1 See Penry v. Lynaugh , 106 L.Ed.2d 256 (1989). Selvage

raises three interrelated " Penry " claims, including a claim that

the sentencing statute prevented the presentation of additional

mitigating evidence and also prevented trial counsel's

investigation of available mitigating evidence. None of these

claims was made in Selvage's first federal habeas.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-2278

JOHN HENRY SELVAGE,

Petitioner-AppelleeAppellant,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-AppellantAppellee.

Appeal from the United States District Court

for the Southern District of Texas

(August 27, 1992)

Before POLITZ, Chief Judge, HIGGINBOTHAM, and WI E NER, Circuit

Judges.

HIGGINBOTHAM, Circuit Judge:

I.

We return to the claims of John Henry Selvage including his

claim that the jury could not give due expression to his mitigating

evidence under the three question submission required at the time

of his trial in Texas. 1 We rejected Selvage's claims in his second2 Selvage v. Lynaugh , 842 F.2d 89 (5th Cir. 1988).

3 Selvage v. Collins , ___ U.S.___, 110 S.Ct. 974 (1990); 897

F.2d 745 (5th Cir. 1990).

4 Selvage v. Black

, S.W.2d , No. 71,024 (Tex. Crim.

App. May 29, 1991).

5 McClesky v. Zant , ___ U.S. ___, 111 S.Ct. 1454 (1991).

6 Sawyer v. Whitley , 112 S.Ct. 2514, 2519 (1992).

2 fed eral habeas petition, because we found that his P enry claims

were barred by the absence of a contemporaneous objection. 2

Ultimately, on a remand from the Supreme Court with instructions to

determine if Texas would persist in asserting the procedural bar,

we certified the question to the Texas Court of Criminal Appeals. 3

The Texas Court of Criminal Appeals found no procedural bar. 4

In the meantime the Supreme Court limited the scope of a successive

federal habeas claim. 5 A bsent legal cause and prejudice, a federal

court may not reach the merits of (a) claims made in a successive

federal habeas petition which raise grounds identical to grounds of

an earlier claim decided on the merits, (b) new claims, not

previously raised which abuse the writ, and (c) proce durally

defaulted claims, unless the claim implicates legal innocence. As

we will expla in, Selvage cannot meet the cause and prejudice

requirement and must demonstrate that his new claims in this his

second federal habeas petition implicate legal innocence. 6

II.

In Cuevas v. Collins , ___ F.2d ___ (1991), we found that the

l egal basis for a P enry claim was available at least as early as

1980, some five years before Cuevas filed his second federal habeas3

petition. Selvage's first petition for habeas relief was filed in

1985. Applying Engle v. Isaac , 456 U.S. 107 (1982), we also

rejected as legal cause any perceived futility in pursuing a Penry

claim. Selvage can proceed then only if his claims implicate legal

innocence of the death sentence.

III.

Our task is to apply to the quite different Texas capital

sentencing scheme the Supreme Court's treatment of th e Louisiana

sentencing scheme in Sawyer v. Whitley

, 112 S.Ct. 2514 (1992).

Sawyer is part of the Court's continuing effort to define the

concept of legal innocence of a sentence. Chief Justice Rehnquist

explained for the majority:

[T]he actual innocence requirement must focus on those

elements which render a defendant eligible for the death

penalty, and not on additional mitigating evidence which

was prevented from being introduced as a result of a

claimed constitutional error.

Id . at 4659.

Chief Just ice Rehnquist saw three possible ways to define

actual innocence. First, and the most stringent would be to "limit

the showing to the elements of the crime which the state has made

a capital offense." I d

. at 2521. A second possible definition and

the most lenient would be to extend the definition to consideration

of mitigating evidence which bore on the discretionary decision to

impose the penalty. In the Court's view, the second definition

would be quite close to the definition of prejudice for many

constitutional errors and by requiring a petitioner to show little4

more than an adverse effect on discretionary decisions would work

a practical evasion of the cause and prejudice limit.

The court took a third and middle course. The Chief Justice

observed that Louisiana uses both the elements of the crime and

aggravating factors to narrow the class of defendants eligible for

the death penalty. The court held that a petitioner must "show by

clear and convincing evidence that but for constitutional error at

his sentencing hearing, no reasonable juror would hav e found him

eligible for the death pe nalty." I d

. at 2523. Actual innocence

means that a jury could not have found one or more essential

narrowing factors--th at is, "elements which render a defendant

eligible to have the death penalty imposed." Id . at 4659.

IV.

Texas argues that Penry error cannot implicate actual

innocence of a capital sentence in Texas because any person

convicted of capital murder in Texas is "eligible" for the death

penalty. This is because, the argument continues, the two

statutory questions inform the jury's discretion and do not narrow

i n a relevant way the class of defendants eligible for the death

penalty.

Selvage argues that "a capital jury in Texas is not authorized

to impose death unless and until it considers mitigating

circumstances." This is so Selvage argues, both as a matter of

state law and under Furman 's required narrowing of the class of

death-eligible defendants.5

Texas and Louisiana differ in their narrowing of the class of

persons eligible for a death sentence. In Louisiana the jury must

find an aggravating circumstance before it can exercise its

discretion. Texas narrows the offense. The difficulty is that

Texas continues its narrowing in the sentencing phase by requiring

affirmative answers to questions of deliberateness and future

dangerousness. Under state law if the jury gives an affirmative

answer to both questions, the trial court must impose the death

sentence. At the same time, the questions do not "hone in on the

objective factors or conditions that must be shown to exist before

a defendant is eligible to have the death penalty imposed." I d

. at

2523. To the contrary, as Selvage's claims illustrate, it is a

"difficult task to assess how juror s would have reacted to

additional showings of mitigating factors." Id . at 2522.

Selvage's argument reduces to the contention that there was

"additional mitigating ev idence which was prevented from being

introduced as a result of a claimed constitutional error." 112

S.Ct. at 2523. His argument is that evidence he did offer and

evidence he would have offered but for constitutional error would

have mattered --that it was prejudicial. S awyer explicitly held

that such a claim did not focus on "actual innocence." 112 S.Ct.

at 25 24. Selvage was "eligible" for the death penalty with or

without the evidence.

We recognize that in practical terms this means that federal

courts wi ll not entertain " P enry " error in a successive federal

writ. This is the direct sum of McClesky and Sawyer

. Justice7 Sawyer v. Whitley

, U.S. , 112 S.Ct. 2514, 2530

(1992) (J. Stevens, dissenting).

6 Stevens urged the court to adopt a "clearly erroneous" test to

escape this result, but he di d so in a dissenting opinion joined

only by Justices Blackmun and O'Connor. 7

We ar e persuaded that Selvage's claims failed to implicate

innocence of the death sentence and are foreclosed by McClesky and

Sawyer

. We must affirm the district court's dismissal of the

petition and vacate the stay of execution.