IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-6060

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JAMES MICHAEL BRIDDLE,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal

Justice Institutional Division,

Respondent-Appellee.

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Appeal from the United States District Court for the

Southern District of Texas

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(August 23, 1995)

Before GARWOOD, DAVIS and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant James Michael Briddle (Briddle), a Texas

death row inmate, appeals the district court's denial of his habeas

corpus petition under 28 U.S.C. § 2254. We affirm.

Facts and Procedural Background

Briddle was indicted by a Texas grand jury on March 1980, and

reindicted in October 1980, on two counts of capital murder

committed i n Harris County, Texas, February 23, 1980, namely the

capital murder of Robert Skeens while committin g robbery and the

capital murder of Robert Banks while committing robbery. The state1 These issues were:

"(1) whether the conduct of the defendant that

caused the death of the deceased was committed

deliberately and with the reasonable expectation that the

death of the deceased or another would result;

"(2) whether there is a probability that the

d efendant would commit criminal acts of violence that

would constitute a continuing threat to society;" Id

.

2 Thomas has been licensed to practice since May 1965, served as

a prosecutor in the Harris County District Attorney's office until

1969, and since then had practiced as a criminal defense attorney.

Prior to Briddle's trial, he had defended four capital murder

cases. Sims was licensed to practice in May 1969. He was an

Assistant District Attorney in Harri s County until 1975, when he

went into private practice, primarily in criminal law. He had

defended two capit al murder cases, one with Thomas, before

Briddle's trial.

2 elected to proceed only on the count concerning Banks. Pre-trial

motions were heard on January 19 and 20, 1982, v oir dire lasted

from January 21, 1982, through February 10, 1982, and the trial

proper commenced February 17, 1982. The jury returned a verdict of

guilty of the capital murder of Banks on February 24, 1982. On

February 25, 1982, after the separate punishment hearing, the jury

answered affirmatively the two special issues submitted pursuant to

Tex. Code Crim. P. Ann. art. 37.071 as then in effect, 1 and

thereafter the state district court accordingly sentenced Briddle

to death. Judge Perry Pickett presided at all trial proceedings.

In the state trial court, Briddle was represented by attorney

Mark Vela until approximatel y October 6, 1981, when his

representation was taken over by attorneys Al Thomas and Jim Sims. 2

On his direct appeal to the Texas Court of Criminal Appeals,

Briddle was represented by attorney Allen Isbell.

On September 23, 1987, the Court of Criminal Appeals affirmed3

Briddle's con viction and sentence without dissent. B riddle v.

State , 742 S.W.2d 379 (Tex. Crim. App. 1987). The opinion of the

Court of Criminal Appeals accurately describes the circumstances of

the offense as reflected by the record evidence as follows:

"The State's chief witness was Linda Joyce Fletcher,

appellant's former wife. The record reflects the couple

married in California. On February 14, 1980, the couple

began hitchhiking to Florida with a few clothes and

$30.00. They were joined in Arizona by Pamela Perillo.

On February 22, 1980, after r eaching Houston the three

were hitchhiking near the Astrodome when they were picked

up by the alleged deceased, Robert Banks. Banks was in

the process of moving to another house and the three

hitchhikers assisted hi m in moving some of his

belonging s. Banks treated them to dinner. When Banks

paid for the meal, Fletcher and Perillo observed he had

several hundred dollars in his wallet, and Perillo told

appellant about the money.

Appellant, his wife (Fletcher) and Perillo spent the

night at Banks' house and then helped him move other

belongings the next day. In the process the appellant

discovered Banks had some guns. When Banks took a shower

appellant telephone a frien d in California and invited

him to come to Texas as he (appellant) 'had a pigeon out

here with lots of money and guns.' Appellant proposed a

robbery, but the California friend declined.

Banks then took his three guests to a carnival and

rodeo at the Astrodome. There Perillo told appellant she

wanted to kill Banks and appellant answered 'Okay.' He

then went off to do some 'planning,' telling Perillo to

relax when she agitated to 'do it tonight.' After the

rodeo Banks and his guests went to dinner and returned to

Banks' house where they met Bob S keens, Banks' friend

from Louisiana, who had arrived t here in his green

Volkswagen.

On Sunday, February 24, Banks and Skee ns left the

house to get coff ee and doughnuts for everyone. While

they were gone appellant armed himself with a shotgun and

Perillo got a handgun. While awaiting the return of the

two men a ppellant jumped up and down with excitement.

When Banks and Skeens returned Perillo hid in the bedroom

and appellant got inside a closet. He began to make a

tapping sound. When Banks reached to open the closet

door the appellant jumped out announcing 'This is a

robbery.'4 Skeens got down on the floor and pleaded for mercy.

Banks came toward the a ppellant, who struck him in the

face with the butt end of the shotgun. Perillo came out

of her hiding place and told Banks to get on the floor,

'that it wa sn't any joke.' Perillo obtained a machete

and cut up some rope and then she and appellant tied

Banks and Skeens with rope. After they were bound

appellant and Perillo took the wallets fr om the two.

Appellant took $800.00 from Banks' wallet and waved it

around saying 'he had it.' Appellant ransacked the

bedroom, taking clothes and a backpack. Perillo found a

cassette recorder and camera. Appellant took Skeens into

the bedroom and told Skeens that he (appellant) had

killed five people and two more didn't matter. Fletcher,

appellant's wife, did not see what happened to Skeens,

but she did see appellant loop a rope around Banks' neck.

Fletcher was then ordered to wait in Skeens' green

Volkswagen. About 20 minutes later Perillo came to the

car with the shotgun wrapped in a blanket. She also

brought out a machete, handgun and other items.

Appellant brought out the backpack and a rifle. They

drove in the Volkswagen to Dallas, where they abandoned

it and took a bus to Colorado.

When Banks failed to appear for work for two days,

his supervisor want to Banks' house to investigate. A

man with the supervisor looked in a window and saw a

body. The police who arrived at the scene found the

bodies of Banks and Skeens, each bounded [sic] and with

a rope around the neck. Dr. Joseph Jachimczyk, the Chief

Medical Examiner, testified that each died from asphyxia

due to strangulation with a rope.

On March 3, 1980, Perillo gave a statement to

Denver, Colorado police and a description of appellant.

With her consent they entered a room at a hotel in Denver

and found appellant, his wife and two boys. The backpack

was found in the room.

A Houston detective went to Denver and interviewed

appellant and obtained an o ral confession in which he

told of his participatio n in the alleged offense. He

admitted putting a rope around Banks' neck and pulling on

it with Perillo until Banks was unconscious. He admitted

he took the wallets, several hundred dollars, the machete

and shotgun. He maintained his wife (Fletcher) was

outsi de the house during the entire incident." I d

. at

381-82.

On Octobe r 28, 1987, the Court of Criminal Appeals granted

Briddle's motion, filed by attorney Isbell, to stay issuance of the5

mandate for sixty days to allow for the filing on Briddle's behalf

of a petition for writ of certiorari in the United States Supreme

Court. No such petition having been filed, the Court of Criminal

Appeals issued its mandate January 15, 1988. On February 1, 1988,

Briddle, whos e representation had by then been taken over by

attorney Alton Stephens, moved the Court of Criminal Appeals to

recall its mandate, so that a petition for certiorari on Briddle's

behalf could be filed in the Supreme Court, asserting an inability

t o locate five volumes of the record. The Court of Criminal

Appeals denied the motion, and thereafter, on February 4, 1988, the

Texas trial court scheduled Briddle's execution for March 21, 1988.

On March 11, 1988, Stephens, on behalf of Briddle, moved the Court

of Cri minal Appeals for a stay of execution pending filing of a

petition fo r certiorari, representing that he had received the

missing portions of the record on February 26, 1988. On March 15,

1988, the Court of Criminal Appeals granted the motion and stayed

Briddle's execution for sixty days.

Nothing further having been filed in any court by or on behalf

of Briddle, the state trial court, Judge C.V. Milburn, on October

26, 1988, set Briddle's execution for December 1, 1988. The next

day, Octob er 27, 1988, Stephens, on Briddle's behalf, filed a

petition for certiorari with the Supreme Court, a nd moved the

Supreme Court for stay of execution. On November 22, 1988, Justice

White entered an order that Briddle's execution was "stayed pending

the disposition by this Court of the petition for a writ of

certiorari. Should the petition for a writ of certiorari be

denied, this stay terminates automatically." On December 8, 1988,6

the Supreme Court denied the petition for certiorari. Briddle v.

Texas , 109 S.Ct. 543 (1988).

On December 15, 1988, the state trial court, Judge Michael

McSpadden, entered an order resetting Briddle's execution date for

February 14, 1989, and ordering "that Mr. Alton L. Stephens,

counsel for James Michael Briddle, file any Application for Writ of

Habeas Corpus concerning the inst ant conviction on or before

January 17, 1989, raising any and all arguable claims known to

counsel." However, nothing was filed by or on behalf of Briddle

until February 2, 1989, when Stephens, and co-counsel Foy, joined

by attorney Eden Harrington, filed, both in the state trial court

and in the Texas Court of Criminal Appeals, Briddle's petition for

habeas corpus, request for evidentiary hearing, and application for

stay of execution. On February 13, 1989, Judge McSpadden reset

Briddle's execution date for April 21, 1989, and, in a separate

order, directed that the state file its answer by not later than

March 8 and that by not later than March 5 Briddle's trial

attorneys Thomas and Sims file affidavits, with copies thereof to

counsel for Briddle and counsel for the state, "summarizing their

actions taken to represent Applicant, including trial preparation

. . . and responding to the allegations of ineffective assistance

of counsel contained in the application for writ of habeas corpus."

On March 8, 1989, the state filed its original answer; on March 17,

1989, the affidavits of attorneys Thomas and Sims were filed; and,

on March 27, 1989, the state filed its amended answer.

Subsequently, on March 27, 1989, State District Judge Ted Poe

issued an order stating that afte r reviewing the file, including3 The order states:

"In the instant cause, applicant presents nine

allegations in which he seeks to challenge the validity

of his conviction. The trial court has entered findings

of fact and conclusions of law and recommended the relief

sought be denied. This Court has reviewed the record

with respect to the allegations now made by applicant and

finds that the findings of fact and co nclusions of law

entered by the trial court are supported by the record.

The relief sought is denied on the basis of the

trial court's findings of fact and conclusions of law."

The order contains at its foot the notation: "Clinton, J.,

would stay further proceedings pending disposi tion of P enry v.

Lynaugh , No. 87-6177, cert. granted U.S. (1988)."

7 the habeas petition and request f or evidentiary hearing, the

affidavits of Thomas and Sims and the state's amended answer, "

there are no controverted, previously unresolved facts material to

the legality of Applicant's confineme nt which require an

evidentiary hearing" and directing each of the parties to submit by

not later than April 5, 1989, "any findings of fact and conclusions

of law which they wish to propose to this court for its

consideration."

The state and Stephens on behalf of Bridd le each submitted

their respective proposed findings of fact and conclusions of law

on April 5, 1989, and on April 11 , 1989, Judge McSpadden adopted

the state's proposed findings of fact and conclusions of law and

recommended that the Court of Criminal Appeals deny relief. On

April 14, 1989, the Court of Criminal Appeals issued its order

denying relief "on the basis of the trial court's findings of fact

and conclusions of law." 3

Meanwhile, on February 10, 1989, Briddle, through attorneys8

Ste phens, Foy, and Harrington, filed the instant petition under

section 2254 in the district court below, together with a motion

for stay of execution and motion for evidentiary hearing. After

the state trial court, on Februar y 13, 1989, reset Briddle's

execution date for April 21, 1989, Briddle, through Stephens, on

March 3, 1989, moved the district court below to "hold the matter

in abeyance p e nding subsequent reapplication," should that be

necessary. On April 17, the state filed its answer to the federal

habeas petition, relying, among other things, on the state habeas

court findings and conclusions, and also asserting procedural bar.

On April 18, 1989, Briddle moved the district court below for stay

of the execution set for April 21, 1989, and to reinstate and

supplement the previously filed section 2 254 petition. The same

day the district court below stayed Briddle's execution. Also on

April 18, 1989, the district court below entered an order that

included the following provisions:

"1. Counsel for Petitioner shall review the state

court records and interview the Petitioner within twentyone (21) days of the date of this Order.

At this conference, counsel will : (a) advise the

Petitioner that, if there are ground s existing at the

time of the conference for the granting of a writ, all

such grounds must be forthwit h stated in appropriate

pleadings and any failure to do so will constitute a

waiver of omitted grounds ; (b) review with Petitioner the

Rules Governing Section 2254 Cases in the United States

District Courts; and (c) explore as fully as possible all

potential grounds for relief. [emphasis added]

3. Within thirty (30) days of the date of this

Order, counsel for Pet i tioner shall file an Amended

Petition for Writ of Habeas Corpus, which shall include

the following:

a. All claims, contentions, and arguments asserted

in previous state or federal petitions, stating whether9

or not those claims were exhauste d or decided. If

counsel determines that there exists any unexhausted

claim for which a state remedy is still available,

counsel shall i mmediately notify the Court and counsel

for Respondent of the claim and the available remedy.

b. All current claims of a constitutional violation

or deprivation upon which Petitioner bases his

application for writ of habeas corpus, and

c. Statement as to whether Petitioner is entitled

to an ev identiary hearing on any issue concerning the

ineffective assistance of counsel.

Each claim shall be set fort h in a separately

numbered section of the amended petition.

All claims no t asserted in the Amendment Petition

for Writ of Habeas Corpus shall be deemed and are forever

waived, unless predicated upon new evidence or changes in

the law [emphasis in original]."

On May 18, 1989, counse l Stephens and Harrington reported

that, pursuant to the Court's April 18 order they had personally

met with Briddle, who had reviewed the April 18 order, and advised

him concerning it and discussed with Briddle "all potential grounds

for relief and fully advised him of the present states of

proceedings." Then, on May 19, 1989, Briddle, through attorneys

Stephens, Foy, and Harrington , filed his amended habeas petition

with the district court below and his request for evid entiary

hearing "to cross examine" attorneys Sims and Thomas "on their

affidavits" and to inquire into "Linda Briddle's [Linda Fletcher's]

annulment" in April 1981 of her marriage to Briddle. The amended

petition alleged that all claims made in it had been presented and

exhausted in the state courts. It further sought a stay pending

the Supreme Court's decis ion in P enry v. Lynaugh

, cert. granted

,

108 S.Ct. 2896 (1988).

The state, on June 21, 1989, filed its amended answer, motion4 It also determined that the request for stay pending Penry was

moot. P enry was handed down June 26, 1989. P enry v. Lynaugh

, 109

S.Ct. 2934 (1989).

10 for summary judgment, and brief. It relied, among other things, on

the Court of Criminal Appeals' opinion on direct appeal, the

findings and conclusions of the state trial court and Court of

Cri minal Appeals in the state habeas proceeding (including the

procedural bars found therein), the affidavits of attorneys Thomas

and Sims, and the state record.

N o response to this motion for summary judgment was ever

filed.

The district court below, on July 20, 1989, entered an

"interim order" denying the requested evidentiary hearing. As to

attorneys Thomas and Sims, the court noted that the state "process

is adequate and no allegation is made that the process failed." As

to Linda Fletcher's annulment, the court found that the annulment

documents were "regular on their face, and admitted so" and that

"[a]dequate opportunity to set aside the alleged void judgment of

annulment between the petitioner and Fletcher has existed." 4

Thereafter, Stephens, on August 18, 1989, again mo ved for a

stay until the Texas Court of Criminal Appeals, in another case

then pending before it, determined whet her as a matter of law a

Penry claim would be waived by failure to assert it at trial, where

trial took place before Penry was handed down. The state filed an

opposition thereto.

Nothing thereafter happened in the case until August 3, 1990,

when the district court issued its memorandum opinion denying all11

relief. It held that state trial court habeas findings adopted by

t he Court of Criminal Appeals were "entitled to the statutory

p resumption of correctness [28 U.S.C. § 2254(d)]." It discussed

and rejected each of Briddle's asserted bases for relief. It also

noted that "the evidence of the petitioner's guilt is

overwhelming." The court concluded that Briddle's claims about

failure to develop mitigating evidence were appropriately rejected

based on the state habeas court's fact findings adopted by the

Court of Criminal Appeals. The court further noted "[n]othing that

has been proffered by the petitioner since the trial indicates that

the petitioner was or is mentally ill or was unable to conform his

conduct or how, if at all, any drug use the day before the murder

was committed prevented the petitioner from conforming his

conduct." It concluded that Briddle's P enry type claims and his

similar challenges to the Texas statutory sentenc ing scheme were

procedurally barred and were in any event without merit, and that

nothing in the Texas statutes prevented Briddle from offering the

mitigating evidence he claimed should have been offered.

On August 15, 1990, Briddle, through Stephens

, filed a timely

motion to reconsider. This motion was entirely directed to the

district court's ruling that the Penry claim was procedurally

barred, and sought in the alternative a stay until disposition of

the then pending case of Selvage v. Collins

, 897 F.2d 745 (5th Cir.

1990), in which this Court had, on March 6, 1990, certified to the

Texas Court of Criminal Appeals the question whether, in a case

tried prior to Penry

, the failure at the punishment stage of trial

to request special i nstructions or to object to the form of the5 A single exception is that on October 19, 1990, attorney

Stephens filed his "motion t o set appointed counsel's

compensation."

12 special issues respecting Penry -type evidence constituted a

procedural bar under Texas law. The Texas Court of Criminal

Appeals had not then answered that question, although it ultimately

did so on May 29, 1991, finding no procedural default. S elvage v.

Collins , 816 S.W.2d 390 (Tex. Crim. App. 1991).

Thereafter, nothing further transpired until on Au gust 8,

1991, 5 attorney Jane Disko filed a motion, also signed personal l y

by Briddle, to be substituted for Stephens as Briddle 's counsel.

On September 20, 1991, attorney Disko, joined by attorney Schaffer

of the same firm, filed a motion entitled "Supplement to

Petitioner's Motion to Alter and Amend Judgment," together with a

memorandum in support thereof. The motion recited:

"Present counsel's review of the record reveals

additional issues that are not presently bef o re the

court. Intervening case law requires that petitioner

file this supplement to protect his substa n tive and

p rocedural rights. M cCleskey v. Zant

, 113 L.Ed.2d 5

(1991)."

The mot ion then summarized the reasons assertedly supporting the

relief it requested into the following three:

"1. Petitioner was denied due process because the state

distr ict judge who denied his request for an

evidentiary hearing and selected another judge to

decide the habeas corpus application was initially

his prosecutor. This court should . . . dismiss

the petition without prejudice and remand the

proceedings to state court to present all issues to

an unbiased judge.

2. There are federal issues not previously raised in

state or federal court. In light of M cCleskey v.

Zant, supra, this court should

. . . allow

petitioner to pro p erly raise all issues in his13 initial federal petition, or in the alternative, to

dismiss the petition without prejudice and remand

the proceedings to state court to present all

issues to an unbiased judge.

3. This court declined to consider petitioner's claim

under Penry v. Lynaugh, 492 U.S. 302 (1989), ruling

that it was pr ocedurally barred. In S elvage v.

Collins, No. 71,024 (Tex. Crim. App.-May 29, 1991),

the Court of Crimina l Appeals held that a P enry

claim such as petitioner's is not barred. As a

result, this court should alter and amend its

jud gment and consider the P enry claims on the

merits."

The motion concluded with a prayer for relief:

"that this court . . . vacate the judgment, dismiss the

petition without prejudice, and allow petitioner to

return to state court to present all issues before an

unbiased judge. In the alternative, petitioner requests

that the court alter and amend its judgment,

. . . grant

leave to amend the Petition For Writ Of Habeas Corpus,

grant an evidentiary hearing regarding unresolved issues

of fact, and grant his Petition F or Writ Of Habeas

Corpus."

The memorandum in support of the motion was in five parts

(parts I through V). Part I urges that in light of M cCleskey v.

Zant

, 111 S.Ct. 1454 (1991), the court should "allow leave to amend

the petition," asserting that M cCleskey indicated "all possible

issues must be raised in the initial petition," that "[i]n view of

McCleskey

, petitioner seeks to leave to redraft certain issues

. .

. and to add federal constitutional issues." This part concludes

by stating that the court should "alter and amend the judgment" and

"allow petitioner to amend his petition."

Part II of the memora ndum contains the five "proposed

amendments." The first of these is that the state habeas

proceedings denied Briddle due process because Judge Poe, who

signed the March 27, 1989, order denying an evidentiary hearing in6 These documents are the only documents or "evidence" offered

or submitted in suppor t of the motion; no affidavits or the like

were submitted with or in support of it, and neither the motion nor

the memorandum was verified.

14 the state habeas case, had been a prosecutor in the original case

until sometime in September 1981, and that his said order was thus

v oid under state law. These allegations were based on a copy of

the March 27, 1989, order and on copi es of portions of the state

record attached to the motion showing that Judge Poe, then as

prosecutor, announced the state ready in March 1980 and January

1981, presented the case to the gran d jury in October 1980, and

agreed to a resetting in August 1981. 6 There is no allegation that

any of these facts were unknown, or unavailable, to either Stephens

(or Harrington) or Briddle either at the time of the state habeas

proceedings or thereafter during Stephens' (or Harrington's)

representation of Briddle. It was also alleged that Judge Poe

"asked Judge Michael McSpadden to rule on the [habe as]

application." There is no allegation of any factual basis for this

assertion, nor for the similar assertion that Judge McSpadden was

a "long time friend of Judge Poe" and "Judge Poe personally asked

Judge McSpadden to rule on this case, and Judge McSpadden agreed as

a favor," and no affidavit, o r tendered evidence, or any part of

the record, even tends to support any of these assertions. It is

also asserted that because of the foregoing the adoption by the

court below of the state court habeas findings "li kewise denied

petitioner due process." No aspect of this claim had ever

previously been raised either in state court or previously in this

federal habeas proceeding.7 These are: failures to object to two different parts of

Fletcher's testimony; failure to object to three different parts of

the prosecution's closing argument; failure to request a mistrial

after objection was sustained to another portion of the

prosecutor 's argument; failure to properly object to Briddle's

confession as a whole on the grounds that it was the product of an illegal arrest and to object under state law to the part of it

stating it did not bother him (Briddle ) to get the death penalty

because he had not made much of his life; failure to ad equately

show that the 1981 annulment (which counsel challenged at trial) of

Fletcher's marriage to Briddle was "invalid" under California law

because some of the grounds were not legally sufficient and all had

bee n waived by continued cohabitation; advising Briddle that he

would waive his spousal privilege claim if he testified (based

solely on a somewhat ambiguous passage in the state record at which

Briddle explains to the judge, outside of the jury's presence, why

he was not going to testify; there is no allegat ion of what

Briddle's testimony would have been); arguing to the jury, after

urging that the victims may have been strangled by Fletcher and

Perillo, that Briddle "certainly may be guilty of ordinary murder

but not this capital murder" ; specific instances of improper

punishment phase jury argument by defense counsel; and failure to

object to three different parts of the pro secutor's punishment

phase jury argument.

8 Among the totally new claims were the following: that defense

counsel should have objected to the confession as the product of an illegal arrest; defense counsel wrongly advi sed Briddle not to

testify because of possible waiver of spousal privilege; defense

counsel's handling of the annulment (the annulmen t had been

challenged in the state habeas and previously in the federal

habeas, but it had not been asserted as a grounds of ineffective

assistance of counsel); the failure to object to the prosecutor's

argument that the jury paid his salary; the failure to object to

15 The next two proposed amendments consist of a total of

fourteen different assertions of ineffective assistance of counsel

at, respectively, the guilt-innocence stage and at the punishment

stage of the trial. 7 All of these are based on the face of the

state trial record, and none is claimed t o be supported by any

matter not previously before both the federal district court and

the state habeas court. At least several of these claims were

never previously raised in either this federal habeas or in the

sta t e court at any stage. 8 No claim of ineffective assistance ofthe prosecutor's argument that Briddle showed no remorse on the

ground that the argument was a comment on his failure to testify;

the failure to move for a mistrial after objection was sustained to

the prosecutor's asserted vouching for Fletcher's credibility; and

defense counsel's punishment phase argument that the jury's verdict

was "not any of my business" and that while trading the

perpetrators' lives for the victims' lives might h ave been

desirable, it was no longer possible.

9 Fletcher replied, "Yes , that's true." Defense counsel's

objection was sustained and the jury was instructed to disregard,

but defense counsel's motion for mistrial was denied.

16 cou nsel was made respecting any failure to develop, present, or

argue mitigating evidence or any failure of counsel to object to

the punishment charge or to request punishment phase instructions

or definitions.

The fourth proposed amendment is a claim, not previously

raised in the instant proceeding or in state court, that the

prosecutor intentionally violated the trial court's order granting

defense counsel's motion in limine as to evidence that Perillo had

confessed so as to implicate Briddle, by asking Fletcher "is not it

a fact that Pam Perillo never said that you had anything to do with

any of these murders." 9

The fifth, and last, proposed amendment is that the Texas

statutory sentencing procedure, by precluding consideration of

Briddle's diminished culpability "due to an abnormal childhood and

an absence of the usual internal controls on aggressive or

impulsive behavior," deprived Briddle of his Sixth Amendment right

to the effective assistance of counsel in that under "the law at

the time of petitioner's trial, a reasonably competent lawyer could

not risk presenting evidence of this nature" and deprived Briddle

of his Eighth Amendment right to have the jury consider any10 These affidavits each contained the following statements

(though their order was slightly different in each):

"7. Mike was a poor student and was learning

disabled with dyslexia [this was not in the brother's

affidavit].

8. From about the age of 12 years Mike was in and

out of various California State Institutions where he was

medicated with Thorazine and Prolyxin, w hich are heavy

psychotropic drugs [this was not in the father's

affidavit; the brother's did not have the word "about"].

10. When Mike was sixteen years old he was involved

in a mot orcycle/train accident, when his friend, a

passenger on Mike's motorcycle lost both arms and a leg.

Mike was extremely emotionally upset and disturbed

because of the injury to his friend.

11. Mike was always taking in stray animals to care

for them, and on one occasion found a great dane and

brought it home on his motorcycle and cared for it.

12. I am in touch with Mike and we correspond

regularly. I visit Mike whenever possible.

13. Although I did not reside in Texas during the

time of Mike's capital murder trial in 1982, I was aware

of his trial, but I was never contacted by his trial

counsel.

14. Had I been contacted by Mike's trial counsel I

17 "mitigating circumstances that may be relevant." Nothing in the

state trial r ecord is claimed to constitute evidence (either

offered, conditionally offered, or admitted) of Briddle's abnormal

childhood or absence of usual int ernal controls, and nothing

outside of the trial record is pointed to in this respect.

However, thi s contention is somewhat similar to ineffective

assistance of counsel and counsel "chilling" contentions raised in

the state habeas and previously in the federal habeas which each

relied on the same January 1989 affidavits of B riddle's mother,

father, and brother 10 and the January 1989 affidavi t of awould have informed him of the f acts stated herein and

would have testified at trial."

The father's and brother's affidavits (but not the mother's)

also included the statement that "Mike has a daughter Renee, age 13

years, has expressed his concern for her on many occasions." The

mother's affidavit, but not the others, also stated she was in an

automobile accident when pregnant with Briddle, and that Briddle's

birth in April 1955 was four to six weeks overdue, required

forceps, and he "received severe bruises of the head," and that:

"Because Mike's father was severely injured when

Mike was twelve years old, it was necessary for me to

work outside of the home. During this period Mike would

clean the house without being asked and would cook many

of the family meals."

The brother's affidavit (but not the others) also stated

"[b]efore age twelve, Mike and I participated in organized sports

at school and in the area of our home"; "[i]n 1968 Mike had a brick

wall collapse on him causing severe injury to his face and head";

and "[w]hile growing up Mike was a fri endly person who was known

and liked by all our neighbors." The father's affidavit (but not

the others) also stated "Mike worked with me on the docks and was

a very g ood worker. I got Mike a job in a warehouse and his

employer told me he was an excellent worker."

11 This document basically concluded that Bridd le was not

psychotic, but suffered from some variety of personality disorder,

and had been diagnosed as Borderline Personality Disorder,

Antisocial Personality Disorder, and Schizotypal Personality

Disorder, and "to appear delusional, but not psychotic." It

observes that "[m]ost literature indicates that there can be some

success with the Schizotypal Personality Disorder through therapy."

It notes that Briddle "speaks with a relatively good vocabulary,"

"was oriented to time, place, and person," "was cooperative,"

showed "good attention and concentration," functioned "in at least

an Average range intellectually," and had "reading level for

comprehension to late eleventh grade." It states that "personality

evaluation does not ind icate any form of psychotic condition at

this time, nor is there a pattern that suggests psychosis, even though symptoms may be controlled by medication." It states that

Briddle reported having "had psychiatric evaluation numerous times"

but "states that he has never been diagnosed as being psychotic."

It refers to "one screening test" on which "his performance is

defective, suggesting t hat there may be some neurological

impairme nt" and states that "there is the possibility of minimal

brain injury."

18 psychologist who (at the request of Stephens) examined him for the

first (and only) time on January 20, 1989. 11History given by Briddle is recited, including the following:

"The first time he was in a juvenile facility was at age

15 for three years. At age 17, he had an assault case in

the California youth system, having pushed another youth

under a train, causing him to lose several limbs.

Mike reports a tonsillectomy, hepatitis from drug abuse,

and a head injury, including concussion when he was

kicked in the head by a sheriff in Los Angeles County

Jail. . . .

Mike said that he started doing marijuana probably before

his teens, 'but it didn't do nothin for me.' Around the

age of 12, he started doing downers . . . . He said he

had expe rimented with every drug available and really

liked heroin, but usually used speed because heroin was

to o expensive. He also started drinking while he was

young, stating that it probably was peer pressure, as he

ran with an older group of boys. . . . He also noted

that he had been given massive amounts of Thorazine and

Prolixin on an alternating basis for several years while

he was in juvenile facilities in California.

. . . .

Mike reports convictions for robbery and interstate

transportation of a vehicle in California, after which he

spent three years in San Quentin and was paroled. He was

returned to San Que ntin for check fraud as his second

conviction as an adult."

19 Part III of the September 20, 1991, memorandum contends that

the May 29, 1991, decision of the Texas Court of Criminal Appeals

in Selvage v. Collins renders erroneous the district court's

holding that Briddle's Penry claim was procedurally barred, and

that the court should thus "consider the Penry claim on the

merits."

The memorandum's part IV, relying on the cumulative error

language i n the panel opinion in D erden v. McNeel

, 938 F.2d 605

(5th Cir. 1991), SQ which was subsequently vacated when we took the

case en banc and affirmed the district court's denial of habeas12 In the state habeas petition's initial "summary statement of

the case," the tenth ground listed is that "[t]he cumulative effect

of the ineffective assistance of trial counsel, prosecutorial

misconduct, and improper evidentiary rulings by th e trial court,

served to deprive the petitioner of a fair trial . . . ." This

contention was not, however, separately argued or addressed in the

body of the petition which separately addressed the several claims

raised.

20 relief, Derden v. McNeel

, 978 F.2d 1453 (5th Cir. 1992), cert.

denied

, 113 S.Ct. 2928 (1993), SQ contends in entirely conclusory

fashion, and w ithout identifying any one specific or particular

claimed error, that "the combination of the errors is such that

petitione r was denied due process and a fair trial." This claim

had not previously been made in the instant federal habeas

proceeding. 12

The part V of the memorandum is its conclusion and prayer,

which states:

"Petitioner requests that the court alter and amend its

order, vacate the judgment, dismiss the petition without

prejudice, and allow petitioner to return to state court

to present all issues to an unbiased judge. In the

alternative, petitioner requests that the court alter and

amend the judgment, allow leave to amend th e petition,

and gra nt an evidentiary hearing to fully and fairly

resolve all fact issues in dispute."

In sum, the motion and memorandum re quested vacation of the

judgment and only two other items of relief: (1) dismissal without

prejudice, or (2) amendment of the petition to include the new

claims and have a hearing thereon.

Nowhere in either the m otion or memorandum of September 20,

1991, is there any explanation of why it was not sooner filed, or

why any of the new clai ms therein were not raised in the amended

federal habeas petition or in the state habeas petition, nor is13 The September 26, 1991, order states: "Pending before the

Court is the petitioner's motion and supplement to alter and amend

judgment and the Court having considered same is of the opinion

that the relief sought should be denied. The Court previously

lifted the stay in this case and nothing remains for this Court's

consideration. Through inadvertence the motion to alter and amend

judgment was overlooked." On September 20, 1991, the court had

granted the August 8, 1991, motion to substitute counsel.

14 The district court sub s equently granted a certificate of

probable cause (without stating any reasons or identifying any

issues).

21 there any factual allegation tending to show that it could not

reasonably have been sooner f iled, or that any of the new claims

therein could not have been included in the amended federal habeas

petition and in th e state habeas petition, or that any of the

contentions raised therein were not known or reasonably available

both to Briddle and his former counsel Stephens (and Harrington).

In a brief order dated September 26, 1991, the district court,

without stating reasons, denied both the August 15, 1990, motion to

reconsider and the September 20, 1991, supplemental motion. 13

Briddle filed a timely notice of appeal. 14

Discussion

In this appeal Briddle, through counsel Disko, presents a

total of four points of error. We discuss these seriatim.

Briddle's first point of error is that "[t]he district court

erred in denying petitioner's supplemental motion to alter and

amend judgment because the state district jud ge who denied

petitioner's request for an evidentiary hearing and selected

another judge to decide the habeas corpus application was initially

his prosecutor." Briddle contends in this connection that because

until September 1981 Judge Poe had been Briddle's prosecutor,15 We observe that this is the only challenge made to the

findings made in the state court habeas proceedings.

16 It has not been alleged that either attorney Stephens (or

Harrington) or Briddle was unaware, prior to filing Briddle's state

habeas, that Judge Poe had served as a prosecutor in the initial

stages of Briddle's murder prosecution, or was unaw are prior to

April 5, 1989, that the March 27, 1989, order was issued by Judge

Poe, or was unaware prior to April 5, 1989, of the alleg e d

assignment by Judge Poe to Judge McSpadden. The only evidence

claimed to indicate that Judge Poe acted as prosecutor consists of

portions of the state record in Briddle's murder prosecution, and

the March 27, 1989, order reflects that it was signed by Judge Poe,

and on April 5 Briddle, through Stephens, responded thereto by

submitting proposed findings and conclusions. Nothing in the state

record even suggests an assignment of the habeas case by Judge Poe

to Judge McSpadden, there are no allegations indicating any basis

for the unverified assertion that such an assignment by Judge Poe

occurred, and there is no affidavit or other evidence tending to

indicate that it did. Nor is there anything to support the bare,

unverified allegation that Judges Poe and McSpadden were long time

friends.

22 therefore his March 27, 1989, order denying an evidentiary hearing

on Briddle's state habeas was void under Texas law, as was his

asserted order assigning the case (at an unspecified time) to Judge

McSpadden, and hence the district cou rt erroneously accorded the

presumption of correctness under 28 U.S.C. § 2254(d) to the state

court findings on Briddle's state habeas proceedings. 15 We reject

this contention.

Even laying aside its unexcused belatedness, 16 Briddle's

contention is wholly without merit. The April 11, 1989, findings

were made by Judge McSpadden, not by Judge Poe. The only action

taken by Judge Poe in the habeas case was his order of March 27,

1989. Prior to that time, Judge McSpadden had already taken the

following actions in the case: on December 15, 1988, he reset

Briddle's execution for February 14, 1989, and ordered that Briddle

file any habeas by January 17, 1989; on February 13, 1989, Judge17 See Tex. Code Crim. Proc. Ann. art. 11.07 § 2(d) ("the court

may order affidavits, depositions, interrogatories, and hearings"

to resolve "previously unresolved facts which are material to the

legality of the applicant's confinement").

18 Tex. Code Crim. Proc. Ann. art. 11.07, sec. 3; Ex parte

Alexander

, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985) ("[i]t is well

established that only the Court of Criminal Appeals possesses the

authority to grant relief in a post-conviction habeas corpus

proceeding where there is a final felony conviction").

23 McS padden again ordered Briddle's execution reset for April 21,

1 989; and in another February 13, 1989, order Judge McSpadden

directed that Briddle's trial attorneys, Thomas and Sims, file by

March 5 affidavits explaining their representation of Briddle and

responding to his allegations of ineffective assistance of counsel,

and that the state file its answer by March 8. There is absolutely

nothing in the state record, or otherwise, indicating or tending to

support the unverified allegation that Judge Poe assigned the

habeas matter to Judge McSpadden. Moreover, that allegation (made

by an attorney who did not come into the case until sometime in

1991) is wholly conclusory in that there is no indication or

statement of any facts which have caused the pleader to believe

that Judge Poe so assigned the matter. And, Judge McSpadden was

clearly free to order a full scale evidentiary hearing, had he

deemed such appropriate. 17 Moreover, under Texas law the only

ultimate decision in a post-conviction habeas case is that made by

the Texas Court of Criminal Appeals. 1 8 The Court of Criminal

Appeals "is not bound by the findings, conclusions, or

recommendations of the trial court in reaching decisions on post-19 Ex parte Ramirez

, 577 S.W.2d 261, 263 (Tex. Crim. App. 1979).

See also Ex parte Adams

, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986)

(same); Ex parte Acosta , 672 S.W.2d 470, 472 n.2 (Tex. Crim. App.

1984) (same); Ex parte Campos

, 613 S.W.2d 745, 746 (Tex. Crim. App.

1981) (same).

20 See Ex parte Campos

, 613 S.W.2d 745, 746 (Tex. Crim. App.

1981) (ordering hearing); Ex parte Acosta

, 672 S.W.2d 470, 472

(Tex. Crim. App. 1984) ("this Court ordered the trial court to hold

an evidentiary hearing to allow the applicant to more fully develop

his allegations"). S ee also Tex. Code. Crim. Proc. Ann. art.

11.07(c) sec. 3 ("The Court of Criminal Appeals . . . may direct

that the cause be docketed and heard as though originally presented

to said court or as an appeal").

24 conviction applications for writ of habeas corpus relief," 19 and can

itself order an evidentiary hearing. 20 Here, the Court of Criminal

Appeals itself "reviewed the record," determined that the trial

court's findings were supported thereby, and denied relief on the

basis of such findings. The findings in substance became those of

the Court of Criminal Appeals. There is simply nothing before us

to support the contention that Judge Poe's having acted as

prosecutor in the early pre-trial stages of Briddle's murder case

in any way caused either the April 11, 1989, order of Judge

McSpadden or the Apri l 14, 1989, order of the Court of Criminal

Appeals to be void under Texas law, or in any way affected either

such order, or deprived Briddle of due process, or pr evented

application of the section 2254(d) presumption of correctness. We

reject Briddle's first point of error.

The second point of error presented by Briddle in this appeal

is that "the district court abuse d its discretion in denying

petitioner's motion to amend his petition for writ of habeas corpus

to comply with McCleskey v. Zant ," 111 S.Ct. 1454 (1991). The

argument under this point makes it clear that the contention is21 Under Rule 11 of the Rules Governing Section 2254 Proceedings,

"The Federal Rules of Civil Procedure, to the extent that they are

not inconsistent with t hese rules, may be applied, when

appropriate, to petitions filed under these rules." S ee also,

e.g., Randle v. Scott , 43 F.3d 221, 226 (5th Cir. 1995).

25 that Briddle should have been allowed to raise the new claims

asserted for the first time in his September 20, 1991, motion, and

either have his petition dismissed without prejudice or amended and

the new claims addressed on the merits, in order to avoid having to

raise such new claims in a subsequent federal habeas that would be

subject to dismissal for abuse of the writ pursuant to McCleskey

(which Briddle's brief describes as having "held that a successive

federal habeas corpus petition may be denied for abuse of the writ

if the petitioner raises federal claims that could have been raised

in the initial petition"). We reject this point of error.

As of September 20, 1991, Briddle had no absolute right to

dismiss his petition without prejudice or to amend it. S ee Fed. R.

Civ. P. 15, 41(a). 21 He had been represented by the same counsel

throughout his state and federal habeas proceedings (and that

counsel had represented him on his application for certiorari

, and

had had the full record in his case since before October 1988), and

has never alleged that such counsel was incompetent. Briddle had

already amended his federal habeas peti tion once, following an

order of the district court expressly advising him that claims not

included would be deemed forever waived; the state had already

answered and moved for summary judgment; and more than a year

previously the district court had rendered judgment on the merits

dismissing the petition for writ. Briddle presented absolutely22 Briddle also relied on Selvage v. Collins

, 816 S.W.2d 390

(Tex. Crim. App. 1991), as new law, bu t this merely provided an

additional authority for his argument that his p reviously raised

Penry claims were not procedurally barred (a contention previously

made in both the state and federal habeas proceedings); Selvage v.

Collins provides no excuse for raising any new claims. Moreover,

as reflected in the text infra

, Selvage v. Collins does avail

Briddle as to his Penry claims.

23 See also the authorities cited in W illiams v. Whitley

, 994

F.2d 226, 230-31 n.2 (5th Cir. 1993), as supporting our statement

there that "we are inclined to agree with the state that Fulford's

motion for reconsider ation is best viewed as yet another habeas

petition and thus subject to Rule 9(b)'s constraints." Rehearing

en banc was subsequently gra nted, i d

. at 236, but thereafter

Fulford's case was dismissed as moot due to his death.

26 not hing below or on this appeal to explain S Q and he has not even

attempted to explain SQ the thirteen-month delay in seeking amendment

or dismissal without prejudice. All of the "new" issues were based

on matters reflected by the face of the record and no change in the

law was asserted, apart from McCleskey itself. 22

We have ruled that " McCleskey is applied retroactively."

Hudson v. Whitley

, 979 F.2d 1058, 1063 (5th Cir. 1992). Thus,

McCleskey affords no valid basis for Briddle's September 20, 1991,

motion. And, we have likewise held that M cCleskey may not be

avoided by motions under Fed. R. Civ. P. 60(b). Ward v. Whitley

,

21 F.3d 1355, 1360 & n.4 (5th Cir. 1994) ("A habeas petitioner may

not add new constitutional claims to a petition after the district

court has entered judgment"). 23 Moreover, we observe that M cCleskey

did not change the law in this Circuit applicable to Briddle's

situation. Long prior to Briddle's filing of either his state or

federal habeas, we had held that a prisoner represented by counsel

(as Briddle has consistently been) was bound to raise all available

claims in his initial federal habeas, or face Rule 9(b) dismissal24 While Jones indicated ther e would be an exception for

instances in which prior federal habeas counsel was incompetent (or

where the prior habeas was pro se ), Briddle (just as the petitioner

in Jones ) has never asserted that any of his habeas counsel was

incompetent.

Subsequent to McCleskey

, we remo v ed both the incompetent

counsel and pro se petitioner exceptions to Jones

. S ee Johnson v.

Hargett

, 978 F.2d 855, 859 (5th Cir. 1992), cert. denied

, 113 S.Ct.

1652 (1993); Sahir v. Collins , 956 F.2d 115, 119 (5th Cir. 1992).

25 We note that nothing in Briddle's September 20, 1991, motion

and memorandum tends to establish, or is even claimed to establish,

"cause" under McCleskey for failure to sooner raise the new claims

sought to be thereby injected into the case (nor does Briddle

contend otherwise on this appeal). Similarly, at no time has

Briddle made any "colorable showing of factual innocence,"

McCleskey at 1471, or even clai med such (or that he was not

"eligible" for the death penalty, Sawyer v. Whitley

, 112 S.Ct.

2514, 2517 (1992)).

27 in a subsequent habeas. M oore v. Butler

, 819 F.2d 517, 519-20 (5th

Cir. 1987); Jones v. Estelle

, 722 F.2d 159, 167, 16 9 (5th Cir.

1983) (en banc), cert. denied

, 104 S.Ct. 2356 (1984). 24 Indeed, the

district court here had explicitly warned Briddle and his counsel

that the to-be-filed amen ded petition would have to include all

claims, and those not included would be waived.

We reject the contention that McCleskey required the district

court to grant Briddle's Septembe r 20, 1991, motion. 2 5 Briddle's

second point of error is without merit.

We turn now to Briddle's third point of error, which asserts

that "[t]he district court abused its di scretion in denying

petitioner's motion to alter and amend the judgment because it

failed to apply Selvage v. Collins ," 816 S.W.2d 390 (Tex. Crim.

App. 1991). Briddle's argument under this point is that the

district court erred in applying the procedural b ar to Briddle's

Penry -type claim because Briddle's case was tried before Penry

, and26 By Penry -type evidence, we mean mitigating evidence that is of

a kind that under Penry (and its progeny) requires modification of

or addition to (or special instructions respec ting) the former

statutory punishment phase special issues in Texas capital cases.

28 in Selvage the Court of Criminal Appeals held that in cases tried

before Penry

, where Penry -type mitigating evidence 26 was presented

at trial, the failure to ob ject to the punishment charge or to

request special instructions or issues did not waive or bar a claim

that the punishment phase special issues were not adequate to allow

constitutionally- mandated consideration of the mitigating

evidence. Briddle's claim in this respect presents no reversible

error, and we reject it.

To begin with, while the district court did apply the

procedural bar in this respect, it also, alternatively, considered

and rejected the Penry claim on t he merits. We agree that there

was no valid Penry claim to begin with.

Of all the evidence introduced (or proffered) at any stage of

the trial, only two items are claimed to constitute Penry evidence.

The first is the evidence that Briddle and the others drank

alcoholic beverages, smoked marihuana, and became intoxicated the

night before the murders. There is no evidence of the quantity of

al cohol or marihuana consumed, and n o evidence that Briddle was

intoxicated the next day when the murders were committed. In any

event, "evidence of intoxication may be considered as favorable to

a negative answer to both the first and second punishment special

issues, and hence is not Penry evidence. See Nethery v. Collins

,

993 F.2d 1154, 1161 (5th Cir. 1993); J ames v. Collins

, 987 F. 2 d

1116, 1121 (5th Cir. 1993); Cordova v. Collins , 953 F.2d 167, 17029

(5t h Cir. 1992), c ert. denied

, U.S. , 112 S.Ct. 959, 117

L.Ed.2d 125 (1992)." A nderson v. Collins

, 18 F.3d 1208, 1214-15

n .5 (5th Cir. 1994). S ee also Lackey v. Scott

, 28 F.3d 486, 487

(5th Cir. 1994), cert. denied

, 115 S. Ct. 743 (1995). The second

and only other asserted item of P enry evidence is testimony by a

woman whose son knew Briddle when both were confined in jail while

Briddle was awaiting trial on the instant offense, that Briddle had

befriended and counseled her son and effected "a complete change"

for the better in the son's "attitude toward life," and,

inferentially, indicating remorse on Briddle' s part for having

" failed in his life." We have repeatedly held that evidence of

this sort is not P enry evidence. C rank v. Collins

, 19 F.3d 172,

175 (5th Cir.), cert. denied

, 114 S.Ct. 2699 (1994); Graham v.

Collins

, 950 F.2d 1009, 1032-33 (5th Cir. 1992) (en banc), aff'd on

other grounds

, 113 S.Ct. 892 (1993); James v. Collins

, 987 F.2d

1116, 1122 (5th Cir.), cert. denied , 114 S.Ct. 30 (1993); Barnard

v. Collins , 958 F.2d 634, 640 (5th Cir. 1992), c ert. deni ed , 113

S.Ct. 990 (1993); Wilkerson v. Collins

, 950 F.2d 1054, 1061-62 (5th

Cir. 1992). S ee also Johnson v. Texas

, 113 S.Ct. 2658, 2669-72

(1993); Graham v. Collins , 113 S.Ct. 892, 902 (1993).

There was no Penry evidence introduc e d or offered

(conditionally or otherwise) at any stage of Briddle's trial.

Accordingly, ther e is no basis for any P enry claim. "This Court

has held that a petitioner cannot base a Penry claimon evidence

that could have been, but was not, proffered at trial." A nderson

,

18 F.2d at 1214-15 (citing cases). To the same effect are A llridge

v. Scott

, 41 F.2d 213, 223 (5th C ir.) (". . . capital defendants27 Moreover, the state habeas court found, on the basis of the

affidavits of trial attorneys Thomas and Sims, that they were in no

way "chilled" by the Texas statutory scheme. These affidavits

stand wholly unrebutted in this respect (and also in all other

respects, with the si ngle exception that Briddle's mother's

affidavit states "I was never contacted by his trial counsel,"

while Thomas' affidavit states "contrary to Mrs. Briddle's

affidavit, we did contact Mike's mother . . . she had little good

to say about Mike, explaining that he had had continual problems

with law enforcement since he was a youngster" and Sims' affidavit

states "we contacted Mr. Briddle's mother against his wishes

. . . the information provided by Mrs. Briddle was not at all helpful and

generally damaging"). In this appeal, the only challenge to any of

the state habeas court's factual findings is that concerning Judge

Poe as above discussed and rejected in connection with Briddle's

first point of error; this was likewise the only challenge to the

state court findings made in the September 20, 1991, memorandum and

m otion; prior to that time there was no claim that the fin dings

were not entitled to the presumption of correctness under section

30 cannot base a Penry claim on evidence that could have been, but was

not, proffered at trial"), cert. denied

, 115 S.Ct. 1959 (1995);

Crank , 19 F.3d at 176; Callins v. Collins , 998 F.2d 269, 275 (5th

Cir. 1993), cert. denied

, 114 S.Ct. 1127 (1994). We have likewise

consistently rejected the related argument that the Texas statutory

capital sentencin g scheme is invalid as preventing or chilling

defense counsel's development of mit igating evidence. Thus, in

Lackey we stated:

"Appellant argues that the Texas capital sentencing

statute unconstitutionally interfered with his trial

counsel's ability to make decisions about his defense.

Specifically, Lackey argues that because mental health

evidence could be considered in aggravation of the second

special issue, the statutory scheme prevented his trial

counsel from developing and presenting mitigating

evidence about his mental condition. We have considered

and rejected this prec ise argument in previous cases.

See Black v. Collins

, 962 F.2d 394, 407 (5th Cir.), cert.

denied

, U.S. , 112 S.Ct. 2983, 119 L.Ed.2d 601

(1992); May v. Collins

, 948 F.2d 162, 166-68 (5th Cir.

1991), cert. denied

, U.S. , 112 S.Ct. 907, 116

L.Ed.2d 808 (1992)." Id . 28 F.3d at 490.

See also Crank , 19 F.2d at 176. 272254(d).

We have many times held that a state habeas court's findings

based on a ffidavits may be entitled to the section 2254(d)

presumption of correctness. S ee Carter v. Collins

, 918 F.2d 1198,

1202 (5th Cir. 1990) (citing cases).

We note that T homas' affidavit states that Briddle was

"insistent" that none of his family be involved, and that they

(Thomas and Sims) made a conscious decision not to call family

members, knowing that as "the prosecutor . . . would find it

difficult, if not impossible, to s ecure admissible evidence

concerning Mike's California juvenile record and prior bad acts,"

there was "everything to lose by subjecting Mike's family members

to the prosecutor's cross-examination," and that, as it was, they

kept out a 1975 extraneous robbery offense. Sims' affidavit is

essentially to the same effect. Thomas also stated "I always found

Mike to be smart, lucid an d cogent," and "we saw no need to have

Mr. Briddle undergo a psychiatric examination. In fact, we were

certain that a psychiatric examination might produce dama g ing

evidence which could be used against Mr. Briddle at his trial."

Sims' affidavit states "I did ask Mr. Briddle whether he had ever

had psychological problems or suffered from any mental illness

. . . he denied any such problems . . . His denial of mental problems

was consistent with my observations

. . . I foun d Mike to be

reason ably intelligent, lucid and sophisticated with regard to

institutional environments." There is no contrary evidence. The

state habeas court credited these affidavits, and determined that

there was no ineffective assistance of counsel. Neither the August

15, 1990, motion nor the September 20, 1991, motion and memorandum,

nor this appeal, asse rts any claim of ineffective assistance of

counsel in respect to not developing or presenting mitigating

evidence or not objecting to the pun ishment charge or special

issues or not requesting further instructions in that respect.

31 Accordingly, there was no Penry error, and hence application

of the procedural bar thereto was irrelevant. We thus reject

Briddle's third point of error.

The fourth and final point of error presented by Briddle is

that "the district court abused its discretion in summarily denying

petitioner's moti on and supplemental motion to alter and amend

judgment."

So far as concerns the original motion to alter and amend,

filed by attorney Stephens August 15, 1990, it was directed solely

to the d istrict court's ruling that Briddle's P enry claim was28 To the extent that Briddle's brief may be regarded as

impliedly incorporating into the argument under its fourth point of

error the arguments it makes in support of its first, second, and

third points of error, we have already rejected those arguments for

the reasons previously stated in this opinion.

29 The only "intervening case law" ci ted was S elvage and

McCleskey

, neither of which, as discussed above in connection with

Briddle' s second and third points of error, justified any relief

for Briddle.

32 procedurally barred (alternatively urging that the case should be

stayed until Selvage resolved the procedural bar issue). As

p reviously discussed in connection with Briddle's third point of

error, as a matter of law there was n o valid P enry claim, so the

lack of procedural bar of such a claim was immaterial and afforded

no valid basis on which to alter or amend the judgment.

So far as concerns the September 20, 1991, supplemental motion

to alter or amend the judgment, Briddle's brief on appeal presents

no argument as to the merits of any ground for relief raised in the

September 20, 1991, motion. 28 Briddle merely argues in conclusory

fashion that "[c]ounsel's evaluat ion of the record revealed that

certain issues were not raised in the district court , nor did the

court consider relevant intervening case law. On September 20,

1991, pursuant to McCleskey v. Zant

, supra

, petitioner filed a

supplemental motion to alter and amend to protect his substantive

and procedural rights" (emphasis added), and "[p]etitioner's

motions, supported by memorandum of law, raised significant issues,

addressed intervening and controlling case law, and sought

alt ernative forms of relief. T he motions did not seek

reconsideration of previously litigated issues " (emphasis added). 29

Briddle urges, again in conclusory fashion, that the supplemental33

motion should have been granted "in the interest of justice and

judicial economy."

What Briddle is essentially arguing is that the district court

abused its discretion by not vacating its judgment so as to allow

Briddle to amend his complaint to assert new claims raised for the

first time more than a year after the judgment. We reject this

contention.

A district court's decision to grant or deny leave to amend

after answer is reviewed only for abuse of discretion. S ee Little

v. Liquid Air Corp

., 952 F.2d 841, 846-47 (5th Cir. 1992), aff'd on

this point en banc

, 37 F.3d 1069, 1073 & n.8 (5th Cir. 1994) (en

banc) (no abuse of discretion in denying leave to amend to assert

new theories after opposite party f iled motion for summary

judgment); 6 Wright, Miller & Kane, Federal Practice and Procedure :

Civil 2d § 1486 at 6 04 ("Rule 15(a) gives the court extensive

discretion to decide whether to grant leave to amend after the time

for amendment as of course has passed"). Similarly, denial of a

motion for reconsideration is reviewed under an abuse of discretion

standard. See, e.g., Batterton v. Texas General Land Office , 783

F.2d 1220, 1225 (5th Cir. 1986) ("A district court's decision to

deny a motion to alter or amend judgment may be reviewed only for

an abuse of discretion"); Edward H. Bohlin Co . v. Banning Co

. , 6

F.3d 350, 355 (5th Cir. 1993). We have consistently recognized

undue delay as justifying denial of leave to amend, Little

,

particularly where leave to amend is sought to raise new matters

after the trial court has ruled on the merits or entered judgment.

In such circumstances, we have co nsistently upheld the denial of34

lea ve to amend where the party seeking to amend has not clearly

established that he could not reasonably have raised the new matter

prior to the trial court's merits ruling. This is explained in 6

Wright, Miller & Kane, Federal Practice and Procedure , § 1478, as

follows:

"Most courts faced with the problem have held that once

a judgment is entered the filing of an amendment cannot

be al lowed until the judgment is set aside or vacated

under Rule 59 or Rule 60.

. . . This approach appears

sound. To hold otherwise would enable the liberal

amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of

judgments and the expeditious termination of litigation.

. . .

The fact that a party desiring to amend after

judgment has been entered is obliged first to obtain

relief from the judgment imposes some important

restrictions on the ability to employ Rule 15(a). For

example, a judgment generally will be set aside only to

accommodate some new matter that could not have been

asserted during the trial

. . . . " Id . at 692-694

(footnotes omitted).

. . .

"A number of courts, exercising their discretion

under R ule 15(a), have refused to allow a postjudgment

amendment when the moving party had an opportuni ty to

assert the amendment during trial but waited until after

judgment before requesting leave; these courts based

their conclusions on the moving party's unreasonable

delay. For example, in Freeman v. Continental Gin

Company [381 F.2d 459 (5th Cir. 1967)], a seller sued a

buyer for the purchase price unde r a contract of sale.

The district court granted su m mary judgment for the

seller

. . . . Although the case was substantially

disposed of, a formal judgment was not entered. Nine

months after the grant of summary j udgment and

approximately e ighteen months after the filing of the

original answer, defendant attempted to amend to charge

plaintiff with fraud. The district court denied leave to

vacate the summary judgment and amend. The Fifth Circuit

affirmed the lower court's decision, stating:

A busy district court need not allow itself to

be imposed upon by the presentation of

theories seriatim. Liberality in amendment is35 important to assure a party a fair opportunity

to present his claims and defenses, but 'equal

attention should be given to the proposition

that there must be an end finally to a

particular litigation.' * * * Much of the

value of summary judgment procedure in the

cases in which it is appropriate S Q and we have

held this to be such a ca se S Q would be

dissipated if a party were free to rely on one

theory in an attempt to defeat a motion for

summary judgment and then, should that theory

prove unsound, come back long thereafter and

fight on the basis of some other theory." I d

. at 696-97 (footnotes omitted).

We have consistently followed Freeman

. Thus in U nion Planters

Nat. Leasing v. Woods , 687 F.2d 117 (5th Cir. 1982), we sustained

a district court's deni al of leave to amend (to assert a new

defense) asserted in a motion for rehearing directed to an order

granting the opposite party's motion for summary judgment, stating:

"'A busy district court need not allow itself to be

imposed upon by the presentation of theories seriatim.'

Freeman

, 381 F.2d at 469. Further, after summary

judgment has been granted, the court has "even more

reason for refusing to allow amendment." I d .; Gregory

[v. Mitchell] , 634 F.2d [199] at 203 [(5th Cir. 1981)].

"Then, the concerns of finality in litigation become more compelling, and the litigant has had the benefit of a day

in court, in some fashion, on the merits of his claim,"

Dussouy v. Gulf Coast Investment Corp

., 660 F.2d 594, 598

n.2 (5th Cir. 1981).'" Id . at 121.

In numerous other instance s we have applied the same rationale.

See, e.g., Waltman v. International Paper Co

., 875 F.2d 468, 473-74

(5th Cir. 1989) (no abuse of discretion in denying motion for

reconsideration of order granti ng partial summary judgment where

materials relied on for reconsideration "were available to" movant

"when she opposed

. . . [the] summary judgment motion

. . . and she

did not give any explanation why she did not include the materials

with her motion in opposition to summary judgment"); Savers Federal36

Sav. & Loan Ass'n v. Reetz

, 888 F.2d 1497, 1508-09 (5th Cir. 1989)

(no abuse of discretion in denying Rule 59(e) motion, seeking to

raise new theo ries why summary judgment not proper, where facts

were known to movant in advance of summary judgment); Southern

Constructors Group v. Dynalectric Co.

, 2 F.3d 606, 612 & n.25 (5th

Cir. 1993) (no abuse of discretion in denying Rule 59(e) motion

that sought to am end to raise new theory, noting that denials of

leave to amend are sustained "when the moving party engaged in

undue delay or attempted to present theories of recovery seriatim,"

citing Union Planters ). See also Batterton at 1225.

Here, when the district court rendered judgment, the case had

been pending for nearly eighteen months; indeed, more than a year

had elapsed both since the state's motion for summary judgment was

filed (no response thereto ever having been made) and since Briddle

had filed his amended petition in response to the district court's

order to do so and to be sure to raise all claims therein on pain

of waiving any not raised. Briddle was represented by counsel

throughout. Yet it was not until over a year after the district

court's judgment that the supplemental motion to alter or amend was

filed. No reasons are advanced in the motion or in its supporting

memorandum why any of the new claims raised therein could not have

been raised when the amended petition was filed more than two years

previously, nor are any such reasons advanced on appeal. It is

obvious that there are no such reasons, because everything relied

on in the supplemental motion to alter or amend is reflected in the

state record (either the original record or the state habeas

record). Indeed, the supplemental motion asserts (as does Briddle37

on appeal) that "counsel's review of the record reveals additional

issues that are not presently before the court" (emphasis added).

Plainly, there was no abuse of discretion in denying the

supplemental motion to alter or amend.

Briddle asserts that the distr ict court's order denying the

supplemental motion to alter or amend must be reversed because it

states no reasons. There is no requirement that reasons be stated

for the denial of a motion for reconsideration under Rule 59(e).

Cf. Addington v. Farmer's Elevator Mut. Ins. Co.

, 650 F.2d 663,

666-667 (5th Cir. 1981) (sustaining purely implicit denial of

plaintiff's motion for leave to amend which "attempted to establish

a new factual and legal theory" but was not filed until "more than

a year after

. . . institution of suit, a fter discovery had been

terminated and after the defendant's motion for summary judgment").

Briddle relies on Midland West Corp. v. Federal Deposit Ins. Corp

.,

911 F.2d 1141, 1145 (5th Cir. 1990), where we reversed the district

court's denial of a joint motion of the parties to modify an agreed

judgment "to reflect their intent accurately," stating "because the

district court's order offers no reason or basis for denying the

timely filed motion to reform for a conceded mutual mistake and

none is apparent to us , we find error" (emphasis added). Plainly

Midland West is not remotely on point. Here there is not only no

joint motion nor conceded mistake, but valid S Q indeed

compelling SQ

reasons for denying the motion are obvious and apparent

on the face of the record.

We reject Briddle's fourth and final point of error.30 Any and all outstanding stay orders heretofore issued by this

Court (or the district court) are hereby vacated.

38 Conclusion

Having fully considered and rejected each of Briddle's points

of error, the judgment of the district court is accordingly

AFFIRMED. 30