*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-10618

__________________

MICHAEL LEE MCBRIDE, also known as

Michael McBride,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(5:95-CV-24-C)

______________________________________________

July 29, 1997

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:*

Michael Lee McBride, a Texas prisoner under a sentence of

death, appeals from the district court's denial of his petition for

writ of habeas corpus. We affirm. 

I. FACTS AND PROCEDURAL HISTORY
 

1 The facts are taken from the opinion on McBride's direct

appeal. McBride v. State, 862 S.W.2d 600, 602 (Tex. Crim. App.

1993), cert. denied, 114 S.Ct. 2765 (1994).

2

On October 18, 1985, James Holzer, Cody Minnick, and Karen

Tidwell, traveled from Fort Worth to Lubbock to visit their friend

Christian Fisher, a student at Texas Tech University.1 McBride had

been dating Fisher for almost a year and was angry that Holzer and

Minnick were staying in Fisher's apartment. On Saturday, October

19, 1985, McBride entered the apartment with a key and attacked

Holzer as he slept on the couch. McBride loudly accused Holzer of

"sleeping with [his] girlfriend," although testimony showed that

during the visit Holzer slept on the couch, Minnick on the floor,

and Tidwell with Fisher in her room. A struggle ensued between

Minnick, Holzer, and McBride, during which a glass bookcase was

broken. The two visitors subdued McBride, but before departing he

picked up a pair of sunglasses, smashed them, and threw them on the

floor. 

McBride did not again contact the group at Fisher’s apartment

until Monday evening, October 21st, when he phoned Fisher. McBride

and Fisher were apparently ending their “very stormy” relationship,

and McBride proposed to pay Fisher some money he owed her. Minnick

testified that, unbeknownst to McBride and Fisher, he picked up a

second telephone and listened in on the conversation. McBride told

Fisher to come to his house "alone" so that he could give her a

painting worth the amount of his debt. He also told Fisher, "[I]f

I can't have you, nobody will." 
3

Fisher's friends expressed concern for her safety, so all four

traveled to McBride’s house in two cars. Fisher and Holzer parked

in front of McBride’s house in Fisher’s car and Minnick and Tidwell

parked several car lengths behind them. When Fisher knocked at the

front door, McBride’s house was very dark and he did not answer.

As Fisher walked back to her car, Minnick saw a person behind his

car and heard a gun cock, and then saw McBride pointing a rifle at

him; the “rifle was a `military version’ .30 caliber M-1 carbine

with a 30 round clip.” McBride ordered Minnick and Tidwell to get

out of the car or he would kill them and he then smashed out

Minnick's driver's side window with the rifle butt. McBride fired

two “warning shots” into the air. He then moved toward Fisher, at

which time Minnick fled to a nearby house for help. 

Several of McBride’s neighbors witnessed the double murder

that occurred moments later. Tidwell testified that McBride and

Fisher seemed to struggle with the rifle in the middle of the

street before McBride shot Fisher. Eyewitnesses testified that

Fisher “taunted” McBride before he shot her, by calling him a “son

a bitch” and telling him to “go ahead” and shoot her. McBride shot

Fisher ten times in her face, chest, abdomen, and thigh and shot

her at close range even after she had fallen in the street. After

shooting Fisher, McBride fired several shots through the windshield

of her car, repeatedly wounding Holzer. McBride smashed out the

driver’s side window and continued to shoot at Holzer, even placing

the rifle against Holzer’s head. McBride shot Holzer nine times;
4

one shot “destroyed his heart and was fatal.” McBride then shot

himself under the chin in an apparent suicide attempt. The bullet

went through his mouth and exited at his forehead. 

When police officers and EMS personnel arrived at the scene,

McBride was crawling on the ground in an apparent effort to

retrieve the rifle, which several people kicked away from him. He

was “violent and aggressive” with the EMS personnel and made

“threatening remarks.” McBride admitted to them that he killed

Fisher and Holzer, "because it was time for them to go." McBride

became more cooperative at the hospital but continued to make

inculpatory statements. Based on this evidence, the jury convicted

Michael Lee McBride of the capital murder of Fisher and Holzer.

TEX. PENAL CODE § 19.03(a)(6). 

At the punishment phase of the trial, several witnesses

testified about McBride’s relationship with Fisher. McBride, who

was 23 years old, had moved from Fort Worth to be with her while

she attended Texas Tech. He found a job as a bartender at a

Lubbock country club. Fisher was apparently preparing to leave

Lubbock because she was unhappy there. Friends and family had

expressed concern about McBride’s “unpredictable” behavior and his

explosive temper. There was testimony suggesting that the two had

been engaged. 

Many witnesses testified to extraneous bad acts that

demonstrated McBride’s temper. For instance, a few months before

the murders, McBride had punched out a man in a bar who asked
5

Fisher for a cigarette and then failed to leave McBride’s and

Fisher’s table. McBride had nearly run over Tidwell in his car in

a parking lot, apparently because Tidwell did not tell him that she

and Fisher had gone to a bar a few nights before. Only sixteen

days before the murders, police officers had been called to

Fisher’s apartment at 4:23 a.m. after Fisher reported that McBride

had assaulted her. On the same day, Fisher had found a teddy bear

with its head ripped off and a note from McBride stuffed inside;

the note contained many profane insults and suggested that he would

see Fisher “in hell.” 

There was testimony that McBride threatened with violence a

Fort Worth police officer who moonlighted as a security guard, when

the latter asked McBride to turn down his stereo. There was

additional testimony that McBride punched several holes in the wall

of his apartment in bursts of anger. These events were deemed

“typical” of McBride’s anger. Several fellow jail inmates

testified that, while McBride was awaiting trial, he had on several

occasions lost his temper, used offensive language, and attacked

people “with little or no provocation.” Three witnesses from Fort

Worth, who attended Texas Tech, testified that McBride’s reputation

for being peaceable and law-abiding was bad. A psychiatrist opined

that McBride would continue to be a threat to society. 

The jury sentenced McBride to death, and the Texas Court of

Criminal Appeals affirmed McBride’s conviction and sentence.

McBride v. State, 862 S.W.2d 600, 602 (Tex. Crim. App. 1993), cert.
 

2 McBride appeared to be referring to the current art. 37.071

§ 2(a), which was codified at art. 37.071(g) at the time of his

trial.

6

denied, 512 U.S. 1246, 114 S.Ct. 2765 (1994). McBride

unsuccessfully sought appointment of counsel to assist him in state

habeas proceedings. McBride then moved for appointment of counsel

in federal district court. A magistrate judge appointed McBride

attorneys, who filed on his behalf a § 2254 habeas petition raising

the following claims: (1) the trial court’s jury instruction on

punishment violated due process because it prevented the jury from

considering “mitigating evidence of provocation” by victim Fisher;

(2) McBride was denied effective assistance of counsel by counsel’s

failure to (a) investigate McBride’s mental health history and (b)

request a competency hearing; (3) the trial court denied him due

process by failing to hold a competency hearing sua sponte; and (4)

TEX. CODE CRIM. PROC. article 37.071(2)2 was unconstitutional in that

it permitted the trial court to withhold from the jury the fact

that a lone dissent would result in a life sentence for the

defendant. The Director filed an answer in which he waived

exhaustion of state remedies regarding the issues raised. 

McBride subsequently moved for leave to file an amended § 2254

petition. His request was granted, and, in his amended petition,

McBride added two more claims: the prosecution had failed to

disclose exculpatory testimony from a radiologist on the issue of

McBride’s future dangerousness, and the prosecutor engaged in

prosecutorial misconduct by threatening witnesses. The Director
7

filed an amended answer and again waived exhaustion as to the

unexhausted issues. 

The magistrate judge held an evidentiary hearing at which

several witnesses testified. Afterwards, the magistrate judge

issued a report recommending that McBride’s petition be dismissed.

McBride filed objections and a motion for leave to file a second

amended habeas petition, which the district court denied. The

district court adopted the magistrate judge’s recommendation and

dismissed McBride’s petition. 

McBride filed a notice of appeal and moved for a certificate

of probable cause (“CPC”) to appeal. The district court issued a

certificate of appealability (“COA”) under the amended Fed. R. App.

P. 22(b) and 28 U.S.C. § 2253, but did not indicate the specific

issues for appeal. 

II. ANALYSIS

A. APPLICABILITY OF AEDPA

As a preliminary matter, this Court has before it two motions

that involve the validity of the COA issued by the district court.

Although this Court previously had determined that the standards of

review set forth in the Antiterrorism and Effective Death Penalty

Act (AEDPA) apply to habeas petitions pending on April 24, 1996,

the date the bill became law, Drinkard v. Johnson, 97 F.3d 751,

764-66 (5th Cir. 1996), cert. denied, __ U.S. __ 117 S.Ct. 114

(1997), after the Supreme Court's intervening decision in Lindh v.

Murphy, No. 96-6298, 1997 (WL 338568) (U.S. June 23, 1997), we were
 

3 In Green, this Court presumed that to the extent that

Drinkard does not conflict with the Supreme Court's decision in

Lindh, it remains good law. Slip op. at 4013 n.2.

8

compelled to conclude that if a habeas petition was filed with the

district court prior to April 24, 1996, the petition must be

reviewed for a CPC under the pre-AEDPA case law. Green v. Johnson,

No. 96-50669, slip op. 4008 (5th Cir. June 27, 1997).

Accordingly, in the instant case, because McBride's petition

was filed prior to the effective date of the AEDPA, we review his

case under the standards in place prior to the enactment of the

AEDPA. Prior to the AEDPA, a CPC, issued by either a district or

circuit judge, was necessary to allow a petitioner to appeal a

district court's denial of a habeas petition. See Barefoot v.

Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983). 

As previously set forth, the court below granted McBride a

COA, rather than a CPC. In Drinkard, we explained that the

standard governing the issuance of a COA requires the same showing

as that for obtaining a CPC.3 97 F.3d at 755-56. Thus, we now

treat the district court's issuance of a COA as an issuance of a

CPC, which renders moot the motions before us involving the

validity of the COA. 

B. CONSTITUTIONALITY OF STATUTE 

McBride contends that former TEX. CODE CRIM. PROC. article

37.071(f) as used at the punishment phase of his trial was

unconstitutional, as applied to his case, in that it prevented the

trial court from submitting to the jury on a special verdict form
9

the question whether victim Christian Fisher had provoked the

crime, simply because Fisher was named second in the indictment

after victim Holzer. He argues that the provision prevented the

jury from hearing mitigating evidence. McBride’s challenge to the

constitutionality of article 37.071(f) derives from Penry v.

Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989). 

The Director argues that the claim is procedurally barred, in

that the state appellate court on direct appeal denied the same

claim because McBride failed to lodge an objection on this basis at

trial. We disagree. 

The procedural default doctrine precludes federal habeas

review when the last reasoned state-court opinion addressing a

claim explicitly rejects it on a state procedural ground. Ylst v.

Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991). When the

state court has relied on an independent and adequate state

procedural rule, federal habeas review is barred unless the

petitioner demonstrates either cause and prejudice or that a

failure to address the claim will result in a fundamental

miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 729-30,

111 S.Ct. 2546 (1991). Procedural default does not bar federal

court review of a federal claim unless the last state court

rendering a judgment in the case has “`clearly and expressly’

indicated that its judgment is independent of federal law, e.g.,

rests on a state procedural bar.” Amos v. Scott, 61 F.3d 333, 338

(5th Cir.) (citing Coleman, 501 U.S. at 263), cert. denied, __
10

U.S.__, 116 S.Ct. 557 (1995).

On direct appeal, McBride argued that former article 37.071(f)

was unconstitutional as applied because it permitted “the State to

prevent the jury from considering the mitigating circumstance of

provocation via the third punishment issue.” McBride, 862 S.W.2d

at 610. At that time, article 37.071(f) provided that if a

defendant was convicted of capital murder under TEX. PENAL CODE §

19.03(a)(6), the court was to submit to the jury three special

issues with regard to the conduct of the defendant in murdering

only the victim named first in the indictment. See id. at 610

n.21. The third special issue is whether, “if raised by the

evidence, . . . the conduct of the defendant in killing the

deceased was unreasonable in response to the provocation, if any,

of the deceased.” Id. at 610 n.22 (citing former article

37.071(b)(3)). The Court of Criminal Appeals observed that “the

jury was not charged on the third punishment issue as to either

victim of [the] offense, and [McBride] lodged no objection to that

aspect of the charge.” Id. at 611. The court found that "the

evidence did not raise the issue of provocation as addressed in the

third punishment issue, and hence [did] not reach the merits of

[McBride’s] [constitutional] contentions" with regard to that

claim. Id. As such, we do not believe the Court of Criminal

Appeals “clearly and expressly” stated that the judgment rested on

a state procedural bar. Thus, we decline to find the claim

procedurally barred. 
11

Relying on Vuong v. Scott, 62 F.3d 673 (5th Cir.), cert.

denied, __ U.S. __, 116 S.Ct. 557 (1995), the Director next argues

that the claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct.

1060 (1989). Although the facts of Vuong are not identical to the

facts of the instant case, we find the analysis controlling.

In Vuong, unlike here, the trial court did submit the third

special issue regarding provocation. In accordance with former

TEX. CODE CRIM. PROC. article 37.071(f), however, the third special

issue dealt only with the provocation of the victim that was named

first in the indictment. Vuong argued that article 37.071(f)

operated to prevent the jury from considering any mitigating effect

of the provocation by the victim that was named second in the

indictment. To determine whether Teague barred review of the

claim, the inquiry was whether reasonable jurists, at the time

Vuong's conviction became final, would have been compelled to grant

relief under Penry v. Lynaugh. Id. at 680. We explained that "if

the jury 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." 62 F.3d at 680. Recognizing our

previous holding that the first two special issues (deliberateness

of killing and future dangerousness of defendant) provide an

adequate vehicle for considering the possible mitigating effect of

provocation evidence, we concluded that the claim must be rejected

under Teague. Id. at 682 (citing White v. Collins, 959 F.2d 1319
 

4 McBride challenges this Court's analysis in White. Because

the Fifth Circuit adheres to the rule that one panel may not

overrule the decision of another, we must reject his challenge.

United States v. Taylor, 933 F.2d 307, 313 (5th Cir.), cert.

denied, 502 U.S. 883, 112 S.Ct. 235 (1991).

 

5 McBride does not specify the evidence he relies on to show

provocation, but simply states that "[t]he record contains evidence

of provocation of McBride by the victim, Christian Fisher,

immediately prior to the homicide . . . ." (citing McBride v.

State). 

12

(5th Cir.), cert. denied, 503 U.S. 1001, 112 S.Ct. 1714 (1992)).4

McBride, whose conviction became final on June 27, 1994, cannot

distinguish his case from Vuong. 

Moreover, even if this claim was not barred by Teague, we

agree with the Court of Criminal Appeals that the evidence did not

raise the issue of provocation. McBride v. State, 862 S.W.2d at

611. The evidence demonstrated that, after McBride ambushed the

victims, Fisher and McBride appeared to struggle with the rifle and

that immediately prior to the shooting, Fisher dared McBride to

shoot her.5 The Court found the victim's "statements insufficient

to constitute `provocation' where appellant creates the criminal

episode as he did here, initiates the violence, and assaults

several unarmed individuals with a deadly weapon." Id. Under

these circumstances, we too are not convinced that McBride would

have been entitled to third special issue had he so requested.

Vuong, 62 F.3d at 681 (evidence that Vuong initiated violence and

shot two persons prior to alleged provocation did not support a

special instruction involving provocation). For all the above

reasons, this claim fails.
13

C. INEFFECTIVE ASSISTANCE OF COUNSEL

To establish that his attorney performed ineffectively, a

habeas petitioner must show both that his counsel's performance was

deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate deficiency a defendant must show that "counsel made

errors so serious that counsel was not functioning as the `counsel’

guaranteed the defendant by the Sixth Amendment." Id. Judicial

scrutiny of counsel's performance must be highly deferential, and

courts must indulge in a strong presumption that counsel's conduct

falls within the wide range of reasonable professional conduct.

Id. at 689. "A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at

the time." Id. 

To demonstrate prejudice, a defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different, id.

at 694, and that counsel's errors were so serious that they

rendered the proceedings unfair or the result unreliable. Lockhart

v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838 (1993). A failure to

establish either deficient performance or prejudice defeats the

claim. Strickland, 466 U.S. at 697. An ineffectiveness claim

based on speculation or conclusional rhetoric will not warrant
14

relief. See Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th

Cir.), cert. denied, 506 U.S. 957, 113 S.Ct. 417 (1992). 

1. Failure to investigate mental health history

McBride argues that counsel performed ineffectively by failing

to investigate his “mental health history.” McBride points to his

discharge from the U.S. Navy in 1983 because of a “personality

disorder.” He asserts that had counsel known of “his medical

discharge for a `personality disorder,’ he could have further

investigated [McBride’s] mental health history.” (emphasis added).

He contends that further investigation “could have” led to the

diagnosis of a “personality disorder which might have been

admissible as mitigation.” 

This alleged instance of ineffectiveness is based purely on

speculation. McBride has presented no evidence to suggest that he

in fact did suffer from a “personality disorder” or any other

psychiatric problem at the time of the murders. At McBride’s

evidentiary hearing in the court below, his trial attorney, Holder,

testified that he was aware that McBride had been discharged from

the military several years earlier because of the “personality

disorder.” McBride, however, introduced no other evidence relating

to this disorder at the hearing. He thus cannot show prejudice,

i.e., a reasonable probability that any such evidence would have

affected the outcome of the penalty phase. See Byrne v. Butler,

845 F.2d 501, 517 (5th Cir.), cert. denied, 487 U.S. 1242, 108

S.Ct. 2918 (1988) (failing to allege the existence of specific
15

mitigating evidence that counsel should have obtained). 

2. Failure to request a competency hearing

McBride argues that his self-inflicted gunshot wound should

have prompted his attorney to investigate his competency to stand

trial and to request a competency hearing. He vaguely contends

that the “result of the proceeding would have been different” but

for counsel’s error. 

This alleged instance of ineffectiveness also is stated in

speculative fashion. McBride states that "counsel was aware of

this condition, and its potential effect upon [his] competency to

stand trial." (emphasis added). Further, McBride makes no

assertion that he was actually incompetent at the time of his 1988

trial. Testimony at the evidentiary hearing shed little light on

this claim. Holder, who was lead counsel, testified that one of

McBride’s witnesses at the punishment phase, Dr. Morgan, “turned

around” on McBride and gave unfavorable testimony on the issue of

future dangerousness, in testifying about McBride’s head injury.

Holder admitted, however, that McBride appeared to understand the

charges against him and that McBride consulted with him in a manner

that assisted in preparing his defense. McBride’s other attorney,

Ogan, when asked whether he had any doubt about McBride’s “ability

to assist you in his defense,” responded that the “only reason at

all” to doubt McBride’s competency was the fact of the head injury

itself. However, none of McBride’s witnesses identified any

specific evidence that suggested that he was incompetent. Holder
16

admitted that he felt there was “no basis” for requesting a

competency hearing. Even assuming counsel's investigation of this

claim constituted deficient performance, McBride has failed to

demonstrate prejudice as to this claim.

3. Failure to discover and use testimony

McBride's first amended habeas petition included the claim

that the prosecution suppressed the opinion of Dr. Joel Dunnington,

a radiologist who assisted in McBride's treatment. After the

evidentiary hearing in the court below, McBride sought leave to

file a second amended petition raising the allegation that counsel

rendered ineffective assistance for failing to "discover" and

present at the punishment phase of the trial the testimony of Dr.

Dunnington relating to future dangerousness. The district court

denied his motion. 

On appeal, McBride once again requests permission to amend his

petition by adding this claim of ineffective assistance related to

Dr. Dunnington's "testimony." Amendment to pleadings may be made

under Rule 15(b) so that the pleadings will conform to the evidence

adduced at trial. Such an amendment can be made at any time upon

notice of a party, even at the appellate level. Dunn v. Trans

World Airlines, Inc., 589 F.2d 408, 412 (9th Cir. 1978). However,

"[t]he purpose of Rule 15(b) is to bring the pleadings in line with

issues actually tried and does not permit amendment to include

collateral issues which may find incidental support in the record."

Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969) (citing
 

6 Even assuming the claim had been properly raised, McBride

cannot show prejudice in light of his failure to show a reasonable

probability that Dr. Dunnington's testimony would have caused a

different outcome at the punishment phase of the trial. See

Section F below. 

17

Gallon v. Lloyd-Thomas Company, 264 F.2d 821, 825 n.3 (8th Cir.

1959)). After reviewing the record, we conclude that this

particular ineffective assistance of counsel claim was not tried by

consent and deny his motion for leave to amend his petition. As a

result, this issue is not properly before us on appeal. Kelly v.

Lynaugh, 862 F.2d 1126, 1133 (5th Cir. 1988) (refusing to consider

habeas claim raised for the first time on appeal), cert. denied,

492 U.S. 925, 109 S.Ct. 3263 (1989).6 

D. FAILURE TO SUA SPONTE HOLD COMPETENCY HEARING

McBride argues that his due process rights were violated by

the trial court's failure to sua sponte hold a competency hearing.

He contends that his attempted suicide immediately after the

murders and the resulting brain injury should have raised a bona

fide doubt in the trial judge's mind as to his competency.

Due process requires a trial court to order a competency

hearing sua sponte if the evidence before the court raises or

should raise a bona fide doubt concerning competency. See Pate v.

Robinson, 383 U.S. 375, 86 S.Ct. 836 (1975). A habeas petitioner

has the burden of showing that the objective facts known to the

trial court were sufficient to raise a bona fide doubt as to the

petitioner's competency. Enriquez v. Procunier, 752 F.2d 111, 113

(5th Cir. 1984), cert. denied, 471 U.S. 1126, 105 S.Ct. 2658
18

(1985). To determine whether a competency hearing should be held,

the trial court should consider (1) any history of irrational

behavior, (2) the defendant's demeanor at trial, and (3) prior

medical opinions. Id.

In regard to the first factor, the district court found that

other than having an uncontrollable temper, McBride had no history

of irrational behavior. Relying solely on his suicide attempt

immediately after the murders, McBride compares himself to the

petitioner in Pate v. Robinson, 383 U.S. 375 (1966). McBride’s

comparison of his circumstances to those of the petitioner in Pate

is unconvincing. In Pate, several witnesses gave detailed and

uncontradicted testimony about the petitioner’s “long history of

disturbed behavior” and thought he was “insane.” Pate, 383 U.S. at

378, 383. Some years before the petitioner in Pate was convicted

for the crime for which he sought habeas relief, he murdered his

infant son and then “attempted suicide by shooting himself in the

head.” Id. at 381. The suicide was not the only evidence the

Supreme Court relied on to determine that the petitioner should

have been afforded a competency hearing; rather, it was but one of

a litany of the petitioner’s demented actions that occurred both

long before and after the attempted suicide. Id. at 378-83. See

also United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995)

(direct criminal appeal) (attempted suicide standing alone was

insufficient to create sufficient doubt of competence to stand

trial), cert. denied, __ U.S. __, 116 S.Ct. 961 (1996).
 

7 The surgical procedure was a cranioplasty, which involved

installing an acrylic plate in the skull. The primary purpose of

the procedure was cosmetic and the secondary purpose was for

protection. The testimony indicated that such an operation should

not be performed until at least a year after the injury. 

19

In regard to the second factor, McBride's demeanor at trial,

as previously set forth, defense counsel testified at the

evidentiary hearing that McBride appeared to understand the charges

against him and that he consulted with counsel in a manner that

assisted in preparing his defense. When asked whether he had any

doubt about McBride’s “ability to assist you in his defense,”

counsel responded that the “only reason at all” to doubt McBride’s

competency was the fact of the head injury itself. However, none

of McBride’s witnesses identified any specific evidence that

suggested that he was incompetent. Lead counsel admitted that he

felt there was “no basis” for requesting a competency hearing.

In regard to third factor regarding prior medical opinions,

McBride relies on Dr. Morgan's testimony. On September 2, 1986,

prior to McBride's murder trial, a hearing was held on several

motions. One of these motions was a motion for continuance that

was based not on McBride’s alleged incompetence, but on the fact

that the injury required cosmetic surgery due to a sunken area in

his forehead.7 At that pretrial hearing, Dr. Morgan, who had

performed surgery on McBride immediately after the suicide attempt,

testified that the bullet from the self-inflicted wound entered

just under McBride’s chin, went through his tongue and palate, and
 

8 Additionally, a nurse at the Sheriff’s Department infirmary

where McBride was then incarcerated testified that she talked with

McBride and that he was “a very intelligent young man . . . [and]

knowledgeable in world affairs as well as business.” When asked

whether McBride had “any mental problems . . . that would cause him

not to understand what was going on,”, she replied, “[n]one

whatsoever.”

20

exited the top of his head “at about his hairline.” A “significant

amount of damage to the right frontal lobe of [McBride’s] brain”

resulted. Dr. Morgan also testified that there is no "specific

function assigned to the very front part of the frontal lobe where

he was injured, especially if it involves only, or primarily one

side of the brain; an individual can lose a fair portion of that

without suffering much in the way of discernable neurological

deficit." When asked by the prosecutor whether McBride had

suffered any of loss of “his thinking ability, or thought

processes,” Dr. Morgan responded: 

As far as gross neurological deficit,

after his injury, besides the loss of smell,

we did not think he had any discernable gross

neurological deficit. 

He seemed to talk and respond, as we

expected.

As far as discreet testing, regarding his

thought processes, that requires a battery of

psychological tests, and those were not done.

Even at this early stage of the proceedings--less than a year after

McBride suffered a brain injury and over a year before trial began-

-there was little, if any, evidence to suggest that he was not

competent to stand trial.8 

Dr. Morgan gave similar testimony during the guilt-innocence

phase of McBride's trial. He testified that McBride had no gross
 

9 “The court, the attorney for the state, or the attorney for

the defendant may not inform a juror or a prospective juror of the

effect of failure of the jury to agree on an issue submitted under

this article.” Art. 37.071(g) (Supp. 1986) (redesignated as art.

37.071 § 2(a) (1991)); see Davis, 51 F.3d at 465 n.11.

21

neurological deficit, explaining that McBride "is able to speak and

think reasonably well, without going into in-depth psychological

testing, he walks and talks and he moves all four extremities well,

has normal reflexes and sensation, and is able to see and hear.

The only thing that he appeared to have missing was the sense of

smell." 

McBride has not identified a “history” of irrational behavior,

unusual behavior during the proceedings against him, or any medical

opinions before the trial court that would have created a bona fide

doubt regarding his competency to stand trial. Thus, he is not

entitled to relief on this claim.

E. DUE PROCESS CHALLENGE TO JURY INSTRUCTION

McBride contends that sentencing instructions at his trial

denied him due process, in that TEX. CODE CRIM. PROC. article 37.071

statutorily prohibits courts from informing jurors of the effect of

their failure to agree unanimously on a capital punishment.9 He

argues that although article 37.071(d)(1) and (2) require a Texas

court to impose a life sentence in a capital case when a jury is

unable to agree unanimously on a response to a special issue,

article 37.071 unconstitutionally prohibits courts from informing
 

10 McBride's jury was charged under the following provision

as to the special issues:

(d) The court shall charge the jury that:

(1) it may not answer any issue “yes” unless

it agrees unanimously; and

(2) it may not answer any issue “no” unless

10 or more jurors agree.

TEX. CODE CRIM. PROC. art. 37.071(d) (1981). 

22

jurors that any one of them can thereby prevent a death sentence.10

McBride relies largely on Mills v. Maryland, 486 U.S. 367, 108

S.Ct. 1860 (1988), and Andres v. United States, 333 U.S. 740, 68

S.Ct. 880 (1948). 

McBride's argument is foreclosed by our precedent. We

previously have held that the claim is barred by the

nonretroactivity doctrine of Teague v. Lane. Webb v. Collins, 2

F.3d 93, 94-95 (5th Cir. 1995). Addressing the challenge of a

habeas petitioner who was sentenced to death in 1986 and whose

conviction became final in 1989, this Court observed that Andres

and Mills were decided before the petitioner’s conviction became

final. Id. We recognized that although

[t]he Supreme Court’s decisions in Andres and

Mills may inform the analysis of [the] claim,

. . . they do not dictate the constitutional

rule urged by [the petitioner]. Both Andres

and Mills involve statutory schemes different

from the Texas sentencing statute and

different legal standards. Thus because [the

petitioner] does not suggest that his claim

comes within an exception [to Teague], Teague

forecloses [the Court’s] consideration of

[the] claim. . . .
 

11 We realize that in Jacobs our discussion of this issue was

in the context of whether he had shown prejudice to overcome the

procedural bar. Nevertheless, we explicitly rejected the

"substantive argument" as "meritless." 31 F.3d at 1328.

23

Id. at 96; see also Davis, 51 F.3d at 466-67 (rejecting same claim

after petitioner had failed to argue in district court that any

“new rule” fell within a Teague exception). 

McBride now argues that his challenge to article 37.071(g)

falls within the second of the two Teague exceptions, in that his

proposed new rule amounts to a “watershed rule of fundamental

fairness.” McBride cursorily raised this argument in his

objections to the magistrate judge’s recommendation, asserting

broadly that his “claim comes within the second exception to

nonretroactivity announced in Teague v. Lane.” Because this Court

has held that the substance of McBride's argument is "meritless,"

we need not determine whether McBride adequately preserved his

argument regarding the second exception to Teague. Jacobs v Scott,

31 F.3d 1319, 1328 (5th Cir. 1994), cert. denied, 513 U.S. 1067,

115 S.Ct. 711 (1995).11 In Jacobs, we explained that the Supreme

Court's decision in Mills has been interpreted "to mean that `each

juror [must] be permitted to consider and give effect to mitigating

evidence when deciding the ultimate question whether to vote for a

sentence of death.'" Id. (quoting McKoy v. North Carolina, 494

U.S. 433, 442-43, 110 S.Ct. 1227, 1233 (1990)) (brackets in

opinion). We further explained that the statutory framework in

Texas was entirely different from that in Mills. We declared Mills
24

to be inapposite because, unlike the statutory framework at issue

in Mills, "[u]nder the Texas system, all jurors can take into

account any mitigating circumstance. One juror cannot preclude the

entire jury from considering a mitigating circumstance." Id. at

1329. Our holding in Jacobs precludes McBride from obtaining

relief on this claim. 

F. BRADY CLAIM

A defendant's right to due process is violated when, upon a

request for exculpatory evidence, the Government suppresses

evidence that is both favorable to the defendant and material to

the defendant's guilt or punishment. Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194 (1963). Exculpatory evidence as well as

impeachment evidence falls under the Brady rule. Giglio v. United

States, 405 U.S. 150, 154, 92 S.Ct. 763 (1972). Evidence is

material when a reasonable probability exists that its disclosure

would have caused a different outcome at trial. United States v.

Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375 (1985). A reasonable

probability is a probability sufficient to cast doubt on the

outcome. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1558

(1995). Materiality is judged according to the cumulative effect

of all the undisclosed evidence. Id. at 1567. 

McBride contends that the prosecution failed to disclose Dr.

Dunnington's opinion, which he alleges constituted mitigating

evidence regarding his future dangerousness. Dr. Dunnington was a

radiologist who assisted in the treatment of McBride's self-
 

12 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 513 U.S.

1137, 115 S.Ct. 959 (1995). 

25

inflicted wound. McBride contends that Dr. Dunnington's testimony

would have bolstered the defense theory at the punishment phase

that McBride would no longer be dangerous as a result of the

injuries suffered from the gunshot wound. 

At the evidentiary hearing, it was established that Dr.

Dunnington's name was on the witness list supplied by the state

prior to trial and that McBride's medical records contained Dr.

Dunnington's name. Further, there was some evidence to indicate

that Dr. Dunnington's report was contained in McBride's medical

records. Trial counsel admitted that McBride's medical records

were available to the defense. Based on this evidence, the

district court concluded that the evidence was not suppressed

because "at least Dr. Dunnington's name was as readily available to

McBride's defense lawyers, and to McBride, as it was to the

prosecutors." Citing Williams v. Scott12, the district court stated

that "a Brady violation does not arise if the defendant using

reasonable diligence could have obtained the same information as

was found to have been in the hands of the prosecution." McBride

asserts that the “diligence” standard applied by the court

conflicts with Brady itself. This Court repeatedly has held,

however, that the prosecution has no obligation to produce evidence

that a defendant could have obtained “from other sources by

exercising due diligence.” See Brown v. Cain, 104 F.3d 744 (5th
 

13 McBride also argues that, regardless of the exercise of

diligence, defense counsel could not reasonably be expected to

investigate the possibility that a radiologist would express a

medical opinion concerning future dangerousness because a

radiologist's training and specialty involves the diagnosis of

physical injury through x-rays, not the practice of psychiatry.

This argument proves too much in that it undermines the validity of

Dr. Dunnington's opinion regarding McBride's future dangerousness.

26

Cir.), cert. denied, __ U.S. __, 117 S.Ct. 1489 (1997) (citations

omitted). Indeed, we have gone so far as to state that "[d]ue

diligence in failing to locate exculpatory material is a necessary

element of a successful Brady claim." United States v. Mmahat, 106

F.3d 89, 94 (5th Cir. 1997), petition for cert. filed, (U.S. June

16, 1997) (No. 96-9431). Although McBride takes great pains in

attempting to convince this Court that our precedent "does not

stand for the general principle which the [district court] seized

upon to deny relief," we are unpersuaded. 

In the alternative, McBride contends that his attorney’s

specific request for Brady material constituted sufficient

“diligence.”13 Even assuming counsel's request constituted due

diligence, we find his Brady claim fails. At the evidentiary

hearing, McBride established that, prior to McBride's capital

murder trial, an investigator in the district attorney's office

interviewed Dr. Dunnington. The investigator then prepared an

interoffice file memo that provided as follows: 

I did talk with Dr. Dunnington, MD-Dept. of Radiology .

. . he reviewed his work and it was his opinion that

McBRIDE did probably have enough damage to alter his

personality, but to what extent he could not say. He was

of the opinion that he didn't think anyone (based on
27

McBRIDE's specific damage) could actually say that he

would or would not be a continuing threat. Dr.

Dunnington is not a neuro-radiologist, but he is the one

that read McBRIDE's X-Rays at LGH . . . copy of his

report is contained with in the medical records.

(ellipses in original). This memo suggests that Dr. Dunnington's

opinion about McBride's future dangerousness was ambivalent and

uncertain. Consistent with the memo, the investigator testified at

the evidentiary hearing that, during the interview, Dr. Dunnington

related that he could not predict what kind of effect the injury

would have had on McBride's future behavior. The transcript of the

evidentiary hearing reflects that Dr. Dunnington had been deposed

prior to the hearing and a transcript of that testimony was entered

into evidence; however, McBride has not made that deposition a part

of the record on appeal. 

On cross examination, defense counsel admitted that during the

deposition Dr. Dunnington testified that it was impossible to

predict McBride's future dangerousness based on his X-rays and CAT

scans after the injury. According to defense counsel, Dr.

Dunnington believed that "you look at his behavior subsequent to

the wound and . . . based on his behavior subsequent to that, you

can tell. You can tell whether they are uncontrollably violent, or

they are going [to be] passive." As set forth previously, during

the punishment phase, several fellow jail inmates testified that,

while McBride was awaiting trial, he had on several occasions lost

his temper, used offensive language, and attacked people “with

little or no provocation.” That evidence certainly undermines
28

McBride's claim that Dr. Dunnington's testimony would have

bolstered the defense theory that he would no longer be dangerous

as a result of the injuries suffered from the gunshot wound.

Under these circumstances, McBride has failed to show that Dr.

Dunnington's testimony was favorable, much less a reasonable

probability that it would have caused a different outcome at the

punishment phase of trial. 

The judgment of the district court is AFFIRMED.