JEFF KAPLAN, Magistrate Judge
Petitioner Jimmy Green, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of murder and sentenced to 45 years confinement. His conviction and sentence were affirmed on direct appeal. Green v. State, No. 05-00-01642-CR (Tex.App.-Dallas, Jan. 31, 2002, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order on the findings of the trial court. Exparte Green, No. 56, 282-01 (Tex.Crim.App. Aug. 13, 2003). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that: (1) he received ineffective assistance of counsel; and (2) the prosecutor knowingly used perjured testimony and false evidence at trial.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214(1996). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. See also Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, ___, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
B.
Petitioner first argues that he received ineffective assistance of counsel at trial, In particular, petitioner claims that his lawyer: (1) failed to request jury instructions on several affirmative defenses and lesser included offenses; (2) should have objected that the jury charge failed to limit the definitions of culpable mental states to the result of his conduct; (3) did not properly cross-examine a key witness; (4) failed to object to prejudicial photographs of the deceased; (5) did not present mitigating evidence at the punishment phase of the trial; and (6) failed to argue favorable evidence to the jury during closing argument.
1.
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when the performance of counsel falls below an objective standard of reasonable professional conduct and thereby prejudices the defense. Yarborough v. Gentry, 124 S.Ct. 1, 2003 WL 22382563 at *2 (U.S. Oct. 20, 2003), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner first complains that his attorney failed to request jury instructions on the affirmative defenses of self-defense and necessity and on the lesser included offenses of manslaughter, involuntary manslaughter, and criminally negligent homicide. In an affidavit filed with the state habeas court, defense counsel explained why petitioner was not entitled to a self-defense or necessity instruction. (See St. Hab. Tr. at 36-37). Under Texas law, "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." TEX. PENAL CODE. ANN. § 9.31(a) (Vernon 1974). However, the use of force against another is not justified:
if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; . . .
Id. § 9.31(b)(4). The defense of necessity is available if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Id. § 9.22. According to defense counsel, the evidence failed to support either defense. Counsel explained that petitioner took a loaded gun to confront the deceased, Steve Harris, about a debt owed to him. (St. Hab. Tr. at 36). When Harris attempted to knock the gun away, petitioner fired twice. The first shot struck Harris in the left clavicle. The second fatal shot hit Harris in the back of the head.
(Id. at 36-37). Even if the court accepts petitioner's version of the shooting — that the gun accidentally discharged the first time and petitioner fired the second shot because he "thought the deceased was reaching for a gun" — neither self-defense nor necessity were viable defenses. It is clear that petitioner provoked the deadly encounter with Harris by brandishing a loaded weapon. He also
was the only person at the scene capable of inflicting imminent harm. Under these circumstances, counsel had no bases for requesting jury instructions on self-defense and necessity.
Nor was petitioner entitled to an instruction on the lesser included offenses of manslaughter, involuntary manslaughter, and criminally negligent homicide. The evidence adduced at trial shows that Harris died as a result of multiple gunshot wounds. Witnesses testified that petitioner fired the gun. There was no evidence that his conduct was reckless, negligent, or anything but intentional. Consequently, a rational jury could not have concluded that petitioner was guilty only of manslaughter, involuntary manslaughter, or criminally negligent homicide. See United States v. Bailey, 111 F.3d 1229, 1238 (5th Cir.), cert. denied, 118 S.Ct. 327 (1997) (defendant not entitled to instruction on lesser included offense unless evidence is sufficient to allow jury to find him guilty of lesser offense, yet acquit him of the greater); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994) (same). Counsel was not ineffective for failing to request these instructions.
3.
Next, petitioner contends that defense counsel should have objected that the jury charge failed to limit the definitions of culpable mental states to the result of his conduct. As part of its charge, the trial court instructed the jury that:
Under Texas law, intentional murder is a "result of the conduct" offense rather than a "conduct" offense. See Martinez v. State, 763 S.W.2d 413, 419 (Tex.Crim.App. 1988). In such cases, the state must prove that the accused intended to engage in the act that caused the death and specifically intended that death result from such conduct. Id.
A person acts intentionally, or with intent,
with respect to a result of his conduct when it is his conscious objective or desire to
cause the result.
A person acts knowingly or with knowledge,
with respect to a result of his conduct, when he is aware that his conduct is reasonably certain to
cause the result.
(St. App. Tr. at 14) (emphases added). The application portion of the charge provides:
Now, if you find from the evidence beyond a reasonable doubt that on or about January 24th, 2000, in Dallas County, Texas the defendant, Jimmy Eugene Green, Jr.,
did intentionally and knowingly cause the death of Stevie Harris, an individual, by shooting him with a firearm, a deadly weapon, or unlawfully then and there
intend to cause serious bodily injury to Stevie Harris and did then and there commit an act clearly dangerous to human life, to wit, by shooting Stevie Harris with a firearm, a deadly weapon, and
did thereby cause the death of Stevie Harris, an individual, as alleged in the indictment, then you will find the defendant guilty of murder.
(Id. at 16) (emphases added). Contrary to petitioner's belief, the culpable mental states were properly limited to the result of his conduct. There was absolutely no reason for counsel to object to the definitions of culpable mental states in the jury charge.
4.
Petitioner also criticizes his lawyer for failing to ask Corey Turner on cross-examination whether Harris tried to take his gun. Other than surmising that the failure to pursue this line of questioning "undermines confidence in the outcome of the proceeding," petitioner makes no attempt to demonstrate how cross-examination on this point would have affected the outcome of the trial. Such a conclusory assertion, unsupported by specific facts, does not merit federal habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
5.
Petitioner further contends that counsel was ineffective for failing to object to prejudicial photographs of the deceased. Photographs of the victim are admissible at trial unless their probative value is substantially outweighed by their prejudicial effect. See Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991), cert. denied, 112 S.Ct. 3042 (1992), citing TEX. R. CRIM. EVID. 402. There was nothing prejudicial about any of the five autopsy photos admitted into evidence at trial. (See St. Trial Tr-V, Exhs. 2, 41-44). Any attempt by defense counsel to keep this evidence from the jury would have been futile. See Westley v. Johnson, 83 F.3d 714, 722 (5th Cir. 1996), cert. denied, 117 S.Ct. 773 (1997) (counsel not required to make futile objections).
6.
Finally, petitioner complains that his attorney failed to present mitigating evidence at the punishment phase of the trial and did not argue favorable evidence to the jury during closing argument, In support of his first claim, petitioner points to the affidavit of Lester Simpson, a fellow inmate who witnessed the shooting and would have testified that the gun "inadvertently discharged fatally wounding the victim." (St. Hab. Tr. at 24). However, as counsel astutely observed, Simpson does not explain why petitioner shot Harris a second time in the back of the head at point blank range. (See id. at 37). This important fact all but negates the probative value of Simpson's testimony.
Petitioner also criticizes his lawyer for failing to argue to the jury that "the murder was accidental[.]" (Pet. Hab. Br. at 14). Evidently, petitioner believes that his post-arrest statements to the police show that the shooting occurred during a heated struggle, "not a cold-blooded murder like the prosecution argued." (Id.). Nothing could be further from the truth. Petitioner told the police, "That nigger made me shoot him. That nigger made me kill him." (St. Trial Tr-IV at 16). Such an incriminating statement is more consistent with an intentional murder than an accidental shooting. Counsel wisely chose not to reiterate this remark during closing argument.
C.
Petitioner further contends that the prosecutor knowingly used perjured testimony and false evidence at trial. At issue is the testimony of Corey Turner. According to petitioner, Turner mislead the jury concerning his positioning when Harris tried to take his gun and by testifying that the shooting was intentional and not accidental.
The due process clause prohibits the use of perjured testimony to obtain a conviction. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992). In order to establish a due process violation based on the use of perjured testimony, a habeas petitioner must prove that: (1) the testimony was false; (2) the prosecutor knew it was false; and (3) the evidence was material. Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert. denied, 115 S.Ct. 671 (1994). Here, there is absolutely no evidence that Turner lied at trial or that the prosecutor knew his testimony was false. The fact that petitioner disagrees with his testimony does not entitle him to habeas relief.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.