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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should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10838
Summary Calendar
DALE LEEROSS ROBINSON,
Petitioner-Appellant,
VERSUS
WAYNE SCOTT, Director,
Texas Department of Criminal Justice
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(1:94-CV-69)
(April 4, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
Per Curiam:*
Dale Leeross Robinson (Robinson), proceeding pro se and in
forma pauperis (IFP), filed a Petition for Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2254, collaterally attacking his Texas

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murder conviction. Respondent, Wayne Scott, Director of the Texas
Department of Criminal Justice, Institutional Division (Respondent
or "the State") conceded that state court remedies have been
meaningfully exhausted and after a review of the record, we agree.
See, Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513 (1971).
The Magistrate Judge entered Findings, Conclusions and
Recommendations, to which Robinson filed objections. After making
a de novo review of the record, the district court denied all
relief sought in the petition, and dismissed it with prejudice.
Robinson appeals.
FACTS
Robinson was convicted of the first-degree murder of Donald
Chambers (Chambers) and is serving a 50-year sentence in the
custody of the Texas Department of Criminal Justice, Institutional
Division. At trial, Robinson's former girlfriend, Rebecca Morris
(Morris) testified that she had moved into Chambers's home after
leaving Robinson. That evening, Morris and Chambers answered a
knock to find Robinson who had been drinking, standing at the front
door with a gun in his hand. Robinson asked Morris about some
missing marijuana, and Morris told him that she had left it on his
kitchen counter. Chambers told Robinson to get off his property,
and they exchanged angry words. Robinson shot Chambers at close
range in the neck, then got in his truck and left.
Robinson introduced evidence that Chambers was a large man who
was reputed to be violent and dangerous and that Chambers had
threatened to kill him. Robinson testified at trial, admitting
that he fired a shot, but denying that he intended to kill

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Chambers. Robinson stated that he was backing off the porch when
he lost his balance. When he raised up, Chambers was "right on"
him with his fists "balled up." Robinson fired the gun and ran to
his truck and drove off. After he left the scene, he threw the gun
out of the truck window. Robinson then went to a club, later to a
restaurant, and ended up at his mother's house, where he remained
until he was arrested. He testified that he was unaware that
Chambers was dead until his mother informed him late that night.
The prosecutor asked Robinson when he first told somebody the story
he was telling the jury. Robinson replied that he first told the
story to his lawyer, two days after he was arrested. There was no
objection.
Robinson testified in response to the prosecutor's inquiry
about his temper, "It's hard to rile me, ma'am. I have a nice
temper, I think...[I lose my temper] only when provoked." The
state then elicited testimony that Robinson had slapped and choked
Morris, leaving bruises on her neck and face just before she moved
out of his house. There was no objection made by Robinson's lawyer
to this line of questioning.
In closing, the prosecutor argued that Robinson's failure to
mention his story to anyone until after he was arrested was proof
that the killing was intentional. She also made reference to
Robinson's assault on Morris. Robinson's lawyer made no objection
on either issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
Robinson claimed that his attorney failed to provide him with

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effective assistance of counsel due to five alleged errors. First,
counsel made no objection to the prosecutor's comment with regard
to his post-arrest, post-Miranda silence. Second, counsel failed to
object to the use of an extraneous offense, the unadjudicated
assault on Morris. Third, he says counsel failed to make an
independent investigation of his case, particularly in regard to
the scientific tests conducted by the pathologist, and in a fourth,
related complaint, counsel did not properly cross examine the
pathologist. Finally, he complains that counsel did not object to
characterizations of the evidence made by the prosecutor during
closing argument.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)
set out a two pronged standard for ineffective assistance of
counsel. The first prong requires pleading and proof that
counsel's performance was deficient. This requires an error so
serious as to demonstrate counsel was not functioning as guaranteed
by the Sixth Amendment. The court's scrutiny of counsel's
performance is to be highly deferential, with a diligent attempt to
eliminate the distorting effects of hindsight. There is a strong
presumption that counsel's conduct falls within the wide range of
reasonably professional assistance and that he employed sound trial
strategy. This presumption must be rebutted to prevail on the
deficiency prong of a claim of ineffective counsel. Id. at 693,
104 S.Ct. at 2064.
The second prong of the test requires the petitioner to plead
and prove that the deficient performance prejudiced the defense.

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To prevail, the petitioner must prove that counsel's professional
deficiency deprived the defendant of a fair trial, that is, a trial
with a reliable result. Id. at 687, 104 S.Ct. at 2064.
a. Post-arrest silence.
The Fifth Amendment operating through the Fourteenth
Amendment, prohibits a prosecutor in a state criminal action from
making jury arguments concerning a criminal defendant's post-
arrest, post-Miranda warning silence. Doyle v. Ohio, 426 U.S. 610,
96 S.Ct. 2240 (1976). Robinson testified that he did not tell
anyone until after his arrest the version of the events that he
told at trial. The prosecutor attacked Robinson's story in closing
argument, emphasizing that Robinson did not contact the authorities
and report the shooting. At the end of that portion of the
argument, the prosecutor said, "In fact, he admitted to you that he
not once told anybody the story he sat here and told you 'til he
talked to his lawyer. However many days after he had been
arrested." (emphasis added) Presuming, as we must, that Robinson's
counsel was acting within a broad range of professional
effectiveness, we find that his failure to object was the result of
a conscious, informed decision. At the time of this trial, in
January 1987, the Fifth Circuit required Doyle violations to be
examined in light of the harmless error rule as expounded in
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 827-28 (1967).
United States v. Shaw, 701 F.2d 367 (5th Cir.) cert. denied, 465
U.S. 1067, 104 S.Ct. 1419 (1984). We find that it was reasonable
trial strategy not to object to the prosecutor's Doyle statement in

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order to avoid calling the jury's attention to it, based on the
conclusion that the trial and appellate courts would have found
that it was harmless error.
b. Admission of extraneous offense.
Robinson contends that his counsel was ineffective for failing
to object to the admission of evidence concerning Robinson's
assault on Morris, the government's chief witness. The evidence
was relevant to show Robinson was aggressive and had been an
aggressor, and to rebut his claim of self defense and his fear of
the victim. This was admissible under Texas law. Robinson v.
State, 844 S.W.2d 925, 929 (Tex.App.--Houston, 1st Dist. 1992).
The district court found that there was no constitutional or
procedural violation in the admission of this evidence, and that
counsel was not ineffective for failing to object. We agree.
c. The medical examiner
Robinson contends that counsel's failure to investigate
forensic evidence and to cross-examine the medical examiner
rendered his counsel ineffective and his trial unfair. The medical
examiner testified that paralysis, if not death, would have been
immediate from the gun shot wound. There was speckling around the
wound, indicating that the gun was fired very close to the victim's
skin. The medical examiner also testified there was a flake of
something he presumed was a paint chip and some blue fibers in the
wound. Robinson would have had his counsel, through scientific
testing of the evidence and cross-examination of the medical
examiner, call into question the fact that the shooting occurred at

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close range and attempt to establish that the bullet picked up a
paint chip from the screen door prior to killing Chambers. The
district court found that these arguments, proposed by Robinson
after the fact, would have been inconsistent with Robinson's theory
of the case and his testimony at trial. Therefore, the district
court held that Robinson's counsel was not deficient in failing to
develop these arguments. We agree.
d. Prosecutor's closing arguments.
Robinson complains that his counsel was ineffective for
permitting the prosecutor to insert prejudicial comments and
personal opinions into the closing argument without objection. He
cites three quotations from closing argument, one urging the jury
to find Robinson guilty of murder, rather than manslaughter, one
referencing his attack on Morris and one statement that Robinson
"went over there with a gun to kill." The district court found
that all of the arguments were fair comments on the weight and
credibility of the evidence or appropriate suggestions concerning
what the evidence indicated or showed. We agree.
e. No ineffective assistance of counsel.
In sum, we find that the district court was correct in finding
that Robinson has not established that he was denied effective
assistance of counsel.
OTHER CLAIMS
Although we liberally construe pro se briefs, see Haines v.
Kerner, 404 U.S. 519, 522, 92 S.Ct. 594, 3 L.Ed.2d 652 (1972), we
require arguments to be briefed in order to be preserved. Yohey v.

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Collins, 985 F.2d 222, 225 (5th Cir. 1993). Claims not adequately
argued in the body of the brief are deemed abandoned on appeal.
See, id. Robinson has failed to satisfy this requirement in regard
to the remainder of his claims asserted in the district court.
Thus, the other issues raised in the district court have been
abandoned.
CONCLUSION
Robinson has moved for appointment of counsel. Although there
is no constitutional right to the appointment of counsel in habeas
actions, this Court may appoint counsel in "exceptional
circumstances." Santana v. Chandler, 961 F.2d 514, 515-16 (5th
Cir. 1992). The Court may appoint counsel for financially eligible
individuals if the interests of justice so require. Id. Although
Robinson is proceeding IFP, the interests of justice do not require
the appointment of appellate counsel. Robinson has demonstrated
that he is capable of representing himself by filing competent
pleadings and a brief which states his issues and arguments. The
case does not present exceptional circumstances warranting the
appointment of counsel. The motion for appointment of counsel on
appeal is, therefore, DENIED.
The order of the district court dismissing Robinson's petition
with prejudice is AFFIRMED.

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