* Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-50444

_____________________

VERNON LAMAR SATTIEWHITE,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

(SA-91-CA-1152)

_________________________________________________________________ (April 20, 1995)

Before KING, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

Vernon Lamar Sattiewhite appeals the district court's denial

of his application for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. For the reasons set out below, we affirm the

district court's judgment.1 The facts and the procedure at the state court level are set

out at Sattiewhite v. State

, 786 S.W.2d 271 (Tex. Crim. App. 1989).

-2- I

On the morning of June 19, 1986, Satt iewhite kidnapped and

murdered his former girlfriend, Sandra Sorrell. 1 On December 11,

1986, a jury found him guilty of capital murder. In the separate

sentencing he aring the following day, the same jury answered

affirmatively the two special issues submitted pursuant to former

Article 37.071(b) of the Texas Code of Criminal Procedure, thereby

sentencing him to death.

Sattiewhite directly appealed to the Texas Court of Criminal

Appeals, which affirmed his conviction and sentence on October 25,

1989. S attiewhite v. State

, 786 S.W.2d 271 (Tex. Crim. App. 1989).

Satti ewhite's motion for rehearing was denied on March 28, 1990.

Id. at 271. The Supreme Court denied certiorari on October 1,

1990. Sattiewhite v. Texas , 111 S.Ct. 226 (1990).

Sattiewhite's execution was then scheduled for May 2, 1991.

On April 19, he initiated a state habeas proceeding. The state

court modified his execution date to November 12. After conducting

an evidentiary hearing, the state habeas court denied relief on

August 7. Based on the lower court's findings and conclusions, the

Court of Criminal Appeals denied state habeas relief on November 7.

On November 8, 1991, Sattiewhite filed a federal habeas

application and motion for stay of execution. Because this motion

was unopposed by the state, the district court granted a stay the-3-

same day. The court thereafter referred Sattiewhite's case to a

magistrate judge for appropriate proceedings. Sattiewhite amended

his petition on December 13, which the state answered on April 6,

1992. After Sattiewhite had replied, the magistrate judge

recommend ed that habeas relief be denied. Sattiewhite objected,

and the district court recommitted the case to the magistrate judge

to address Sattiewhite's objectio ns. On March 15, 1993, the

magistrate judge conducted an evidentiary hearing on Sattiewhite's

claim of juror misconduct, a claim that previously had not been

addressed by the state courts. On September 7, 1993, the

magistrate judge again recommended that all relief be denied.

Sattiewhite filed his objections to this ruling on December 27,

1993. On March 17, 1994, Sattiewhite's case was transferred to the

docket of a newly appointed federal district judge, the Honorable

Fred Biery. After conducting a d e novo review of Sattiewhite's

claims, the court entered an order on May 5, 1994, denying his

petition, entered judgment in favor of the state, and vacated his

st ay of execution. The court subsequently denied Sattiewhite's

request for post-judgment relief, but g ranted his request for a

certificate of probable cause to appeal.

II

Sattiew hite raises several issues on appeal, which we will

address in turn. He first requests that the district court's

judgment be reviewed de novo

, reversed, and remanded for an

evidentiary hearing. Sattiewhite contends that his sentencing jury-4-

was precluded from considering constitutionally relevant mitigating

evidence. He further alleges that he was denied effective

assistance of counsel in violation of his rights under the Sixth,

Eighth, and Fourteenth Amendments. Sattiewhite contends that he is

presently incompetent to be executed under the Eighth and

Fourteenth Amendments. Moreover, he asserts that the operative

terms of the special issues of the Texas sentencing scheme are

unconstitutionally vague. He claims, furthermore, that he was

selectively prosecuted for capital murder. Sattiewhite also

contends that the jurors were unconstitutionally given irrelevant,

inaccurate, and misleading information concerning the effe ct of

their failure to agree on the special issues. He also argues that

the ju ry instructions precluded the jury from giving mitigating

effect to evi dence. Sattiewhite contends that the Texas special

issues were unconstitutionally mandatory and denied him

individualized sentencing consideration. Sattiewhite, moreover,

argues that t he trial court's charge on punishment failed to

instruct the jury to consider mitigating evidence in determining

the appropriate punishment. He asserts that the Texas capital

sentencing statute unconstitutionally misled the jury regarding its

responsib ility for determining his sentence. Finally, he argues

that the death penalty impermissibly infringes on his right to

life.

We now direct our attention to these issues.-5- III

Sattiewhite first argues that the district court did not

conduct a de novo review of the magistrate judge's decision because

the district judge rendered his judgment within two months of his

case's transfer to the district judge and because the same law

clerk assisted the judges in ma king their decisions. This

contention is without merit. D e novo review refers to the

deference paid to the rulings of the lower court, not the mechanics

of the review. The district court, furthermore, clearly stated

that it conducted an independent review of the magistrate judge's

findings. None of Sattiewhite's objections to the magistrate

judge's report, moreover, was based on credibility determinations

or findings of relevant disputed facts. Any error, therefore,

would have been harmless because all of the issues are fully

reviewable by this court. G arcia v. Boldin

, 691 F.2d 1172, 1180

(5th Cir. 1982). This allegation of error, therefore, is rejected.

Second, Sattiewhite argues that h is sentencing jury was

precluded from considering constitutionally relevant mitigating

evidence because the jury had no adequate vehicle for expressing a

reasoned moral response to this evidence. We find that this

contention is without merit. In order for evidence to be

constitutionally mitigating, a defendant must demonstrate that his

c rime was somehow attributable to the particular mitigating

evidence presented. G raham v. Collins

, 950 F.2d 1009, 1025-30 (5th

Cir. 1992)(en banc), aff'd

, 113 S.Ct. 892 (1993). Sattiewhite-6-

presented evidence that he was afflicted with certain personality

disorders at the time of the murder, but did not at tribute his

crime to these disorders. Because Sattiewhite did not attempt to

rely on the evidence as constitutionally mitigating at trial, he is

not entitled to recharacterize the evidence in this habeas

proceeding. Delo v. Lashley , 113 S.Ct. 1222, 1225 (1994); Lackey

v. Scott

, 28 F.3d 486, 490 (5th Cir. 1994). This contention,

therefore, is meritless.

Sattiewhite next argues that he was denied effective

assistance of counsel under the Sixth, Eighth, and Fourteenth

Amendments because his counsel did no t adequately present

mitigating evidence and failed to pursue an insanity defense. To

prevail on this claim, Sattiewhit e must demonstrate both (1)

deficient performance by counsel and (2) r e sulting prejudice.

Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984). Sattiewhite must prove these elements by a preponderance

of the evidence. M artin v. Maggio

, 711 F.2d 1273 (5th Cir. 1983).

We evaluate attorney performance from the attorney's perspective at

t he time of the trial. E llis v. Lynaugh

, 873 F.2d 830, 839 (5th

Cir. 1989). To satisfy the prejudice prong, Sattiewhite must show

a reasonable probability that, absent counsel's unprofessional

errors, the result of th e proceeding would have been different.

Strickland

, 466 U.S. at 694 , 104 S.Ct. at 2068. A reasonable

probability is one sufficient to undermine confidence in the

outcome. Id.-7-

Sattiewhite has failed to shoulder his burden on this claim.

The state hab eas proceeding found that his trial counsel had

adequately represented him. "The state court's findings are

entit led to a presumption of correctness under 28 U.S.C. §

2254(d)." G arrett v. Col lins , 951 F.2d 57, 59 (5th Cir. 1992).

His trial counsel reasonably investigated his mental condition and

background and abandoned the insanity defense as a matter of trial

strategy. Sattiewhite's counsel hired an independent psychiatrist

to examine him on the issues of sanity and competency. His

counsel, furthermore, interviewed Sattiewhite's family members and

provided these names to the psychiatrist. The conclusions of the

psychiatrists left trial counsel with no basis for pursuing an

insani ty defense because they diagnosed Sattiewhite with mental

disorders, not mental defects, and stated that he was not insane at

the time of the offense or trial. Sattiewhite, therefore, has

failed to demonstrate both deficient performance by co unsel and

resulting prejudice. Accordingly, this claim is denied.

Sattiewhite next argues that under the Eighth and Fourteenth

Amendments that he is presently incompetent to be executed. In

order to be adjudged competent to be executed, the prisoner must

understand (1) the nature of the proceedings against him, (2) that

the State is seeking to execute him, and (3) the reasons the State

is seeking th is penalty. G arrett

, 951 F.2d at 59. Although

Sattiewhite presented evidence regarding his mental s tate at the-8-

sta te habeas proceeding, he offered no evidence relevant to the

Garrett inquiry. We deny this claim.

Sattiewhite contends that the operative terms of the special

issues of the Texas sentencing scheme are unconstitutionally vague.

Specifically, he complains that the terms "deliberately,"

"probability," "criminal acts of violence," "continuing threat,"

and "society" are vague to such a degree that reasonable jurors are

likely to interpret and apply them very differently. He also

a rgues that in the light of Johnson v. Texas

, 113 S.C t. 2658

(1993), that the Texa s sentencing scheme operates as a weighing

scheme, so that this court must ensure that the jurors are

adequately instructed regarding the limitations on the application

of aggravating circumstances. He asserts that these statutory

terms, combined with the court's refusal t o impose a limiting

instruction, did not properly channel the sentencer's discretion.

This argument is without merit. In J ames v. Collins

, 987 F.2d

1116 (5th Cir.), cert. denied

, 114 S.Ct. 30 (1993), we rejected the

argument that these terms are unconstitutionally vague. Moreover,

the Texas sentencing scheme was upheld in J ohnson because the

special issues generally allo w the jury adequately to consider

mitigating evidence. J ohnson

, 113 S.Ct. at 2669. Moreover, the

Johnson Court did not indicate that Texas's scheme is a "weighing"

scheme. I d. at 2670. To the contrary, this contention was clearly

rejected in James

. J ames

, 987 F.2d at 1120. This claim is denied.-9-

Sattiewhite next argues that he was selectively prosecuted for

capital murder. He contends that the District Attorney's office

sought vindication for Sandra Sorrell's murder because on the day

before the murder it had failed to issue a protecti ve order for

Sorrell against Sattiewhite. He also argues that the murder charge

was upgraded because of the perceived "innocence of the victim."

To establish a prima facie case of unconstitutional selective

prosecution, a defendant must show that (1) he has been singled out

for prosecution a lthough others similarly situated who have

committed the same acts generally have not been prosecuted, and (2)

the selectivity is unconstitutionally invidious. U nited States v.

Ramirez

, 765 F.2d 438, 439-40 (5th Cir. 1985), cert. denied sub

nom.

, Perpignand v. United States 474 U.S. 1063 (1986).

The magistrate judge found that these claims were unfounded.

Sattiewhite, furt hermore, is foreclosed from objecting to these

findings because he did not specifically object to any of the

magistrate judge's findings of fact, conclusions o f law, or

analysis on this point. R odriguez v. Bowen

, 857 F.2d 275, 277 (5th

Cir. 1988). Appellate review of the magistrate judge's findings is

foreclosed except in cases of plain e rror or manifest injustice,

id. , neither of which we find in this case.

Sattiewhite contends that the jurors were unconstitutionally

given irrelevant, inaccurate, and misleading information concerning

the effect of their failure to agree on the special issues. There

is no doubt that the trial court misstated Texas law when, during2 Artic le 37.071(g) of the Texas Code of Criminal Procedure

provides that neither the court nor any of the attorneys may inform

a "juror or prospective juror of the effect of failure of the jury

to agree on an issue submitted under this article." Furthermore,

article 37.071(e) provides that the jury's failure to agree on an

issue requires a life sentence , not a mistrial.

-10- voir dire, it stated that if the jury could not reach agreement on

the special issues, a mistrial would be declared. 2 The Supreme

Court has reminded us, however, that "the fact that the instruction

was allegedly incorrect under state law is not a basis for habeas

relief." Estelle v. McGuire , 502 U.S. 62, 71-72, 112 S.Ct. 475,

482 (1991). Moreover, "the only question for us is 'whether the

ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process.'" I d. (quoting Cupp v.

Naughten

, 414 U.S. 141, 147 (1973)). T he misstatement in this

case, made during voir dire, does not rise to the level of a

constitutional violation. This argument, therefore, is without

merit.

Sattiewhite next argues that the jury instructions precluded

the jurors fr om giving mitigating effect to his evidence, in

violation of his rights under the Sixth, Eighth, and Fourteenth

Amendments. Specifically, he finds fault with the manner in which

the trial court instructed the jurors to answer the special issues.

The trial court instructed the jurors that "[i]f ten or more jurors

vote "no" as to any special issue, then the answer of the jury is

"no" regarding that special issue." Sattiewhite contends that this

instruction on answering the special issues with "yes" or "no"-11-

precluded jurors from registering dissent against the death penalty

because any single juror who believed that Sattiewhite merited a

life sentence could not answer "no" to a special issue.

Sattiewhite fails to point out, however, that the court

clarified its instructions by stating that if less than twelve

jurors voted "yes" or less than ten jurors voted "no" to a special

issue, there would be no answer to that special issue. The special

issues, therefore, gave each of the jurors an opportunity to give

effect to Sattiewhite's evidence and, therefore, register a dissent

against the death penalty. Accordingly, Sattiewhite cannot

demonstrate a reasonable likelihood that the jury interpreted the

instruction in a manner that precluded consideration of mitigating

evidence. S ee Boyde v. California

, 494 U.S. 370, 380-81, 110 S.Ct.

1190, 1198 (1990). This claim, therefore, is without merit.

Sattiewhite contends that the Texas special issues are

unconstitutionally mandatory, thereby denying him individualized

sentencing consideration because the death sentence was mandatory

when the jury affirmatively answered the two special issues. He

argues that the special issue questions failed to allow full jury

consideration of his particularized mitigating evidence, thereby

depriving him of an individualized sentencing proceeding.

Specifically, he contends that the jury could not give effect to

his evidence of mental illness, intoxication, emotional

instability, drug abuse, troubled childhood, remorse, and love of

family.-12-

The state argues that to the extent that Sa ttiewhite claims

that the Texas capital sentencing scheme is facially

unconstitution al, this claim is squarely foreclosed by J urek v.

Texas , 428 U.S. 262, 267-69, 96 S.Ct. 2950, 2954-55 (1976). This

argument is correct. Accordingly, this aspect of his claim is

without merit.

Moreover, Texas's second special issue satisfies the Eighth

Amendment because the mitigating value of constitutionally relevant

evidence, as actually proffered at trial, was within "the effective

r each" of the jury because they could not have reas onably

considered themselves foreclosed from considering the mitigating

evidence. J ohnson v. Texas

, 113 S.Ct. 2658, 2669-70. Because this

mitigating evidence was within the effective reach of the jury

under the Texas special issues, this claim is without merit.

Sattiewhite next attacks his sentence by arguing that the

trial court never informed the jury that it was required by law to

consider his mitigating evidence, citing Blystone v. Pennsylvania

,

494 U.S. 299, 110 S.Ct. 1078 (1990). He says that a trial court's

f ailure to give this instruction on mitigating evidence fails to

satisfy the Eighth Amendment. Id. ; Spivey v. Zant , 661 F.2d 464,

474 (5th Cir. 1981), cert. denied , 458 U.S. 1111 (1982).

Sattiewhite misreads both Blystone and Spivey

. B lystone does

not require that the trial court give a special instruction on

mitigating evidence. B lystone

, 110 S.Ct. at 1083-84. Instead, it

states that the "requirement of i ndividualized sentencing in-13-

capital cases is satisfied by allowing the jury to consider all

relevant mitigating evidence." I d. at 1083. Furthermore, the

court in Spivey specifically recognized that Texas's special issues

allow the jury to consider mitigating evidence without a special

instruction. S pivey

, 661 F.2d at 471 & n.10. Because he could not

demonstrate that a "major mitigating thrust of the evidence

[proffered in mitigation of punishment] is substantially beyond the

scope of any issues," he is not entitled to additional instructions

on mitigating evidence. G raham v. Collins

, 950 F.2d 1009, 1026-27

(5th Cir. 1992). This claim, therefore, is without merit.

Sattiewhite next contends that the struc ture of the special

issues eliminated from the sentencing process both the judge's and

the jury's sense of responsibility for sentencing him, in

contraventi on to C aldwell v. Mississippi

, 472 U.S. 320 (1985).

Accordingly, he argu es, the judge and jury never realized the

gravity of their actions.

This claim is evaluated by determining "whether under all the

fa cts and circumstances, including the entire trial record, the

state has misled the jury regarding its role under state law to

believe that the responsibility for determining the appropriateness

of the defendant's death rests elsewhere." Sawyer v. Butler , 881

F.2d 1273, 1286 (5th Cir. 1989). Sattiewhite made no specific

objections to the magistrate judge's findings on this issue.

Furthermore, the magistrate judge's finding that the state did not

mislead the jury is supported by the record. We find at least five-14-

instances in which the jury was reminded that their decision would

determine the sentence of death or life imprisonment.

Considering the record as a whole, it appears that the jury

could not have been mistaken as to th e importance of its role in

determining Sattiewhite's fate . The jury clearly knew that

although the special issues did not explicitly impose the death

penalty, affirmative answers to the special issues would result in

a death sentence for Sattiewhite. As for the judge, it is

frivolous in the extreme to ar gue that he did not realize his

awesome responsibility in determining Sattiewhite's sentence when

he conducted the entire trial. This claim, therefore, is without

merit.

Finally, Sattiewhite argues that impositi o n of the death

penalty impermissibly violates his fundamen tal right to life as

guaranteed by the Fifth and Fourteenth Amendments . Moreover, he

asserts that this right to life cannot be infringed unless such

i nfringement withstands strict scrutiny. Sattiewhite does not

demonstrate how the death penalty per se violates either the Fifth

o r the Fourteenth Amendments, and neither does he cite any

authority for this proposition. Likewise, the classification of

capital defendants as a suspect class cannot be regarded as a

serious contention. Gray v. Lucas , 677 F.2d 1086, 1104 (5th Cir.

1982), cert. denied

, 461 U.S. 910, 103 S.Ct. 1886 (1983).

Criminal statutes are generally measured by a "rational relation"

standard. A rceneaux v. Treen

, 671 F.2d 128, 131-32 (5th Cir.-15-

1982). Under this standard, the death penalty serves permissible

state goals. This claim, accordingly, is without merit.

IV

For the foregoing reasons, the judgment of the district court

is AFFIRMED. Sattiewhite's stay of execution is VACATED.

AFFIRMED and VACATED.

KING, Circuit Judge, specially concurring:

I concur in the judgment of this court.