IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 91-1354

_____________________________

CLIFTON CHARLES RUSSELL,

Petitioner-Appellant,

versus

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________

(August 13, 1993)

BEFORE KING, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

In this petition for writ of habeas corpus pursuant to 28

U.S.C. §§ 2241, 2245, Petitioner-Appellant Clifton Charles Russell

appeals the district court's denial of his habeas petition. On

appeal, Russell challenges the constitutionality of his sentencing

proceeding which culminated in imposition of the d eath penalty.

After careful considerat ion of the issues raised by Russell, we

discern no reversible error and affirm.

I

FACTS AND PROCEEDINGS

R ussell was convicted of the capital murder of Hubert Otha

Tobey, ki lled in the course of a robbery. After Russell and a2

com panion robbed Tobey of his money and his automobile, Russell

struck him over the head with a large piece of concrete and

inflicted numerous knife wounds as well, including one to the

jugular vein. Russell and two other men, Michael Wicker and

William Battee, Jr. subsequently were arrested outside a mall for

public intoxication. Police traced the car and connected it to

Tobey, whose body had been discovere d by then. The police then

seized Battee's tennis shoes and Russell's pants, underwear, shirt,

and shoes, all of which had blood on them. The car's interior also

contained blood stains.

Russell was tried and convicted for capi tal murder. During

the s entencing phase of the trial, the state introduced evidence

regarding Russell's poor reputation in the community, his tendency

towards violence making him dangerous to society, and opinion

testimony suggesting that he was not a likely candidate for

rehabilitation.

In response, Russell presented five witnesses, fou r of whom

were members of various church organizations that opposed the death

penalty per se. In addition, Russell's mother, Jo Ann Lacy,

testified to Russell's troubled childhood and incidents of violence

against him. Specifically, she recounted an incident during which

Russell's stepfather beat him severely with a bas eball bat in

response to Russell's allegations that the shooting of his mother

nine months earlier by his stepfather had not been accidental.

Russell required surgery to mend his broken facial bones. Mrs.

Lacy also testified that Russell did not meet his biological father1 492 U.S. 302 (1989).

3

until he was seven and never had a real father figure. Finally,

she stated that Russell had suffered as a child bec ause of his

mixed racial parentage.

Despi te the testimony of Mrs. Lacy, the jury affirmatively

answered the first two special issues submitted pursuant to Texas

law: whether the defendant acted deliberately, and whether he posed

a future danger to the community. Accordingly, the judge sentenced

Russell to death. Russell's conviction and sentence were

automat ically appealed to the Texas Court of Criminal Appeals,

which affirmed the conviction and sentence. Russell next pursued

his state habeas remedy, which was denied. Finally, Russell filed

a petition for writ of habeas corpus in the United States District

Court for the Northern District of Texas and received an

evidentiary hearing. Russell's proceedings were stayed, however,

pending the Supreme Court's consideration of Penry v. Lynaugh

. 1

This stay was eventua lly lifted and the magistrate judge entered

his findings, conclusions, and recommendation, followed by

supplemental findings. The district court adopted the report,

dismissing the petition and withdrawing the stay of execution.

Russell timely appealed.

II

ANALYSIS

A. Standard of Review

"In considering a federal habeas corpus petition presented by

a petitioner in state custody, federal courts must accord a2 Barnard v. Collins , 958 F.2d 634, 636 (5th Cir.

1992)(citations omitted); see 28 U.S.C. § 2254(d).

3 Penry , 492 U.S. at 319.

4 893 F.2d 683 (5th Cir. 1990).

4 presumption of correctness to any state court factual findings. .

. . We review the district court's findings of fact for clear

error, but decide any issues of law de novo." 2 Evaluation of a

petitioner's constitutional challenge to the Texas special issues

as applied to him is, of course, an issue of law.

B. Penry Claim

In his first challenge to the sentencing proceedings, Russell

relies on the Supreme Court's decision in Penry

. In that case, the

Court ruled that the Texa s special interrogatories did not allow

the jury to consider relevant mitigating evidence of mental

retardation and childhood abuse and therefore failed to give an

"individual assessment of the appropriateness of the death

penalty." 3 P enry

, Russell claims, dictates that the district court

erred in not granting a special instruction for his mitigating

evidence of his youth and troubled childhood.

The state insists, to the contrary, that Russell's claim must

fail because Penry clearly s tates that a special instruction is

required " upon request

. " Yet, the state urges, Russell never

sought a special instruction, and therefore he cannot now complain

of the district court's error. This argument ignores our holding

in Mayo v. Lynaugh

, 4 in which we explained that P enry provides

little support for the proposition that a def endant must5 Id. at 689.

6 Id. (citations omitted).

7 Id. at 690 (citing Fierro v. Lynaugh , 879 F.2d 1276, 1281-

82 (5th Cir. 1989)).

8 Selvage v. Collins , 897 F.2d 745, 745 (5th Cir. 1990).

9 Selvage v. Collins , 816 S.W.2d 390, 392 (Tex. Crim. App.

1991)(quoting Black v. State , 816 S.W.2d 350, 374 (Tex. Crim.

App. 1991)).

5 contemporaneously object to or request additional jury

i nstructions. 5 "Although the Court's description of the rule

sought by Penry involved the request for jury instructions,

discussion of the important limitations to the h olding left

unmenti oned the role of the objections or requests for

instructions, and several statements of the holding l ikewise

omitted any such qualification." 6

The opinion in Mayo also noted, however, that this did not

preclude the failure to object or request additional instructions

from operating as a p rocedural bar under state law. 7 Since the

decision in Mayo

, however, we have certified to the Texas Court of

Criminal Appeals the question "w hether [a] petitioner['s] . . .

claim under Penry v. Lynaugh

. . . is presently procedurally barred

under Texas law." 8 The court answered the question in the

negative, holding that failure to object contemporaneously in prePenry cases does not create a state procedural bar as the decision

in Penry "`constituted a substantial change in the law

. . . and

there being abundant Texas precedent demonstrating that the holding

amounts to a right not previously recognized.'" 910 428 U.S. 262 (1976).

11 Id. at 272.

12 Penry , 492 U.S. at 319 (quoting California v. Brown , 479

U.S. 538, 545 (1987)(emphasis in the original)).

13 Id.

6 In any event, the state does not argue that Russell's claim is

procedurally barred under state law

, but insists that it is barred

under Penry , which the state interprets erroneously as requiring

a request for instructions. Based on M ayo

, we reject the

government's claim that Penry imposes a procedural bar when a prePenry defendant fails to request a specialized instruction.

As Russell is not procedurally barred from asserting the

alleged error, we proceed to the merits of his Penry claim. In that

case, the Supreme Court reiterated its holding in Jurek v. Texas 10

that the constitutionality of the Texas statute "turns on whether

the enumerated questions allow consideration of particularized

mitigating factors." 11 Consideration of relevant mitigating

evidence is required because "`the sentence imposed at the penalty

stage should reflect a reasoned moral response to the defendant's

background, character, and crime.'" 12 Therefore, the sentencer must

"make an individualiz ed assessment of the appropriateness of the

death penalty" and treat the defendant as a "`uniquely individual

human bein[g].'" 13 In making this individualized assessment, the

sentencer must consider evidence about the defendant's background

and character "`because of the belief, long held by this society,

that defendants who commit criminal acts that are attributable to14 Id.

15 Franklin v. Lynaugh , 487 U.S. 164 (1988)(plurality

opinion); Jurek , 428 U.S. at 262.

16 Graham

v. Collins , 506 U.S. ___, 113 S.Ct. 892, 122 L.

Ed. 2d 260 (1993); Johnson v. Texas , 61 U.S.L.W. 4738 (U.S. June

24, 1993)(No. 92-5653); Graham v. Collins , 950 F.2d 1009 (5th

Cir. 1992)(en banc).

17 See, e.g.

, Johnson , 61 U.S.L.W. 4738.

18 61 U.S.L.W. 4738.

7 a disadvantaged background, or to emotional and mental pr oblems,

may be less culpab le than defendants who have no such excuse.'" 1 4

Penry stands apart from the cases that preceded 15 and followed

it 16 because of its ultimate conclusion: the Texas special issues

did not give effect to petitioner's compelling evidence of mental

retardation and abused childhood tha t mitigated his moral

culpability for his crime. P enry did not invalidate the Texas

sentencing scheme, and subsequent Supreme Court cases have refused

to extend Penry to cover less serious mitigating evidence. 17

Russell points to three types of mitigating evidence in

suppo rt of his P enry claim: (1) his youth (he was age 18 at the

time of the homicide); (2) his troubled childhood; and (3) a

beating he suffered in his late teens at the hands of his stepfather. We address each type of evidence in turn.

1. In J ohnson v. Texas

, 18 the Su preme Court made clear that

the mitigating factor of a defendant's age is within the "effective

re ach" of the second special issue. Thus, such evidence is not19 Although in Graham , 113 S. Ct. at 892, the Supreme Court

held that a habeas petitioner's Penry -type claim based on his

youth was barred under the non-retroactivity doctrine announced

by the Court in Teague v. Lane , 489 U.S. 288 (1989), the Court

has subsequently held, in a direct appeal case, in which Teague

was not applicable, that such a claim has no merit. See Johnson

, 61 U.S.L.W. 4738. Thus, we see little need to invoke the Teague

doctrine when the merits of a "new rule" have been reached and

squarely rejected by the Court.

20 489 U.S. at 288.

21 113 S. Ct. at 892.

22 See Graham , 113 S. Ct. at 902; but see id. at 917, 920

n.2 (Souter, J., joined by Blackmun, Stevens & O'Connor,

dissenting).

23 The record is not clear whether Russell was 17 or 18.

8 problematic under Penry

. 19

2. Russell's argument that his jury was unable to give proper

mitigating weight to evidence of his troubled childhood is barred

under the non-retroactivity doctrine announced by the Supreme Court

in Teague v. Lane

. 20 In G raham v. Collins

, 21 the Supreme Court was

presented with an essentially identical claimraised by a habeas

petitioner--a Penry -type claim based on evidence of a non-abusive

but turbulent childhood--and held that the petitione r 's claim

proposed a "new rule" under Teague

. 22 R ussell has presented no

evidence that his troubled childhood rose to the required level of

abusiveness.

3. The final type of evidence that Russell offered during the

punishment phase described a single episode of violence SQ a severe

beating in th e face with a baseball bat by a stepfather who then

attempted unsuccessfully to shoot Russell. Both incidents occurred

on the same day when Russ ell was in his late teens. 2 3 Russell24 See Graham , 113 S. Ct. at 902.

25 Penry , 492 U.S. at 328.

9 attempts to characterize this occurrence as "child abuse" similar

t o the type introduced by the capital defendant in P enry

. We

disagree. Russell's beating occurred when he was in his late

teens, possibly when he was legally an adult. But child-abuse, as

it is generally understood, occurs when a juvenile is of such

tender years that a violent beating SQ or, more commonly, repeated

beatings SQ

by an adult would have the tendency to affect the child's

moral capacity by predisposing himor her toward committing

violence. As the evidence here is significantly distinguishable

from that offered in Penry

, the Supreme Court's holding in Penry

regarding mitigating evidence of child abuse is not implicated.

M ore to the point, whether evidence of the violence inflicted

on Russell by his stepfather was in the "effective reach" of jurors

under the special issues is not relevant; 24 the Eighth Amendment is

not implicated in the first place. The Supreme Court has

repea tedly held that there are three basic categories of

constitutionally relevant mitigating evidence--that which is

relevant to a defendant's "backg round," "character," or the

"circumstances of the crime." 25 Russell's evidence of the violence

inflicted by his father does not fall under any one of these three

rubrics. Russell necessarily argues that his evidence falls under

the "background" rubric. We disagree.

Under precedent in this circuit, evidence of a defendant's

background is constitutionally relevant mitigating evidence only if26 Graham , 950 F.2d at 1033 (citing Penry , 492 U.S. at 319).

27 Barnard , 958 F.2d at 638 (quoting Graham , 950 F.2d at

1033).

28 As noted, Russell's evidence of a troubled childhood did

not include any evidence that he was physically abused. Rather,

according to the evidence offered during the punishment phase,

Russell never suffered any abuse until his late teens.

29 Cf. Barnard , 958 F.2d at 638 (holding that a single headbeating suffered by an adult capital defendant, with no other

evidence of any adverse effects, was not constitutionally

sufficient to support a Penry claim).

30 See Penry , 492 U.S. at 322; see also Santosky v. Kramer

, 455 U.S. 745, 789 (1982) (Rehnquist, J., dissenting) ("It

10 the crime committed by the defendant is in some sense

"attributable" to that background. 26 While "attribution" does not

r equire a precise nexus between such background evidence and the

crime, at a minimum the evidence must permit a rati onal jury to

"infer th at the crime is attributable," at least in part, to the

defendant's background. 27 Albeit a close call, the evidence of the

isolated episode of violence inflicted by Russell's stepfather does

not permit such an inference. As noted, that incident did not

occur during Russell's youth and was not indicative of a pattern or

history of child abuse--at least according to the evidence offered

during the punishment phase of Russell's trial. 2 8 Neither did

Russell offer any evidence that the act of violence left him

mentally or emotionally impaired in a manner that would permit a

rational jury to infer that this single in cident somehow made

Russell more predisposed to commit a murder. 29 While, as a general

proposition, a rational jury may infer that child abuse renders one

less morally culpable for a violent crime, 30 the same cannot be saidrequires no citation of authority to assert that children who are

abused in their youth generally face extraordinary problems

developing into responsible, productive citizens.")

31 Penry , 492 U.S. at 322.

11 for a single episode of physical abuse inflicted upon an adult.

Thus, we reject Russell's Penry claim predicated on this evidence.

In sum, we conclude that there was no Eighth Amendment

violation in this case. First, Russell's age at the time of the

crime was cognizable under the second special issue. Second, his

Penry -type claim based on mitigating evidence troubled childhood is

barred under the Teague doctrine. Finally, evidence of a single

episode of severe violence inflicted by an adult on an adult,

without more, doe s not qualify as constitutionally relevant

mitigating evidence.

B. Undefined use of "deliberately"

Russell again relies on Penry to make his argument that the

state court erred by not defining the word "deliberately" in the

first special issue, which asks whether the defendant so acted.

Russell recites the Court's reasoning that,

[a]ssuming

. . . that the jurors in this case understood

"deliberately" to mean something more than that Penry was guilty of "intentionally" committing murder, those jurors

may still have been unable to give effect to Penry's

mitigating evidence in answering the first special

issue. 31

This quotation from Penry

, however, rests on the understanding that

the defendant had introduced mitigating evidence beyond the scope

of the special issues. In the instant case, however, we have

concluded that Russell did not present any mitigating evidence that32 Barnard , 958 F.2d at 641.

33 720 S.W.2d 477, 477-81 (Tex. Crim. App. 1986).

34 Id. at 479.

35 Id. at 480-81.

36 391 U.S. 510 (1968).

37 448 U.S. 38 (1980).

38 469 U.S. 412 (1985).

12 was outside of the scope of the first special issue. Thus, the

quoted language from Penry does not advance his claim. 32

C. Exclusion of Juror

Russell next asserts that the district court erred in applying

a presumption of correctness to the state court's finding that

prospective juror Norman B. Scott was properl y excluded from the

jury. The transcript of the voir dire examination of Scott,

reproduced in its entirety in Ex Parte Russell

, 33 demonstrates that

Scott strongly opposed the death penalty, that he "did not believe

in" the death penalty, and that he "could tak e the law and the

evidence, but when it come to imposing the death penalty, I don't

think I could do it." 34 When asked whether there were any

circum stances under which he could assign the death penalty, he

replied possibly so if the murder victim was a small child, but he

was not certain. 35

Applying the test set forth in Wi therspoon v. Illinois

, 36 as

clarified in Adams v. T exas 37 and W ainwright v. Witt

, 38 the Texas

Court of Criminal Appeals held that Scott had properly been

discharged for cause as his testimony indicated that "his views on39 Ex Parte Russell , 720 S.W.2d at 484.

40 In fact, the standard expressed in Wainwright "does not

require that a juror's bias be proved with `unmistakable

clarity.'" Wainwright , 469 U.S. at 426. Rather, the

determination is one best left to the trial judge. Id. at 426.

41 458 U.S. 782 (1982).

13 the death penalty would have prevented or substantially i mpaired

[his] performance as [a] juror[] in accordance with [the]

instructions." 39 The Court of Criminal Appeals' factual finding

of juror bias is entitled to a presumption of correctness under 28

U.S.C. § 2254(d), and we find no reason why this presumption should

not apply. 40

D. Eighth Amendment

Russell's final assertion attacks the constitutional

sufficiency of the evidence at the guilt-innocence stage of trial.

He insists that there was no evidence to prove whether the murder

was committed by him or by his co-defendant Battee (who received a

sixty year sentence following a guilty plea), or by both of them

acting together. Absent this evidence, he insists, imposition of

the death penalty violates his due process rights and the Eighth

Amendment's proscription against cruel and unusual punishment. In

addition, he argues that the disparity between his death sentence

and Battee's sentence of sixty years for the same offense is "an

invidious discrimination" in violation of the Equal Protection

Clause and viol ates the Eighth Amendment as a disproportionate

sentence.

Enmund v. Florida 41 construed the Ei ghth Amendment as42 Id. at 786.

43 741 F.2d 805 (5th Cir. 1984)

14 prohibiting the imposition of the death penalty against " one who

neither took life, attempted to take life, nor intended to take

life." 42 Thus, it is impermissible to sentence a person to death

solely on the basis of the acts of an accomplice; there must be

evidence from which a jury cou ld determine t he petitioner's

individual culpability . The state insists that the first special

instruction, which asks "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" allowed the jury to judge the evidence

submitted against Russell. The evidence submitted to the jury

included Russell's possession of the car and the presence of a

large amount of blood (compatible with the victim's) on Russell's

clothing, c onsistent with someone who had brutally stabbed and

beaten another. In contrast, the state notes that Battee had blood

only on his shoes. Moreover, the state emphasizes that, in

Russell's trial, it did not focus on Battee's intent to commit the

crime, but on Russell's. Thus, the state concludes, a reasonable

jury could have inferred Russell's individual culpability for the

murder; and the jury here had the opportunity to consider that

question under the first special issue. We agree.

In Jones v. Thigpen

, 43 we remanded for resentencing a case in

which the only evidence was involvement in the robbery and blood

splattered shoes. In the instant case, however, there are two44 See Skillern v. Estelle , 720 F.2d 839, 847-48 (5th Cir.

1983)(finding the same jury instruction cured an Enmund defect.).

45 Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978).

15 important distinctions. First, the jury was properly instructed to

consider the individual culpability of the defendant sentenced to

death. 44 Second, the evidence S Q particularly the fact that Russell's

clothes (including his underwear) were soaked with blood SQ is very

probative, as it is consistent with his inflicting the knife wounds

himself. Consequently, we agree with the state's argument that the

jury had the opportunity to consider Russell's individual

involvemen t in the crime and, based on the evidence, reasonably

could have determined his guilt.

Finally, we address Russell's claims involving the disparity

of sentences, which are especially common when one defendant pleads

guilty pursuant to a plea bargain and another defendant is tried by

jury. It is well established that a prosecutor has discretion to

enter into plea bargains with some defendants and not with others.

Absent a showing of vindictiveness or use of an arbitrary

standard SQ

neither of which Russell demonstrates SQ the prosecutor's

decision is not subject to constitutional scrutiny. 45

III

CONCLUSION

In this petition for a writ of habeas corpus, Russell

challenges the imposition of the death penalty without a Penry -type16

instruction. As he fails to demonstrate mitigating evidence

outside the scope of the spec ial issues, he does not qualify for

the additional instruction. Consequently, his second claim S Q that

the absence of a jury instruction defining the word "deliberately"

in the first special issue precluded the jury from considering his

mitigating evidence SQ must also fail. We reject Russell's challenge

to the exclusion of a potential juror on voir dire for his views on

the death penalty. Affording a presumption of correctness to the

state court's finding that this exclusion was correct, we discern

no reason why this presumption should not preclude Russell's claim.

Finally, we hold that the jury pr operly considered Russell's own

indiv idual culpability for the murder, permissibly inferring his

guilt from the evidence presented, and we reject his claim that the

disparity in the sentences imposed on him and on his accomplice

violated the Due Process Clause, the Equal Protec tion Clause, or

the Eighth Amendment.

For the foregoing reasons, the decision of the district court

in refusing to grant the writ of habeas corpus is

AFFIRMED.