Jerry Lee HOGUE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee, 131 F.3d 466

GARWOOD, Circuit Judge: Petitioner-appellant Jerry Lee Hogue (Hogue) appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254 challenging his 1980 Texas conviction and death sentence for murder committed while committing arson. Hogue’s primary complaint on appeal is that the admission in evidence at the punishment phase of his trial of a 1974 Colorado guilty plea rape conviction, which in 1994 a Colorado court set aside finding Hogue’s counsel there had provided constitutionally ineffective assistance, rendered his death sentence invalid under Johnson v.

Mississippi 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). We reject this claim, holding it procedurally barred by Hogue’s failure to object at trial, and, alternatively, because we conclude that under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the admission of the prior conviction did not substantially influence the jury’s answer to either of the two punishment issues.

We also hold that Hogue is entitled to no relief on either of the two remaining contentions he raises in this appeal, one relating to an allegedly biased juror and the other to the constitutional validity of treating murder while committing arson as a capital offense where the death is caused by the arson. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Hogue was indicted for the January 13, 1979, murder of Jayne Lynn Markham (Markham) committed in the course of committing arson, contrary to Texas Penal Code § 19.03(a)(2).

At his March 1980 trial, at which Hogue was represented by attorneys Coffee and Roe, the jury found Hogue guilty of capital murder and following the subsequent punishment hearing answered affirmatively each of the two special issues called for by the then version of Texas Code of Criminal Procedure Art. 37.071, finding that Ho-gue’s conduct causing Markham’s death was committed deliberately with the reasonable expectation that her or another’s death would result and that there was a probability he would commit criminal acts of violence constituting a continuing threat to society.

Ho-gue was accordingly sentenced to death. On direct appeal, Hogue was initially represented by attorney Burns, who, on Hogue’s request, was replaced by attorney Gray. In March 1986, the Texas Court of Criminal Appeals, en banc, unanimously affirmed the conviction and sentence (two judges concurred in the result without opinion), and in October 1986 the Supreme Court denied cer-tiorari. Hogue v. State, 711 S.W.2d 9 (Tex.Crim.App.), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).

Prior Habeases There then ensued a lengthy series of ha-beas filings by Hogue and his attorneys, which we outline as follows. In January 1987, Hogue, through attorney Alley, filed his first state habeas, which was amended on February 18, 1987. An eviden-tiary hearing was held on this petition on February 24, 1987, at which Hogue was represented by Alley. The petition was ultimately denied by the Court of Criminal Appeals on March 18, 1987. In the meantime, Hogue’s execution had been set for March 24, 1987.

On March 20, 1987, Hogue, again through Alley, filed his second state habeas petition and motion for stay of execution, each of which the Court of Criminal Appeals denied on March 22,1987. On the same day, Hogue, through Alley, filed in the district court below his first federal habeas. The district court granted a stay of execution. On May 7, 1987, Hogue, pro se, moved to dismiss Alley, alleging that Alley was not authorized to file the federal habeas petition. On May 27, Hogue, pro se, moved to amend the federal petition to add forty-nine additional grounds.

On July 9, 1987, the district court dismissed the federal petition without prejudice as having been filed without Ho-gue’s authorization, and vacated the stay of execution. On August 11, 1987, Hogue, pro se, filed his third state habeas application, and on August 19, 1987, attorney Burns filed a state habeas application on Hogue’s behalf. These latter two applications were treated as consolidated and on September 25, 1987, were denied by the Court of Criminal Appeals, which also denied stay of execution, which had been set for September 29, 1987.

Also on September 25, 1987, Hogue, through attorneys Mason and Bruder, filed in the district court below an application for stay of execution to permit the filing of a habeas petition in that court, and the district court granted the stay. On October 17,1987, the district court issued its order directing that Hogue, on or before January 8,1988, file a habeas proceeding in that court under

section 2254 or a state court habeas proceeding, in which Hogue would “present each and every claim known to Petitioner or his counsel on pain of waiver.” On January 8, 1988, the district court, on motions filed that day by Hogue, extended the January 8, 1988, deadline to January 22, 1988. On March 29, 1988, the district court, having learned that Hogue was pursuing a state habeas proceeding, vacated the stay of execution it had previously entered and dismissed without prejudice the federal proceedings.

Previously, on January 22, 1988, Hogue, through Mason and Bruder, had filed his fourth state habeas petition (identified in the state trial court as No. C-3-1330-162441-D). Evidentiary hearings, at which Hogue was represented by Mason, were held on this petition on March 24, 1988 (at which Bruder was also present on behalf of Hogue), and August 8, 1988, and a deposition was taken (at which Hogue was represented by Mason). The state trial court made findings of fact and conclusions of law and recommended denial of relief.

On January 9, 1989, the Court of Criminal Appeals issued its order denying relief on this habeas (Court of Criminal Appeals No. 16,907-4), noting that it had “carefully reviewed the record” and that “the trial court’s findings and conclusions are fully supported by the record.” On April 13, 1989, Hogue, through Mason and Bruder, filed another

section 2254 petition in the district court below. On April 18, 1989, the district court stayed Hogue’s execution, which had been scheduled for April 20, 1989. On March 16, 1990, Hogue, through Mason and Bruder, moved to dismiss or stay the

section 2254 proceedings so he could return to state court to seek relief suggested by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In July 1990, Mason and Bruder filed a motion to withdraw from their representation of Hogue as he had claimed their inadequate representation entitled him to relief. Also in July 1990, Hogue, pro se, filed in the federal proceeding a pleading complaining of his counsel’s failure to investigate certain claims and, later, a memorandum opposing the request of Mason and Bruder to withdraw.

On August 22, 1990, the district court appointed Mason and Bruder under the Criminal Justice Act, so they could be compensated, and also appointed an investigator to assist them. This order directed that by October 19, 1990, a supplemental pleading be filed asserting each issue Hogue sought to raise. On November 16, 1990, Hogue, pro se, moved in the federal proceeding to dismiss Masón and Bruder, and to dismiss his

section 2254 proceeding without prejudice so he could return to state court. The district court on March 7, 1991, dismissed the cause without prejudice, noting Hogue’s November 16, 1990, motion. On March 22,1991, Hogue, pro se, filed his fifth state habeas petition (identified in the state trial court as No. C-3-1647-16241-E). On August 5, 1991, the state trial court recommended denial of relief and transmitted the file to the Court of Criminal Appeals.

On September 18, 1991, the Court of Criminal Appeals entered its order on this application (identified in the Court of Criminal Appeals as Writ No. 16,907-05), reciting that “[a]ll of the allegations have been raised and rejected either on direct appeal or in previous applications for writ of habeas corpus” and “[w]e hold that the applicant’s contentions are not only without merit but have been waived and abandoned by his abuse of the writ of habeas corpus.” The order goes on to direct the Clerk of the Court of Criminal Appeals: “not to accept or file the instant application for writ of habeas corpus.

He is also instructed not to accept in the future any applications for a writ of habeas corpus attacking this conviction unless the applicant has first shown that any contentions presented have not been raised previously and a showing is made that they could not have been presented in any earlier application for habeas corpus relief.” Meanwhile on September 3, 1991, Hogue, through attorneys Crocker (whom the state trial court had appointed to represent Hogue on May 2, 1991) and Owen, tendered for filing in the state court on Hogue’s behalf his sixth state habeas application (identified in the state trial court as No.

C-3-1647-16241F). This application, which runs 173 pages exclusive of exhibits, asserts 36 grounds for relief. On October 17, 1991, the state trial court signed an order, responsive to the Court of Criminal Appeals’ September 18, 1991, order, identifying three issues raised in Hogue’s sixth state habeas “which have not been and could not have been raised in previous proceedings.” In response to a motion filed November 13, 1991, by Hogue, through Crocker and Owen, the state trial court modified its October 17, 1991, order by slightly rewording its statement of the three available issues.

In December 1991, the state trial court denied a motion filed by Hogue, through Crocker and Owen, to permit the filing of Hogue’s sixth state habeas petition. On March 6,1992, the state trial court issued an order adopting, with modifications, the state’s proposed memorandum, findings, and conclusions, recommending denial of relief with respect to the three available issues identified in the trial court’s October 17, 1991, order as modified (see note 6, supra). The March 6, 1992, order directed that the file be transmitted to the Court of Criminal Appeals, where it was received March 11, 1992.

On March 16, 1992, the Court of Criminal Appeals, through its Executive Administrator, wrote the state trial court with respect to Hogue’s sixth state habeas writ (reflecting copies being sent to Hogue, Crocker, counsel for the state, and the state district clerk) as follows: “Re: Writ No. 16,907-06 Jerry Lee Hogue Trial Court No. C-3-1647-16241-F Dear Judge Leonard: On September 18, 1991, this Court entered an order citing the above referenced applicant with abuse of the writ. The present application does not satisfy the requirements for consideration set out in the order described above.

Therefore, this Court will take no action on this writ. For further information see Ex parte Dora, 548 S.W.2d 392 (Tex.Cr.App.1977).” Hogue’s execution was thereafter set for May 28, 1992. There were no further state court filings. This Habeas The instant

section 2254 petition was filed by Hogue, through Crocker and Owen, on May 19, 1992. It is 184 pages long (and is accompanied by more than 700 pages of exhibits and by a memorandum which, together with its own exhibits, occupies more than 400 pages in the record) and raises 33 grounds of relief. On May 22, 1992, the district court granted Hogue’s requested stay of execution. On June 12, 1992, an amended habeas petition was filed, adding two grounds for relief, but not otherwise altering the original petition. On November 2, 1992, the State filed its answer and motion for

summary judgment. The matter was referred to a Magistrate Judge for recommendations and proceedings as deemed appropriate. On March 14, 1994, the Magistrate Judge issued a 126-page report and recommendations, reeom-mending denial of all relief. Hogue filed objections to the report and recommendations. The district court afforded de novo consideration to all of Hogue’s asserted grounds for relief.

On November 16, 1994, the district court entered judgment denying all relief, together with a thorough and comprehensive opinion reciting in detail the course of proceedings at trial and on direct appeal, the evidence presented at trial, and the course of Hogue’s prior habeases, and addressing and disposing of all of Hogue’s asserted grounds for relief in his current habeas. Hogue v. Scott, 874 F.Supp. 1486 (N.D.Tex.1994). On January 18, 1995, the district court denied Hogue’s Rule 59(

e) motion with a brief opinion. Id. at 1545-46. Offense Circumstances The Court of Criminal Appeals’ opinion generally describes the circumstances of the offense: “The evidence introduced at trial showed that appellant [Hogue] and his wife rented a house located at 2412 Southcrest in Arlington on November 9, 1978. Approximately one month later, on December 4, 1978, appellant and his wife vacated the house without turning in their key, leaving a refrigerator, a round wall ornament and some trash. The property was cleaned up and on December 24 the house was leased to Mary Beth Crawford and Jayne Markham.

Living at the house with the two women were Markham’s eight-year-old son and Steve Renick, a friend of the women. On a Wednesday, January 10, two days before the commission of this grisly and brutal crime, appellant returned to the house. When Markham answered the door, appellant told her he had lived in the house and had left a wall hanging at the house and asked if he could get it. Markham let appellant in the house and they began conversing. Apparently some sort of amiable relationship between Markham and appellant was struck because appellant stayed at the house for quite a long time that evening.

On Thursday, appellant again showed up at the house. Markham had agreed to buy some used furniture from appellant so she went with him to pick up the furniture. When they arrived back at the house, once again appellant stayed for the duration of the evening. Eventually the women went to bed and only appellant and Renick were awake. Appellant asked Renick if he knew where he could get a gun. Renick showed appellant the gun he kept in his footlocker. After cleaning the gun, Renick loaded it and placed it back inside the footlocker. Appellant was at the house again early the next morning.

Renick went to work and Crawford took Markham’s son to school. On her way home she stopped at the grocery store. When she returned home, she prepared breakfast, for herself, Markham and appellant. Crawford noticed that Markham seemed upset. While the trio were eating breakfast, appellant suddenly blurted out that he was a police officer and that he was arresting them for possession of marihuana. When the women asked for some sort of identification, appellant said that he did not have any with him but that his real purpose was to arrest Steve Renick because he was a heroin dealer.

Appellant told the women to cooperate, to stay in his sight all day long and not to talk to each other. He then had them go into Markham’s bedroom. Appellant left the bedroom and shortly thereafter the women heard a breaking noise. They followed the noise and found appellant going through Renick’s footlocker. Appellant found Renick’s gun inside the footlocker. Appellant pointed the gun at the women and told them he was going to handcuff one of them. He proceeded to handcuff Markham; he put Crawford into a closet. After a period of ten minutes, appellant opened the closet door.

He had the gun in his hand and was nude from the waist down. Appellant stepped inside the closet, pointed the gun at Crawford’s head and instructed her to removed her clothes. When Crawford replied that she would not and she had venereal disease, appellant backed out of the closet and shut the door. A short while later appellant removed Crawford from the closet and led her into the dining room. There she saw Markham nude and blindfolded, lying face down on the floor with her hands cuffed behind her. Appellant told Crawford to remove all of her clothes except her underwear and to lie down beside Markham.

After a few minutes, appellant forced Crawford to commit oral sodomy upon him. Thereafter, appellant again put the women in the bedroom. Crawford was put back into the closet while appellant raped Markham. Then appellant blindfolded both women and forced both of them to lay on the bed. He then proceeded to go through Markham’s purse. Appellant later permitted both women to get dressed. He instructed the women not to talk to each'other and at a point during the day when he caught the women talking he took Crawford into her room and handcuffed her to her bed. At 3:15 p.m., Markham’s son returned home from school.

Appellant made him. go to his mother’s room and remain there. Around 6:00 p.m., Renick came home. Appellant, carrying the gun and a pair of handcuffs, met Ren-ick at the front door. Renick was immediately handcuffed and led into Markham’s bedroom. Appellant told Renick that he was a narcotics agent and was arresting him. Appellant took Renick’s wallet and then moved Reniek into Crawford’s bedroom where he was handcuffed to the bed. Over the next few hours appellant moved through the house, shuffling his prisoners from room to room. Throughout the evening appellant made numerous threats to kill them all.

At one point appellant led Crawford into the living room and had her sit on the couch. Appellant left the room and when he returned he was carrying a butcher knife. He stabbed Crawford in the stomach and then dragged her into a bathroom. A short time later, he had both women go back into the living room. There he told them he was a hit man and had a contract out for each of them. Appellant then took Crawford into the third bedroom. By this time Crawford was bleeding heavily, was in intense pain, and was passing in and out of consciousness. Appellant brought Markham into the room where Renick was now confined.

By this time Renick’s hands had been tied to the headboard and his feet had been bound together. Appellant proceeded to bind Markham by tying her hands behind her back, tying her feet together and then taking a wire and tying her feet to her hands. When Renick and Markham begged appellant to release them so that they could take Crawford to the hospital, appellant said he was a hit man and he was going to kill them all. Appellant left the room. Soon the victims began to smell gasoline. They could hear the appellant in the attached garage coughing and sputtering.

After a while appellant came back into the bedroom carrying a Prestone antifreeze can and a rolled up newspaper. Appellant again told Markham and Renick that he was going to kill them all. He thén left the room. The victims saw appellant backing down the hallway, pouring a liquid out of the antifreeze can. They soon began to smell gasoline. Suddenly, fire roared through the hallway and flames began shooting into the bedroom where Renick and Markham were tied up. Renick managed to free himself, break a window and jump outside.

He then tried to go back in and rescue Markham who was screaming but the flames were too intense. When the screaming stopped, he ceased his efforts. He then ran to the window of the bedroom in which Markham’s son was sleeping. He was able to pull the child out of the window. Crawford, awake at the time of the fire’s ignition, managed to jump out of a bedroom window. She ran next door to summon help. On her way to the neighbors, she saw appellant climbing into his car. She ran to the neighbors’ house and rang the doorbell. The neighbors found her collapsed on the ground.

Emergency vehicles responded to the fire call at 1:14 a.m. When they reached the scene, the house was fully involved. Markham’s body was found by fireman inside the house. Her hands and feet had been tied behind her back, leaving her body in a crouched position. An autopsy showed that her hands and feet were tightly bound with insulated wire. Police found a Prestone antifreeze container sitting just inside the doorway of the laundry room. It smelled heavily of gasoline. They also found two sections of garden hose on the floor of the garage lying next to a vehicle that had been parked in the garage.

These also smelled of gasoline. A fire investigator concluded that more than two gallons of gasoline had been used to start the fire. He determined that the fire had been deliberately set.” Hogue, 711 S.W.2d at 10-12 (footnote omitted). The testimony, witness by witness, is described in greater detail in the district court’s opinion. Hogue v. Scott, 874 F.Supp. at 1500-1511.

Hogue testified at the guilt-innocence stage — though not at the punishment stage — and, as the district court observed, his rendition of the events “was virtually a reversal of the roles other witnesses assigned to Hogue and Reniek.” Id. at 1509. Hogue stated that Markham wanted to get Reniek out of the house as white powder had been found in his footlocker and she thought he was dealing drugs. Consequently, when Reniek returned to the house from work about 6:00 p.m.

Friday, January 12, 1979, Hogue came up behind Reniek and put his knuckle in Renick’s back, making Reniek think he had a gun, and under the threat of this imaginary gun forced Reniek to lie down, and then handcuffed him. He then took Reniek to a bedroom, removed the handcuffs and re-handcuffed Reniek to the bed. Later, after consulting with Markham and after Reniek promised to leave, Hogue unhand-cuffed Reniek. Some time later, as Hogue and Markham were talking, Reniek appeared with a pistol in hand and told them to go into a bedroom, which they did.

Hogue then heard Crawford and Reniek talking about dope, heard Crawford scream, and saw her run, bent over, into Renick’s bedroom. Holding the gun on Markham and Hogue, Reniek tied them up. Sometime later Reniek untied Hogue and forced him to siphon gas out of a vehicle in the garage and put it in a Prestone antifreeze can and some milk cartons. Reniek then told Hogue to spill the gas, Hogue refused, and Reniek took him back to the bedroom, where Markham was tied, and retied him. Reniek left the room. Later, Hogue smelled gas. He broke the bedposts to which he was tied and began untying Markham.

Reniek appeared in the door, Hogue kicked at him and missed, and his momentum carried him into the hallway; Reniek “back[ed] off down the hall,” and “brought the gun up.” Hogue then ran out of the house. When he reached the street, he saw the house suddenly go up in flames. He thought he saw Reniek standing at the side of the house. Hogue jumped in his car and drove off.

After a thorough review of the evidence, we are in full agreement with the district court’s conclusion that Hogue’s version of the events “when weighed against the other evidence in the case, is so lacking in credibility that no reasonable trier of fact would accept it.” Hogue v. Scott at 1509. Hogue was found by the police some twenty-four hours after the fire, shortly after 11:00 p.m. Sunday, January 14,1979, alone in a friend’s small upstairs apartment, which was totally dark, hiding, fully clothed, in the shower stall behind the closed shower door in the bathroom.

Though the police had announced their presence and stated they were looking for Hogue, he had remained wholly silent and hidden. Hogue knew the police were looking for him, and he had made no attempt to contact them (or the fire department or emergency medical services or any other authority). He gave no explanation for this.

Hogue has offered no explanation for the testimony of Markham’s son — called as a witness by Hogue — that Hogue held a pistol on Markham and Crawford before Reniek returned from work late Friday afternoon, January 12, then went to the front door with the gun when Reniek’s truck was heard to drive up, stated to Reniek “I am arresting you for selling marijuana,” and returned with the gun and with Renick handcuffed, after which Renick was handcuffed to the bed. The boy also testified that Renick removed him from the burning house.

The two neighbors testified as to Crawford and Renick’s fleeing to their house, Renick’s desperate efforts to save Markham and the boy, Crawford’s anguish at their fate and her spontaneous statements to each of the neighbors concerning her near fatal stabbing by Hogue: “I don’t know why he stabbed me. I don’t know why he did it. I don’t know him,” and “I don’t understand why he did this to me.

I don’t even know him.” It was clearly established and undisputed that Crawford and Renick had known each other well over a year prior to the events in question, while prior thereto she and Hogue were total strangers each to the other.

Similarly, Crawford’s and Renick’s statements to the neighbors, and to the police who shortly arrived, were excited utterances and were consistent with their trial testimony, which was also corroborated by their physical condition (e.g., Renick’s arms were cut and bleeding, his hair and beard were singed, and he had no shoes on; Crawford was suffering a near-fatal stab wound) and actions then as testified to by other witnesses, including the police and the neighbors.

Prior Conviction Impeachment In cross-examination of Hogue (at the guilt-innocence stage), the state was permitted to ask him, for impeachment purposes only, whether he had been convicted in September 1974 for rape in Colorado in cause No. 6785, to which Hogue replied “I plead guilty to a fourth class felony of rape, yes, sir” and went on to state that he had served ninety days of his three-year sentence (he subsequently admitted he had later served an additional sixty days of that sentence).

Defense counsel objected on the sole ground that under Texas “Code of Criminal Procedure[s] [art.] 38.29” the conviction “is not a final conviction.” Just before Hogue took the stand, defense counsel in a hearing out of the presence of the jury had unsuccessfully sought to preclude cross examination of Hogue in respect to this conviction on the ground that the conviction was not final, because Hogue’s sentence was probated and probation had been completed.

In support, defense counsel placed before the court as Defendant’s Exhibit A (which the court admitted for purposes of the hearing on admissibility of the conviction) the record of the proceedings in Colorado cause No. 6785, reflecting that Hogue was charged in an eight-count information filed May 6, 1974, count three of which alleged rape on May 3, 1974, of Claudia Hogue; on August 19, 1974, Hogue, represented by counsel Hilgers and “[a]fter being advised of Ms rights as provided under Rule 11,” pleaded guilty to the rape count, the two then-remaining other counts (second degree kidnaping and theft over $100) in cause No. 6785 were dismissed (as were all the four other pending informa-tions against Hogue, Nos. 6534, 6822, 6324 & 6325); on September 23, 1974, Hogue was sentenced to three years on the rape conviction, and the court denied probation; on November 27, 1974, Hogue, through counsel Hilgers, filed a motion to modify the sentence based on “very favorable reports” from the prison (reformatory), copies of which were filed with the motion; on December 23, 1974, the Colorado court, reciting that it had “read the recommendations from the reformatory,” granted the motion to modify and placed Hogue on probation for a two-year period; on April 24, 1975, the probation department filed a complaint charging that Hogue had violated his probation in four respects; on April 28, 1975, Hogue, represented by counsel Truman, pleaded not guilty to the probation violation complaint; another probation violation complaint was filed by the probation department on August 6, 1975, alleging August 3, 1975, law violations (sexual assault and burglary); on November 10, 1975, attorney Gray appeared for Hogue (apparently not the same Gray who later represented him on direct appeal of his 1980 conviction); on November 24, 1975, the August 6, 1975, probation complaint based on violation of law was withdrawn; on December 8, 1975, Hogue, represented by Gray, pleaded guilty to and was found guilty df probation violations in cause No. 6785, the three-year sentence in that cause was reimposed, and Hogue was ordered to the state penal institution, with credit for 91 days served there and for 125 days in local confinement (two other criminal eases against Hogue, Nos. 7638 and 7487, were also then dismissed); on February 9, 1976, Hogue, through Gray, moved to modify the sentence in No. 6785 by placing Hogue on probation; on March 1, 1976, the Colorado court granted that motion and ordered that “the balance of’ Hogue’s “sentence” be suspended and that he be released from custody and placed on probation for a period to expire December 23, 1976; on January 6, 1977, the Colorado court ordered the probation supervision discontinued and terminated the No. 6785 proceedings against Hogue because the period of his probation had expired.

None of this evidence was placed (or sought to be placed) before the jury.

Defense counsel’s motions in limine had sought to establish with respect to tMs 1974 Colorado rape conviction that “the Defendant was placed on probation which probation was successfully completed and terminated on the 6th day of January, 1977.” At argument before the court, out of the presence of the jury, counsel contended, after the court had indicated that it would allow Hogue to be impeached by the prior conviction, “our objection to the court’s ruling comes from Code of Criminal Procedure 39.29 [sic], where it says in that Article, that,” and counsel then read from Tex.Code Crim.Proc. art. 38.29 (quoted in note 11, supra), concluding with the language thereof indicating that a probated sentence was not admissible for impeachment unless “the period of probation has not expired.” Counsel went on the argue that the Colorado records showed that Ho-gue’s “probation was terminated by the court on January the 5th, 1977” and “[w]e would take exception to the Court’s ruling based upon

Article 38.29 and on Defendant’s Exhibit A that has been admitted before the court.” The court ruled that the prior conviction was admissible as impeachment because Hogue’s sentence was not originally probated and he served time under that sentence in the state penal institution, and also because when his sentence was later first probated that probation was revoked and he again served time in the state penal institution under the original sentence.

The trial court also instructed the jury, in its charge at the guilt-innocence stage, that the prior conviction evidence “cannot be considered by you against the defendant as any evidence of his guilt in this case” and “was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.” There was no objection to this instruction, nor any request for other or further instructions in that respect.

Sentencing Evidence The testimony at the punishment phase is outlined, witness by witness, in the district court’s opinion. Hogue v. Scott, 874 F.Supp. at 1509-1511. The prosecution commenced by introducing a copy of the September 23, 1974, Colorado court judgment convicting Hogue of rape, based on his guilty plea, and sentencing him to confinement for an indeterminate term not to exceed three years. Out of the presence of the jury, the state had previously announced its intention to offer this evidence, and Hogue, personally, had stated “I have no objection,” as did also defense counsel.

At no point in the trial was any objection ever made to this evidence; nor was any such objection ever urged on appeal.

Lieutenant Detective Diezei of the Boulder, Colorado Police Department, who had been with that organization some fifteen years, testified that in that capacity he had occasion to know that Hogue’s reputation in that community for being a peaceable and law-abiding citizen was bad, and that he first heard about Hogue “in approximately 1970.” Sara Sampson testified that she was “from out of state,” that she knew Hogue, having first met him “about ten years ago,” and that in the community in which she knew him his reputation for being a peaceable and law-abiding citizen was bad.

On cross-examination, Sampson identified certain photographs as being of Hogue, his ex-wife Claudia, and his daughter Shawna. Karen Hightower testified that on July 25, 1976, when she was living in an apartment in Richland Hills and was going through a divorce, she met Hogue in the apartment building parking lot when her car wouldn’t start and he offered to help, loaning her jumper cables. Subsequently, she went out with him. She later told Hogue she did not want to see him anymore, and he got angry.

Thereafter, on August 2, 1976, Hogue telephoned her, stated that he wanted “for us to part friends,” and asked her to go with him to get a hamburger and meet his uncle, who Hogue said was expecting them. Not wanting to hurt his feelings, she accepted, and they went in Hogue’s car to get a hamburger and then drove into the country, supposedly towards the uncle’s house. Hogue stopped the car, pulled a long knife, grabbed High-tower, threatened to kill her, made her commit sodomy, and raped her twice (there was no ejaculation).

On cross-examination, she admitted that the rape case growing out of this incident was no longer pending as, following a mistrial therein, she “chose not to go through a retrial.” Cross-examination also revealed that Hightower had been convicted of fraud in 1978 and that her exhus-band had custody of her daughter. The prosecution’s final punishment stage witness was psychiatrist Dr. Grigson (also spelled in the record as Gregson). Dr. Grig-son had not examined or interviewed Hogue, or examined any records or the like pertaining to him.

In response to a lengthy hypothetical question (occupying some 192 lines in the record), which set out hypothetical circumstances paralleling the circumstances of the instant offense and those immediately leading up to it as reflected by the prosecution’s evidence (some 177 lines), and also mentioned a previous rape conviction (2 lines), and a rape such as discussed by Karen Hightower (11 lines), Dr. Grigson testified that a person so described “certainly would present very much of a continuing threat to society,” and would be such even if confined in a penal institution.

Cross-examination was almost entirely focused on what defense counsel asserted was the impropriety of predicting future dangerousness, especially solely on the basis of a hypothetical question, on asserted professional criticism of Dr. Grigson for doing so, and on his frequent testifying and related remuneration. No counter-hypo-theticals were posed to Dr. Grigson. The defense put on psychologist Dr. Dickerson. He, too, had not examined or interviewed Hogue, or examined any records or the like pertaining to him.

The bulk of Dr. •Dickerson’s testimony was that future dangerousness could not be predicted, and that such predictions were wrong two out of three times; that it was especially improper to so predict without examination of the individual concerned and solely on the basis of a hypothetical question; and that a committee of the American Psychiatric Association had condemned that practice. On cross-examination by the state, Dr. Dickerson was unwilling to state that future dangerousness could be predicted for anybody, no matter what they had done in the past.

A person’s past dangerousness, no matter how clearly evidenced, simply did not justify predicting future dangerousness. Subsequently, Dr. Dickerson was recalled by the defense, and based on a hypothetical testified that the Parole Board was very reluctant “to grant parole to someone with a history of that sort.” Apart from this statement, Dr. Dickerson gave no testimony about Hogue personally or by hypothetical. On cross-examination by the prosecution, Dr. Dickerson admitted that probably a majority of murderers who receive life sentences are granted parole.

The remaining defense punishment phase witnesses were Becky Hogue and Mary Ebel. Becky Hogue testified that she had known Karen Hightower “since about ’72 or ’76” and that her reputation for being a truthful person was very bad. Mary Ebel testified that Hogue was her youngest son, and she identified three photographs as being of Hogue, his ex-wife Claudia, and his daughter Shawna.

Ebel testified that Claudia was “the injured party in the rape case that sent Jerry to the Colorado State Reformatory,” that the pictures were taken at that Reformatory “around January of ’76” while Hogue was there “after he had already plead guilty and been sent to the Colorado state Reformatory.” Ebel said she took Claudia to visit Jerry in the Reformatory because Claudia “has no other way to go.” This was Ebel’s only testimony at the punishment stage. The prosecution did not cross-examine her. The three pictures were introduced in evidence.

In one, Claudia and Hogue are sitting right next to each other (their bodies touching), Hogue’s arm around Claudia and young Shawna sitting apparently half on the lap of each; in another, Hogue is standing holding Shawna on his right and Claudia is on his left and slightly behind him with both her arms around him; the remaining picture shows Claudia and Hogue standing next to each other (their bodies touching) and does not include Shawna. In each picture all the subjects are smiling.

The jury was instructed that in answering the punishment issues it could consider the evidence introduced at the guilt-innocence stage of the trial, as well as that introduced at the punishment stage. DISCUSSION I. Admission of Colorado Conviction at Sentencing The first of the three issues raised by Hogue on this appeal is stated in his appellant’s brief as follows: “Did the admission of Mr. Hogue’s invalid prior felony conviction from Colorado at the sentencing phase of his Texas capital murder trial violate the Eighth and Fourteenth Amendments under Johnson v.

Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and was he harmed by the violation?” Hogue does not argue (and did not argue below) that any invalidity in his 1974 Colorado conviction renders his Texas capital murder conviction subject to attack under the Constitution or laws of the United States (or, indeed, in any way now subject to attack). Consequently, we do not consider any such question. Colorado Court 1994 Action In late December 1992, some seven months after the instant

section 2254 petition was filed, Hogue, through counsel, commenced proceedings in the Colorado trial court in which he had been convicted, on the guilty plea, of rape in September 1974, to set that conviction aside. In an order entered June 6, 1994, the Colorado court (a judge who had not previously been involved in Hogue’s case) set aside Hogue’s 1974 conviction (cause No. 6785), finding that Hogue’s then counsel, Hil-gers, had rendered constitutionally ineffective assistance. A copy of the Colorado court’s order and memorandum opinion was filed with the district court below on June 7, 1994.

The Colorado trial court’s order, invoking the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), found that Hogue’s counsel, Hilgers, rendered Hogue ineffective assistance in connection with his August 19, 1974, plea of guilty to rape in cause No. 6785.

This determination was based on findings that Hilgers, an attorney licensed in 1972 (and disbarred in 1980) who had never tried a felony case, “conducted no investigation and talked to no witnesses, other than talking to the defendant” and waived a preliminary hearing, all without any “reasonable tactical purpose.” Hilgers had Ho-gue take a polygraph test, the results of which were adverse to Hogue.

The Colorado court found that “[bjefore the polygraph exam, he [Hilgers] believed the defendant’s version of the facts, and expected that the polygraph would establish the defendant’s innocence,” but that “[a]fter receipt of the polygraph results shortly after June 28, 1974,” Hilgers became “panicky” and decided to dispose of the case “at almost any cost, because he had faith in the polygraph and no longer believed his client.” Subsequently, the prosecution made the offer to Hilgers on the basis of which Hogue ultimately pleaded guilty (see note 24, supra), Hilgers communicated the offer to Hogue, and “took the position that the defendant must accept the offer because Mr.

Hilgers felt there was a substantial likelihood of conviction.” However, Hilgers “was focused primarily on his own desire to avoid trial,” “his advice was not based on an informed judgment,” and “his recommendation was not the product of an intelligent choice among reasonable alternative courses.” Hogue “reluctantly accepted the advice from Mr.

Hilgers, although, to this date, he has always maintained his innocence.” The Colorado court concluded that “there is a reasonable probability that, if competent counsel had developed the facts, he or she would not have recommended a guilty plea and the defendant would not have pled guilty” and that “there was a reasonable probability that at a trial on the charge the defendant would have been acquitted.” The Colorado Court, however, did not find that no competent counsel would have advised Hogue to plead guilty.

The court stated it was “not unmindful of the prosecution’s argument that, in the context of the plea bargain package, the defendant can be said to have done quite well. However, the issue is not that, but whether this rape conviction is valid. And what is important is not outcome alone.” The court also remarked, in reference to cause No. 7304, in which Hogue was later acquitted, “[o]f course, there was less at risk in that case than there was for the defendant here [in No. 6785].” Nor did the Colorado court find that Hogue was in fact innocent of the rape charge in cause No. 6785.

It stated that “[t]he Court has no way of knowing whether Claudia Hogue’s allegations in this case were true. And the Court does not mean to demean her in any way by this ruling.” At the end of its opinion, the Colorado trial court stated “[f]urther, because the defendant was ineffectively represented at the plea hearing, his plea is invalid under Boykin [v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ], as well.” This constitutes the Court’s only discussion of Boykin, and the opinion contains no recitation of facts relevant to Boykin, as distinguished from Strickland or Hill, There is no suggestion the court taking Hogue’s guilty plea did not personally advise him on the record, and in open court in the presence of his counsel, of all his relevant constitutional rights, of the elements of the offense, and of the range of punishment to which his plea exposed him, and of every other constitutionally required matter.

Nor is there any finding that Hil-gers had failed to advise Hogue, or had incorrectly advised him, as to any of such matter. The Colorado court’s 1994 order makes no reference to (or description of) anything that transpired or did not transpire at the August 19, 1974, hearing other than that Hogue then pleaded guilty and his plea was accepted.

The court’s Boykin conclusion appears to be nothing more than what it regarded as necessarily following from its finding that Hilgers, based on a professionally inadequate investigation, had erroneously advised Hogue that “there was a substantial likelihood of conviction” and thus “encour-ag[ed] the defendant to accept the plea bargain offer,” but-, “did not give the defendant sufficient information to make an intelligent choice at the same time misleading the defendant to believe that he had,” although “the investigated evidence” would have shown that “Hilgers had a winnable ease for the defendant,” and that there was a reasonable probability Hogue would otherwise not have pleaded guilty.

The Colorado court also determined that Hogue’s failure to attack his 1974 conviction until 1992 was within the Col.Rev.St. (1986) § 16 — 5—402(2)(d) “justifiable excuse or excusable neglect” exception to the otherwise applicable three-year limitation period for such attacks provided in Col.Rev.St. (1986) 16-5-402(1). The court concluded that although “there were no outside circumstances preventing an earlier challenge by Mr.

Hogue’s lawyers,” and “[n]one of the material evidence has been destroyed,” nevertheless “[w]hen the defendant’s subsequent lawyers [those after Hilgers] did not make the claim now asserted, it is inconceivable that their failure can be characterized as the culpable neglect of the defendant.” District Court The district court below, in its November 1994 opinion, noted that Respondent (the State) had waived exhaustion, and accepted the waiver, though observing it was not bound to do so. Hogue v. Scott at 1512.

The court accepted the Colorado court’s 1994 determination that Hogue’s 1974 rape conviction was constitutionally invalid, but held “there are multiple reasons” why the admission of evidence of that conviction at Hogue’s sentencing did “not provide a meritorious ground for relief.” Id. at 1516.

The court held that Hogue’s claim was procedurally barred because it was first raised in Hogue’s sixth (and last) state habeas which the Court of Criminal Appeals refused to act on because of its previously having cited Hogue for abuse of the writ in its denial of his fifth state habeas, and Hogue had not shown either cause for this default or resulting actual prejudice. Id. at 1512-15,1522. See also id. at 1545-56 (January 1995 order overruling post-trial motion).

The district court further held that Hogue’s claim in this regard was also independently procedurally barred by his failure to object at trial to the admission of the evidence, and that Hogue had not shown either any cause for this failure nor resulting actual prejudice. Id. at 1522-23.

Finally, the district court concluded that under Brecht any error in the admission at sentencing of the Colorado conviction was harmless, noting that “the evidence, independent of the Colorado conviction, in support of the findings the jury made at the punishment phase of the trial was so forceful that the possibility of actual prejudice resulting at that phase of the trial from the mentions of the conviction is negated” and “[t]he mentions of the Colorado conviction did not have a substantial or injurious effect in determining the jury’s verdict at either phase of the trial.” Id. at 1521-22.

Abuse of the Writ In finding a procedural bar on the basis of abuse of the writ, the district court (id. at 1515) relied on our October 13, 1994, opinion in Hicks v.

Scott, 35 F.3d 202 (5th Cir.1994), which held that where a claim was raised only in a Texas habeas that the Texas Court of Criminal Appeals took no action on pursuant to an earlier finding of abuse of the writ, this constituted a procedural bar to consideration of that claim on federal habeas as “[t]he Texas courts have a history of regular application of the abuse of the writ doctrine.” However, on motion for rehearing in Hicks, the state apparently conceded that the abuse of the writ doctrine was not then followed with sufficient regularity in Texas to constitute a procedural default which would bar federal habeas relief, and on March 20, 1995, our original opinion in Hicks was withdrawn and a new unpublished opinion was issued in its stead which reached the same ultimate result but did not address the abuse of the writ issue.

Hicks v. Scott, No. 94-10302, 5th Cir., March 20, 1995 (unpublished). On the same day, we held in Lowe v. Scott, 48 F.3d 873 (5th Cir.1995), that because the Texas abuse of the writ doctrine “has not been regularly applied” it could not function as a procedural default to bar federal habeas review. Id. at 876.

In Lowe we relied on the statement in the Court of Criminal Appeals’ opinion in Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995), that it would be sound policy to apply the abuse of the writ doctrine “in the future.” Lowe at 876. The district court, however, did not have the benefit of our opinion in Lowe or of the withdrawal of our original opinion in Hicks.

We agree with the district court’s observation that it is “quite clear that Hogue has pursued a course of manipulating, and abusing, the writ process to the end of gaining additional time.” Hogue v. Scott, at 1546. We likewise agree with the district court that Hogue has not shown cause for his abuse (either generally or with respect to the instant claim regarding the Colorado conviction).

Accordingly, and given that Texas courts had unquestionably applied the abuse of the writ doctrine in other published opinions (see, e.g., eases cited in note 33, supra), the district court correctly observed that Hogue had “fair warning that he was running the risk of a ruling of abuse of the writ.” Id. at 1545.

Moreover, on Hogue’s second trip to the district court below in which he had procured a last minute stay of execution, the Court on October 17, 1987, had advised Hogue to file by January 22, 1988, in federal or state court, a habeas petition presenting “each and every claim known to Petitioner or his counsel on pain of waiver.” Further, there is nothing to suggest that the Court of Criminal Appeals’ invocation of the abuse of the writ doctrine in Hogue’s case was any kind of ploy to avoid a difficult federal issue or was otherwise in any sense unfair.

Nevertheless, that a state rule of procedural default be regularly applied — not merely applied somewhat more often than not — is essential in order for it to serve as a per se bar to otherwise available federal habeas relief, and, as we held in Lowe, the Texas abuse of the writ doctrine (as applied prior to 1994) does not meet this test. Accordingly, the Texas court’s abuse of the writ ruling does not of itself suffice to bar Hogue from federal habeas relief.

Failure to Object at Trial The district court held that Hogue’s claim as to the admission at the sentencing phase of his trial of evidence of the Colorado conviction, because it was void due to Hogue’s counsel’s having rendered him ineffective assistance, was procedurally barred by his failure to object at trial to that evidence as required by the Texas contemporaneous objection rule. Hogue v. Scott, at 1522-23.

As the district court correctly observed, “Hogue, both personally and through his counsel, expressly told the state trial judge that Hogue had no objection to the receipt into evidence at the punishment phase of the trial of proof of Hogue’s Colorado conviction.” Id. at 1522. The district court further correctly determined that “Hogue has made no plausible suggestion of a valid cause for his failure to timely object on the ground that his Colorado conviction was invalid.” Id. at 1523.

Hogue challenges the district court’s invocation of failure to comply with the Texas contemporaneous objection'rule as a procedural bar on essentially three grounds. First, Hogue makes a brief, passing assertion that this was not adequately raised by the state below. We disagree. In its supplemental answer filed below on July 7, 1994, the state specifically and adequately pleaded the procedural bar arising from Hogue’s failure to object at trial as required by the Texas contemporaneous objection rule (citing pertinent Texas and federal authority).

Second, Hogue argues that the Texas contemporaneous objection rule is (or was) not ‘“strictly or regularly followed,’” as is required for a default thereunder to bar federal habeas relief, Johnson v. Mississippi, 486 U.S. 578, 586-88, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988), or at least that it is (or was) not so followed with respect to this character of claim. We reject this contention. The Texas contemporaneous objection rule was already well established as long as thirty-five years ago, see, e.g., Freeman v.

State, 172 Tex.Crim. 389, 357 S.W.2d 757, 758 (1962), and for more than twenty years we have on numerous occasions invoked noncompliance with it as a basis on which to deny federal habeas relief. And, on several occasions we have expressly held that it was followed with sufficient regularity for this purpose. In denying habeas relief on this basis in St. John v. Estelle, 544 F.2d 894 (5th Cir.1977), we observed that “Texas’ contemporaneous objection rule furthers a valid state interest.” Id. at 895. This opinion was adopted by the en banc court with the addition of a citation to Wainwright v.

Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). St. John v. Estelle, 563 F.2d 168 (5th Cir.1977) (en banc), cert. denied, 436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 415 (1978). In Bass v. Estelle, 705 F.2d 121 (5th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983), a federal habeas challenging a “spring of 1980” Texas conviction and death sentence, we specifically rejected a contention that the Texas contemporaneous objection rule was not sufficiently “regularly applied” so that noncompliance with it could not bar federal habeas relief. Id. at 122.

In doing so, we recognized that the “regularly applied” standard was met despite exceptions for instances where the law in effect at the time of trial would have precluded successful objection. Id. We also held that “an occasional act of grace by the Texas court in entertaining the merits of claim that might have been viewed as waived by procedural default” did not “constitute such a failure to strictly or regularly follow the state’s contemporaneous objection rule” as to generally preclude reliance thereon to bar habeas relief. Id. at 122-123. We reviewed the matter at some length in Amos v.

Scott, 61 F.3d 333 (5th Cir.), cert. denied, - U.S. -, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995), and, reaffirming the holdings of Bass, concluded that “Texas courts apply the contemporaneous objection rule strictly and regularly.” Amos at 341.

We noted that the question was whether the rule “is strictly or regularly applied evenhandedly to the vast majority of similar claims, ” id. at 339, that the presence of exceptions for a right not legally recognized at time of trial and for certain cases of fundamental error did not alter this conclusion, id. at 343-344, and that “the relatively few occasions ... in which it might be said that the TCCA [Texas Court of Criminal Appeals] has disregarded the rule and its exceptions are not sufficient to undercut the overall regularity and consistency of their application and thus the adequacy of the state procedural bar.” Id. at 345.

To the same effect are Sharp v. Johnson, 107 F.3d 282, 285-86 (5th Cir.1997), and Rogers v. Scott, 70 F.3d 340, 344 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). Texas courts, and this Court, have long applied the Texas contemporaneous objection rule to bar claims that a conviction introduced in evidence without objection (or with objection only on another ground) was invalid.

Decisions of the Texas Court of Criminal Appeals doing so include the following: Ex parte Gill, 509 S.W.2d 357, 359 (Tex.Crim.App.1974) (state habeas attacking 1970 conviction and sentence on basis that at trial evidence of revocation of probation for earlier offense was introduced, despite the fact that the revocation was invalid due to lack of counsel; held that although the revocation was invalid for lack of counsel, the failure to object at trial waived the error); Wright v.

State, 511 S.W.2d 313, 315 (Tex.Crim.App.1974) (on appeal from revocation of probation for 1973 conviction for second offense DWI, a felony, treated as an appeal from 1973 conviction and sentence, rejects challenge to first offense conviction, a 1970 misdemeanor DWI, on grounds that defendant was not afforded counsel in the 1970 case, because of failure to object to the evidence of the prior conviction); Ex parte Sanders, 588 S.W.2d 383, 384-5 (Tex.Crim.App.1979) (en banc) (state habeas challenge to conviction enhanced by prior felony conviction, it being claimed that the prior felony was void because of lack of counsel; habeas denied because of failure to object to the proof of the prior felony; “[f]ailure to object to proof of a void conviction has been held to constitute waiver ... [W]e hold that petitioner’s failure to object when the complained of prior conviction was offered into evidence constituted a waiver of the claimed right”); Ex parte Reed, 610 S.W.2d 495, 497 (Tex.Crim.App.1981) (en bane) (state habeas challenge to 1972 conviction and sentence on grounds, among others, of admission in evidence at the sentencing phase of prior convictions which were allegedly ■ void because of ineffective assistance of counsel; “[wjith regard to the claim that the allegedly void prior convictions were introduced at his trial ... as part of petitioner’s prior criminal record, we observe that there was no objection to the introduction of the evidence of the prior convictions at the time the exhibits were offered.

Therefore, he waived any claim he may now assert”); Hill v.

State, 633 S.W.2d 520, 523-25 (Tex.Crim.App.1981) (en bane) (appeal of conviction and sentence enhanced by 1963 conviction; pending this appeal, the 1963 conviction was set aside because the defendant was without counsel; held instant conviction and sentence affirmed because there was no objection at trial to the evidence of the 1963 conviction, citing numerous prior eases; “we hold that the failure to object at trial to the introduction of proof of an alleged infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized the prior qonviction”); Ex parte Ridley, 658 S.W.2d 177 (Tex.Crim.App.1983) (en banc) (habeas attack on both 1967 burglary conviction and 1976 robbery conviction in which the sentence was (without objection) enhanced by the 1967 burglary conviction; habeas granted as to the 1967 conviction because the same jury that determined guilt also determined competence to stand trial; habeas denied as to 1976 conviction and enhanced sentence because “[t]he failure to object at trial to the introduction of an infirm prior conviction precludes the defendant from thereafter collaterally attacking the conviction that utilized the infirm prior conviction”); Ex parte Cashman, 671 S.W.2d 510 (Tex.Crim.App.1983) (en banc) (state habeas attacking 1977 robbery conviction and sentence enhanced by 1969 Colorado conviction; the Colorado conviction was pursuant to a guilty plea; there was no objection to the evidence of the Colorado conviction at the 1977 trial or on direct appeal; after the 1977 conviction and sentence were affirmed on direct appeal, the defendant filed a motion in the Colorado court to set the Colorado conviction aside because the guilty plea was not intelligently and knowingly entered, no factual basis was shown to support the- plea and defendant did not receive effective assistance of counsel; the Colorado court granted the motion; habeas as to the 1977 conviction and sentence was denied because there was no objection at trial to the Colorado conviction).

The decisions of this Court have likewise long recognized that federal habeas relief sought on the basis that an invalid prior conviction was put in evidence at the petitioner’s Texas trial is properly denied where the petitioner did not object at his trial to the evidence of the prior conviction as required by the Texas contemporaneous objection rule. In McDonald v.

Estelle, 536 F.2d 667 (5th Cir.1976), we affirmed a grant of habeas relief as to a 1973 Texas conviction and fifteen-year sentence because of the introduction at the punishment phase of the trial of a 1960 Arkansas theft conviction, based on a guilty plea, which we found constitutionally invalid because the defendant was indigent, did not have counsel, and was not offered and did not waive counsel.

Id. at 671. “When objection to” this prior conviction (and others) “was raised up on direct appeal, the Court of Criminal Appeals of Texas refused to consider the challenges because no objection to them had been made at trial.” Id. at 670. The Supreme Court granted certiorari and remanded to this court “for further consideration in light of Wainwright v. Sykes.” Estelle v. McDonald, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088 (1977).

On remand, we noted that evidence of the prior invalid and uncounseled Arkansas conviction “was not objected to” at defendant’s Texas trial “as required by the Texas contemporaneous objection rule” and that accordingly “[ujnder Sykes, petitioner is precluded from obtaining federal habeas relief due to his procedural default unless he can establish cause for failing to object.” McDonald v. Estelle, 564 F.2d 199, 200 (5th Cir.1977).

We accordingly remanded to the district court “for the limited purpose of providing petitioner the opportunity to demonstrate cause for noncompliance with the Texas contemporaneous objection rule.” Id. at 200. In Loud v. Estelle, 556 F.2d 1326 (5th Cir.1977), we rejected a habeas attack on a 1970 Texas conviction and life sentence as enhanced by two prior convictions, one of which petitioner asserted resulted when in 1960 his originally probated 1959 sentence was revoked “without a hearing, without counsel, and without petitioner’s knowledge or presence,” which he claimed was constitutionally required by Mempa v.

Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Loud at 1327-28. We held that under Wainwright v. Sykes “all attacks on the constitutionality of the 1960 revocation hearing are foreclosed by the petitioner’s failure to object to the admission of the conviction at the punishment phase of his trial” and that “[a]f-ter Wainwright v. Sykes, petitioner has waived any objections he might have had to use of the 1959 conviction to enhance his sentence.” Loud at 1329, 1330. In Nichols v.

Estelle, 556 F.2d 1330 (5th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (1978), we denied habeas relief as to a 1973 Texas conviction and life sentence under the Texas habitual offender statute based on a 1965 Oklahoma conviction which the petitioner claimed was void because, inter alia, he was denied counsel on appeal, stating “But petitioner’s counsel failed to object to the admission of the Oklahoma conviction on the ground that counsel had not been provided on appeal.

This failure worked a waiver of the constitutional error complained of here.” Id. at 1331 (footnote omitted) (citing Wainwright v. Sykes and Loud). Our decision in Weaver v. McKaskle, 733 F.2d 1103 (5th Cir.1984), is likewise controlling. There we rejected Weaver’s federal habeas challenge to his 1977 Texas.robbery conviction and life sentence at the punishment phase of which evidence was introduced of Weaver’s 1960 Illinois conviction. At trial, Weaver objected to the Illinois conviction only on the ground that it was not final, as he had been pardoned.

In 1980, an Illinois court set aside the 1960 conviction because at the 1960 trial there existed a bona fide question as to Weaver’s competency to stand trial, and no hearing had been held to determine his competence as required by Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Weaver at 1104. We held that the constitutional invalidity of the 1960 Illinois conviction did not entitle Weaver to habeas relief because of his failure to object at the 1977 trial to the 1960 conviction on that basis as required by the Texas contemporaneous objection rule, invoking Wainwright v. Sykes and Engle v.

Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). We explained: “Under Texas law, a defendant’s failure to object at trial to the introduction of an allegedly infirm prior conviction precludes a later attack upon the conviction that utilized the prior conviction_ Even where the alleged error is of constitution dimension,” id., and “Texas courts ... have barred a subsequent attack on a conviction in which the sentence was enhanced through use of an uncounseled and void prior conviction where the defendant failed to object.” Id. at 1107. More recently, in Smith v.

Collins, 977 F.2d 951 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993), the federal habeas petitioner challenged his 1977 Texas conviction and life sentence on the basis that at the punishment stage of that trial evidence was introduced of his 1952 conviction which was subsequently (in 1985) set aside on the basis of a Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), violation. We held that this challenge was barred under Wainwright v.

Sykes and its progeny by the petitioner’s failure to object at his 1977 trial to the introduction there of evidence of the 1952 conviction, as required by the Texas contemporaneous objection rule.

Hogue’s argument that Texas’ contemporaneous objection rule is or was not regularly followed in respect to invalid prior convictions is necessarily foreclosed by our decisions in Loud (1970 Texas trial; invalid prior Texas conviction); Nichols (1973 Texas trial; invalid prior Oklahoma conviction); McDonald (1973 Texas trial; invalid prior Arkansas conviction); Weaver (1977 Texas trial; invalid prior Illinois conviction); Smith (1977 Texas trial; invalid prior Texas conviction).

One panel of this Court may not overrule another (absent an intervening decision to the contrary by the Supreme Court or the en banc court, of which there are none). But even if we were free to do so, we see no valid basis to depart from those decisions.

They are well supported not only by the long established general principles of the Texas contemporaneous objection rule, but also by many decisions of the Texas Court of Criminal Appeals applying that rule in the specific context of failure to object to evidence of a prior invalid conviction, as reflected by the above cited cases of Gill, Wright, Sanders, Reed, Hill, Ridley, and Cashman.

Only one of the cases relied on by Hogue can be said to be in point, as the others all involve either a recognized exception to the Texas contemporaneous objection rule plainly not applicable here or are otherwise simply inapposite. This single case is Smith v. State, 486 S.W.2d 374 (Tex.Crim.App.1972). That was a direct appeal from a felony shoplifting conviction where a' life sentence was imposed by reason of enhancement by two prior felonies alleged in the indictment. At the punishment stage the defendant pleaded guilty to the enhancement allegations.

While the appeal was pending, the defendant caused one of the prior convictions to be set aside because the defendant was without counsel, and the Court of Criminal Appeals, in the direct appeal, accordingly modified the sentence to ten years (enhanced by only one valid prior conviction). The opinion does not discuss the failure to object or even mention the contemporaneous objection rule. Smith v. State was expressly overruled en banc in Hill. Hogue argues that comes too late, for Hill was not decided until 1982, and he was tried in 1980. However, Smith v.

State (a 1972 decision) had been effectively abandoned long before then. Ex parte Gill was decided in 1974, and applied the contemporaneous objection rule to an invalid prior conviction introduced at a 1970 trial; Wright was likewise handed down in 1974 and applied the contemporaneous objection rule to an invalid prior conviction introduced at a 1973 trial; so also with Sanders, a 1979 en banc decision; Reed, a 1981 en banc decision applicable to a 1972 trial; Ridley, a 1983 en banc decision applicable to a 1977 trial; and Cashman, a 1983 en banc decision applicable to a 1977 trial.

Hill itself was applicable to a trial well prior to October 1981. And, our decisions in Loud (1977), Nichols (1977), and McDonald (1977) apply the Texas contemporaneous objection rule to the failure to object to evidence of an invalid prior conviction and were all handed down years after Smith v. State and years before Hogue’s 1980 trial, while in Weaver and Smith v. Collins we applied the Texas contemporaneous objection rule to 1977 trials. Further, all these decisions, both of the Texas Court of Criminal Appeals and of our court (except Smith v.

Collins), were handed down years before the Court of Criminal Appeals affirmed Hogue’s conviction on direct appeal. Finally, as Hill points out, Smith v. State was inconsistent with prior Texas decisions and the then long established Texas contemporaneous objection rule. Smith v. State cannot sustain the weight Hogue would place on it. This single 1972 decision does not rise even to the level of “the relatively few occasions” of disregard of the rule which Amos held were not sufficient to defeat the required regularity of application. Id., 61 F.3d at 345.

It is clear that Texas courts do and did apply the contemporaneous objection rule in at least “the vast majority” of claims similar to Hogue’s. Amos at 389. We reject Hogue’s contention to the contrary. Hogue’s third and final argument against applying the procedural bar of failure to comply with the Texas contemporaneous rule is that no Texas court expressly denied his complaint concerning the admission at the sentencing phase of the allegedly invalid Colorado conviction on that basis. In this connection, Hogue invokes the principle of Harris v.

Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘ “clearly and expressly” ’ states that its judgment rests on a state procedural bar.” Id. at 263, 109 S.Ct. at 1043. However, this rule of Harris “applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law.” Coleman v. Thompson, 501 U.S. 722, 739, 111 S.Ct. 2546, 2559, 115 L.Ed.2d 640 (1991).

As we recognized in Young v. Herring, 938 F.2d 543 (5th Cir.1991) (en banc), in Coleman “[t]he Court explicitly rejected Coleman’s contention that the Harris rule should apply whenever the state court decision does not contain a plain statement that it relied on a state procedural bar.” Young at 553.

In Young we likewise recognized that a necessary “predicate” to the application of the Harris rule “ ‘is that the decision of the last state court to which the petitioner presented his federal claims most fairly appear1 to rest primarily on federal law or to be interwoven with federal law.’ ” Young at 553 (quoting Coleman, at 735, 111 S.Ct. at 2557).

That necessary predicate is clearly lacking here, for no Texas court has ever to any extent addressed the merits of any portion of Ho-gue’s claim that he was denied the effective assistance of counsel in his Colorado conviction, that that conviction was constitutionally (or otherwise) invalid, and that introduction of it at the sentencing phase of his trial deprived him of his rights under the Eighth and Fourteenth Amendments. Consequently, Harris does not avail Hogue.

The fact that the Texas courts have not actually applied the bar of the contemporaneous objection rule to Hogue’s claim is not controlling because Hogue’s claim was never presented to them prior to his sixth state habeas (and was then not fairly presented, see infra and note 35, supra) and the sixth state habeas was not accepted for filing because Hogue had previously been cited for abuse of the writ. In Engle v.

Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), three Ohio prisoners, Isaac, Bell, and Hughes, convicted of separate offenses in separate trials in Ohio courts, brought separate federal habeas petitions complaining of a jury instruction, given in each case, placing the burden of persuasion on the defendant with respect to self-defense. Isaac did not object to the instruction at trial, but did complain of it on direct appeal; the Ohio appellate court held the complaint was barred by failure to object at trial as required by the Ohio contemporaneous objection rule. Id. at 114-16, 102 S.Ct. at 1565.

Neither Hughes nor Bell objected to the instruction at trial or raised any complaint about it on direct appeal, nor did either pursue any state post-conviction remedies. Id. at 110-14, 116-18, at 1563-64, 1566.

Despite the fact that neither Hughes nor Bell had ever presented their respective complaints to the state court, and the state courts in their respective cases had never actually applied any procedural bar to either of them, the Supreme Court held that their federal habeas complaints concerning the instruction were, just like those of Isaac, barred by their failure to comply with the well-settled Ohio contemporaneous objection rule. “Close analysis of respondents’ habe-as petitions reveals only one colorable constitutional claim.

Because respondents failed to comply with Ohio’s procedures for raising that contention, and because they have not demonstrated cause for the default, they are barred from asserting that claim under 28 U.S.C. § 2254.” Id. at 135, 102 S.Ct. at 1576. Similarly, in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, (1989), the Court held that the petitioner’s claim of a Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), violation was procedurally barred by his failure to raise it at trial or on appeal, as required by Illinois law, and he had never pursued state post-conviction remedies.

Id. at 296-300, 109 S.Ct. at 1068-69 (“... we hold that petitioner’s Swain claim is procedurally barred, and do not address its merits”). In both Isaac and Teague it was held that the exhaustion requirement was satisfied because state ha-beas clearly would not be available. Isaac, at 125 n. 28, 102 S.Ct. at 1570-71 n. 28; Teague, at 296-98, 109 S.Ct. at 1068. In essence, the Court in Isaac and Teague assumed that the state court, in deciding a state habeas, would deny it on the basis of the procedural bar arising from the failure to raise the issue at trial or on direct appeal. 50. too, here.

The Texas Court of Criminal Appeals did not decide or rule on, but rather refused to accept for filing, Hogue’s sixth state habeas petition; but, assuming that petition adequately raised the instant complaint concerning the Colorado conviction, had the Court of Criminal Appeals accepted the petition and ruled on that complaint, the court clearly would have denied it on the basis of Hogue’s failure to comply with the Texas contemporaneous objection rule. That is entirely as clear here as it was in Isaac and Teague.

Moreover, “[s]tate collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings,” Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989), and we cannot imagine that the result in Isaac or Teague would have been any different had the states there involved simply had no state habeas procedure. Hogue relies on the statement in Teague that: “The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding.

It is simply inapplicable in a case such as this one, where the claim was never presented to the state courts.” Teague at 299, 109 S.Ct. at 1069. Hogue reads this language as stating that Harris applies in every case except only when the claim was never presented to the state courts. But it does not say that. And any implication to that effect is dispelled by Coleman, where the Court expressly rejected the contention that Harris “applies in all cases in which a habeas petitioner presented his federal claims to the state court.” Coleman, at 736, 111 S.Ct. at 2557-58.

The Coleman Court observed “[tjhis rule makes little sense,” and went on to state: “... Coleman would have the federal courts apply a conclusive presumption of no independent and adequate state grounds in every case in which a state prisoner presented his federal claims to a state court, regardless of whether it fairly appears that the state court addressed those claims. We cannot accept such a rule....” Id. at 737, 111 S.Ct. at 2558. As the Eleventh Circuit stated in the capital case of Lindsey v.

Smith, 820 F.2d 1137, 1143 (11th Cir.1987), cert. denied, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989), reh’g denied, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989): “Isaac ... demonstrates that the considerations of comity that underlie the procedural bar doctrine require federal habeas courts to honor state procedural rules, and not only state courts’ procedural rulings.” Of course, if, notwithstanding the failure to comply with the state’s procedural rules, the state court’s denial of relief fairly appears to rest primarily on, or to be interwoven with, federal law, then federal habeas relief is not proeedurally barred unless the state court in denying relief also clearly and expressly relies on the failure to comply with the state procedural rules.

Coleman. See also Isaac at 135 n. 44, 102 S.Ct. at 1575 n. 44. But here, “we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to” the 'habeas petitioner’s “failure to raise them there as required by state procedure.” Sykes, at 87, 97 S.Ct. at 2507 (emphasis in original). A somewhat analogous case is Tower v. Phillips, 7 F.3d 206 (11th Cir.1993).

There the federal claim at issue had never been raised in the state courts until the petitioner asserted them in two state post-conviction motions or petitions filed more than two years after his conviction had become final. Approximately a year and a half after the last of these motions or petitions was filed, petitioner filed his federal habeas. However, the state court never ruled on either post-conviction motion or petition despite petitioner’s having apparently “written the clerk of the state court repeatedly concerning his pending motions.” Id. at 209.

As the Tower Court remarked, the petitioner “did present his claims in state court, but the state court never ruled one way or the other on the petitions.” Id. at 210 (original emphasis). The Eleventh Circuit concluded that petitioner’s state post-conviction motions or petitions were filed outside the two-year period allowed by state law and that the state law exceptions for instances where the relevant facts were not sooner known or reasonably knowable and for changes in the law were not applicable under the circumstances presented. Id. at 209 n. 8.

The Eleventh Circuit held that this failure to timely file the state post-conviction petitions or motions— which were the only raising of the federal issue in state court — constituted a state law procedural default which barred federal relief absent a showing of cause and prejudice. Id. at 210-211. In so holding, the Eleventh Circuit expressly rejected the ruling of the “magistrate judge and district court below ... that because the Florida courts never ruled on Tower’s [post-conviction] motions, a showing of cause and prejudice was unnecessary.” Id. at 210. The Court of Appeals explained that: “As Coleman v.

Thompson makes clear, the Harris presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue.... [W]e may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar.” Id. at 211. The court went on to hold that the petitioner had not shown cause for his state law procedural default and that accordingly the default barred federal habeas relief.

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