to the contemporaneous objection rule, that court inconsistently and indiscriminately applies such an exception to various fundamental error claims. Amos rejects the State's response that the fundamental error exception is limited to unobjected-to jury charge error, and notes that the TCCA has held recently in Marin v. State,41 that numerous types of statutory and constitutional claims are not subject to the contemporaneous objection rule. Further, Amos suggests that in "the rare instances" when a fundamental error exception has been applied to non-jury charge error, the Texas courts have done so inconsistently. Again, we are not persuaded.

Contrary to the argument that Amos tries to make in regard to Marin, our review of that case convinces us that Texas' adjudicatory system limits the types of rights that fall within the scope of its Rule 52(a), thus, the rule itself cannot be deemed as inadequate merely because particular types of fundamental claims must be treated as exceptions to the rule.42 Similarly, we find meritless Amos' contention that the TCCA inconsistently applies the fundamental error exception to errors other than jury-charge error.43

In rejecting this argument, we note that Amos compares cases in which the TCCA has acknowledged that a claim of double jeopardy--a fundamental constitutional guarantee--may be raised for the first time on appeal,44 to one case in which that court denied review of a claim grounded in the doctrine of collateral estoppel,45 and to cases in which a different state appellate court has reviewed or discussed the same.46

2. Per Se Inadequate?

Neither do we find persuasive Amos' assertion that the Texas contemporaneous objection rule is inherently discretionary and is therefore per se an inadequate state-law ground.47 As just discussed, Rule 52(a) is not inherently or universally discretionary: The TCCA limits the application of the rule to a specific category of rights, and that same court defines and limits the occasions in which the rule itself must be excused. We are satisfied that when these standards, which govern the application of the rule, are viewed in conjunction with the state court's practice of regularly and strictly applying the rule and its exceptions, they demonstrate that the Texas contemporaneous objection rule is not an inherently discretionary--and therefore inadequate--state procedural rule.

In sum, we conclude that the TCCA strictly and regularly applies its contemporaneous objection rule and the recognized exceptions thereto in the vast majority of cases (and particularly in cases raising identical or similar Sixth Amendment claims), that come before it. We also conclude that the relatively few occasions cited by Amos in which it might be said that the TCCA has disregarded the rule and its exceptions are not sufficient to undercut the overall regularity and consistency of their application and thus the adequacy of the state procedural bar.

We hold, therefore, that the Texas contemporaneous objection rule, as applied by the TCCA to Amos' petition for writ of habeas corpus, is an independent and adequate state-law procedural ground sufficient to bar federal court habeas review of federal claims. Accordingly, we hold that here the district court did not err in categorizing that rule as an independent and adequate state procedural rule and relying on it as grounds for refusing to review Amos' claim that the totality of circumstances surrounding his trial violated his right to a fair trial.48

Amos asserts on appeal that the district court erred in denying him an evidentiary hearing on his claim that the State failed to disclose material impeachment evidence and to correct false testimony (Giglio/Napue claim)49 and his claim of ineffective assistance of counsel.

An evidentiary hearing in a federal habeas corpus proceeding is mandatory only when (1) there is a factual dispute which, if resolved in the petitioner's favor, would entitle the petitioner to relief, and (2) the petitioner did not receive a full and fair evidentiary hearing in state court.50 The burden is on the habeas petitioner to allege facts which, if proved, would entitle him to relief.51

Amos requested a federal evidentiary hearing to prove the factual basis of his Giglio/ Napue claim, in which he alleged that the State failed to disclose that it had reached an agreement with Bennett in exchange for his testimony and failed to correct false testimony elicited from Bennett. Bennett testified at Amos' trial that he had not received any "deal" from the State in exchange for taking the stand. Later, however, Bennett averred in an affidavit that before he testified he was certain that "there was a deal" and that it would be "okay" for him to cooperate with the State.

The district court concluded that a federal evidentiary hearing on this issue was not necessary because there was no factual dispute whether the State had entered into an agreement with Bennett. The district court noted that the state habeas court's factual findings are presumed to be correct if supported by the record, and held that the record supported the state habeas court's finding that no deal was made between the State and Bennett in exchange for Bennett's testimony.52 We agree.

Pursuant to 28 U.S.C. Sec. 2254(d), in any federal habeas proceeding, a presumption of correctness must be accorded the findings of fact made by a state habeas court if those findings are supported by the record.53 This presumption does not apply, however, to situations in which the factfinding procedure employed by the state habeas court is not adequate to afford the petitioner a full and fair hearing.54 Amos argues that, as the state habeas court based its factual findings on a "paper hearing," he was not afforded a full and fair hearing on his claims, and that therefore, the district court erred in applying the Sec. 2254(d) presumption of correctness to the state court's findings.

Factual findings based solely on a paper hearing are not automatically entitled to a Sec. 2254(d) presumption of correctness.55 "[I]t is necessary to examine in each case whether a paper hearing is appropriate to the resolution of the factual dispute underlying the petitioner's claim."56 Nevertheless, a factfinding procedure that involves credibility determinations and is based on a "paper hearing" affords the habeas petitioner a full and fair hearing when the state court judge who presided over the petitioner's trial conducts the habeas proceeding.57 Whenever such a judicial identity exists, the presumption of correctness applies, and a federal habeas court must accord the presumption to the factual findings.

In the instant case, the disputed facts stem from state habeas credibility assessments that were made by the same state court judge who had presided over Amos' trial. We are satisfied, therefore, that the factfinding procedure followed by that judge afforded Amos a full and fair hearing. Accordingly, the district court did not err in presuming that the factual findings of the state court were correct. And, as we determine that the factual findings of the state court are supported by the record, we are convinced that the district court did not err in concluding, as had the state court judge, that the State had not entered into an agreement with Bennett, granting him a "deal" in exchange for his testimony.

As there was no "deal" between the State and Bennett, it follows that Amos' claim that the State failed to disclose material impeachment evidence and to correct Bennett's false testimony, in violation of the Eighth and Fourteenth Amendments, has no merit. Albeit on paper, Amos was afforded a full and adequate hearing on his state habeas petition. And, because he did not establish a factual dispute which, if resolved, would entitle him to relief, he was not entitled to a federal evidentiary hearing. We hold, therefore, that the district court did not err in denying Amos' request for an evidentiary hearing on his Giglio/ Napue claim.

In both his state and federal habeas petitions, Amos alleged that his counsels' failure to investigate and prepare mitigating evidence about his background and mental health constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. In his appeal to this court, Amos contends that the state habeas court's findings on this issue are not entitled to the presumption of correctness because the factfinding procedure employed by that court improperly elevated Amos' burden of merely alleging facts to one requiring him to prove his factual allegations. Additionally, Amos asserts--as he did on his Giglio/ Napue claim--that the district court erred in relying on the findings of the state court and in denying him an evidentiary hearing to prove his ineffective assistance claim.

To obtain habeas relief based on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient (cause prong) and that the deficient performance of counsel prejudiced the defendant (prejudice prong).58 To satisfy the cause prong of the Strickland standard, a defendant must show that counsel's representation fell below an objective standard of reasonableness.59 This objective standard is "highly deferential" and includes a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."60

To satisfy the prejudice prong of Strickland, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different."61 In deciding ineffective assistance claims, a court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test.62

A district court need not conduct an evidentiary hearing to resolve an ineffective assistance of counsel claim when a petitioner fails to allege facts which, if proved, would entitle the petitioner to relief,63 or when the state court record supports that court's disposition of the claim.64 A state habeas court's findings of fact made in the course of deciding such a claim are entitled to the Sec. 2254(d) presumption of correctness,65 but the cause and prejudice components of the Strickland test present a mixed question of law and fact that must be reviewed accordingly.66 A state habeas court's ultimate conclusion that counsel did not render ineffective assistance, therefore, is not a factual finding to which the presumption of correctness applies, but is a legal question that must be reviewed de novo.67

In his federal habeas petition, Amos argues inter alia that his lawyers' failure to conduct a reasonable investigation into Amos' background and character constitutes ineffective assistance of counsel because a reasonable investigation would have led to substantial, mitigating information that could then have been introduced during the punishment phase of his trial. In rejecting this claim, the district court first noted the state habeas court's factual finding that Amos strongly opposed having any witnesses testify on his behalf during the punishment phase of his trial.

The district court determined in light of this fact that counsels' failure to investigate what witnesses might have said on Amos' behalf at the punishment phase of his trial could not have prejudiced Amos: He would not have permitted those witnesses to testify anyway, so what they might have said is academic. Thus, concluded the court, Amos could not establish with reasonable probability that, but for his attorneys' failure to interview Amos' family and friends, the outcome of his punishment phase would have been different; ergo no prejudice; ergo no merit to his claim of ineffective assistance of counsel. Albeit unnecessary, the district court also concluded that Amos failed to establish that his counsels' performance was deficient; ergo no cause; ergo no merit to his ineffective assistance claim.68 We agree on both scores.

Amos nevertheless asserts that the district court's factual finding that he wanted no witnesses called misapprehends the significance of the state habeas court's finding that Amos did not want family members to testify. Amos contends that just because he did not want family members to testify, it does not follow that no prejudice could result from counsels' failure to interview them. Amos insists that, had his lawyers interviewed his family and friends, those lawyers would have discovered that Amos had been victimized and abused by his father, which in turn would have required them to employ a mental health professional to examine Amos before trial to elicit both guilt-innocence and penalty phase evidence.

Amos' argument fails for two reasons. First, contrary to Amos' assertion, the district court was correct in finding that Amos wanted no witnesses--not just no family members--to testify at his punishment phase. According to the findings of fact and conclusions of law contained in the State's response to Amos' state habeas petition, which the state habeas court adopted, Amos personally decided to present no punishment phase evidence.

Moreover, in a colloquy with the trial court, Amos (1) confirmed that he had signed a statement in which he expressed his desire to call no further witnesses at the punishment phase of his trial, (2) testified that he did not want to call members of his family to testify, (3) acknowledged that he understood the consequences of resting his case at that time (last chance to present testimony), and (4) confirmed that he had talked with his attorney and approved the strategy developed for his case. Clearly, this supports both the state court's finding that Amos did not want to present any punishment phase testimony and the propriety of the district court's reliance on that finding.

Second, in its substantive review of Amos' claim, the district court considered the affidavit of one of Amos' attorneys, which was filed with leave of the court.69 In that affidavit, Amos' attorney stated that he made a strategic decision not to call a mental health expert to testify in Amos' behalf because it would have been of little value in light of Amos' coherent testimony at the guilt-innocence phase of his trial. In addition, Amos' attorney averred that he did interview members of Amos' family and others whom Amos had mentioned might testify for him at the punishment phase of his trial.70

Although counsel had determined that Amos' friends--most of whom were convicted criminals--would not make credible witnesses, he planned to call as witnesses some of Amos' family members and a former state corrections employee. Before any of these witnesses could testify, however, Amos notified counsel that he did not want to present any punishment phase testimony. Amos signed a statement to that effect and reiterated his decision in his testimony before the court.

In Clark v. Collins,71 we considered whether a district court erred in rejecting, without an evidentiary hearing, a habeas petitioner's claim that his counsel's failure to seek an independent psychiatric evaluation or interview family members in support of a possible insanity defense constituted ineffective assistance of counsel. We accepted the state court's factual findings that supported counsel's tactical decision not to request additional psychiatric evaluation, as well as that court's finding that the petitioner had explicitly requested that counsel refrain from involving his family in his case.

We concluded that the petitioner's counsel did not perform deficiently in failing to seek additional medical opinions or in failing to interview family members regarding the petitioner's sanity. Consequently, we held that the district court did not err in rejecting the petitioner's ineffective assistance of counsel claims without conducting an evidentiary hearing.72 Reinforced by our holding in Clark, we are comfortable in concluding in this instance that the district court did not err in rejecting Amos' ineffective assistance of counsel claim without conducting an evidentiary hearing.

We also reject Amos' other argument, that the district court erroneously relied on the state habeas court's legal conclusion that Amos failed to prove mental impairment. In fact, in our review of the district court's opinion, we fail to discern just where it is that Amos finds the district court to have relied on such a conclusion. We do see where the district court (1) recited the state court's findings, including that court's finding that "Amos had failed to produce any proof of reduced mental abilities and there was no evidence of 'reduced mental abilities,' " and (2) used the state court's finding that there was "no evidence of reduced mental abilities" to corroborate the district court's de novo review and subsequent denial of Amos' claim. But if, in denying Amos' claim, the district court relied on any of the state habeas court's factual findings at all, it was at most the fact that Amos wanted no witnesses to testify and the fact that there was no evidence indicating that Amos was mentally impaired.

Finding that Amos has not alleged any fact which, if proved, would entitle him to an evidentiary hearing, we hold that the district court did not err in rejecting Amos' ineffective assistance of counsel claim without conducting an evidentiary hearing.

We grant Amos' request for CPC, and for the foregoing reasons affirm the judgment of the district court. The stay of execution ordered by this court on January 6, 1995 is vacated.

AFFIRMED.

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