IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 94-41265

_______________

HAI HAI VUONG,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________ August 16, 1995

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Hai Hai Vuong challenges the dismissal of his petition for a

writ of habeas corpus contesting his death sentence under 28 U.S.C.

§ 2254. Concluding that the district court did not err, we affirm.

I.

The facts are set forth in Vuong v. State

, 830 S.W.2d 929, 933

(Tex. Crim. App.), cert. denied , 113 S. Ct. 595 (1992), and Vuong

v. Collins , 867 F. Supp. 1268, 1271 (E.D. Tex. 1994), and are now

recounted here. On December 7, 1986, Vuong and two friends were1 Petitioner maintains that the rifle was automatic rather than semiautomatic. The weapon has never been recovered.

2 playing pool and drinking beer at the Tam Game Room in Port Arthur,

Texas. Vuong claims that Vietnamese gang members from New Orleans

started to threaten him there. Vuong became angry, left the

establishment, and went home to retrieve a Colt AR-15 or M-16

automatic or semi-automatic 1 .223 caliber rifle.

Vuong returned to the game room with his friend Thien Huu

Nguyen, who was a rmed with a pistol. Vuong fired two shots into

the rear wall or ceiling of the Game Room and told the patrons to

remain as they were. The alleged gang members then exited the

establishment. Vuong proceeded to shoot Nang Pham, who escaped out

the front door, and Luan Mien Do.

Vuong shot and killed Tien Van Nguyen ("Nguyen") and claims

that Nguyen stood up from behind a pool table and was reaching for

a gun when shot. No weapon was found on Nguyen, and the testimony

of witnesses indicated that he stood up and stated "Hai, it's me,"

in Vietnamese before he was shot.

After killing Nguyen, Vuong shot and wounded Binh Nguyen as he

tried to run away, then shot Do a second time. Vuong went to the

doorway that separated the game room from the adjoining cafe, which

was part of the same business establi shment. He walked toward a

table where Hien Quang Tran was seated. Tran stood up, and Vuong

shot him in the chin, killing him. Vuong took a telephone from the

owner of the game room and left.

Vuong fired a total of eleven rounds. Two persons were killed2 At that time, the statute provided that a person is guilty of capital

murder if "he murders more than one person during the same criminal transaction." This provision is now found in § 19.03(a)(7)(A).

3 and three others wounded. Vuong, Thien, and Tuan Van Nguyen left

in a blue Monte Carlo that Tuan Van Nguyen had parked and waiting

in the street. An arrest warrant was issued, but Vuong eluded

police.

II.

In March 1987, a grand jury indicted Vuong for the capital

murder of Hien Quang Tran in the course of committing the murder of

Nguyen, in violation of T EX

. P ENAL C ODE A NN

. § 19.03(a)(6)(A). 2 Vuong

eventually was arrested o n a public intoxication charge in

California in July 1987 and was extradited to Texas.

Vuong gave a statement on August 28, 1987, in which he

admitted to firing several shots in the game room but maintained

that he did not recall hitting anyone. His trial began in May

1988. The jury convicted him of capital murder and answered

affirmatively the special issues set out in T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 37.071, whereupon he was sentenced to death.

The conviction was affirmed on direct review. V uong v. State

,

830 S.W.2d 929 (Tex. Crim. App.), cert. denied

, 113 S. Ct. 595

(1992). After an execution date was set by the state trial court,

Vuong filed a federal habeas petition, alleging one claim. The

district court granted a stay of execution and a motion for

substitution of counsel. Vuong filed an amended petition, alleging

eight errors. The state asserted that Vuong had failed to exhaust4

state remedies, and the petition was dismissed without prejudice.

Vuong filed for state collateral relief and filed motions for

a stay of execution, an evidentiary hearing, and the recusal of the

jud ge who had presided over the trial. The recusal motion was

denied by another judge on April 12, 1993.

The trial judge denied the motion for an evidentiary hearing

and ordered that affidavits be filed by the parties. After that

occurred, the state court entered findings of fact and conclusions

of law recommending that relief be denied. After the Texas Court

of Criminal Appeals a ccepted the trial court's recommendations,

Vuong filed another federal habeas petition.

Vuong again raised eight grounds for relief and asked for a

stay of execution, which was granted. The district court dismissed

the petition and denied the motion for an evidentiary hearing.

Vuong v. Collins

, 867 F. Supp. 1268 (E.D. Tex. 19 94). Vuong now

appeals.

III.

Vuong's first claim is that the jury was unconstitutionally

prevented from adequately considering certain mitigating evidence

at the pu nishment phase of the trial. S ee Penry v. Lynaugh

, 492

U.S. 302, 322-24 (1989). In Texas, the jury must answer three

"special issues" affirmatively before a sentence of death may be

imposed. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071(b). Under Texas

law applicable to Vuong, in a multiple murder case under T EX

. P ENAL

C ODE § 19.03(a)(6), the court was to submit the three special issues3 According to the relevant portion of the indictment:

. . . HAI HAI VUONG and THIEN HUU NGUYEN on or about the 7th day

of December, 1986, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did then and

there intentionally and knowingly cause the death of an individual, HIEN QUANG TRAN, by shooting him with a firearm; and the said

HAI HAI VUONG and THIEN HUU NGUYEN did then and there intentionally and knowingly cause the death of an individual, TIEN VAN

NGUYEN, by shooting him with a firearm, and both of said murders

were committed during the same criminal transaction . . . .

5 only with regard to the "conduct of the defendant in murdering the

deceased individual first named in the indictment." T E X

. C ODE C RIM

.

P ROC

. A NN . art. 37.071(f).

The indictment named Hien Quang Tran first and Nguyen second. 3

As a result, the special issues were submitted as follows:

1. Do you believe beyond a reasonable doubt that

the cond uct of the defendant that caused the death of

Hien Quang Tran was committed deliberately and with the

reasonable expectation that the death of Hien Quang Tran

or another would result? . . .

2. Do you believe beyond a reasonable doubt that

there is a pr obability that the defendant would commit

criminal acts of violence that would constitute a

continuing threat to society?

3. Do you believe beyond a reasonable doubt that

the conduct of the defendant in killing Hien Quang Tran

was unreasonable in response to the provocation, if any, by Hien Quang Tran?

Vuong now maintains that the operation of art icle 37.071(f)

prevented the jury from considering the possible mitigating effects

of the alleged provocation by Nguyen.

Under Texas law that applied at the time of this c ase, in a

capital murder case alleging two or more murders in the same

transaction, the defendant was prosecut ed for the murder of the

victim named first in the indictment while in the course of killing

the other victim, regardless of whether the first-named victim was4 See, e.g.

, Allridge v. Scott , 41 F.3d 213, 223 (5th Cir. 1994)

(father's testimony of petitioner's mental illness), cert. denied , 115 S. Ct.

1959 (1995); Jacobs v. Scott , 31 F.3d 1319, 1326-27 (5th Cir. 1994) (evidence

of non-triggerman status and troubled childhood), cert. denied , 115 S. Ct. 711

(1995); Lackey v. Scott , 28 F.3d 486, 488-90 (5th Cir. 1994) (intoxication at

the time of the offense, history of excessive drinking, low intelligence,

childhood abuse), cert. denied , 115 S. Ct. 743 (1995); Andrews v. Collins , 21

F.3d 612, 629-30 (5th Cir. 1994) (good family relationship and low intelligence), cert. denied , 115 S. Ct. 908 (1995); Madden v. Collins , 18 F.3d 304,

306-08 (5th Cir. 1994) (evidence of "personality avoidance disorder," learning

disability, troubled childhood), cert. denied , 115 S. Ct. 1114 (1995).

5 Penry , 492 U.S. at 313. See, e.g.

, Clark v. Collins , 19 F.3d 959 (5th

Cir.), cert. denied , 115 S. Ct. 432 (1994); Motley v. Collins , 18 F.3d 1223

(5th Cir.), cert. denied , 115 S. Ct. 418 (1994).

6 murdered firs t in time. N arvaiz v. State

, 840 S.W.2d 415, 433

(Tex. Crim. App. 1992), cert. denied

, 113 S. Ct. 1422 (1993). The

state needed to satisfy the three special issues only with respect

to the first-named victim. I d. Consequently, the trial court was

correct to submit the special issues as they were worded.

This court has considered numerous claims by capital petitioners that the Texas special issue system has impermissibly restricted the sentencer's ability to consider relevant mitigating

evidence. 4 Because Vuong's claim is before us on a petition for

federal habeas relief, "we must determine, as a threshold matter,

whether granting him the relief he seeks would create a 'new rule'"

of constitutional law under Teague v. Lane

, 489 U.S. 288, 311

(1989). 5

Under Teague

, "a case announces a new rule when it breaks new

ground or imposes a new obligation on the States or the Federal

Government" or was not " dictated by precedent existing at the time

the defendant's conviction became final." I d. at 301. The T eague

principle seeks to validate "good faith interpretations of existing

precedents made by state courts." B utler v. McKellar

, 494 U.S.7

407, 414 (1990). This maxim applies even if those interpretations

"are shown to be contrary to later decisions." I d. "Thus, unless

reasonable jurists hearing petitioner's claim at the time his

con viction became final 'would have felt compelled by existing

precedent' to rule in his favor, we are barred from doing so now."

Graham v. Collins

, 113 S. Ct. 892, 898 (1993) (quoting S affle v.

Parks , 494 U.S. 484, 488 (1990)).

In order to determine whether Vuong is asking this court to

fashion a new rule, we must ex amine the law pertaining to the

proper treatment of mitigating evidence in Texas at the time that

Vuong's conviction became final. We begin with the instances in

which the Supreme Court has reviewed the question of whether the

Texa s capital punishment scheme adequately allows a jury to

consider relevant mitigating evidence. See Johnson v. Texas , 113

S. Ct. 2658 (1993); Graham ; Penry v. Lynaugh

, 492 U.S. 302 (1989);

Franklin v. Lynaugh

, 487 U.S. 164 (1988); Jurek v. Texas

, 428 U.S.

262 (1976).

In Jurek

, the Court rejected a facial challenge to Texas's

unique three special issues scheme and determined that the

"constitutionality of the Texas procedures turn[ed] on whether the

enumerated questions allow consideration of particularized

mitig ating factors." I d. at 272. After noting that the Texas

Court of Criminal Appeals had indicated that as to the second

special issue it would "allow a defendant to bring to the jury's

attention whatever mitigating circumstances he may be able to

show," id. (plurality opinion), the Court held that the system8

pro moted "the evenhanded, rational and consistent imposition of

death sentences

. . . ." I d. at 276 (plurality opinion). Thus,

art. 37.071 survived the petitioner's constitutional challenge.

In Franklin

, the petitioner contended that the T exas system

was unconstitutional as applied because the jury was unable to

consider his record of good conduct in prison. 487 U.S. at 172

(plurality opinion). Between the time of Jurek and Franklin , the

Court had determined that, as a matter of law, in a c apital case

"'the sentencer . . . [may] not be precluded from considering, as

a mitiga ting factor , any aspect of a defendant's character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.'"

Eddings v. Oklahoma , 455 U.S. 104, 110 (1982) (quoting Lockett v.

Ohio

, 438 U.S. 586, 604 (1978)). The petitioner in F ranklin argued

that the instructions in his case violated this so-called " Lockett

Eddings rule." He w a s not denied the opportunity to present his

mitigating evidence but contended that the special issues did not

give the jury "sufficient opportunity" to give "adequate weight" to

the evidence. 487 U.S. at 172 (plurality opinion).

The Court rejected Franklin's claim. The plurality noted that

while the state may not exclude evidence of a defendant's character, record, or the circumstances of the offense, it may provide

the jury with some "framework for discharging [its] responsibilities." I d. at 179 (plurality opinion). The Court found that "the

jury was completely free to give [the] evidence appropriate weight

in arriving at its answers to the Special Issues." I d. at 1809

(plurality opinion).

In her concurring opinion, Justice O'Connor expre ssed the

following concerns about the Texas system:

Under the sentencing procedure followed in this case the jury could express its views about the appropriate

punishment only by answering the special verdict questions regarding the deliberateness of the murder and the

defendant's future dangerousness. To the extent that the

mitigating evidence introduced by petitioner was relevant

to on e of the special verdict questions, the jury was

free to give effect to that evidence by returning a

negative answer to that question. If, however, petitioner had introduced mitigating evidence about his

background or character or the circumstances of the crime

that was not relevant to the special verdict questions,

or that had relevance to the defendant's moral culpability b eyond the scope of the special verdict questions,

the jury instructions would have provided the jury with

no vehicle for expressing its "reasoned moral response"

to that evi dence. If this were such a case, then we

would have to decide whether the jury's inability to give

effect to that evidence amounted to an Eighth Amendment

violation.

Id. at 185 (O'Connor, J., concurring in the judgment).

The Court found ju st such a situation in P enry

, 492 U.S. at

322-28, in which the Court determined that the Texas system, absent

a special instruction, did not allow the jury properly to consider

Penry's evidence of mental retardation and childhood abuse. I d. at

322-28. The Court reaffirmed the principle, as embodied by L ockett

and Eddings , that "punishment should be directly related to the

personal culpability of the criminal defendant." I d. at 319. The

special issues, according to the Court, did not provide the

sen tencer with "a vehicle for expressing its 'reasoned moral

response'" to the mitigating evidence. Id. at 328.

More specifically, the Court found that, absent a definition

of "deliberately," the jury was not able properly to consider the6 Evidence indicated that Penry's mental state was such that he was

unable to learn from his mistakes. 492 U.S. at 323.

7 In response to Penry , Texas law was changed to provide that juries be

instructed to "consider all evidence admitted at the guilt or innocence stage

and the punishment stage, including evidence of the defendant's background or

character or the circumstances of the offense that militates for or mitigates

against the imposition of the death penalty." T EX. C ODE C RIM. P ROC. A NN. art.

37.071(2)(d) (Vernon Supp. 1995) (eff. Sept. 1, 1991).

8 Because the Penry Court rejected the argument that Teague barred

petitioner's claim, Penry , 492 U.S. at 319, it necessarily did not create a

"new rule." Graham , 113 S. Ct. at 901.

10 evi dence as it bore on Penry's "personal culpability" as encompassed in the first special issue. I d. at 323. On the second

issue, the Cou rt held that the evidence, absent an instruction,

could be a "two-edged sword," both diminishing Penry's blameworthiness for the crime and increasing the probability that he would be

dangerous in the future. 6 I d. at 324. Finally, the Court stated

that a juror who concluded that Penry's mental state made him less

culpable than a normal adult for his actions, still could conclude

that Penry's actions were unreasonable in response to the amount of

provocation by the victim. I d. The solution was "instructions

informing the jury that it could consider and give effect to the

mitigating evidence of Penry's mental retardation and abused

background by declining to impose the death penalty . . . ." Id.

at 328. 7

Following Penry

, as the cases cited previously indicate, this

court has faced a myriad of " Penry " claims. Subsequent to Penry

,

however, we have stated that "while Penry appears to be worded

br oadly, the case has been interpreted narrowly." A llridge

, 41

F.3d at 223. 811

Our narrow interpretation was later approved in Graha m , in

which the Court held that the petitioner's claim was barred by

Teague

. Petitioner had argued that the jury was unable to give

effect to the mitigating evidence of his youth, family background,

and positive character traits. 1 13 S. Ct. at 895. Graham's

conviction became final on September 10, 1984. The Court concluded

that

reasonable jurists in 1984 would have found that, under

our cases, the Texas statute satisfied the commands of

the Eighth Amendment: it permitted petitioner to place

before the jury whatever mitigating evidenc e he could

show, including his age, while fo cusing the jury's

attention upon wh at that evidence revealed about the

defendant's capacity for deliberation and prospects for

rehabilitation.

Id. at 900. Importantly, the Court found that nothing in F ranklin

or Penry undermined this conclusion. Id.

The Court specifically stated that it "did not read Penry as

effecting a sea change in this Court's view of the constitutionality of the former Texas death penalty statute; it does not broadly

suggest the invalidity of the special issues framework." I d. at

901 (footnote omitted). The Court noted that, unlike the situation

in Penry

, the "mitigating evidence was not placed beyond the jury's

eff ective reach." I d. at 902. The Court held that the jury

plainly could have answered "no" to the special issues based upon

mitigating evidence, consistently with its instructions. I d.

Whereas Penry's evidence "compelled" an affirmative answer to the

future dangerousness issue and had some mitigating significance,

"Graham's e vidence quite readily could have supported a negative

answer." Id.12

The Court stated that "neither Penry nor any of its predecessors ' dictates ' the relief that Graham s eeks within the meaning

required by Teague ." I d. Concentrating on the "reasonable

jurists" inquiry, the Court concluded:

We cannot say that all reasonable jurists wou ld have

deemed themselves compelled to accept Graham's claim in

1984. Nor can we say, even with the benefit of the

Court's subsequent decision in Penry

, that reasonable

jurists would be of one mind in ruling on Graham's claim

today. The ruling Graham seeks, therefore, would be a

"new rule" under Teague

.

Id. at 903.

Finally, during the same term as G raham

, the Court decided

Johnson v. Texas

, 113 S. Ct. 2658 (1993). The petitioner presented

the C ourt with a P enry claim similar to the one raised in Graham

but on direct review rather than on habea s. Thus, the Court was

not constrained by Teague

. The defendant in J ohnson

, as the

petitioner in Gra ham had done, contended that the Texas special

issues, absent special instructions, did not allow the jury to give

adequate weight to mitigating evidence of his youth at the time of

the offense. Johnson

, id. at 2661. The Court, however, declined

to take the step that would have amounted to a new rule in Graham

.

Id. at 2668. As this court has indicated, "the Court's analysis of

Johnson's claim speaks directly not only to the scope of Penry but

also to how the 'rule' Johnson requested would be viewed under

Teague ." Motley , 18 F.3d at 1233.

The Johnson Court had no doubt that the petitioner's youth was

a relevant mitigating circumstanc e that should be within the

effective reach of the sentencer. 113 S. Ct. at 2668. The Court13

concluded that "there is ample room in the assessment of future

dangerousness for a juror to take account of the difficulties of

youth as a mitigating force in the sentencing determination." I d.

at 2669. Furthermore, "the fact that a juror might view the

evidence of youth as aggravating, as opposed to mitigating, does

n ot mean that the rule of Lockett is violated." I d. (citing

Graham

, 113 S. Ct. at 901-02). The key is whether the "mitigating

evidence is within 'the effective reach of the sentencer'

. . . ."

Id. Therein was the difference between P enry a nd Johnson : The

j ury "had a meaningful basis to consider the relevant mitigat ing

qualities of petitioner's youth . . . ." Id. As a result, Texas

was not required to give the jury an additional instruction beyond

those given with the special issues. Id. at 2670.

Vuong's conviction became final on the day certiorar i was

denied, November 30, 1992. We must decide whether reasonable

jurists, at that time , would have deemed themselves compelled to

accept Vuong's claim under Penry

. In order to grant relief in this

case, we would be required to ho ld that at the time Vuong's

conviction became final, the Eighth Amendment, in a multiple murder

case in Texas, required that a jury be given a special instruction

so that it could give proper weight to mitigating evidence of

provocation by a victim not named first in the indictment. Under

Graham

, if the ju ry was able to give proper mitigating effect to

the evidence under the instructions as given, such a holding )) that

a special instruction is required )) would constitute a "new rule" of

constitutional law under Teague

.14

As a threshold matter, we note that a jury is required to give

effect only to relevant evidence. As we stated earlier, in Texas

a double murder case is treated as the killing of one victim in the

course of killing another. The special issues need be submitted

only with respect to the first victim named in the indictment.

The initial question is whether provocation on the part of the

second-named victim is relevant mitigating evidence if that victim

was killed first in time. We are not prepared to say that such

evidence, as a matter of law, is not relevant. Certainly,

provocation by one of the victims may be a ci rcumstance of the

offense that could affect culpability. S ee First v. State

, 846

S.W.2d 836, 837-38 (Tex. Crim. App. 1992).

For example, provocation by the fir st victim in time might

have "carried over" in some sense to the second victim if the two

killings occur in close succession. The evidence in such a case

might indicate that the killing of the second victim, first-named,

was not "deliberate" under the first issue. Moreover, the evidence

might indicate that the killing of the second victim is not

indicative of the killer's likelihood to commit crimes in the

future.

Much of Vuong's argument is premised on First v. State

. I n

that case, the court found that the operation of art. 37.071(f)

violated the dictates of Penry

. Vuong now principally relies upon

First in his Penry argument. The facts of First are as follows:

On May 30, 1986, the complainants, Luke Davi s and

Kimberly Holley, spend several hours at a Lubbock tavern.

Later in the evening, appellant [Keith Wayne First] and

Pierce Horton arrived at the tavern and began p laying15

pool with Davis and Holley. At approximately 1:00 a.m.

appellant, Horton, Davis, and Holley left the bar

together. While in the parking lot, Davis and Holley

assaulted appellant and Horton. Davis overpowered

appellant and repeatedly slammed appellant's head into

the sidewalk and into the bumper of a parked automobile.

Testimony as to the number of times appellant's head hit

the car and sidewalk differed, but variou s witnesses

agreed that Davis was in control of the fight. During

the fight, Holley produced a knife and held Horton at bay

by threatening to "cut [Horton's] goddamned guts out" if

Horton attempted to assist appellant. Upon learning of

the fight, the bar's doorman went outside and told the

four to leave. When the fight between appellant and

Davis ended, appellant retrieved a revolver from Horton's

automobile. Appellant fired at and hit a passing

vehicle. Davis and Holley attempted to escape in

Holley's car. Appellant fatally shot Davis as Davis sat

in the passenger seat of the car. Holley, standing on

the driver's side, turned and attempted to flee.

Appellant fired a fatal shot into the back of Holley.

Moments later, police officers arrested Horton and

appellant.

First , 846 S.W.2d at 837-38.

The court found that provocation on the part of Davis, who was

the second-named victim, was a relevant circumstance of the offense

that the jury should have been able to consider as mitigating

evidence. I d. at 840. The c ourt further held that the existing

special issues did not provide an adequate means whereby that

evidence could be considered. I d

. at 842. In rejecting the

state's contention that the punishment charge provided an adequate

means by which the jury could give mitigating effect to the

evidence, the court quoted the charge:

In this case, the defendant, KENNETH WAY NE FIRST,

has proffered the following matte rs as evidence of

mitigating facts or circumstances: (1) voluntary

intoxication at the time of the offense, (2) sexual

molestation of the defendant as a child, (3) lack of

education, (4) the youthful age of the defendant.

Id. at 841. The court concentrated on the fact that the trial16

court presented the jur y with an inclusive list of mitigating

evidence. "It is clear

. . . that the Eighth and Fourteenth

Amendments are violated when the jury's consideration is limited to

an inclusive list of mitigating circumstances." I d. (footnote

omitted).

A majority of the court also concluded that the operation of

art. 37.071(f) it self "precluded the jury's consideration of the

mitigating evidence as it related to the provocation of Davis."

Id. at 840; Id. at 845 (Miller, J., concurring). According to the

concurrence, "by directing the jury's attention to only Holley's

conduct, the charge implicitly encouraged the jury to not consider

the conduct of Holley's accomplice, Davis, in considering whether

or not to assess the death penalty." I d. (Miller, J., concurring).

For two reasons, we conclude that Vuong's claim nevertheless

must fail. First, the facts in Vuong's case, unlike those in

First

, simply do not support a special instruction on the assertion

that provocation by Nguyen affects Vuong's culpability with respect

to the killing of Tran. The evidence indicates that Vuong himself

initiated the violence in the first place by going home, retrieving

a rifle, and returning to the game room. At least two persons were

shot by V uong before the alleged provocation by Nguyen occurred.

There is no testimony, other than Vuong's, to support the claim

that Nguyen was reaching for a gun when he was shot, and no gun was

found at the scene. Petitioner then shot a fourth person and one

of the pr evious victims a second time before turning the gun on

Tran.9 See Madden , 18 F.3d at 307 (in which court found that in contrast to

Madden's case, in Penry "there was a clear nexus between Penry's handicap and

his criminal act"); cf. Earhart v. State , 877 S.W.2d 759 (Tex. Crim. App.)

("To obtain relief under Penry , a defendant must establish a nexus between the

mitigating evidence and the circumstances of the offense which tend to excuse

or explain the commission of the offense, suggesting that the defendant is

less deserving of a death sentence."), cert. denied , 115 S. Ct. 431 (1994).

This point is important, as once the jury had found that both victims were

killed intentionally (thereby rendering the defendant death-eligible), the

court was required to submit the special issues only with respect to the first

victim. Therefore, the fact that provocation by Nguyen might reduce Vuong's

culpability for the killing of Nguyen only would not be relevant unless it

reduced the culpability for the killing of Tran as well.

17 Moreover, Vuong argues at length about the alleged provocation

by Nguyen but fails to indicate how Nguyen's actions reduce his

culpability for the killing of Tran. 9 Thus, reasonable jurists

could have concluded that Vuong's sentence was not constitutionally

infirm.

Even if petitioner had made out a good factual case for

relevant mitigating evidence, the argument fails as a legal matter.

In its answers to the special issues, a Texas jury is able to give

adequate weight to the type of provocation evidence that Vuong

claims he presented.

As an initial matter, we emphasize that the punishment charge

in Vuong's case, unlike First's, did not contain an inclusive list

of mitigating factors for the jury to consider. The charge

instructed the jury to consider "any evidence which

. . . mitigates

against an answer of 'yes' to each issue, including any aspects of

the Defendant's character or record, and any of the circumstances

of the commission of this offense which you find to be mitigating."

Thus, one of the First court's legal rationales, namely that the

jury was given only an inclusive list of mitigating factors, simply

does not apply here.10 We acknowledge that to the extent that the holding in First was

premised on a legal conclusion that art. 37.071(f) was legally infirm and not

just that it was infirm as applied to First's case, our conclusion is at odds

with First . We note, however, that we are not bound by the state court's

pronouncements concerning the operation of Teague and the Penry rule.

11 Cf. Narvaiz , 840 S.W.2d at 433 n.18 ("Although the substantive crime

of capital murder is complete with the commission of the second murder,

whether or not it was done "deliberately," the jury can still consider any

(continued...)

18 Moreover, reasonable jurists looking at Vuong's conviction

would not have felt compelled to conclude that the charge was

deficient solely on account of the operation of art. 37.071(f). 1 0

This court has held that the possible mitigating effect of

provocation by a victim can be adequately accounted for under Penry

in the first two special issues. In W hite v. Collins

, 959 F.2d

1319 (5th Cir.), cert. denied

, 503 U.S. 1001 (1992), the petitioner

had not requested that the third special issue be submitted, and

consequently it was not submitted as part of the punishment charge.

The petitioner, in his habeas proceeding, claimed that the victim

had sprayed him with mace, therefore provoking a violent reaction.

Id. at 1323-24. The court decided that the jury could have

concluded that "absent such provoca tion, [petitioner] would be

nonviolent" and thus could have rendered a negative answer to the

future dangerousness inquiry. Id. at 1324.

This reasoning of White is also applicable here, where it is

not the provocation of the victim with respect to whom the special

issues were submitted that is at issue, but provocation by another

victim. If, as Vuong claims, Nguyen provoked a violent response

spilling over to the second victim, the jury could have concluded

that Vuong did not pose a danger in the future. 1111 (...continued)

lack of deliberation in the second murder in its consideration of the second

punishment issue.").

19 In response to White's claim that he accidentally or by reflex

action discharged the gun bec ause of the effect of the mace, the

court determined that the jury might have answered "no" to the

delib erateness inquiry of the first punishment phase. I d.

Similarly, Vuong's jury could have determined that any provocation

by Nguyen reduced the probability that the killing of Tran was

"deliberate" and, as a result, could have returned a negative

answer to the first special issue. S ee Heckert v. S tate , 612

S.W.2d 549 (Tex. Crim. App. 1981) (holding that "deliberately" and

"intentionally" are not linguistic equivalents that would ren der

art. 37.071 a nullity).

The court also found that the jury could have given effect to

White's evidence at the guilt phase by determining "that White had

no intent to kill." W hite

, 959 F.2d at 1324. The same is true in

our case. The jury was, in fact, given a self-defense instruction

and could have determined that Nguyen was not killed intentionally.

If so, then V uong would not have been eligible for the death

penalty. Accordingly, as reasonable jurists would not have felt

that relief to Vuong was compelled by P enry , we must reject his

claim in accordance with Teague

.

IV.

Vuong's final two claims arise out of events that occurred

during the deliberations at the punishment stage of the trial.12 Where "the defendant is not actually confronting witnesses or

evidence against him," the right to presence "is protected by the Due Process

Clause." United States v. Gagnon , 470 U.S. 522, 526 (1985); Young v. Herring

, 938 F.2d 543, 557 (5th Cir. 1991), cert. denied , 503 U.S. 940 (1992).

20 While deliberating, the jury submitted a note to the court asking,

among other things, about Vuong's eligibility for parole.

According to Texas law, "a jury may not consider the possibility of

parole in its deliberations on punishment." Felder v. State , 758

S.W.2d 760, 762 (Tex. Crim. App. 1988). The court responded with

an explanatory note indicating that a person sentenced to life in

prison could earn good time that would reduce the amount of time he

had to serve. The court also indicated that the jury was not to

consider parole when determining the sentence.

Vuong now alleges two errors, the first of which is that the

court communicated with the jury in response to the note without

consulting with the defense attorneys. Vuong claims that this ex

parte contact violated his Sixth Amendment and Due Process rights. 12

Vuong asserts that the federal district court erred in affording a

presumption of correctness, and thereby denying a n evidentiary

hearing on this issue, to the state court's collateral review

finding that there had not been an ex parte communication regarding

parole between the trial judge and the jury. Vuong now requests a

federal evidentiary hearing on this issue. In the event that this

court denies the hearing and upholds the presumption, Vuong asserts

that his trial counsel rendered ineffective assistance by failing

to object to the communication to the jury.13 The statute states that the presumption of factual correctness shall

not apply where "the factfinding procedure employed by the State court was not

adequate to afford a full and fair hearing."

21 A.

Vuong initially raised his Sixth Amendment claim at his state

habeas proceeding. Prior to the resolution of his claims, Vuong

asked that the trial judge be recused from the state collateral

review proceeding because he had presided over the original trial.

After a live hearing conducted by another judge, the motion to

recuse was denied.

The trial judge then denied Vuong's motion for an evidentiary

hearing and ordered the parties to submit affidavits addressing the

relevant issues. Based upon the affidavits of the lead defense

counsel, Jim Delee, and the lead prosecutor, Paul McWilliams, and

relying upon his personal recollections, the judge concluded that

the petitioner had not shown that an ex parte communication in fact

had occurred.

Federal habeas cour ts accord state findings of fact a

presumption of correctness, provided the factfinding procedures

employed were "adequate." 28 U.S.C. § 2254(d)(2). 1 3 This court has

indicated that "it is clear that § 2254 (d) does not preclude a

federal court from presuming the correctness of factfindings made

from a paper record." M ay v. Collins

, 955 F.2d 299, 312 (5th

Cir.), ce rt. denied , 504 U.S. 901 (1992). As long as the habeas

applicant and the state are parties to the proceeding and the state

court evidences its determination with a "'a written finding,

written opinion, or other reliable and adequate indic ia,'" a14 Section 2254(d)(3) provides that the presumption shall not apply

where "the material facts were not adequately developed at the State court

hearing . . . ."

22 hearing has t aken place. S ummer v. Mata

, 449 U.S. 539, 546-47

(1981) (quoting § 2254(d)).

In order to determine whether the requirements of § 2254(d)(2)

have been met by a paper hearing, "it is necessary to examine in

each case whether a paper hearing is appropriate to the resolution

of the factual disputes underlying the petitioner's claim." May

,

955 F.2d at 312. Vuong asserts that it was improper for the trial

judge to rely upon personal recollections to resolve his state

habeas claims. Therefore, Vuong contends, under § 2254(d)(2) and

the related provision in § 2254(d)(3), 1 4 that the trial judge's

findings on this issue are not entitled to the presumption of

correctness that they were accorded by the federal district court.

See Vuong , 867 F. Supp. at 1274-75.

We find Vuong's contention to be without merit. Under Texas

law, judges may use, among other things, "personal recollection" to

resolve any unresolved facts raised by a state habeas petitioner.

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 11.07(2)(d). In M ay

, the state judge

made a decision, based upon affidavits and his own fi rsthand

k nowledge of the trial, constituting a credibility determination

that was accorded a presumption of correctness. 955 F.2d at 314-

15; see also Sawyers v. Colli ns , 986 F.2d 1493, 1505 (5th Cir.

1993) (state habeas judge in a position to assess credibility of

competing affiants), cert. denied , 113 S. Ct. 2405 (1993).

In fact, this court has found that a state habeas judge who15 This fact distinguishes May from the case Vuong cites in support of

his claim, Nethery v. Collins , 993 F.2d 1154 (5th Cir. 1993), cert. denied

, 114 S. Ct. 1416 (1994). In Nethery , the court determined that the state

habeas findings, made following a paper hearing, were not entitled to a

presumption of correctness. At issue was the alleged bias of the state trial

judge. The court noted that "unlike the petitioner[] in . . . May , Nethery's

petition was not considered by the same judge who had presided over his trial;

thus, there was never a meaningful opportunity for the court to assess the

credibility of the conflicting affiants." Id. at 1157 n.8.

16 Section 2254(d)(8) states that the presumption of correctness does

not apply if

(continued...)

23 also conducted the trial is "in a different and better position to

make determinations regarding the facts and circumstances surrounding that trial than other courts on direct or collateral review."

Buxton v. Lynaugh

, 879 F.2d 140, 146 (5th Cir. 1989), cert. denied

,

497 U.S. 1031 (1990). Thus, the fact that the judge has a personal

recollection of the proceeding actually contributes to the adequacy

of a paper hearing rather than detracting from it. 15

Vuong argues that a distinction may be drawn between cases in

which a judge is making credibility determinations, as in May

, and

a case in which the judge is making a factual finding directly

related to his own actions. We find Vuong's distinction unpersuasive. He points this court to no authority that indicates that a

state trial judge may not use personal recollection to resolve

factual disputes, as Texas law allows, even with respect to his own

conduct. Judges are repeatedly asked and trusted to examine their

own rulings, for example on a motion for rehearing or reconsideration.

Vuong also co ntends that the evidence that the state judge

relied upon was insufficient to be presumed correct on the issue of

whether an ex parte communication had taken place. 16 The affidavit16 (...continued)

. . . that part of the record of the State court proceeding in

which the determination of such factual issue was made pertinent

to a determination of the sufficiency of the evidence to support

such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the

record as a whole concludes that such factual determination is not

fairly supported by the record.

24 of Warren Clark, a member of the defense team, stated that he could

not recall seeing the judge's communique to the jury on the law of

parole. McWilliams, the prosecutor, stated that he felt "certain

that all aspects of the Court's response [to the jury note]

including the parole response were discussed with defense counsel."

DeLee, the other defense attorney, did not recall seeing the note

asking about parole information, nor did he recall the court's

response, though he attributed this to the time lapse between the

trial and the affidavit. He also stated that he had "never known

of any t ime that this court answered a note without review by

attorneys."

The trial judge supplemented this record information with his

own recollection and determined that he had consulted with the

attorneys on the question. The record information was certainly

sufficient to sup port the finding of consultation when taken in

combination with the judge's recollection.

B.

In the alternative, Vuong contends that his attorneys rendered

ineffective assistance of counsel by not objecting to the submission of t he note to the jury. S ee Strickland v. Washington

, 466

U.S. 668 (1984). Under Washington , Vuong must establish that his17 Vuong also would have to establish that he was prejudiced by any

alleged unconstitutional ex parte communication between the judge and the

jury. See Young , 938 F.2d at 557.

25 attorneys acted objectively unreasonably in failing to object and

that he was prejudiced by the failure to object. I d. at 687. 17

Specifically, counsel's performance must be deficient under

"prevailing professional norms." I d. at 690. Moreover, Vuong must

establish more than that the outcome of his proceeding would have

been different but for counsel's alleged errors. He must show that

"the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell , 113 S. Ct. 838, 842 (1993).

Because we find that Vuong has failed to establish the

requisite prejudice, we need not examine the reasonableness prong.

Vuong argues that had his attorne ys objected, the instruction on

parol e would not have been submitted to the jury. Vuong, therefore, must prove that the instruction on parole was prejudicial as

defined by Fretwell

.

As we have noted, a jury may not consider parole possibilities

when rendering its punishment decision. Vuong has not proven that

the jury did take parole pos sibilities into account. Moreover,

there is no dispute that the judge informed the jury that it was

not to consider parole. Such limiting instructions generally are

sufficient, as juries are presumed to follow their instructions.

See Zafiro v. United States , 113 S. Ct. 933, 939 (1993).

The judgment is AFFIRMED.