UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-50312

____________________

LEOPOLDO NARVAIZ, JR.,

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 Western District of Texas

_________________________________________________________________

January 30, 1998 Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Leopoldo Narvaiz, Jr., in 1988 convicted in Texas state court

of capital murder and sentenced to death, appeals the denial of

federal habeas relief, claiming two errors in sentencing: (1) the

voluntary intoxication jury instruction, pursuant to T EX

. P ENAL C ODE

§ 8.04(b), is unconstitutional, facially and as applied, because it

prohibits the jury from considering mitigating evidence of

voluntary intoxication unless the intoxication rises to the level

of temporary insanity; and (2) T EX

. C ODE C RIM

. P ROC

. A RT

. 37.071(f) is- 2 -

unconstitutional as applied because it prevents the jury from

weighing the mitigating evidence of provocation by a victim other

than the first person named in the indictment. We A FFIRM an d

VACATE the stay of execution.

I.

Narvaiz was convicted by jury in 1988 of the offense of

capital murder for stabbing and bludgeoning to death Ernest Mann,

Jr., age 11, while also murdering Ernest Mann’s three older

sisters, Martha, Shannon, and Jennifer Mann, ages 15, 17, and 19,

respectively, in their home in Bexar County, Texas. The horrific

evidence presented in the state criminal trial is accurately

detailed in the opinion of the Texas Court of Criminal Appeals on

direct appeal. S ee Narvaiz v. State

, 840 S.W.2d 415, 420-23 (Tex.

Crim. App. 1992), cert. denied , 507 U.S. 975 (1993).

Briefly restated, Narvaiz had dated Shannon Mann for several

years until she broke off the relationship in February 1988. The

next month, Narvaiz approached Shannon Mann and her boyfriend,

Ricky M oore, with a knife and a pipe, smashed the windows of

Moore’s truck, and stated to Shannon’s mother that “if he wasn’t

going to be able to have [Shannon], nobody else was going to”. I d.

at 420-21.

In the early morning hours of 15 April 1988, the police

received and recorded a “911” telephone call in which the caller,

later identified as Shannon Mann, stated: “My boyfriend just beat- 3 -

us up. He’s killed my little sister”. I d. at 421. When the

police arrived at the Mann residence, they found all four of the

Mann siblings stabbed to death. Ernest Mann, Jr., had been stabbed

63 times. I d. A knife containing Narvaiz’ thumbprint was found in

the yard of the residence and the police soon arrested Narvaiz at

a friend’s house.

Two days after the arrest, Narvaiz signed a written confession

in which he admitted the killings, but asserted that he was under

the control of cocaine at the time and that Jennifer M ann first

stabbed him in the leg, after which he “just went crazy”. Id. at

422-23.

The day following conviction, the jury affirmatively answered

two Texas capital sentencing special issues a s to: (1)

deliberateness and expectation of death; and (2) continuing threat

to society. As a result, Narvaiz was sentenced by the trial court

to death by lethal injection.

In 1992, the Texas Court of Criminal Appeals affirmed the

conviction and sentence ; and, in 1993, the Supreme Court of the

United States denied certiorari. I d

. The trial court scheduled

execution for 23 April 1993.

Narvaiz, with the assistance of the Texas Resource Center,

filed in district court a motion for appointment of counsel, a

motion for stay of execution, and an abbreviated habeas petition.

That court stayed execution and appointed counsel. Narvaiz filed- 4 -

his amended federal habeas petition in late 1993. The district

court, in early 1994, granted the State’s motion to dismiss the

petition, without prejudice, for failure to exhaust state remedies.

Narvaiz v. Coll ins , No. SA-93-CA-0311 (W.D. Tex. Feb. 8, 1994).

The trial court scheduled execution for 6 June 1994.

On 1 June 1994, Narvaiz filed a pro se state habeas

application, incorporating by reference the groun ds for relief

raised in federal court. Following appointment of counsel and a

new execution date of 12 October 1994, Narvaiz’ counsel filed an

amended application, but refused to present supporting evidence,

seeking instead the appointment of a private investigator to assist

in developing claimed newly -discovered grounds for relief. On 3

October 1994, the Texas Court of Criminal Appeals denied Narvaiz’

state habeas claim

. Ex parte Narvaiz , No. 27,215-01, at 161 e t

seq . (Tex. Crim. App. Oct. 3, 1994).

Th ree days later, the same district court that had been

presented with Narvaiz’ first federal habeas application appointed

the same counsel who had represented Narvaiz in the previous

federal habeas proceeding, granted a stay of execution, and set a

deadline for filing a federal habeas petition. In January 1995

Narvaiz filed a “corrected” petition, listing 22 grounds for

relief. T wo months later, the district court denied the State’s

m otion to dismiss for failure to exhaust state remedies, stat ing

among its reasons the need to prevent Narvaiz from manipulating the- 5 -

system through intentionally filing non-exhausted claims in

district court, thus postponing in perpet uity a determination on

the merits by the district court and, as a result, execution of

sentence.

In mid-March 1997, the district court, after considering all

22 grounds for relief and reviewing more than 6000 pages of record,

filed an 190-page opinion, denying habeas relief and liftin g the

stay of execution. N arvaiz v. Johnson

, Civil No. SA-94-CA-839, at

12-13 (W.D. Tex. Mar. 17, 1997). Narvaiz filed a notice of appeal,

which was deemed timely filed. The state court set execution for

15 October 1997.

On 21 Augus t 1997, our court issued an administrative

directive to the district court to determine whether Narvaiz was

entitled to a certificate of probable cause to appeal (CPC). That

court determined th at only one of Narvaiz’ claims satisfied that

standard. However, it denied Narvaiz’ motion for stay of

execution, in part because “there is no reasonable likelihood that

the Fifth Circuit will rule favorably to petitioner on [the claim

which was granted CPC]”. We granted a stay of execution, denied

counse l’s motion to withdraw, and set an expedited briefing

schedule.

II.

Narvaiz presents two issues. Both issues attack the

constitutionality of the jury instructions at the sentencing phase:- 6 -

the first, contends that the jury charge was unconstitutional due

to an instruction that was included; the second, that an

instruction was excluded.

The first con tention is based on the voluntary intoxication

jury instruction given to the jury, pursuant to T E X

. P ENAL C ODE §

8.04(b), w h ich included the following: “Evidence of temporary

insanity caused by intoxication should be considered in mitigation

of the penalty attached to the offense”. Narvaiz contends that

this instruction was unconstitutional because it prohibited the

jury from considering mitigating evidence of voluntary intoxication

that did not rise to the level of such temporary insanity.

The second contention is based on the trial court’s refusing

an instruction on provocation by a victim other than the first

named in the indictment. This contention involves T E X C ODE C RIM

.

P ROC

. A RT

. 37.071, which provides that a provocation instruction

shall be submitted “only with regard to the conduct of the

defendant in murdering the deceased individual first named in the

indictment”. Narvaiz contends that this statute is

unconstitutional as applied because it prevents the jury from

weighing the mitigating effect of the alleged provocation by

Jennifer Mann, noted supra

.

The first issue, concerning voluntary i ntoxication, was the

sole issue found by the district court to satisfy the standards for

CPC. The second issue, concerning provocation, was not mentioned- 7 -

as satisfying those standards. But, unlike the certificate of

appealability under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2253(c) (as amended), a grant of

CPC on a single issue allows Narvaiz to ra ise other issues on

appeal. 28 U.S.C. § 2253 (prior to 1996 amendment); s ee Sherman v.

Scott , 62 F.3d 136, 138-39 (5th Cir. 1995).

A.

During the sentencing phase, the trial court, pursuant to T EX

.

P ENAL C ODE § 8.04(b), directed the jury to consider ev idence of

Narvaiz’ voluntary intoxication as mitigating evidence only if it

determined that the intoxication amounted to temporary in sanity.

That section provides: “Evidence of temporary insanity caused by

intoxication may be introduced by the actor in mitigation of the

penalty attached to the offense for which he is being tried”. T E X

.

P ENAL C ODE § 8.04(b).

The sentencing charge contained, in pertinent part, the

following:

You are instructed that under our law

neither intoxication nor temporary insanity of

mind caused by intoxication shall constitute

any defense to the commission of crime.

Evidence of temporary insanity caused by

intoxicati on should be considered in

mitigation of the penalty attached to the

offense

.

By the term “intoxication” as used

herein, is meant disturbance of mental or

physical c apacity resulting from the

introduction of any substance into the body.- 8 - By the term “insanity” as used herein, is

meant that as a result of intoxication the

defendant did not know that his conduct was

wrong.

Now if you find from the evide nce that

the defendant, Leopoldo Narvaiz, Jr., at the

time of the commission of the offense f o r

which he is on trial, if you find from the

evidence beyond a reasonable doubt that he did

commit such offense, was laboring under

temporary insanity as defined in this charge,

produced by voluntary intoxication

, then you

may take such temporary insanity into

consideration in mitigation of the penalty

which you attach to the offense.

(Emphasis added.)

But, that charge also stated:

You are further instructed that in

determining each of these [two] special issues

[as to deliberateness and continuing threat to

society] you may take into consideration all

of the evidence submitted to you in the full

trial of th e case, that is, all of the

evidence submitted to you in the trial of the

first part of this case wherein you were

called upon to determine the guilt or

innocence of the defe ndant, and all of the

e vidence, if any, admitted before you in t h e

second part of the trial wherein you are

called upon to determine the special issues

hereby submitted to you. E vidence t o be

considered shall include but not be limited to

aspects of the defendant’s character and

background and the facts and circumstances of

the offense

.

(Emphasis added.)

At trial, Narvaiz did not object to the § 804(b) instruction;

nor did he raise it as an issue in his direct appeal. On the other

hand, he did raise this issue in his state habeas proceeding. In1 Moreover, the State doe s not contend that the district

court erred in its decision not to dismiss for lack of exhaustion

of stat e remedies. In denying the motion to dismiss for lack of

exhaustion, the district court held:

[T]he dismissal of this federal habeas

corpus proceeding based on petitioner’s

inclusion of unexhausted claims in this, his

second, federal habeas corpus petition not

only sets a bad precedent but also does

nothing to preclude petitioner from

effectively preventing the State of Texas from

ever carrying out petitioner’ s sentence.

Unless and until this or some other federal

court addresses the merits of petitioner’s

claims for federal habeas relief, there is

absolutely nothing to prevent petitioner from

continuing to file requests for stays of

execution and for appointment of counsel and

to then file a federal habeas petition

containing unexhausted claims for relief,

waiting for the court to dismiss same without

prejudice, and then start the process all over

again.

Order and Advisory, at 9-10 (filed Mar. 10, 1995).

Of course, exhaustion is not a jurisdictional requirement, but

rather a matter of comity. R ose v. Lund y , 455 U.S. 509, 515

(1982). Therefore, the State may waive the exhaustion issue by not

asserting it as a defense. M cGee v. Estelle

, 722 F.2d 1206, 1211-

14 (5th Cir. 1984) (en banc). In the instant case, the State moved

to di smiss for lack of exhaustion in the district court but does

not urge here that the district court erred in denying that motion.

Accordingly, we need not address the decision to deny that motion.

- 9 - that regard, the state court did not apply a procedural bar and the

State does not urge that bar here. Accordingly, because the State

does not ra ise the issue of a procedural bar, we address the

merits, as did the district court. 1 See Trest v. Cain

,

___ U.S.

___, 118 S. Ct. 478, 480 (1997) (“A court of appeals is not

‘required’ to raise the issue of procedural default sua sponte.”).- 10 -

And, although federal courts generally defer to s tate court

findings in habeas proceedings, the district court, “out of an

abundance of respect for petitioner’s constitutional rights” and as

a result of cursory analysis in the state court habeas decisions,

declined to defer to those findings and conducted a de novo review

of Narvaiz’ grounds for relief. Narvaiz , Civil No. SA-94-CA-839,

at 56-57 n.128.

“The proper standard for reviewing a challe nged jury

instruction in the capital sentencing context is ‘whether there is

a reaso nable likelihood that the jury has applied the challenged

instruct ion in a way that prevents the consideration of

constitutionally relevant evidence.’” D rinkard v. Johnson

, 97 F.3d

751, 757 (5th Cir. 1996) (quoting Boyde v. California

, 494 U.S.

370, 380 (1990)), cert. denied

,

___ U .S. ___, 117 S. Ct. 1114

(1997). “This ‘reasonable likelihood’ standard does not require

the petitioner to prove that the jury ‘more likely than not’

interpreted the challenged instruction i n an impermissible way;

however, the petitioner must demonstrate more than ‘only a

possibility’ of an impermissible interpretation.” I d. Of course,

the challenged instructions must be analyzed within the context of

the overall jury charge. C upp v. Naughten

, 414 U.S. 1 41, 146-47

(1973). “In evaluating the instructions, we do not engage in a

technical parsing of this language of the instructions, but instead

approach the instructions in the same way that the jury would —- 11 -

with a ‘commonsense understanding of the instructions in the light

of all that has taken place at the trial.’” J ohnson v. Texas

, 509

U.S. 350, 368 (1993) (quoting Boyde , 494 U.S. at 381).

Narvaiz concedes that his con tentions concerning this issue

are directly in conflict with Drinkard , 97 F.3d at 751, and Lauti

v. Johnson

, 102 F.3d 166, 169 (5th Cir. 1996 ), cert. denied

, ___

U.S.

___, 117 S. Ct. 2525 (1997 )

. The pertinent facts and

sentencing-phase charge in the instant case are essentially

identical to those in Drinkard and Lauti , in which our court held

that the § 8.04(b) instruction did not deprive the defendant of his

constitutional rights. Both D rinkard and Lauti concluded that the

general instruction, quoted above, to consider “all of the

evidence” admitted at trial negates any inference that the §

8.04(b) instruction precluded consideration of ev idence of noninsane, voluntary intoxication. Drinkard , 97 F.3d at 764; Lauti

,

102 F.3d at 169-70.

The State relies on D rinkard and Lauti

, contending, inter

alia

, that, even if the jury inferred that the § 8.04(b)

instruction prohibited considering non-in sane, voluntary

intoxication as a mitig ating factor, the general instruction

provided it with an opportunity to consider any relevant mitigating

evidence; and that the § 8.04(b) instruction is logically relevant

only to the first special issue ( deliberateness), not the second

(continuing threat to society), see Drinkard

, 97 F. 3d at 761.- 12 -

Narvaiz seeks shelter, inter alia , under the dissent in Drinkard

,

which noted that a permissible general instructio n does not cure

specific la nguage in an instruction that is otherwise

unconstitutional. 97 F.3d at 774 (Emilio M. Garza, J. dissenting)

(citing Francis v. Franklin

, 471 U.S. 307 (1985)). And, he

analogizes to Eddings v. Oklahoma

, 455 U.S. 104 (1982), in which

the Court held that the sentencer in a capital murder case cannot

be precluded, as a matter of law, from considering mitigating

evidence. Narvaiz distinguishes the Court’s holding in J ohnson v.

Texa s , 509 U.S. 350 (1993), that the defendant’s youth was

implicitly considered by the jury in the answers to the Texas

special instructions, on the basis that, in the instant case, the

jury was expressly instructed not to consider a mitigating factor.

Drinkard and Lauti control. It is more than well-established

that, “[i]n this circuit, one panel may not overrule the decision,

right or wrong, of a prior panel in the absence of en banc

reconsideration or superseding de cision of the Supreme Court.”

Batts v. Tow-Motor Forklift Co.

, 978 F.2d 1386, 1393 n.15 (5th Cir.

1992) (quoting Burlington N. R.R. v. Brotherhood of Maintenance of

Way Employees , 961 F.2d 86, 89 (5th Cir. 1992), cert. denied , 506

U.S. 1071 (1993)) (citations and internal quota tions omitted).

Accordingly, this claim is foreclosed by circuit precedent.

B.- 13 -

Narvaiz maintains t hat T E X

. C ODE C RIM

. P ROC

. A RT

. 37.071(f) is

unconstitutional as applied, asserting th at it prevents the jury

from weighing the m itigating evidence of provocation by a victim

other than the first person named in the indictment. At the time

of Narvaiz’ trial, T EX

. C ODE C RIM

. P ROC . A RT . 37.071 provided in

relevant part:

(b) On conclusion of the presentation of

the evidence, the court shall submit the

following issues to the jury:

(1) whether the conduct of the defendant

that caused the death of the decease d was

committed deliberately and with the reasonable

expectations that the death of the deceased or

another would result;

(2) whether there is a probability that

the defendant would commit criminal acts of

violence that would constitute a continuing

threat to society; and

(3) if raised by the evidence, whether

the conduct of the defendant in killing the

deceased was unreasonable in response to the

provocation, if any, by the deceased.

* * *

(f) If a defendant is convicted of an

offense under section 19.03(a)(6), Penal Code,

the court shall submit the three issues under

Subsection (b) of this article only with

r e gard to the conduct of the defendant in

murdering the deceased individual first named

in the indictment.

As noted, and pursuant to this provision, the district court

gave the following instruct ion at the sentencing phase, invoking

the first two special issues:

SPECIAL ISSUE NO. I- 14 - Was the conduct of the defendant that

caused the death of the deceased committed

d eliberately and with the reasonable

expectation that the death of Ernest Mann,

Jr., would result?

SPECIAL ISSUE NO. II

Is there a probability that the defendant

would commit criminal acts of violence that

would constitute a continuing threat to

society?

Narvaiz’ written confession, introduced at trial by the State,

included the following: “[Jennifer Mann] got a knife and stabbed me

in the leg. She tried to stab me again and I tried to stop her

when she st abbed my hand. Then I just lost it.... I just went

crazy.” As arguable support of this statement, the trousers

Narvaiz was wearing at the time of the incident were cut in a

location corresponding to a wound on his leg.

Accordingly, Narvaiz requested that the trial court submit the

third special issue, concerning whether the defendant’s conduct was

in response to provocation by the victim. The court refused,

following the State’s contention that, i nter alia

, the special

issue was inapplicable because it applied only with respect to the

victim first named in the indictment, Ernest Mann, Jr., and no

evidence had been produced that he had provoked Narvaiz.

The provocation instruction, as provided in T EX

. C ODE C RIM

. P ROC

.

A RT

. 37.071, is invoked only “if raised by the evidence”. Narvaiz

does not dispute the State’s contention that there is no evidence

of provocation by Ernest Mann, Jr. Instead, Narvaiz contends that- 15 -

the evide nce produced at trial, such as his written confession,

provide sufficient evidence of provocation by Jennifer Mann, who is

not first named in the indictment.

Narvaiz did not raise this issue on direct appeal. S ee

Narvaiz v. State

, 840 S.W.2d 415 (Tex. Crim. App. 1992). However,

he did raise it in his state habeas proceedings. As was the case

for the other issue in this appeal, the state court did not apply

a bar, and the State does not urge one here. For the reason stated

supra, we find no procedural bar. Trest , 118 S. Ct. at 480.

Narvaiz contends that the trial court’s failure to provide the

provocation instruction constituted var ious constitutional

violations. Although these claims are somewhat convoluted, they

can be grouped roughly as the following: (1) violation of the

Separation-of-Powers Clause of the Texas Constitution; (2)

violation of the Eighth and Fourteenth Amendments, because the jury

was not all owed to consider constitutionally relevant mitigating

evidence and the jury’s verdict is incomplete; (3) violation of the

Eighth and Fourteenth Amendments, because Narvaiz did not have the

benefit of the narrowing scheme created by the Texas legislature;

and (4) violation of the Ex Post Facto Clause, beca use the trial

court failed to comply with a statute in effect at th e time he

committed the crime. The State maintains that all but one of these

sub-issues were not presented to the district court. After

reviewing Narvaiz’ “corrected” petition before the district court,- 16 -

we conclude, although dubitante , that all of them were adequately

presented.

1.

As for the claim th at the refusal to give the third special

issue violated the Texas Constitution, and as stated in the

district court opinion, claims that the trial court imprope rly

applied state law do not constitute an independent basis for

federal habeas relief. E stelle v. McGuire

, 502 U.S. 62, 67-68

(1991) (“We have stated many times that ‘federal habeas corpus

relief doe s not lie for errors of state law’”) (quoting L ewis v.

Jeffers , 497 U.S. 764, 780 (1990)). Needless to say, a 28 U.S.C.

§ 2254 applicant must claim violation of a federal constitutional

right. Id. ; West v. Johnson , 92 F.3d 1385, 1404 (5th Cir. 1996),

cert. denied , ___ U.S. ___, 117 S. Ct. 1847 (1997).

2.

Next, Narvaiz contends that the refusal to subm it the

provocation special issue violated his Eighth and Fourteenth

Amendment rights because it denied the jury the opportunity to

consider relevant mitigating ev idence that Jennifer Mann, who is

not first named in the indictment, provoked him. Narvaiz relies

upon First v. State , 846 S.W.2d 836 (Tex. Crim. App. 1992), which

held A RT

. 37.071(f) unconstitutional as applied, because the court

failed to submit an instruction on provocation by a victim other

than the one first named in the indictment. The State points out- 17 -

that the hol ding in F irst is distinguishable from the immediate

case because F irst is premised upon, inter alia

, an instruction

that contained “an inclusive list of mitigating circumstances”,

which excluded provocation by one of the victims. Id. at 841.

Narvaiz asserts that, per First

, the provocation special issue

is “ the sole vehicle within the death-sentencing scheme for the

jury’s consideration of mitigating evidence of provocation by the

decedents”, and that he has “an automatic entitlement under the

Eighth Amendment” to have it presented to the jury.

But, as stated in Narvaiz’ brief, the construction of the

third special issue in First “is a matter of state law”. As such,

it does not constitute an independent basis for federal habeas

relief. E stelle

, 502 U.S. at 67-6 8; West v. Johnson , 92 F.3d at

1404.

The S tate asserts also that Narvaiz’ claim concerning the

failure to submit the provocation iss ue is foreclosed by circuit

precedent. V uong v. Scott

, 62 F.3d 673, 676 (5th Cir.), c ert.

denied , ___ U.S. ___, 116 S. Ct. 557 (1995). In Vuong , our court

denied relief on a claim essentially identical to Narvaiz’ because

it would have constituted a retroactive application of a new rule

of constitutional law in contravention of Teague v. Lane

, 489 U.S.

288 (1989). V uong

, 62 F.3d at 676-82. Moreover, our court held

that the first two special issues under A R T

. 37.071 allowed the

jury to consider evidence of provocation by a victim other than the- 18 -

first named in the indictment. I d. at 682. We find persuasive the

State’s contention that Vuong precludes this issue; but, out of an

abundance of caution, we address the merit s of Narvaiz’

contentions.

Obviously, the Eighth and Fourteenth Amendments do not require

that a defendant’s mitigat ing evidence be given effect in the

manner and extent the defendant wishes. W hite v. Collins

, 959 F.2d

1319, 1322 (5th Cir.), cert. denied , 503 U.S. 1001 (1992). All

that is required is that the jury be afforded one adequate vehicle

to consider the mitigating evidence. I d. at 1322-23. The State

may “structure” the way a jury considers such evidence. R ogers v.

Scott , 70 F.3d 340, 343 (5th Cir. 1995) (citation omitted).

Under the two special issues presented at the sentencing

phase, the jury was afforded an opportunity to consider the

m itigating evidence that Jennifer Mann’s alleged attack provoked

Narvaiz. For example, it could have decided that an attack, if

any, by Jennifer Mann had caused a violent response by Narvaiz that

was not deliberate, thus affecting the finding under the first

special sentencing issue. Similarly, the jury, when considering

the second special sentencing issue, could have found that Narvaiz’

murders of the four Mann children resulted because he was attacked

and stabbed by Jennifer Mann and not be cause he has a propensity

for violence that poses a continuing threat to society.

Accordingly, we agree with the district court that there was no- 19 -

Eighth Amendment violation because the two special issues provided

an adequate vehicle for the jury to consider the mitigating effects

of Narvaiz’ evidence of the claimed provocation by Jennifer Mann.

Narvaiz conte nds also that these constitutional rights have

been violated because “the jury’s sentencin g verdict to date

remains incomplete” and, therefore, we must reverse his sentence as

well as his capital murder conviction. Although Narvaiz appears to

state this as a separate argument, the analysis is essentially

indistinguishable from that in the above unsuccessful contention.

3.

I n a similar vein, Narvaiz contends that his Eigh th and

Fourteenth Am endment rights were violated by the refusal to give

the provocation special issue because the jury was precluded from

determining whether Narvaiz belonged in the class of capital

murderers who were ineligible for the death penal ty under the

statutory “narrowing” scheme created by the Texas legislature. He

asserts that the trial court violated his “constitution allyprotected ‘liberty int erest’ in the submission of the third

statutory special issue” in violation of the Due Process Clause.

Narvaiz bases this contention on Hicks v. Oklahoma , 447 U.S.

343, 346-47 (1980), which found a due process violation when a

state appellate court re-imposed the defendant’s original 40-year

sentence, even though the sentence was premised upon a state

statute that later had been declared unconstitutional and, without- 20 -

which, the sentence would have been ten years. Aside from the

obvious factual differences between Hicks and the instant case, see

Narvaiz v. State

, Civil No. SA-94-CA-839, at 109 (W.D. Tex. Mar.

17, 1997), Narvaiz’ claim does not satisfy the Hicks standard. A

defendant claiming a due pro cess violation under H icks must

establish: (1) the sentencing authority either (a) did not make the

sentencing decision or (b) lacked knowledge of the available range

of se ntencing discretion under state law, and (2) a “substantial

possibilit y” of resulting prejudice to the defendant. D upuy v.

Butler , 837 F.2d 699, 703 (5th Cir. 1988).

The jury was instructed on the range of sentencing under state

law and Narvaiz’ sentence was properly based on its answers to the

two special issues. Narvaiz has failed to demonstrate a violation

under Hicks

.

4.

Finally, Narvaiz contends that the refusal to submit the

provocation special issue violated the Ex Post Facto Clause of the

United States Constitution because it deprived him of a viable

defense available at the time of the crime.

A violation of that clause occurs when a statute retroactively

affects a criminal defendant by: (1) criminalizing conduct that

was not criminal at the time of the conduct; (2) increasing the

punishment for a crime alre ady committed; or (3) depriving a

defendant of a viable defense available at the time that the crime- 21 -

was committed. W ilson v. Lensing , 943 F.2d 9, 10-11 (5th Cir.

1991). The well-settled state law prior to the commission of

Narvaiz’ crime was that the provocation special issue should be

presented only if there is evidence of provocation by the victim

first named in the indictment. Marquez v. Collins , 11 F.3d 1241,

1248 (5th Cir. 1994). As stated s upra

, the two special issues

permitted the jury to consider provoc ation, if any, by Jennifer

Mann. The Ex Post Facto Clause was not violated.

III.

For the foregoing reasons, we AFFIRM the denial of habeas

relief and VACATE our order staying execution.

AFFIRMED; STAY VACATED