Nichols v. Scott

¶4GARWOOD, Circuit Judge:

¶5Petitioner-appellee, cross-appellant Joseph Bernard Nichols (Nichols) was convicted of capital murder and sentenced to death. After exhausting his Texas state court remedies, Nichols sought a writ of habeas corpus in the district court below and the court granted relief. Respondent-appellant (Respondent), the director of the Texas Department of Criminal Justice, now appeals to this Court. Nichols cross-appeals the district court’s denial of certain of the remainder of his claims. We affirm in part and reverse the district court’s grant of habeas corpus relief.

¶6Facts and Proceedings Below

¶7About 9:00 a.m. on the morning of October 13, 1980, Nichols, Willie Ray Williams (Williams), Charlotte Parker (Parker), and Evelyn Harvey (Harvey) drove to a spot in front of an apartment building near Joseph’s Delicatessen and Grocery in Houston, Texas. Nichols and Williams mutually intended to rob this establishment, Nichols having suggested it as a target. Williams was armed with a .380 semi-automatic pistol; Nichols had a snub-nosed .38 revolver. Parker parked the car and Nichols and Williams got out and entered the deli. After entering, Nichols and Williams first went to the back of the store, and then approached the counter. Nichols got a corndog. Williams set a quart of beer on the counter near the cash register. Behind the counter was deli employee Claude Shaffer, Jr. (Shaffer). Nichols, and then Williams, each drew their respective pistols and pointed them at Shaffer.

¶8When Shaffer saw the guns he began to bend over or squat down. Nichols then said something to the effect of “don’t go for the gun” or “don’t be doing it.” Nichols then shot at Shaffer, and immediately thereafter Williams pulled the trigger on his gun, but it is unclear whether it then discharged.1 Shaf*1260fer then either fell or squatted down behind the counter. Nichols and Williams ran to the door. Nichols exited. Williams either exited or partially exited and then, according to his testimony at Nichols’ trial, turned and fired once at Shaffer, who was still squatting behind the counter. Williams testified that Shaffer fell back, that he (Williams) went behind the counter to Shaffer, turned him over, grabbed the deli’s cash box, and ran out of the deli, carrying his gun and the cash box.2 He was picked up by Parker and Harvey, got into the car with them, and they drove around the side of the deli building where they saw Nichols, who then got in the car with them. Harvey testified that Nichols told them “he had shot the man” and “he thought he shot him in the chest,” and that Williams said he had run back into the deli and shot the man. Parker testified that Nichols said “I think I hit him in the chest,” and that Williams said “he [Williams] shot the man in the shoulder.”3 A few days later, Williams, Nichols, Parker, and Harvey were arrested.

¶9The testimony of the Harris County Medical Examiner, Dr. Espinóla, established without contradiction that Shaffer died from a single gunshot wound that entered his “left upper back about seven and three fourths [inches] to the left of the midline and three and one half inches below the top of the shoulder” and exited — without hitting any bones or “hard objects” within the body — “on the right side of the chest, 18 and one half inches from the right of the midline and 11 inches below the top of the shoulder.” The wound would have caused “almost immediate disability” or “collapse.” Shaffer also had a superficial two and a quarter inch slanting laceration on the right side of his head, which was “consistent with a grazing type of gunshot wound” and “could also be consistent with a person that hit their head on the corner of an object or anything like that in a fall.” The head wound was not disabling. No bullet or bullet fragment was found in or on Shaffer’s body. Two empty .380 cartridge cases — ejected from Williams’ pistol — were found in the deli, as was also a whole .380 brass-jacketed projectile or bullet, which had been fired from Williams’ weapon. A whole, unfired .380 brass-jacketed bullet and cartridge (with firing pin indentation on the cartridge rim) was found just outside the deli door. Lead bullet fragments were found on the inside of the deli door and near there on the floor along with brass jacket fragments. Also found in the deli — in a stack of comic books behind the counter — was a whole lead bullet that had been fired from a .38-caliber weapon. This was a revolver-type bullet that had never been jacketed.4

¶10In January 1981, Williams pleaded guilty to a charge of capital murder of Shaffer,5 and, accordingly, the trial court directed the jury to return a verdict of guilty at the guilt/innocenee phase of his trial. As evidence of his guilt, the state presented Williams’ written confession, as well as the testimony of several witnesses including Dr. Espinóla. Pursuant to the court’s direction, *1261the jury returned a verdict of guilty. At the subsequent punishment phase of Williams’ trial, the defense presented Williams’ testimony and the testimony of five witnesses concerning Williams’ nonviolent character. The defense also called Nichols during the punishment phase, but Nichols asserted his Fifth Amendment privilege and declined to testify. The punishment charge included no instruction respecting the law of parties. The jury returned a verdict at the punishment phase of Williams’ trial answering in the affirmative each of the three special issues then provided for by Tex.Code Grim. Proc. art. 37.071(b).6 Pursuant to art. 37.071(e), Williams was accordingly sentenced to death. His conviction and sentence were affirmed on appeal. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984).

¶11Nichols was also indicted for the capital murder of Shaffer.7 In July 1981, Nichols was tried before a jury on his plea of not guilty. Williams testified as a defense witness at the guilt/innocence stage of this trial, and his testimony was generally consistent with his prior testimony and statement.8 The jury charge at the guilt/innocence stage included instructions on the Texas law of parties.9 Based in large part on Williams’ testimony, the defense argued that the fatal shot was fired by Williams from the deli door when he came back in and got the cash box, and that Nichols was not guilty under the law of parties because the planned robbery was over and Williams was acting independently. The state argued that Williams’ testimony that he shot Shaffer from the door when he came back in was not worthy of *1262belief “because he’s got to shoot through the cash register and all that junk to get here.” The state also argued that Nichols told Harvey that “he shot first, that he shot the man in the chest, in the chest area, the body, not in the head, not in the leg, not in the arm, but in the chest area, the body. That’s what the defendant did.” However, the main thrust of the state’s argument was that regardless of who fired the fatal shot, and regardless of whether Williams’ testimony was credited, Nichols was guilty under the law of parties. The jury returned a verdict finding Nichols guilty of capital murder. The punishment stage of the trial then ensued, testimony was presented by the state and the defense, and the case was submitted to the jury on the three statutory special issues (see note 6, supra). The punishment charge included no instruction on the law of parties. After considerable deliberation, the jury foreman announced that the jury had arrived at a verdict on two of the special issues, and tendered to the court a verdict form in which the first and third special issues were each answered “yes,” and the second special issue (future dangerousness) was not answered. The court ruled the verdict was incomplete, refused to accept it, and returned the jury for further deliberations. The jury eventually sent a note stating “the jury is still unable to reach a verdict on the remaining special issue.” Thereafter, defense counsel moved for a mistrial because the jury could not reach a verdict. The court explained to Nichols personally that if a mistrial were declared then the matter would be retried before another jury. After ascertaining that Nichols understood and that he personally requested and moved for a mistrial, the court, on July 31, 1981, called the jury back in, announced that a mistrial had been declared, and formally discharged the jury.

¶12The assistant district attorney trying the case thereafter interviewed some of the jurors and, as the district court below found, “learned from those jurors that whether or not Nichols was the ‘triggerman’ had caused problems for the jury in considering the death penalty.” Nichols v. Collins, 802 F.Supp. 66, 75 (S.D.Tex.1992).

¶13In February 1982, Nichols was tried before another jury on the same indictment. Generally the same evidence was presented as at his first trial in July 1981. The prosecutor was the same as in that first trial. In the guilt/innocence phase, Williams was called as a defense witness but claimed his Fifth Amendment privilege and refused to testify. The defense then put in evidence Williams’ testimony as given at Nichols’ first trial.10 At the close of the evidence on the guilVinno-cence stage of the trial, the trial court extensively instructed the jury on the Texas law of parties (see note 9, supra) such that the jury could, depending on what else it found, find Nichols guilty as charged either for personally having fired the fatal shot or for the fatal shot fired by Williams, if that was done pursuant to and in furtherance of their conspiracy to rob the deli and should have been anticipated by Nichols as a result of carrying out the conspiracy.11 The defense argued, as it had at Nichols’ first trial, that Williams fired the fatal shot from the deli door as he exited and came back in, and that this was, in the words of the charge, “the separate act of Willie Ray Williams, acting independently,” for which Nichols would not be responsible. The state primarily argued that Nichols fired the fatal shot. But, it also argued extensively, in the alternative, that even if Williams had fired the fatal shot, Nichols was guilty of capital murder under the law of parties.12*1263The jury returned its verdict finding Nichols guilty of capital murder.

¶14At the subsequent punishment phase the state submitted evidence that Nichols had been convicted of theft in 1979, and had pleaded guilty in May 1980 to an April 1980 robbery for which he was sentenced in July 1980 to nine years’ felony probation, which he was serving when he committed the instant offense. Additionally, it was shown that on August 13, 1980, Nichols committed an armed robbery of a convenience store, shooting the clerk in the shoulder when he did not respond speedily enough to Nichols’ demand for more money. Nichols continued to demand more money as the clerk was bleeding from his wound. Further, on October 11, 1980, two days before the present offense, Nichols committed another robbery of a convenience store, aiming his pistol at the clerks. There was also evidence that when booked into jail following his arrest for the instant offense, Nichols had stated he would “shoot any deputy that got in his way.” Finally, there was evidence that in June 1981, while in jail awaiting trial, Nichols conspired with others to engage in an escape involving the use of a firearm and other weapons. The defense called fifteen witnesses. Many testified they thought Nichols could be rehabilitated, that he was nineteen at the time of the offense, and that at school he had had average grades, had been an excellent athlete, and had presented no disciplinary problems. His parents divorced when he was seven, but both maintained a good relationship with him. He married, and dropped out of school, at about age seventeen to support his young child. His parents thought he had gotten into trouble due to the pressure he was under to support his young child and because he got in with a bad crowd.

¶15The court submitted the three punishment special issues to the jury (see note 6, supra). No instruction was given respecting the law of parties. The defense argued, among other things, that the fatal shot was fired by Williams, and that any shooting was in reaction to Shaffer’s having grabbed his gun. Emphasis was put on Nichols’ youth, his family, his character witnesses, and his potential for rehabilitation. The state argued that Nichols fired the fatal shot, but did not argue any of the special issues solely on that theory.13 It stressed Nichols’ prior offenses and conduct in jail. Neither side argued that the verdict of guilty established or meant that Nichols fired the fatal shot, or that any of the special issues were to be answered by reference to Williams’, rather than Nichols’, state of mind or conduct or the like. On February 26, 1982, the jury returned its verdict answering all three special issues in the *1264affirmative, and the court sentenced Nichols to death.

¶16One of Nichols’ trial attorneys, E. Neil Lane (Lane), was appointed to represent Nichols on direct appeal. After receiving leave from the court, attorney Brian Wice was allowed to substitute as Nichols’ appellate counsel. Wice filed a supplemental brief that raised twenty points of error. After considering each of the issues raised in the original brief filed by Lane and each of the issues raised in the Wice supplemental brief, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Nichols’ conviction became final on January 9, 1989, when the United States Supreme Court denied certiorari. See Nichols v. State, 754 S.W.2d 185 (Tex.Crim.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989).14

¶17In May 1989, Nichols, now represented by new counsel, two attorneys of a leading Houston law firm, filed an 86-page application for habeas corpus in the Texas trial court. Amended applications were filed on June 9, 1989, January 8, 1990, and June 6, 1990, the latter being some 123 pages long. The state filed an answer and amended answer supported by affidavits. On October 19 and November 2, 1990, the Texas trial court conducted an evidentiary hearing on Nichols’ claims of ineffective assistance of counsel and his statistical challenge to the Texas death penalty statute as unconstitutional in its application. The trial court on June 28, 1991, entered an order recommending denial of all relief and adopting verbatim the state’s amended proposed findings of fact and conclusions of law. On December 12, 1991, the Texas Court of Criminal Appeals denied all relief in an order stating in relevant part: “The trial court, after holding an evidentiary hearing, has entered findings of fact and conclusions of law and recommended the relief sought be denied. This Court has reviewed the record with respect to the allegations now made by applicant and finds that the findings and conclusions entered by the trial court are supported by the record. The relief sought is denied.”

¶18Nichols, represented by the same counsel who represented him in his state habeas proceedings, in January 1992 filed the instant petition under 28 U.S.C. § 2254 in the district court below. Nichols asserted numerous claims before the district court, including (1) that the punishment special issues precluded the jury from considering or giving effect to mitigating character evidence and to evidence that Nichols did not kill Shaffer; (2) that the prosecutor’s use of contradictory theories at the trials of Williams and Nichols violated the doctrines of judicial estoppel, collateral estoppel, due process, and the duty to seek justice; (3) that Williams should have been compelled by the court to testify for the defense because he waived his right to remain silent when he testified at the first Nichols trial; (4) that retrial of Nichols constituted double jeopardy; (5) that the prosecutor knowingly failed to correct perjured testimony given by Parker about her cooperation agreement with the state and created the false impression in his summation that she was unaware of a promise of leniency that her attorney received in exchange for her testimony; (6) that the Texas death penalty statute and its consistent interpretation by the Court of Criminal Appeals operated to deny Nichols his rights under the Sixth, Eighth, and Fourteenth Amendments; (7) that Nichols was denied effective assistance of both trial and appellate counsel; (8) that Nichols was denied a meaningful direct appeal; and (9) that various instances of claimed prosecutorial misconduct occurred. The state answered and moved for summary judgment.

¶19The district court held an evidentiary hearing in March 1992.15 On August 31, 1992, the district court granted habeas relief and ordered Nichols released or retried within *1265120 days.16 The district court based its decision to grant relief on its conclusions that (1) the major mitigating thrust of Nichols’ claimed nontriggerman role in the offense was beyond the scope of any of the punishment special issues; (2) by arguing that Nichols fired the shot that killed Shaffer after obtaining a death sentence against Williams for killing Shaffer, the state violated principles of constitutional collateral estop-pel; and (3) the foregoing two conclusions, taken in combination with certain aspects of the state habeas proceedings, resulted in denial of Nichols’ due process rights. Nichols, 802 F.Supp. at 71-79. The district court determined, however, that the referenced aspects of the state habeas proceeding did not preclude the state habeas court’s findings from being accorded the presumption of correctness called for by 28 U.S.C. § 2254(d), id. at 70, except the district court declined to accord that presumption to the finding that “ ‘[t]he jury was presented with overwhelming evidence that both applicant [Nichols] and Williams shot Shaffer,’” “because the record, as a whole, does not fairly support such factual determination” in that “the only conclusion which the record supports is that both Williams and Nichols shot at Shaffer but that either Williams or Nichols actually shot Shaffer.” Id. at 75 (original emphasis).17

¶20The district court denied the remainder of Nichols’ claims,18 except a claim, raised for the first time in briefing following the March 1992 federal evidentiary hearing,19 concerning the state’s alleged suppression of exculpatory evidence contrary to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which Brady claim the district court found unexhausted and “denied without prejudice to refiling after exhausting state remedies.” Id. at 79.20

¶21Respondent now appeals the district court’s grant of habeas relief. Nichols cross-*1266appeals the court’s denial of some (but not all) of his other claims.

¶22Discussion

¶23I. Respondent’s Appeal

¶24A. Mitigating Effect of Nichols’ Role in the Offense Beyond Scope of Special Issues

¶25Respondent argues that the district court erred in concluding that the mitigating effect of Nichols’ claimed nontriggerman status was beyond the scope of the special issues. Respondent asserts that the district court’s conclusion is contrary to Fifth Circuit precedent and that, even if it were not, the court ignored a state procedural bar based on Nichols’ failure to object to the charge on this basis or to request an anti-parties instruction at the sentencing phase of his state trial.

¶26The Court of Criminal Appeals on direct appeal rejected Nichols’ point of error complaining of the failure to give an “anti-parties” charge at the punishment phase of the trial because Nichols failed to request or object to the absence of such a charge. Nichols, 754 S.W.2d at 198-199. The Court recognized that the law of parties did not apply at the punishment stage, but held that the punishment special issues adequately covered the requirements of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982),21 and Green v. State, 682 S.W.2d 271 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985).22 The Court found that

“... appellant was not egregiously harmed by the lack of such a charge. Although the jury was charged on the law of parties at the guilt stage, it cannot be presumed that they considered the same during punishment. To the contrary, the careful trial court, while not having the benefit of the Green decision at the time of trial, voir dired the jury on the fact that the law of parties, while applicable at guilt, was not applicable to the punishment special issues. Moreover, the special issues themselves incorporate the Enmund-Green requirements by directly focusing upon solely the defendant’s culpability.

While a prophylactic ‘anti-parties’ instruction should be given at punishment, upon request, the absence of such an instruction in the instant case did not constitute egregious error or harm.” Nichols at 199 (footnote omitted).

¶27The state habeas court specifically rejected Nichols’ claim that the punishment special issues, combined with the failure to give an “anti-parties” instruction at the punishment phase, unconstitutionally prevented the jury from adequately considering and giving favorable effect to his claimed nontriggerman status, on the basis that such claim was procedurally barred by Nichols’ failure to object to the punishment charge on that basis or to request an “anti-parties” or other *1267special punishment instruction in that respect.23 The Court of Criminal Appeals determined that the state habeas court’s findings were proper and denied relief on that basis.

¶28We conclude that Nichols has not shown cause for his procedural default in this respect, and further has not demonstrated prejudice, so his claim in this regard is procedurally barred, as respondent asserted below. This holding is plainly mandated by our holding in Buxton v. Collins, 925 F.2d 816, 820-822 (5th Cir.), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991), as well as by the principles of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and their progeny.24

¶29Moreover, and apart from any procedural bar, Nichols’ claim fails on the merits. In Harris v. Collins, 990 F.2d 185, 189 (5th Cir.), cert. denied, — U.S. —, 113 S.Ct. 3069, 125 L.Ed.2d 746 (1993), a ease where a capital defendant’s conviction may have rested on the law of parties, we specifically held that if the jury believed the defendant did not strike the fatal blow this was a matter they could consider as favorable to a negative answer to both the first and second punishment issues. See also Bridge v. Collins, 963 F.2d 767, 770 (5th Cir.1992), and Drew v. Collins, 964 F.2d 411, 421 (5th Cir.1992).25 Further, in Stewart v. Collins, 978 F.2d 199, 201 (5th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1951, 123 L.Ed.2d 656 (1993), we held that the jury at the punishment stage could adequately consider the defendant’s asserted “nontriggerman” role in the capital murder and his lack of intent to kill as supportive of negative answers to each of the first and second punishment special issues. More recently, in Jacobs v. Scott, 31 F.3d 1319, 1326 & n. 13 (5th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995), we again held that the first and second punishment special issues adequately allowed the jury to give mitigating effect to claimed “nontriggerman” status, notwithstanding the absence of an “anti-parties” instruction at sentencing.26See also, e.g., Skillern v. Estelle, 720 F.2d 839, 843 (5th Cir.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984); Johnson v. McCotter, 804 F.2d 300 (5th Cir.1986), cert. denied, 479 U.S. 1071, 107 S.Ct. 1262, 94 L.Ed.2d 124 (1987); Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir.1994).

¶30*1268We further note that no law of parties instruction was given at the punishment phase, and that neither the prosecution nor the defense ever argued or asserted that the law of parties applied at the punishment phase or that the finding of guilty meant that the jury in answering any of the punishment issues had to assume that Nichols fired the fatal shot or that Williams’ conduct and state of mind, rather than Nichols’, was the relevant consideration in answering any of the punishment issues. The defense stressed in argument at the punishment phase that Williams, not Nichols, fired the fatal shot. It is apparent, considering the entire record, from voir dire through sentencing, that all concerned operated on the assumption that the law of parties did not apply at sentencing. Moreover, as the court below found, some jurors in Nichols’ first trial did take into account in voting for a negative answer to the second special issue their belief that Nichols was not the triggerman, notwithstanding that the law of parties was instructed on at the guilt/innocenee stage and no “anti-parties” instruction was given at the punishment phase. We are convinced that there is no “reasonable likelihood,” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Johnson v. Texas, — U.S. —, —, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993), that the punishment phase jury in Nichols’ February 1982 trial applied or understood the punishment phase instructions or special issues as other than allowing them to consider Nichols’ claimed “nontriggerman” status as a factor that could favor a negative answer to the first and second sentencing issues. The mitigating aspect of the evidence of Nichols’ claimed “non-triggerman” status was “within ‘the effective reach of the sentencer.’ ” Johnson at-, 113 S.Ct. at 2669 (quoting Graham v. Collins, 506 U.S. 461, —, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993)).

¶31We hold that Nichols is entitled to no relief on his claim that the instructions and special issues at the punishment phase precluded the jury from adequately considering or giving mitigating effect to his claimed nontrigger-man status, and that the district court erred in holding to the contrary.

¶32B. Estoppel — Due Process

¶33Respondent next argues that the district court improperly granted relief on the basis of its conclusion that the prosecutor violated principles of estoppel and due process by arguing for and obtaining a conviction and death sentence against two men for firing a single bullet. Respondent contends that the district court in this respect granted Nichols the benefit of a new rule not compelled by existing precedent when Nichols’ conviction became final, contrary to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that in any event the district court erred because collateral estoppel is not applicable in criminal cases lacking common defendants, and even if it were, the question of who fired the fatal bullet is not an issue to which estoppel would apply.

¶34The district court concluded that “the due process boundary upon prosecutorial conduct and the appearance of basic fairness derived from that boundary command[s] a determination that, in a criminal prosecution, the State is constitutionally estopped from obtaining a fact finding in one trial and seeking and obtaining an inconsistent fact finding in another trial.” Nichols, 802 F.Supp. at 74 (emphasis added). The court also noted that while ‘Williams and Nichols can both be guilty of capital murder because the state of Texas has determined, by law, that both are equally culpable without regard to who fired the bullet which killed Shaffer.... William and Nichols cannot both be guilty of firing the same bullet because physics will not permit it.” Id.(emphasis in original). The district court did not conclude that Williams had in fact fired the fatal bullet, or that any of the prosecutor’s evidence and argument in Nichols’ trial was factually false. With respect to the state’s arguments in Nichols’ second trial that Nichols fired the fatal shot and its arguments in Williams’ case that Williams did, the court stated “this Court acknowledges the State’s argument that the above are merely different interpretations of the same evidence,” id. at 74, and the court never suggested that this characterization was factually inaccurate. Nor did the district court with respect to what the evidence showed at any of the three trials ever state *1269anything in this respect more definite or precise than “the only conclusion which the record supports is that both Williams and Nichols shot at Shaffer but that either Williams or Nichols actually shot Shaffer.” Id. at 73 (original emphasis).27 What the district court did determine was that, regardless of what the actual facts were or what the evidence showed, the Williams trial legally or judicially established that Williams, not Nichols, fired the fatal shot. Thus, the district court stated:

“... the State argued, the jury found, and the court accepted the determination in the Williams trial that Williams was the trig-german, not just a party to the offense. That fact was established as the truth. This Court has also concluded that the prosecutor in charge of Nichols II offered evidence and argued to the jury and court that Nichols was the triggerman. By prior judicial determination, the evidence submitted was necessarily false. Accordingly, this Court finds that the prosecutor in charge of Nichols II knowingly used false evidence to obtain the conviction and sentence in Nichols II.” Id. at 75.

¶35The district court, citing Rogers v. Lynaugh, 848 F.2d 606 (5th Cir.1988), noted that due process violations could either be specific, where particular protections of the Bill of Rights incorporated into the Fourteenth Amendment were transgressed, or “generic.” Nichols, 802 F.Supp. at 72. As no particular Bill of Rights provision was cited by the district court, it appears to have relied on the concept of a “generic” due process violation. But such a concept generally focuses on the reliability or fairness of the fact finding process in the particular trial the result of which is being challenged. Cf. Rogers at 610 (noting that prosecutor’s injecting into the challenged trial “issues broader than the guilt or innocence of the accused under the controlling law” could constitute a generic due process violation). What happened in Williams’ trial — which the Nichols defense team was clearly aware of— did not affect the reliability or fairness of the fact finding process in either of Nichols’ trials.

¶36What the district court in substance did here was to hold that the state was collaterally estopped from taking in Nichols’ case a different position as to who fired the fatal bullet than that which it took in Williams’ prosecution. As the Supreme Court observed in Schiro v. Farley, — U.S. —, —, 114 S.Ct. 783, 790, 127 L.Ed.2d 47 (1994):

“In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), we held that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel in criminal proceedings_ Collateral es-toppel, or, in modern usage, issue preclusion, ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ Ashe, 397 U.S., at 443, 90 S.Ct., at 1194.” (Emphasis added).

¶37It is apparent from this that Ashe, which was a state prosecution, rests not on “generic” due process, but rather on the double jeopardy clause of the Fifth Amendment, which Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), had previously held was incorporated into the Fourteenth Amendment’s due process clause. We have rejected “attempts to erect a due process basis, independent of the double jeopardy clause, for the application of collateral estop-pel.” Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir.1987).28

¶38*1270Because Nichols was not in jeopardy in Williams’ trial, the results of that trial do not bind the state in its prosecution of Nichols. Moreover, the rule of “collateral estoppel” described in Ashe as having been applied in federal criminal eases for “more than 50 years” — and which it ultimately held mandated by the double jeopardy clause — required that the two actions be between “the same parties.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. Thus, because Nichols was not a party in Williams’ trial, the result in that trial could not collaterally estop the state in its prosecution of Nichols even under the federal common law rule of collateral estoppel in criminal cases. We have declined to apply collateral estoppel against the United States in a criminal prosecution on the basis of an earlier determination in the United States’ criminal prosecution of a different defendant. United States v. Mollier, 853 F.2d 1169, 1176 (5th Cir.1988) (where defendants are different “collateral estoppel has no application in criminal cases”); United States v. Montes, 976 F.2d 235, 239 (5th Cir.1992) (same), cert. denied, — U.S. —, 113 S.Ct. 1831, 123 L.Ed.2d 459 (1993).

¶39We recognize, as we did in Mollier and Montes, that in civil cases collateral estoppel is now applied even where the parties are not the same, so that if a suitor has fully and fairly litigated an issue and it is determined against him in an action against one party, then third parties unrelated to the original action can generally bar that suitor from relitigating that same issue in a subsequent action again them. See Mollier at 1175 n. 7; Montes at 239. However, as we pointed out in Mollier, citing Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), the “efficiency concerns that drive the collateral estoppel policy on the civil side are not nearly so important in criminal cases.” Mollier at 1176. We also observe that even in the civil context the modern broad rule of collateral estoppel is frequently not applied against the government acting in its sovereign capacity. See United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (holding in an immigration context that the government could not be collaterally estopped from litigating a constitutional issue concerning its administration of the Nationality Act, adjudicated against it in a prior action brought by a different party). Moreover, we observe that “[ujntil relatively recently, however, the scope of collateral estop-pel was limited by the doctrine of mutuality of parties.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). See also Restatement of Judgments § 93 (1942) (“[A] person who is not a party ... is not bound by or entitled to claim the benefits of an adjudication”). Consequently, allowing persons to claim collateral estoppel benefits of an adjudication to which they were strangers can hardly be considered as mandated by historic concepts of fundamental fairness or due process.

¶40Moreover, the district court clearly erred in its conclusion that in the Williams trial the jury found that Williams fired the fatal shot. The jury made no such finding. Williams pleaded guilty and the jury was instructed to return a verdict of guilty. It did so, merely signing and returning the verdict form finding Williams “guilty of the offense of capital murder, as charged in the indictment.” The jury charge said nothing about the elements of the offense or about whether Williams fired the fatal bullet (or personally killed Shaffer) or whether the jury had to so find.29 Nor is it relevant that the indictment (see note 5, supra) alleged that *1271Williams killed Shaffer by shooting him, for under Texas law the indictment was clearly sufficient to support a conviction based on the law of parties with the fatal shot being fired by Nichols (see cases cited in the last paragraph of note 9, supra). Moreover, the evidence at the guilt/innocence stage of Williams’ trial showed that both Williams and Nichols were acting together to commit armed robbery of Shaffer, that both fired at Shaffer, and that one of these shots was fatal, but it was not clearly established which. While the evidence would support the conclusion that Williams fired the fatal shot, a jury could have had a reasonable doubt of this and still found Williams guilty as charged under the law of parties. In any event, under Texas law when a defendant pleads guilty before the jury, as Williams did, the plea itself establishes his guilt and the evidence is unnecessary and immaterial unless it affirmatively demonstrates his innocence. Williams, 674 S.W.2d at 318, 320.30 And, the punishment phase verdict contained no finding that Williams fired the fatal shot. Further, neither the form of the punishment issues, nor the court’s charge, nor the evidence, required such a finding in order to return an affirmative answer to the three punishment special issues.31 Although the Court of Criminal Appeals in reciting the evidence on Williams’ direct appeal stated that he fired the fatal shot, Williams at 317, nothing in its opinion suggests that this was a necessary predicate for its affirmance of the sentence (or the conviction). In finding the evidence sufficient to support the affirmative answers to the punishment special issues, the Court of Criminal Appeals in Williams relied on Smith v. State, 540 S.W.2d 693 (1976), a case in which it sustained a death sentence for a nontriggerman (there, the defendant’s “gun misfired. The co-defendant shot and killed the attendant”). Williams at 321. In Nichols ’ case, the Court of Criminal Appeals held the evidence sufficient to support the affirmative answers to the three special issues although it concluded it was “factually unknown and eviden-tiarily improvable who fired the fatal shot.” Nichols, 754 S.W.2d at 202 n. 18.32

¶41In Dowling v. United States, 493 U.S. 342, 347, 110 S.Ct. 668, 672, 107 L.Ed.2d 708 (1990), the Court noted that the rule of Ashe was that “ “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Id.(quoting Ashe at 443, 90 S.Ct. at 1194). Dowling refused to give the defendant’s prior acquittal in another case preclu-sive effect because “the prior acquittal did not determine an ultimate issue in the pres*1272ent case.” Dowling at 347, 110 S.Ct. at 672. In Schiro, the Court rejected a claim of double jeopardy based on the jury verdict in the defendant’s first trial, because the defendant “has not met his burden of establishing ... that an ‘issue of ultimate fact has once been determined’ in his favor.” Id, — U.S. at-, 114 S.Ct. at 790. Here Nichols has failed to demonstrate that Williams’ trial determined that Williams, rather than Nichols, fired the fatal shot. Nichols has likewise failed to demonstrate that whether Williams, rather than Nichols, fired the fatal shot was an “ultimate issue” in either his own trial or in Williams’ trial. Hence Nichols fails to meet the requirements of collateral estoppel on these additional bases, as well as because he was not a party to the Williams case.

¶42Nichols also contends in this connection that the state was barred by the doctrine of judicial estoppel from taking a position in his trial inconsistent with that it had taken in Williams’, a view which the district court appears to likewise have adopted.

¶43Common law judicial estoppel has been referred to as an “obscure doctrine,” United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994); United States v. Kattar, 840 F.2d 118, 129-130 n. 7 (1st Cir.1988), lacking “defined principles” and subject to criticism as “basically an ‘ad hoc’ decision in each case.” Jackson Jordan, Inc. v. Plasser American Corp., 747 F.2d 1567, 1579 (Fed.Cir.1984). See also Morris v. State of California, 966 F.2d 448, 453 (9th Cir.1991) (“the doctrine of judicial estoppel ‘is an equitable doctrine invoked by the court at its discretion’ ”), cert. denied, — U.S. —, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). “The doctrine has not been uniformly adopted by federal courts.” Bates v. Long Island Ry. Co., 997 F.2d 1028, 1037 (2d Cir.), cert. denied, — U.S. —, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993). “The Tenth Circuit, however, has rejected the doctrine of judicial estoppel.” United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986). In Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C.Cir.1980), the court held that “the judicial estoppel doctrine has no validity in this jurisdiction,” referring to local District of Columbia law, and stated that “judicial estop-pel has not been followed by anything approaching a majority of jurisdictions, nor is there a discernible modern trend in that direction.” In UMWA 1974 Pension v. Pittston Co., 984 F.2d 469 (D.C.Cir.), cert. denied, — U.S. —, 113 S.Ct. 3039, 125 L.Ed.2d 726 (1993), the Court observed “we have not previously embraced the doctrine of judicial estoppel in this circuit and we decline to do so in this case.” Id. at 477 (footnote omitted). In Bates the Second Circuit stated that judicial estoppel’s “elements have never been clearly defined in this Circuit.” Id. at 1037 (footnote omitted). See also Morris at 452 (“Although this circuit has adopted the doctrine of judicial estoppel, we have not yet determined the circumstances under which it will be applied”).

¶44Two things, however, may be said about the rather amorphous doctrine of judicial estoppel. First, there is no indication in the authorities that it is constitutionally mandated. Second, it has apparently never been applied against the government in a criminal case. See McCaskey at 378 (“an obscure doctrine that has apparently never been applied in a criminal case”); Kattar at 129-30 n. 7 (“as far as we can tell, this obscure doctrine has never been applied against the government in a criminal proceeding”). See also, e.g., State v. Abbott, 64 N.J.Super. 191, 165 A.2d 537, 543 (App.Div.1960) (“the application of estoppel against the State is particularly inappropriate in areas such as criminal prosecution”), rev’d on other grounds, aff'd in this respect, 36 N.J. 63, 174 A.2d 881, 889 (N.J.1961); 28 Am.Jur.2d, Estoppel and Waiver, § 126 at 788 (same). Cf. Office of Personnel Management v. Richmond, 496 U.S. 414, 421, 423, 110 S.Ct. 2465, 2470 (“we have reversed every finding of estoppel [against the government] that we have reviewed”), 2471, 110 L.Ed.2d 387 (“[w]e leave for another day whether an estoppel claim could ever succeed against the Government”) (1990).33

¶45*1273In the present circumstances, to hold that the state was constitutionally barred by any form of estoppel — whether under the rubric of collateral estoppel or some variety of judicial or other estoppel — from taking the position in Nichols’ case that the shot he fired was the fatal shot because it had previously taken the position in Williams’ case, in which Williams received the death sentence, that the fatal shot was the one fired by Williams, would be to apply “a new rule” of constitutional law “not dictated by precedent existing at the time” Nichols’ “conviction became final”—January 9, 1989 — contrary to Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (original emphasis). The two Teague exceptions are inapplicable. The rule contended for by Nichols plainly is not one which “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.’” Teague, 489 U.S. at 311, 109 S.Ct. at 1075. Certainly, Nichols was properly eligible for the death penalty whether or not the shot he fired at Shaffer — as opposed to that fired by his co-actor Williams — was the cause of Shaffer’s death. Nor is the other Teague exception available here, as it applies only to “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313,109 S.Ct. at 1077 (emphasis added). What the prosecution argued in the Williams case, and the result there, has nothing to do with the likely accuracy of any determinations made in the subsequent Nichols case.

¶46As noted, a rule is “new” for Teague purposes unless “dictated” by prior precedent. Id. at 301, 109 S.Ct. at 1070 (original emphasis); Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 1216, 108 L.Ed.2d 347 (1990). The prior precedent must be such that it would have “compelled” the result; Saffle v. Parks, 494 U.S. 484, 485-86, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990), and it is not enough that the contended for rule merely “is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” Butler at 415, 110 S.Ct. at 1217. The authority relied on by Nichols does not come even close to meeting this *1274standard.34 Nor can this result be avoided by invoking longstanding judicial pronouncements that due process concerns itself with fundamental fairness and similar concepts. Such “a level of generality ... is far too great to provide any meaningful guidance for purpose of our Teague inquiry.” Gilmore v. Taylor, — U.S. —, —, 113 S.Ct. 2112, 2119, 124 L.Ed.2d 306 (1993). See also Sawyer v. Smith, 497 U.S. 227, 235, 110 S.Ct. 2822, 2828, 111 L.Ed.2d 193 (1990) (Teague “test would be meaningless if applied at this level of generality”).

¶47In Jacobs v. Scott, 31 F.3d 1319, 1326 (5th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995), we held that a similar contention to that advanced by Nichols here was barred by Teague.

¶48We accordingly hold that the district court erred in granting Nichols relief on the basis that the state was in some manner estopped or barred by its arguments and the result in the Williams trial from taking the position in the subsequent Nichols trial that the shot fired by Nichols was the fatal shot. Relief on any such basis was barred by Teague.

¶49C. Cumulative Due Process

¶50The district court, relying on the panel opinion in Derden v. McNeel, 938 F.2d 605 (5th Cir.1991),35 held that the combination of the two above-noted grounds on which it granted relief — that the punishment issues did not allow mitigating consideration of Nichols’ alleged non-triggerman status and that the state was estopped to argue that the shot fired by Nichols was the fatal shot — plus certain aspects of the state trial court’s habe-as proceedings,36 amounted to “cumulative *1275error” which “resulted in a denial of due process.” Nichols, 802 F.Supp. at 78-79. Our en banc opinion in Derden states:

“federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors ‘so infected the entire trial that the resulting conviction violates due process.’ ” Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.1992) (en banc) (quoting Cupp v. Naughten, 414 U.S. 141, 146-49, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)), cert. denied, — U.S. —, 113 S.Ct. 2928 [124 L.Ed.2d 679] (1993).37

¶51Since, as we have held, the jury was not unconstitutionally prevented from taMng into account Nichols’ claimed non-trig-german status in answering the punishment special issues, and the state was not constitutionally barred or estopped from arguing that the shot fired by Nichols was the fatal shot, therefore neither of these matters can form the basis for a proper claim of constitutional cumulative error. That leaves only the matter of the state habeas proceedings. However, errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it “is an attack on a proceeding collateral to the detention and not the detention itself.” Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992) (“infirmities in state habeas proceedings do not constitute grounds for federal habeas relief’), cert. denied, — U.S. —, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); Vail v. Procunier, 747 F.2d 277 (5th Cir.1984) (same). See also Franzen v. Brinkman, 877 F.2d 26 (9th Cir.1989); Hopkinson v. Shillinger, 866 F.2d 1185, 1218-1220 (10th Cir.1989); Bryant v. State of Md., 848 F.2d 492 (4th Cir.1988); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986); Williams v. Missouri, 640 F.2d 140, 143 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981).

¶52Accordingly, the district court erred in its holding that Nichols was entitled to relief on the court’s cumulative error theory.

¶53*1276Having rejected each of the bases on which the district court granted habeas relief, we sustain the state’s appeal and reverse the judgment of the district court insofar as it granted Nichols habeas relief. We turn now to consider Nichols’ cross-appeal.

¶54II. Nichols’ Cross-Appeal

¶55A. Presumption of Correctness of State Court Findings

¶56Nichols complains that the district court erred in affording the section 2254(d) presumption of correctness to the state habeas court fact findings, contending that the following three circumstances precluded application of the presumption, namely: (1) the failure of the state habeas trial judge — Judge Harmon (who did not preside at either of Nichols’ trials) — to sua sponte recuse himself on account of having been the prosecuting attorney in Nichols’ May 1980 guilty plea conviction for robbery, which conviction had been put in evidence by the state at the punishment stage of Nichols’ trial; (2) an inappropriate remark made by Judge Harmon at the state habeas evidentiary hearing; (3) Judge Harmon’s having adopted verbatim the state’s proposed findings of fact and conclusions of law on the state habeas proceeding. While the district court found that these matters had occurred (see note 36, supra), it concluded that they did not justify denying the presumption of correctness to the state court findings, and further concluded that it would evaluate each state finding individually in the light of the entire record, including that of the federal habeas proceedings. Nichols, 802 F.Supp. at 70.38 The only state habeas fact finding which the district court ultimately determined not to be entitled to the presumption of correctness was the finding that “[t]he jury was presented with overwhelming evidence that both the applicant and Williams shot Shaffer,”39 the district court instead determining “that the only conclusion which the record supports is that both Williams and Nichols shot at Shaffer but that either Williams or Nichols actually shot Shaffer.” Id. at 75 (original emphasis).40

¶57Nichols has not demonstrated error in the district court’s failing to reject the other state court habeas factfindings. We conclude that the above-mentioned three circumstances relied on by Nichols do not, singly or collectively, mandate a contrary determination. We consider these seriatim.

¶58With respect to Judge Harmon’s having been prosecutor in Nichols’ May 1980 guilty plea to robbery, which prior conviction had been put in evidence at the punishment stage of Nichols’ trial, we observe that neither the validity of that conviction (and the related sentence) nor its use at Nichols’ sentencing was in any way at issue in either Nichols’ trial (or direct appeal) or in his state habeas proceeding (which commenced in 1989), or in this federal habeas. As a matter of Texas law, Judge Harmon clearly was not disqualified from serving as the habeas trial judge. See, e.g., Hathorne v. State, 459 S.W.2d 826, 829, 833 (Tex.Crim.App.1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1398, 28 L.Ed.2d 657 (1971).41 We have previously *1277indicated that in a comparable position, a federal judge would not be disqualified under 28 U.S.C. § 455. United States v. Outler, 659 F.2d 1306, 1312-13 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 665 (1982). See also Adams v. United States, 302 F.2d 307 (5th Cir.1962). And, it is settled that “section 455 establishes a statutory disqualification standard more demanding than that required by the Due Process Clause.” United States v. Couch, 896 F.2d 78, 81 (5th Cir.1990).

¶59The complained of remark of Judge Harmon came at a portion of the state habeas evidentiary hearing dealing with Nichols’ effort to mount a statistical challenge to the Texas capital sentencing scheme, when “in response to a witness’ suggestion that Nichols’ counsel could obtain statistical data regarding habeas corpus eases by issuing a bench warrant to bring each Harris County inmate in for a hearing, Judge Harmon responded ‘Could we arrange for a van to blow up the bus on the way down here?’ ” Nichols, 802 F.Supp. at 79. We are unable to conclude that this clearly inappropriate remark was anything more than an ill-considered, off-the-cuff attempt to inject humor into the proceeding. Though the remark was plainly tasteless and out of place, it does not establish bias and prejudice. Certainly, there is no indication that Nichols or either of his counsel so understood the remark at the time. Cf. Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988). Moreover, these remarks were made near the conclusion of a full evidentiary hearing fairly and impartially conducted with due regard for Nichols’ rights. Cf. United States v. Wade, 931 F.2d 300, 302-305 (5th Cir.), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991); Pomeroy v. Merritt Piar za Nursing Home, 760 F.2d 654, 657-659 (5th Cir.1985). “[Jjudicial remarks during the course of a trial that are ... disapproving of, or even hostile to, ... the parties, or their cases, ordinarily do not support a bias or partiality challenge” unless “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, — U.S. —, —, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). No such showing is even approached here.

¶60As for the complaint that Judge Harmon adopted the state’s proposed findings and conclusions, that is fully answered by Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 571, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (“even when the trial judge adopts proposed findings verbatim, the findings ... may be reversed only if clearly erroneous”).

¶61Section 2254(d) requires that state court findings be afforded a presumption of correctness unless it is shown that one or more of eight specified exceptions are applicable. The three circumstances relied on by Nichols are potentially relevant only to the sixth and seventh exceptions: “(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceedings; ....” The state habeas court afforded Nichols — represented by two competent lawyers — every opportunity to present his contentions, allowing the filing of an original and three amended habeas petitions over a period of more than a year, and conducting an evidentiary hearing with full opportunity to present evidence, even continuing the hearing in order for Nichols’ counsel to locate an additional witness. Nichols clearly had a “fair” hearing,42 and was not denied due process in connection with the state court habeas proceedings.43

¶62We reject Nichols’ contention that the district court erred by according the section 2254(d) presumption of correctness to the state habeas factfindings.

¶63*1278B. Mitigating Effect of Nichols’ Character Evidence Beyond Scope of Special Issues

¶64Nichols argues that the district court erred by failing to find that the punishment phase special issues (see note 6, supra) did not allow the jury to give effect to Nichols’ mitigating character evidence. We reject this contention. At the least, the second special issue concerning future dangerousness provided an adequate vehicle for the jury to give effect to this mitigating evidence, placing it within the effective reach of the sentencer, and there is no reasonable likelihood that the jury would have found itself foreclosed from thus considering it. The Supreme Court and this Court have many times so held. See Johnson, — U.S. at —, 113 S.Ct. at 2669; Crank v. Collins, 19 F.3d 172, 175 (5th Cir.), cert. denied, — U.S. —, 114 S.Ct. 2699, 129 L.Ed.2d 825 (1994); James v. Collins, 987 F.2d 1116, 1122 (5th Cir.), cert. denied, — U.S. —, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993); Barnard v. Collins, 958 F.2d 634, 640 (5th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993); Graham v. Collins, 950 F.2d 1009, 1030-1033 (5th Cir.1992) (en banc), aff'd on other grounds, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). Cf. Jurek v. Texas, 428 U.S. 262, 267, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929 (1976). No Penry-type evidence was presented. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

¶65C. Complaints of the Prosecutor’s Jury Argument

¶66Nichols complains of various instances of allegedly improper argument by the prosecution, mostly at sentencing, asserting that he was thereby denied a fair trial and deprived of due process of law. We reject this contention, and find no error in the district court’s denial of relief in this connection.

¶67Where improper prosecutorial argument is asserted as a basis for habeas relief, “ ‘it is not enough that the prosecutors’ remarks were undesirable or even universally condemned,’ ” rather “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). In order to constitute a denial of due process “ ‘the acts complained of must be of such quality as necessarily prevent a fair trial, ’ ” Derden, 978 F.2d at 1457. Moreover, the burden is on the habeas petitioner to also show a reasonable probability “that but for these remarks” the result would have been different. See Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.1986). Further, failure to object to an argument — wholly apart from questions of procedural bar — is an indication that it was not perceived as having a substantial adverse effect, Derden at 1458, or would not naturally and necessarily be understood as advancing improper considerations. Milton v. Procunier, 744 F.2d 1091, 1095 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). See also Lowenfield, 484 U.S. at 241, 108 S.Ct. at 552.

¶68We now turn to the specific instances complained of by Nichols.

¶69(i) Nichols initially complains that in argument at the punishment stage the prosecutor improperly injected religion. No objection was made to this argument, and on direct appeal the Court of Criminal Appeals held that complaint in this respect was accordingly waived. Nichols, 754 S.W.2d at 199-200. The same holding was made on the state habeas (together with the alternative holding that on the merits relief was not warranted). No cause being shown for the failure to object, the claim is procedurally barred under the principles of Wainwright v. Sykes and Engle v. Isaac and their progeny. See Andrews v. Collins, 21 F.3d 612, 628 (5th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995).44

¶70*1279Moreover, the claim is lacking in merit even if it were not barred. At the punishment stage the defense introduced testimony of a priest who, at Nichols’ request, visited him several times while he was in jail awaiting trial. The priest testified on direct that he had “first met” Nichols ten years earlier, but had never visited in his home or seen him at church, that while in jail Nichols’ attitude changed from one of depression to remorse and contrition, and that if given a chance Nichols could become a constructive citizen. On cross, he admitted that he did not know what Nichols was doing in the some ten years after he first met him and when he saw him in jail. The defense, near the end of its punishment argument, called attention to the priest’s testimony. The now complained of prosecution argument45 was in response. The natural understanding of the thrust of this argument is that the jury could reasonably infer that the priest did not really know Nichols and that Nichols’ supposed change to remorse and contrition was not genuine. Such a contention is essentially proper. There is absolutely no reasonable likelihood that these brief passages of argument (or anything else in the trial) created a meaningful risk that the jury verdict was to any extent based on Nichols’ religious beliefs (or lack thereof, or on any inference in that regard from the priest’s failure to testify in regard thereto).

¶71(ii) Complaint is also made of prosecution arguments at sentencing concerning the victim’s character, which are also asserted to have been outside the record. Again, there was no objection to these arguments, and the state habeas court held them for that reason barred (and, alternatively, not to justify relief on the merits). This claim is hence foreclosed by the procedural bar.

¶72It also fails on the merits. The prosecutor’s reference to the grief and loss of the victim’s family and his asking the jury to consider the victim were essentially within the range of argument held not to offend the Eighth Amendment in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). This is also the case with respect to the brief reference to Shaffer’s employment and being killed while at work. There was no argument (or evidence) as to “opinions of the victim’s family about the crime, the defendant, and the appropriate sentence.” Id.501 U.S. at 838, 111 S.Ct. at 2612 (O’Connor, J., concurring). There was nothing so inflammatory about the argument as to render the entire sentencing proceeding unfair. Id. at 831-83, 111 S.Ct. at 2612 (O’Connor, J., concurring), at 835-36, 111 S.Ct. at 2614 (Souter, J., concurring). Moreover — and also dispositive of the contention that the argument went beyond the evidence46 — defense counsel in his argument had already raised these matters, arguing that “my heart goes out to his [Shaffer’s] family” and “[t]hey [Shaffer’s family] have had a terrible tragedy in their family.”47 Defense counsel further argued “I doubt very seriously if the Shaffer family would get any satisfaction from” imposition of the death sentence on Nichols, and stated “I feel for them but taking Joe’s life is not going to help them a bit” but could “hurt a lot of other folks.” Defense counsel also referred in this connection to the testimony of a defense sentencing witness who stated he was willing to do “whatever it takes” (or *1280“whatever needs to be done”) for Shaffer. Suffering by the Shaffer family was a premise the defense had already explicitly raised and accepted in its sentencing phase argument. The prosecutor reminded the jury “to look solely at the evidence and not cry for either side.” There was no deprivation of due process or fundamental unfairness in the prosecution’s response.48

¶73(in) Nichols next complains of two prosecutorial arguments at the guilt/innocence stage of the trial which he contends were “incorrect statements of the legal principles applicable.” No objection was made to either argument at trial, on direct appeal, or in the state habeas proceedings. It is clear that the Texas contemporaneous objection rule would bar relief in state court, and the claims are accordingly procedurally barred on federal habeas. Teague, 489 U.S. at 297-300, 109 S.Ct. at 1068-69. See also Weaver v. McKaskle, 738 F.2d 1103, 1104-5 (5th Cir.1984); Marks v. Estelle, 691 F.2d 730, 734-35 (5th Cir.1982). Cf. Bates v. Blackburn, 805 F.2d 569, 574-75 (5th Cir.1986); Webb v. Blackburn, 773 F.2d 646, 650-651 (5th Cir.1986). We also note that these claims were not raised in the federal habeas petition below, and, although the arguments were quoted in Nichols’ post-evidentiary hearing brief below, Nichols never sought to amend his petition and these particular claims were not addressed by the district court. See United States v. Smith, 915 F.2d 959, 964 (5th Cir.1990).

¶74In any event, these claims have no merit. The first complained of argument 49 was a proper plea to the jury to use its common sense in evaluating the defense’s contentions as to what had actually happened. See Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970) (jury trial calls for “the commonsense judgment of a group of laymen”). Nichols’ appellant’s brief does not explain why he thinks this argument was improper nor cite any supporting authority. We note that the prosecutor had explained at length to the jury that they were obligated to follow the court’s charge, as did the charge itself. This contention is frivolous. The second challenged argument50 was in substance a correct statement of the law that, under the *1281charge, Nichols could only be found guilty of capital murder or of murder, or found not guilty. Moreover, defense counsel did not request a charge on any form of robbery as a lesser included offense, and no such charge was given. Yet defense counsel had argued that Nichols was guilty of aggravated robbery.51 The state’s argument was a proper response and a correct statement of the law. Nichols cites no authority in support of his contention. We reject it as frivolous.

¶75(iv) The next complained of argument is the state’s reference at sentencing to Nichols’ having been indicted for the unadju-dicated offenses, evidence of which had been put before the jury.52 On direct appeal this argument was challenged as being outside the record (here it is challenged only as an improper inference of guilt from an indictment), and the Court of Criminal Appeals held that the contention was barred because no trial objection to the argument had been made. Nichols, 754 S.W.2d at 199-200. Hence this claim is procedurally barred. Moreover, although this argument of the prosecutor was presented in Nichols’ post-evidentiary hearing brief below,53 it was never included in his federal habeas petition or addressed by the district court.

¶76In any event, the claim is without merit. The argument was in response to defense counsel’s argument criticizing the state for not having taken action on the unadjudicated offenses, arguing “there has been no action taken by any other group of individuals or by the state.”54 The state responded that another group of individuals had acted, by indictment. Moreover, defense counsel had previously expressly acknowledged in argument that Nichols had been charged with attempted escape. The evidence as to the other unadjudicated offenses — the August 13 and October 11, 1980, armed robberies — was undisputed, and substantial evidence was presented as to the planned escape. There is no reasonable likelihood that the jury was improperly influenced by this passing rebuttal remark of the prosecution.55

¶77(v) Three other prosecutorial arguments, two at the guilVinnocence stage and one at sentencing, are attacked as having “improperly struck at Nichols over the shoulders of his trial counsel.”56 Apart from this *1282general and uninformative characterization, Nichols’ appellant’s brief does not explain the basis for the challenge and contains no supporting argument. The complaint is not adequately presented for review. Fed.R.App.P. 28(a)(6); United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.1992). Nor was it in the district court.57 In any event, the complaints present no basis for relief. To begin with, no objection was made at trial (or on appeal) to these arguments (and they were not a grounds of complaint in the state habe-as). They are hence procedurally barred. Even if they were not, the present no basis for relief. The brief references at the guilt/innocence stage to “the door game” and “physical evidence caught them” are nothing more than argument that the inferences as to what happened urged by defense counsel were not consistent with the physical evidence. The sentencing argument referred to the fact that at the guilVinnocence stage defense counsel argued that Williams fired the fatal shot from the door as he went back in, while at sentencing defense counsel appeared to argue that Williams fired the fatal shot from “in front of the counter.” And, the prosecution’s argument was in response to defense counsel’s criticism of the prosecution for its asserted inconsistency in the Williams and Nichols cases.58 These unobjected to prosecution arguments did not deprive Nichols of due process or deny him a fair trial or sentencing, and there is no reasonable likelihood that they caused the verdict to be to any extent improperly based.

¶78(vi) Quoting a single sentence from the state’s argument at each phase of his trial, Nichols asserts that each “improperly injected the personal beliefs of the prosecutor into its argument.”

¶79Nichols’ appellant’s brief makes no argument in support of this assertion, and the complained of sentences are not mentioned in his federal habeas petition or in the district court’s opinion. Assuming the matter is properly before us, it is procedurally barred as no objection was made at trial (or on appeal) to either argument (and neither was raised as a ground for relief in the state habeas proceeding).

¶80In any event, neither argument presents a basis for relief on the merits. The first statement Nichols challenged was made by the prosecutor during the punishment phase of the trial. Referring to James Paul Martin, an inmate at the Harris County Jail who testified that he and Nichols had been involved in an escape plot while in jail, the prosecutor stated: “I wouldn’t come to court to you and say convict a man on the word of a criminal without corroboration.” Although a prosecutor “may not express his personal opinion as to the credibility of witnesses, or his own belief regarding a defendant’s guilt,” United States v. Walker, 613 F.2d 1349, 1355 (5th Cir.), cert. denied, 446 U.S. 944, 100 S.Ct. 2172, 64 L.Ed.2d 800 (1980), he may properly comment on the weight of the evidence. See Casel, 995 F.2d *1283at 1309. Here, it is clear from the context in which the statement was made that the prosecutor was not expressing his personal opinion about the credibility of Martin. Rather, he was directing the jury to look to other evidence that supported Martin’s testimony, which, because it was the testimony of a convicted felon, would be suspect standing alone.59 This type of argument “is permissible to the extent that it draws a conclusion based solely on the evidence presented.” Id. (citing United States v. Enstam, 622 F.2d 857, 869 (5th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); United States v. Bright, 630 F.2d 804, 824 (5th Cir.1980), and United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986)). Such is the ease here.

¶81The second statement which Nichols objects to was made during the state’s argument at the close of the guilVinnocence phase of the trial. In arguing that Nichols fired the shot that killed Shaffer, the prosecutor stated: “And I’ll tell you it was his hand that did the killing.” Once again, however, Nichols gives an incomplete picture. Immediately after the prosecutor made the above-quoted statement, he asked “How do you know that?” and then proceeded to summarize the evidence presented at trial which would tend to support the theory that Nichols fired the fatal shot. In United States v. Morris, 568 F.2d 396 (5th Cir.1978), this Court explained that a prosecutor may state his own opinion or knowledge of the case as long as he makes it clear that “the conclusions he is urging are conclusions to be drawn from the evidence.” Id. at 401. Here, the prosecutor argued the admitted evidence in support of the challenged statement. Hence, in the context of the prosecution’s argument the statement was not improper.

¶82(vii) Lastly, Nichols asserts that at sentencing the prosecution “improperly commented on Nichols’ failure to call witnesses or present evidence.” Again, without citation to authority or meaningful argument, Nichols quotes four sentences which he contends are thus improper. First, during the state’s argument at the end of the punishment phase of the trial, the prosecutor stated:

“Why is it that not one, not one employer except a family friend, Mr. Creal, came and sat here and told you what a nice worker he was. Not one. Not even a coworker came here to verify to you that he actually worked or that he was a good worker, not one.”

¶83Later, the prosecutor commented that “Not one employer, not one co-worker, not one school mate, not one neighbor has come here.”

¶84Again, these portions of the argument were not complained of in Nichols’ federal habeas petition. Moreover, they are procedurally barred. No objection was made at trial (or on appeal) to the first argument (and it was not raised as a ground for relief in the state habeas proceedings). The second argument was objected to at trial on the ground it was “not a correct statement of the evidence.”60 On direct appeal, Nichols complained that the statement was improper as “comment on his failure to call punishment witnesses,” and the Court of Criminal Appeals held that “[b]ecause the challenge on appeal does not comport with the objection at trial, nothing is presented for review.” Nichols, 754 S.W.2d at 200.61

¶85*1284At all events, the claims lack merit. As a matter of Texas law, the prosecutor may comment on “the defendant’s failure to call a material witness, and he may draw an inference from that failure that the testimony would have been unfavorable.” O’Bryan v. Estelle, 714 F.2d 365, 388 (5th Cir.1988), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); see also O’Bryan v. State, 591 S.W.2d 464, 479 (Tex.Crim.App.1979) (en banc), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). Moreover, in federal trials, although a party’s failure to call a witness equally available to both sides may not be properly commented on, if the defendant fails to call a witness peculiarly within his control, the prosecutor may properly comment on that failure. United States v. MMR Corp., 907 F.2d 489, 501-02 (5th Cir.1990), cert. denied, 499 U.S. 936, 111 S.Ct. 1388, 113 L.Ed.2d 445 (1991). “That the potential witness is ... accessible to service of subpoena by the court does not make the witness equally available to both parties.” Id. at 502. The relationship of the witness to a party may make him or her more available to that party. Id.Such is the case sub judice. Here, the prosecutor was commenting on Nichols’ failure to call certain types of witnesses during the punishment phase to establish mitigating circumstances. These types of witnesses are generally more available to the defense. And, because “the option of producing and coming forward with mitigating circumstances is upon the capital defendant,” O’Bryan, 591 S.W.2d at 479, they are more likely to be called by the defense. The prosecutor’s brief comment on Nichols’ failure to call certain types of good character witnesses was not clearly improper; certainly it did not render the sentencing fundamentally unfair or deprive Nichols of due process.

¶86Nichols asks that we view all the complained of prosecution arguments together. However, even when all are viewed cumulatively — and even without considering that counsel did not think the vast majority of them worth complaining of at trial, or on appeal, or in any of the lengthy and frequently amended state habeas petitions, or, for the most part, in the federal petition — it is entirely clear to us that they did not operate to deprive Nichols of a fundamentally fair trial at any stage of the proceedings or to deny him due process, and that there is no reasonable likelihood that the jury’s verdict at either stage was improperly affected thereby.

¶87D. Ineffective Assistance of Counsel

¶88Nichols complains of ineffective assistance of trial counsel, listing in three pages of his brief nine different claims in this respect. After evidentiary hearings in both the state habeas court and the district court below, all claims of ineffective assistance of counsel were rejected by the state habeas trial court, the Court of Criminal Appeals, and the district court below.

¶89Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner claiming ineffective assistance of counsel has the burden to demonstrate both deficient performance and prejudice. Id. at 686-87, 104 S.Ct. at 2064. As to the former, judicial scrutiny of counsel’s conduct “must be highly deferential,” id. at 689, 104 S.Ct. at 2065, “the distorting effect of hindsight” is to be avoided, id. at 689-90, 104 S.Ct. at 2065-66, and courts must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. “It is not enough to show that some, or even most, defense lawyers would have handled the case differently.” Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989). To establish prejudice, “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding,” Strickland 466 U.S. at 693, 104 S.Ct. at 2067; rather, he must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶90Our examination of the record, including that of the habeas proceedings, reflects that Nichols was represented vigorously and effectively at trial by his two counsel Lane and Scott, each of whom had likewise so repre*1285sented him throughout his first trial. These attorneys were familiar with the facts of the case, made and procured hearings and rulings on appropriate pretrial motions and motions to suppress, investigated and presented testimony, made objections, presented appropriate jury arguments, and subjected the state’s case to rigorous adversarial testing and opposition at trial. Many of the instances of alleged ineffectiveness which Nichols raises on appeal were not adequately raised below, and hence are not properly before us. United States v. Smith, 915 F.2d 959, 964 (5th Cir.1990). But even considering all the claims of ineffective assistance of counsel raised on appeal, we are convinced that Nichols has neither overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance nor demonstrated any reasonable probability that but for the claimed deficiencies the result of the proceedings would have been different. No such probability sufficient to undermine confidence in the outcome has been shown. We now briefly address the particular assertions of ineffectiveness raised by Nichols on this appeal.

¶91(i) Complaint is made that Nichols’ attorneys failed to attempt to delay entry of the July 31, 1981, mistrial order in Nichols’ first trial until August 31, 1981, when the 1981 amendment to Tex.Code Crim.Proc. art. 37.071(e) came into effect providing that if the jury is unable to answer any punishment special issue the defendant shall be sentenced to life imprisonment. This contention materially differs from the only claim made below respecting this subject, which was that counsel was ineffective for failing to ask the trial court “to set aside the interlocutory order of mistrial and to sentence” Nichols to life imprisonment “in accordance with” amended article 37.071(e). In any event, the present contention, as well as that made below, is without merit, and under neither theory has either deficient performance or prejudice been demonstrated. On direct appeal, the Court of Criminal Appeals specifically rejected Nichols’ attempt to invoke amended article 37.071(e), stating “[b]eeause appellant’s first trial was held prior to the effective date of the amendment to subsection (e), the amendment has no application.” Nichols, 754 S.W.2d at 204. Nichols cites no authority and makes no meaningful argument, in support of his contention on appeal.62 Nor are we aware of any such authority. So far as we are able to ascertain, nothing in Texas law would authorize the trial court to discharge the jury without declaring a mistrial. And, it would be patently unreasonable for defense counsel to have urged, or for the trial court to have ordered, that the jury continue bound to the case for another month.63 Moreover, continued deliberations would risk a “yes” answer to the single special issue which the jury had not then unanimously answered in the affirmative.

¶92(ii) Nichols next complains that his counsel failed to present Williams’ testimony as given at his own trial — instead of that given at Nichols’ first trial — and failed to utilize the transcript of Williams’ trial on cross-examination of Williams’ prosecutor to force the latter “to admit that Williams was convicted as the lone triggerman.” These contentions were not raised below and are not properly before us. In any event, they *1286are wholly without merit. Williams’ testimony at his own trial was not more favorable to Nichols then his testimony at Nichols’ first trial. Indeed, Williams’ testimony at his own trial indicated that when he shot (or shot at) Shaffer from the door, he did so in response to Nichols telling him “shoot-shoot” (see note 2, supra). Williams did not mention this in his testimony at Nichols’ first trial. Had this testimony been before the jury, it would have wholly undercut Nichols’ defensive theory that he was not guilty even under the law of parties because when Williams fired what the defense contended was the fatal shot, Nichols had already completely left and Williams’ shot was “the separate act of Willie Ray Williams, acting independently” for which, under the wording of the court’s jury charge, Nichols would not be responsible. As to the cross-examination of Williams’ prosecutor, what Williams was convicted of was determinable from, and only from, the record in that case. We have held that that does not reflect a determination that Williams was “the lone triggerman.” Nor is there any showing that Williams’ prosecutor could possibly shed any other light on the matter. The jury had before it the undisputed fact of Williams’ conviction for Shaffer’s murder, as well as his testimony that he shot Shaffer from the door, causing him to fall back. Nichols makes no showing of deficient performance or prejudice in regard to these matters.

¶93(iii) On the basis of April 1992 affidavits submitted after the evidentiary hearing below to the district court with Nichols’ motion to expand the record, which the district court denied, Nichols contends that defense counsel failed to interview witness Teresa Ish-man, a deli employee, and failed to examine deli employee Johnson “on the ‘triggerman’ issue.” This issue is not properly before us. The affidavits are not a part of the record (and no complaint has been made of the ruling denying the motion to expand the record); and they were tendered to the district court in respect to a Brady claim. Further, the issue was not adequately raised below. The habeas petition only alleged in the most conclusional form that “Counsel’s overall performance, including the general lack of any investigation, denied petitioner effective assistance of counsel at both stages of the trial. Counsel’s trial strategy was unreasonable and it was not based on an adequate investigation.” There was no allegation concerning Johnson or Ishman or the subject matter to which their affidavits are now alleged to be relevant. These allegations in the petition are plainly inadequate to raise a constitutional issue in the respect now asserted on appeal. See Ross v. Estelle, 694 F.2d 1008, 1011-1012 (5th Cir.1983); Alexander v. McCotter, 775 F.2d 595, 602-603 (5th Cir.1985). The allegations may not be supplemented on appeal. Alexander at 603.

¶94Moreover, there is no adequate showing or allegation that counsel was deficient in this respect. Present counsel, who had been representing Nichols since sometime before May 1989, took the position below that they did not find out the information in the affidavits until early 1992. Nichols suggests no basis on which trial counsel can be faulted for not producing this information while excusing habeas counsel for not producing it in the state habeas or earlier in the federal habeas. Cf. Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Further, the Ishman affidavit states that she initially told the police that she saw nothing.64 This was consistent with Johnson’s testimony that when Nichols and Williams shot at Shaffer, the other deli employee there — Ishman (then known as McGee, which was not her true name) — was back in the kitchen or bathroom and did not come out. As to Johnson, defense counsel had already reviewed — and at trial succeeded in getting before the jury— her written, sworn statement to the police, and there was nothing to indicate that she had ever said anything else, much less anything favorable to the defense. Nor do the April 1992 affidavits show a probability of a *1287different result sufficient to undermine confidence in the outcome. Johnson’s affidavit reflects that just after Nichols shot, and before either Nichols or Williams left, she saw Williams “leaning across the counter and firing the shot that killed Mr. Shaeffer (sic).” This entirely contradicts the defense theory that the fatal shot was fired by Williams from the door after Nichols left and was thus “the separate act of’ Williams “acting independently” for which under the charge Nichols would not be responsible. Ishman’s affidavit mentions only an initial set of shots fired from the counter area (after which she ran into the restroom, where Johnson “was already locked in”). Ishman does state Shaffer “went down and reached under the counter for his gun,” but this is just what Johnson’s October 13, 1980, statement — which was before the jury without limitation — said. In Johnson’s trial testimony, she admitted making the October 13, 1980, statement, but said that although Shaffer “went down in a squat position” she “didn’t see him reach for anything.”65 Nichols’ statement and Williams’ testimony, both before the jury, were that Shaffer came up with a gun in his hand.

¶95(iv) Nichols next complains of counsel’s failure to object to the trial court’s grant to juror Pearson of an exemption from jury service for child care under Tex.Govt.Code Ann. § 62.106(2). Nichols does not explain why the exclusion was erroneous, but it may possibly have been in that although Pearson had custody of her two-year-old child, the statute speaks to exclusion for those having custody of children under ten where the jury service “requires leaving the child or children without adequate supervision,” and Pearson had said she had “a sitter.” It is questionable that constitutionally deficient performance is shown. Whether a juror is desirable is inherently a matter of judgment, particularly when, as in Pearson’s case, a strong antipathy to service is expressed.66 In any event, prejudice is not demonstrated. Although the state did not request or suggest Pearson’s exclusion, and Pearson clearly said she wanted the exemption, Nichols asserts prejudice because Pearson had indicated reluctance to impose the death penalty and the state eventually used all its peremptory challenges. However, at the time Pearson was excused, the state had used only two of its peremptory challenges. It cannot be shown that but for her exclusion Pearson would have served. And, nothing in the record tends to establish “that, in the absence of defense counsel’s errors, a different factfin-der ... would have been reasonably likely to arrive at a different outcome.” Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.) (original emphasis), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989). Moreover, in United States v. Prati 861 F.2d 82 (5th Cir.1988), we concluded that the Supreme Court, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), “rejected ‘the notion that the loss of a peremptory challenge constitutes a violation of a constitutional right to an impartial jury.’ ” Id. at 87 (quoting Ross, 487 U.S. at 88, 108 S.Ct. at 2278). Instead, “the pertinent inquiry is whether the jurors that actually sat were impartial as required by the sixth amendment.” Id. Because Nichols does not assert that his jury was not impartial, he has failed to demonstrate that his counsel’s failure to object to the exclusion of Pearson was prejudicial.67

¶96*1288(v) Complaint is next made of defense counsel’s failure to object to an allegedly “improper” shuffle of three venire members. Nichols does not explain why or in what respect the “shuffle” was improper and cites no authority indicating that it was. Hence, nothing is presented for review. Fed.R.AppJP. 28(a)(6); Beaumont at 563. In any event, neither deficient performance nor prejudice has been shown. Nichols claims that absent the shuffle alternate juror Walker, “who would have been reluctant to impose capital punishment,” would have been the twelfth juror.68 However, when the three jurors were shuffled, none of them, including Walker, had been voir-dired, so the record reflects no basis on which to conclude that defense counsel should have known or believed that Walker would be favorable to the defense (or more so than any other of the three). Additionally, Nichols’ assertion that, absent the shuffle, Walker would serve as the twelfth juror rather than as an alternate is purely speculative and is insufficient to establish prejudice.

¶97(vi) Nichols next contends that trial counsel was inadequate for failing to request an “anti-parties” instruction at the punishment stage of trial. We reject this contention. At the time of trial, it was not clearly established Texas or federal law that such an instruction, if requested, was required.69 While the law was not so clear that a request for such a charge could be said to be plainly futile, this does not mean that counsel was constitutionally deficient for failing to request such a charge. See Smith v. Collins, 977 F.2d 951, 960 (5th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993); Selvage v. Collins, 975 F.2d 131 (5th Cir.1992), cert. denied, -U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 663 (1993); Buxton. Moreover, a law of parties instruction was not given at sentencing, and it appears clear that all concerned operated on the assumption that the law of parties did not apply at sentencing. We conclude that under the circumstances counsel was not constitutionally deficient for failing to request an affirmative “anti-parties” instruction at sentencing. Further, for the reasons and authorities previously recited in connection with the state’s appeal (see Part IA, supra), we also conclude that Nichols has failed to demonstrate prejudice from the failure to give an anti-parties instruction. There is no reasonable probability that the giving of such an instruction would have altered the outcome. See also, e.g., Belyeu v. Scott, 67 F.3d 535 (5th Cir.1995). Finally, this asserted ground of ineffective assistance of counsel was not raised below.

¶98(vii) Nichols next complains that counsel was deficient for failing to request a “Penry-type” instruction concerning mitigating evidence. This contention was not raised below. Moreover, it is wholly without merit. The *1289case was tried seven years before Penry. In any event, the state habeas court did not apply the procedural bar to this claim, but rather rejected it on the merits. And, we have held that federal law did not entitle Nichols to such an instruction (see part IIB, supra). Consequently, neither a deficiency on the part of counsel nor prejudice is shown.

¶99(viii) Complaint is made in general terms that “counsel failed to object to repeated improper jury argument by the state,” but the arguments in question are not identified other than by a general reference to the section of Nichols’ brief complaining of improper argument, and which particular arguments were not objected to is not identified. No authorities are cited and no explanation or meaningful argument is made in the three brief sentences dealing with this complaint. It is not properly presented to us. Moreover, it was not raised below except as to those few instances of prosecutorial argument as to which complaint was made below (see Part IIC, supra). The other instances are not properly before us. In any event, for the reasons stated in Part IIC above, the arguments in question, singly and collectively, were not so improper and prejudicial that the failure to object to any or all of them can properly be characterized as constitutionally deficient performance by counsel, or as rendering Nichols’ trial as a whole fundamentally unfair, or as giving rise to any reasonable probability that had objections been made the result would have been different. Nothing in connection with these complaints serves to undermine confidence in the trial’s outcome.

¶100(ix) Lastly, Nichols makes the eonclusory assertion that trial counsel were ineffective in failing to move for a new trial on the grounds of their own ineffectiveness at trial. This contention is frivolous. No procedural bar has prevented Nichols from raising ineffectiveness of trial counsel. Moreover, we have held, as did the district court and the state habeas court, that Nichols was not denied the effective assistance of counsel at trial.

¶101In sum, we reject all Nichols’ claims on appeal that the district court erred in denying him relief on his claim of ineffective assistance of trial counsel.

¶102E. Cumulative Error

¶103Nichols’ sole remaining claim on appeal is a three-sentence argument that the matters of which he complains on appeal (Part IIA-D), plus those on which the district court granted him relief and which are the subject of the state’s appeal (Part IA-C), amount to cumulative error under our decisions in Derden and Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir.1993),70 and denied Nichols a fair trial. For the reasons previously noted in addressing these contentions severally, we find no merit in Nichols’ argument. Reviewing the entire record, we conclude that Nichols has not made out a case of cumulative error under Derden, and that the matters complained of did not, singly or in combination, operate to deny him a fundamentally fair trial, deprive him of due process, or undermine confidence in the outcome. We accordingly reject Nichols’ contention in this respect.

¶104Having specifically addressed and rejected all of Nichols’ points in his cross-appeal, we reject Nichols’ cross-appeal and affirm so much of the district court’s judgment as denies Nichols habeas relief.

¶105Conclusion

¶106So far as it denied Nichols habeas relief, the district court’s judgment is affirmed. So far as the judgment below granted Nichols habeas relief, it is reversed and the case is remanded with instructions to enter judgment denying relief.

¶107AFFIRMED in part; REVERSED in part.