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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4359
(Summary Calendar)
JESSE JAMES COPELAND,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
(6:90-CV-560)
March 31, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Jesse James Copeland, a state prisoner,
appeals the dismissal of his § 2254 habeas corpus petition grounded

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in claims that his state indictment for aggravated robbery was so
insufficient that the trial court lacked jurisdiction; that he was
deprived of a fair trial because his counsel failed to interview
and call certain witnesses; and that his counsel was
constitutionally ineffective. Copeland also charges the district
court with error for failing to hold an evidentiary hearing
concerning his substantive allegations. Finding that all of
Copeland's assignments of error are unmeritorious, we affirm the
dismissal of his petition by the district court.
I
FACTS AND PROCEEDINGS
Copeland was indicted in a Texas court for "aggravated
robbery; criminal episode and repetition of a felony." In plain
English, he was charged with two counts of first degree aggravated
robbery; and, for purposes of punishment enhancement, he was
charged with one previous felony conviction. Copeland then pleaded
"true" to the enhancement charge but "not guilty" to the other
charges in the indictment. He went to trial and was convicted by
the jury, receiving concurrent sentences of imprisonment for life
and for 99 years.
Trial testimony revealed that within one hour Copeland robbed
two convenience stores. After entering the first convenience store
and lingering for awhile, he pulled a nylon stocking over his face,
brandished a knife at the store attendant, and ordered him to open
the register. When the attendant refused, claiming that he did not
know how, Copeland stabbed him in the chest. Copeland then opened

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the register, removed the money, and ordered the attendant to open
the safe. After the attendant stated that he was unable to open
the safe, Copeland left. The attendant then called the police.
Less than an hour later, Copeland entered another convenience
store wearing the nylon stocking over his face. He approached the
attendant and demanded all the money in the store. The attendant
complied, opening the register and the cash box on the floor.
Copeland repeatedly threatened to hit the attendant, but instead
took the money, left the store, and drove off in a Ford LTD. The
attendant noted the license plate number, which the police were
able to trace. They found the Ford LTD parked in front of
Copeland's "sister's house," with Copeland asleep inside. He was
arrested on the spot.
Following his conviction, Copeland exhausted his state
remedies, then filed a § 2254 petition in district court, attacking
his indictment and alleging ineffectiveness of counsel and the
failure of the trial court to give him a fair hearing. In
response, the state moved for summary judgment. The magistrate
judge recommended that Copeland's § 2254 petition be denied on its
merits. The district court adopted the findings and conclusions of
the magistrate judge and dismissed Copeland's § 2254 petition.
Copeland timely appealed, and the district court granted a
certificate of probable cause (CPC).
II
ANALYSIS
Copeland first argues that the state failed to provide an

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adequate hearing, so that another evidentiary hearing was required
to resolve disputed factual issues and conclusions of the state
court. A state court's findings of fact, both explicit and
implicit, are entitled to a presumption of correctness by federal
courts. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 544-47,
101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Nevertheless, a federal
habeas court may abandon the presumption of correctness afforded to
factual determinations by state courts in certain enumerated
circumstances. Id. at 544-45. One of these circumstances is that
the state court's findings are not "fairly supported in the
record." 28 U.S.C. § 2254(d)(8). "A federal habeas court must
hold an evidentiary hearing if there are disputed facts and the
petitioner did not receive a full and fair hearing in a state
court, either at trial or in a collateral proceeding." Wiley v.
Puckett, 969 F.2d 86, 98 (5th Cir. 1992).
When the state court has held a hearing, federal courts must
presume the correctness of the state court's factual findings if
they are supported by the record. 28 U.S.C. § 2254(d); Sumner,
449 U.S. at 546-47. Thus, a federal district court need not
conduct an evidentiary hearing if the state record is sufficient to
dispose of the issues. Joseph v. Butler, 838 F.2d 786, 788
(5th Cir. 1988). Section 2254(d) does not require states to hold
live evidentiary hearings for the presumption to attach. See id.
State courts may resolve factual disputes on the basis of competing
affidavits. Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir.),
cert. denied, 113 S.Ct. 417 (1992). Whether a paper hearing is

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appropriate to the resolution of the factual disputes underlying
the petitioner's claim must be decided case by case. May v.
Collins, 955 F.2d 299, 312-13 (5th Cir.), cert. denied, 112 S.Ct.
1925 (1992).
Copeland had such a paper hearing by affidavit on his state
habeas corpus claims. The hearing was conducted by the same state
judge who presided over Copeland's trial. Finding Copeland's
claims without merit, that judge recommended denial of the habeas
corpus petition. Copeland's petition was denied by the Texas Court
of Criminal Appeals without written order.
Copeland argues to us that the following issues require an
evidentiary hearing.
Uncalled Witness
Copeland claims that he was denied a fair trial because his
counsel failed to call alibi witnesses to testify on Copeland's
behalf.
The state court considered the affidavit submitted by
Copeland's counsel, which indicated that 1) Copeland "did not want
his sister or anyone else in his family to testify because of his
sister's prior criminal record," 2) Copeland "stated on many
occasions to his counsel that he was the only [one] that knew the
truth and could testify to it," and 3) Copeland waited until his
state habeas action to contend that he had an alibi.
Copeland did not submit an affidavit. Although he contended
in his state habeas petition that counsel failed to call Copeland's
sister as his "only hope to prove his innocence," he failed to

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allege what her testimony would be. Copeland specifically
mentioned only his sister as an uncalled witness in his state
habeas petition, yet he subsequently contended in his § 2254
petition that his mother too could have testified for him.
Self-serving assertions about the testimony of uncalled
witnesses are insufficient for post-conviction relief. United
States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert.
denied, 467 U.S. 1251 (1984). The petitioner must provide more
than his own speculation about such testimony. As complaints based
on failure to call witnesses are highly speculative by nature, they
are not favored by the courts. Id.
As it was entitled to rely on the presumption that the state
court's findings were correct, the federal district court was not
required to hold a live evidentiary hearing on Copeland's
conclusional allegations. Given the information that was before
the state court, we do not find meritorious Copeland's argument
that he was denied a fair evidentiary hearing.
Neither do we conclude that this is a case in which failure of
counsel to call a given witness or witnesses rendered a defendant's
trial unfair. Copeland testified on his own behalf. He denied
committing either robbery. Although he admitted being at the site
of the second robbery, he denied being at the site of the first
robbery or stabbing the attendant. Three witnesses clearly
contradicted his testimony. The stabbing victim at the first
location had ample opportunity to observe Copeland for later
identification. And, even though Copeland's stocking mask

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prevented full observation at the second location, the attendant
reported the license plate number of the vehicle that the robber
was driving and noted some of his physical characteristics, such as
his height, that matched Copeland's.
For the first time on appeal, Copeland seeks to buttress his
uncalled witness argument by submitting his sister's affidavit of
what her testimony would have been had she testified. Copeland
apparently seeks in this matter to "amend" his original § 2254
complaint for further consideration by this court. This tactic is
unavailing. Issues not raised in the district court may not be
raised for the first time in this court. Self v. Blackburn,
751 F.2d 789, 793 (5th Cir. 1985).
Faulty Indictment
In his pro se brief, Copeland argues that the indictment was
defective because it failed to charge the requisite mental state,
claiming that such a defect deprived the state court of
jurisdiction. This argument too is without merit.
A defect in a state indictment is not grounds for habeas
relief unless the indictment is so defective that the convicting
court had no jurisdiction. Neal v. Texas, 870 F.2d 312, 316
(5th Cir. 1989). If the highest criminal appeals court of the
state has held, either expressly or implicitly, that the indictment
was sufficient under state law, the federal habeas inquiry is at an
end. Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985).
When the Texas Court of Criminal Appeals refuses to hear a direct
appeal and denies a writ of habeas corpus sought on the ground that

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the indictment is insufficient, that court implicitly holds that
the indictment is sufficient. Id. at 599.
The indictment charged that Copeland committed robbery
"intentionally" and with the "intent" to obtain property by placing
his victims "in fear of imminent bodily injury and death." The
state trial judge rejected Copeland's contention that this
indictment was defective. As the Texas Court of Criminal Appeals
denied his habeas corpus petition without written order, the
federal habeas inquiry need go no further. Similarly, as the
district court did not err when it deferred to the state court's
determination that the indictment was not defective, an evidentiary
hearing is not necessary.
Ineffectiveness of Counsel
Copeland continues by arguing that counsel was ineffective for
failure to interview and call requested witnesses and to correct
the flawed indictment.
A claim that counsel has been ineffective will prevail only if
the petitioner proves that such counsel was not only objectively
deficient, but also that the petitioner was so prejudiced by
counsel's errors that the trial was unfair or unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Counsel's trial tactics are generally
presumed to be well chosen. See id. at 690. "[B]ecause the
presentation of testimonial evidence is trial strategy," complaints
regarding uncalled witnesses are disfavored. Cockrell, 720 F.2d at
1427. "Unreliability or unfairness does not result if the

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ineffectiveness of counsel does not deprive the defendant of any
substantive or procedural right to which the law entitles him."
Lockhart v. Fretwell, U.S. , 113 S.Ct. 838, 844 (1993).
An ineffectiveness claim based on speculation or conclusional
rhetoric will not warrant § 2254 relief. See Lincecum, 958 F.2d at
1279.
"Federal courts in habeas proceedings are required to grant a
presumption of correctness to a state court's explicit and implicit
findings of fact if supported by the record. Although the ultimate
question of whether counsel's performance was deficient is a mixed
question of law and fact, state court findings of fact made in the
course of deciding an ineffectiveness claim are subject to the
deference requirement of section 2254(d)." Loyd v. Smith, 899 F.2d
1416, 1425 (5th Cir. 1990) (citations omitted); see Lincecum,
958 F.2d at 1279.
Here, the district court's determination that Copeland's
ineffectiveness claim did not merit § 2254 relief was not error.
Copeland raised numerous ineffectiveness claims in his state habeas
petition. His counsel gave a sworn statement that put in question
the validity of Copeland's allegations. The state judge reviewed
the affidavits and rejected all of Copeland's ineffectiveness
claims. See Ellis v. Collins, 956 F.2d 76, 79 (5th Cir.), cert.
denied, 112 S.Ct. 1285 (1992); May, 955 F.2d at 314. We find no
reversible error in this result.
Also without merit is Copeland's argument that counsel was
ineffective for failure to notice and correct the errors in the

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indictment. As set forth above. Copeland fails to show that
counsel's performance was objectively deficient. We will not
disturb the state court's decision upholding the validity of the
indictment, so Copeland cannot show prejudice or that he was
otherwise deprived of a fair trial.
To the extent that Copeland attempts to resurrect on appeal
those ineffectiveness arguments that were not raised in district
court, we need not address them even if they were raised in his
state habeas petition. See Self, 751 F.2d at 793.
Finally, Copeland argues that counsel was ineffective for
failure to instruct him that he could appeal in forma pauperis.
This argument was also raised in his § 2254 petition but was not
addressed by the district court, presumably because the claim does
not raise an appropriate issue for a § 2254 proceeding. But more
importantly, Copeland cannot show prejudice from counsel's alleged
failure in this regard because Copeland moved to proceed in forma
pauperis, and the court granted his motion.
In summary, Copeland has failed to show that counsel's alleged
ineffective performance "permeates the entire trial with obvious
unfairness." Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).
For the reasons set forth above, Copeland's claim that counsel was
ineffective fails, as do his contentions that his indictment was so
deficient as to deprive the state court of jurisdiction and that an
evidentiary hearing is required. Thus, the district court's denial
of Copeland's petition for habeas corpus is
AFFIRMED.

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