UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 93-2455

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DENTON ALAN CRANK,

Petitioner-Appellant,

VERSUS

JAMES A. COLLINS, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

______________________________________________________

On Application for a Certificate of Probable Cause

to Appeal an Order of the United States District Court

for the Southern District of Texas

______________________________________________________ (April 5, 1994)

Before KING, DAVIS, and WIENER, Circuit Judges.

DAVIS, Circuit Judge:

Denton Alan Crank was convicted of capital murder for which

the death penalty was imposed. The district court denied his

application f or a Certificate of Probable Cause ("CPC"), and we

likewise deny his application for a CPC to appeal the district

court's order.

I.

On January 16, 1984, Crank and another masked gunman abducted

Terry Oringderff from his apartment and took him to the Rice Cash

Saver's Store, where Oringderff was one of the managers. After

robbing a number of the store employees, th e gunmen forced1 The details of the crime are more fully set forth in

Crank v. State

, 761 S.W.2d 328 (Tex. Crim. App. 1988), cert.

denied , 493 U.S. 874 (1989).

2 Oringderff and the courtesy booth operator to open the store's

safes. The gunmen then left with the money and Oringderff, who was

found later that day on a remote road in Houston, shot to death

near his car. 1

Crank was convicted of capital murder and sentenced to death.

The Texas Court of Criminal Appeals affirmed his conviction and

sentence. On October 2, 1989, the United States Supreme Court

denied certiorari, and Crank's conviction became final.

Crank then applie d for state habeas relief, which the state

trial court recommended be denied. The Court of Criminal Appeals

initially accepted th e trial court's recommendation, but later

granted rehearing to reconsider Crank's claim under P enry v.

Lynaug h , 492 U.S. 302 (1989), only to deny him habeas relief on

this claim in April 1992. Crank then filed a second state habeas

petition alleging that his trial counsel had labored under a

conflict of interest. In June 1993, the Court of Criminal Appeals

accepted the state trial court's recommendation that habeas relief

be denied on that ground as well.

On June 14, 1993, less than fifteen hours before his scheduled

execution, Crank filed a petition for habeas relief in federal

district court. His petition presented eighteen separate claims,

along with a motion for a stay of execution and a request for a

CPC. Later that day, the district court issued a memorandum

opinion and order denying Crank's habeas petition, his motion for3

a stay of execution, and his request for a CPC. We granted a stay

of execution to allow us sufficient time to consider Crank's

appeal. His application to this court for a CPC has been carried

with the case.

II.

We have no jurisdiction to hear an appeal in this case unless

we first grant a CPC. Fed. R. App. P. 22(b); s ee Black v. Collins

,

962 F.2d 394, 398 (5th Cir.), cert. denied

, 112 S.Ct. 2983 (1992).

To obtain a CPC, Crank must make a substantial showing that he has

been denied a federal right. S ee Barefoot v. Estelle

, 463 U.S.

880, 893 (1983). He must "demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are adequate

to deserve encouragement to proceed further." I d. at 893 n.4

(internal quotations and ci tations omitted). Applying this

standard, we conclude that Crank is not entitled to a CPC to appeal

the district court's order.

III.

A.

Crank contends first that Texas's capital sentencing scheme in

effect at the time of his sentencing, Art. 37.071 of the Texas Code

of Criminal Procedure, deprived h im of the right to an

individualized sentencing determination under Penry v. Lynaugh

, 492

U.S. 302 (1989). He makes two arguments: (1) the jury could

neither consider nor give mitigating effect to evidence of his

background and charact e r under the state's capital sentencing2 The jury was asked to determine: (1) whether the conduct

of the defendant that caused the death of the deceased was

committed deliberately and with the reasonable expectation that

death would result; and (2) whether there was a probability that

the defen dant would commit criminal acts of violence that would

constitute a continuing threat to society. S ee Vernon's Ann. Texas

C.C.P. art. 37.071(b)(1). The jury had to answer both questions in

the affirmative for Crank to be sentenced to death.

4 statute; and (2) the statute precluded his counsel from developing

and presenting mitigating evidence.

Crank's first point involves testimony from a former employer,

a long-time friend, and family members regarding his positive

character traits, including his trustworthiness, well-disciplined

nature, caring and loving character, calm and non- violent

personality, and family values. Crank argues that the jury was not

able to give mitigating effect to this evidence because it was

beyond the scope of, or not relevant to, the tw o special issues

presented to the jury. 2 Crank contends that the state trial

court's failure to provide the jury with an additional instruction

authorizing the jury to give mitigating effect to this good

char acter evidence violated his rights under the Eighth and

Fourteenth Amendments as articulated in Penry

.

Even if we were to accept Crank's argument, it would require

us to announce a "new rule" under Teague v. Lane

, 489 U.S. 288, 301

(1989), because the outcome requested by Crank was not dictated by

precedent in existence at the time his conviction became final on

October 2, 1989. Stated differently, if "reasonable jurists

reading the case law in [October 1989] could have concluded that

[Crank's] sentencing was not constitutionally infirm," Teague5

precludes us from granting relief. S ee Graham v. Collins

, 113

S.Ct. 892, 903 (1993). Thus, relief on Crank's P en ry c laim is

barred by Teague 's non-retroactivity limitation.

Crank's claim fares no better on the merits. So long as the

proffered mitigating evidence is within "the effective reach of the

sentencer," the E ighth Amendment is satisfied and supplemental

mitigation instructions are not cons titutionally required. S ee

Johnson v. Texas , 113 S.Ct. 2658, 2669 (1993). The evidence of

Crank's good character tended to show that his crime was an

aberration, which wou ld have supported a negative answer to the

second special issue. S ee Graham , 113 S.Ct. at 902. Indeed, at

the punishment hearing, Crank's counsel argued that the evidence of

Crank's good character reflected that he would not commit future

violent criminal acts:

What I brought you by way of evidence at this hearing is

the testimony of

. . . a number of good people who have known

Denton Crank in many instances all of his life, all of whom

have known him for years.

. . . And those people are telling

the truth when they say that he's not a violent man, that he's

good to his family, that he's good to his wife, that he loves

them and that they love him back. And that's not the kind of

man who probably would continue to comm it criminal acts of

violence that would constitute a threat to society.

Because the jury was able to give mitigating effect to this

evidence, Crank's Penry claim also fails on the merits.

Crank argues next that his rights under the Sixth, Eighth, and

Fourteenth Amendments were infringed becaus e the Texas capital

sentencing statute precluded counsel from developing and presenting

mitigating evidence. According to Crank, evidence pertaining to

his background, includ i ng child abuse and neurological damage6

stemming from a brain aneurysm, either would have been irrelevant

to the special issues or would have been considered only as

aggravating evidence. He contends that, as a result, he was

effectively precluded from presenting this evidence. We find this

argument meritless.

We must also reject Crank's second Penry argument - that the

Texas statute precluded him from developing and presenting

mitigating evidence. We have held that a federal habeas petitioner

cannot base a Penry claim on evidence that could have been, but was

not, proffered at trial. S ee Barnard v. Collins

, 958 F.2d 634, 637

(5th Cir. 1992), cert . denied , 113 S.Ct. 990 (1993). As Crank

admits in his brief, and as the state trial court f o und in

review ing Crank's habeas petition, Crank's trial counsel made a

tactical decision not to offer evidence that Crank was abused as a

child and that he suffered a leaking brain aneurysm which caused

neurological damage.

The addition of a Sixth Amend ment gloss to this contention

does not help. Even if Texas's sentencing scheme caused Crank's

trial counsel to make tactical decisions which he might not

otherwise have made, this does not amount to unconstitutional

government interference with counsel's ability to conduct the

defense of a case. See May v. Collins , 948 F.2d 162, 167-68 (5th

Cir. 1991) (If every substantive criminal statute and death penalty

statute triggered the rule against government interference with

counsel's ability to conduct a defect, "that rule would be

virtually unlimited and would convert every criminal statute and3 Tarrant represented Bobby Bartoo on an unrelated robbery

charge. Bartoo also was a suspect in the January 16, 1984 robbery;

a witness had identified Bartoo as the masked gunman. Tarrant

therefore would have had to defend one client (Crank) by

implicating another (Bartoo) in the capital murder of Oringderff.

7 capital sentencing scheme into a predicate for a Sixth Am endment

claim for ineffective assistance of counsel."), cert. denied , 112

S.Ct. 907 (1992). For the reasons stated above, Crank's P enry

claim lacks arguable merit.

B.

Finally, Cr ank argues that he did not knowingly and

intelligently waive his Sixth Amendment right to confli ct-free

counsel. In United States v. Garcia , 517 F.2d 272, 278 (5th Cir.

1975), we established that a valid waiver of a defendant's Sixth

A mendment right to conflict-free counsel requires: (l) that the

defendant be aware that a possible conflict of interest exists; (2)

that the defendant realize the c onsequences to his defense that

contin uing with conflicted counsel would have; and (3) that the

defendant be aware of his right to obtain other counsel.

The facts underlying Crank' s claim are undisputed. Crank's

original trial counsel, Bob Tarrant, concurrently represented

another suspe ct in the murder for which Crank was ultimately

convicted. 3 After Crank appeared in state court with Tarrant and

pled not guilty, the court identified the conflict of interest and

explained to Crank that he could waiv e the conflict. When Crank

indicated that he was not sure that he understood the situation, he

conferred with Tarrant. The court then recessed to allow Crank to8

confer with his family and his family's civil attorney before

making any decision.

More than a week later, at a pretrial hearing, Crank appeared

with Don Ervin, his newly-retained counsel, and the court resumed

its discussion with Crank concerning counsel's potential conflict

of interest. The court asked Crank whether he wanted Ervin to

replace Tarrant as his attorney and whether he understood that

Ervin and Tarrant were law partners. Crank responded affirmatively.

The court also asked whether C rank understood that a possible

conflict of interest existed because of Ervin and Tarrant's

relationship. After conferring with Ervin off the record, Crank

again responded affirmatively. The court then explained what it

meant to waive the right to conflict-free counsel, and Crank agreed

to the waiver.

The state court reviewing Crank's habeas petition found that

he understood his rights and the potential conflict, and that he

made a knowing and intelligent decision to be represented by Mr.

Ervin. The record amply supports these findings, and the district

court properly accorded them a presumption of correctness. S ee 28

U.S.C. § 2234 (d). We therefore conclude that Crank's right-toconflict-free-counsel claim lacks arguable merit.

IV.

Because Crank has failed to demonstrate that the issues he

presents are debatable among jurists of reason, his application for

a CPC is DENIED, and the stay of execution previously entered is

VACATED.