UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 94-60184

____________

IRINEO MONTOYA,

Petitioner-Appellee,

Cross-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant,

Cross-Appellee.

__________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

__________________________________________________

(September 12, 1995)

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Wayne S cott, Director of the Texas Department of Criminal

Justice, appeals, and Irineo Montoya c ross-appeals, from the

district court's conditional grant of Montoya's petition for a writ

of habeas corpus under 28 U.S.C. § 2254 (1988). We affirm in part,

reverse in part, and remand with instructions to deny relief.

I

Montoya and a friend, Juan Villavicencio, killed John

Kilheffer after Kilheffer picked them up hitchhiking home from the

Port of Brownsville, Texas. In his confession, Montoya claimedThe Texas Code of Criminal Procedure in effect at the time of

Montoya's trial provided:

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 deceased was committed deliberately and wit h the reasonable

expectation 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 . . . .

Tex. Code Crim. Proc. Ann. art. 37.071(b) (West 1981). The third special issue,

which pertains to provocation by the victim, did not apply and was not submitted.

-2- that he held Kilheffer in the back seat while Villavicencio, who

had pushed Kilheffer out of the driver's seat and was driving

Kilheffer's vehicle, stabbed Kilheffer. However, a witness at

trial testified that Villavicencio had told him, in Montoya's

presence, that Montoya had held Kilheffer in the back seat and

stabbed him, and further that while Villavicencio told the story,

Montoya made faces as if he were laughing. Montoya and

Villavicencio stole Kilheffer's jewelry, clothes, and wallet and

left his body in a grapefruit grove.

A jury convicted Montoya of capital murder. At the sentencing

phase of Montoya's trial, the State introduced evidence that during

the months in and around the time of the murder, Montoya had raped

one woman and sexually assaulted and robbed another at knife point.

Montoya called witnesses who testified that he was a responsible

and respectful young man and that they had never seen him with a

weapon or acting disrespectfully toward women. The jury answered

"yes" to the first two Texas spec i al issues, 1 and the trial court

sentenced Montoya to death. S ee Tex. Co de Crim. Proc. Ann. art.

37.071(e) (West 1981).

The Texas Court of Criminal Appeals affirmed Montoya'sThe State waived the exhaustion requirement of 28 U.S.C. § 2254(b)

(1988).

-3- conviction and sentence, and the United States Supreme Court denied

ce rtiorari. Montoya then filed a petition for a state writ of

habeas corpus. The state trial court entered findings of fact and

conclusions of law the day after Montoya filed his petition. Later

that day, the Texas Court of Criminal Appeals denied the writ based

on the trial court's findings of fact and conclusions of law. The

next day, Montoya filed a petition for a federal writ of habeas

corpus, and the district court stayed Montoya's execution pending

its consideration of Montoya's claims. 2

The district co urt granted Montoya's petition on two of his

claims and denied relief on the other twenty-five. The court also

issued a certificate of probable cause to appeal. Scott appeals

from the district court's judgment with respect to the two claims

on which the district court granted Montoya habeas relief, and

Montoya cross-appeals with respect to six of the claims on which

the district court granted relief.

II

"We freely review the district court's legal conclusions, but

`[t]he factual findings of a federal district court in a habeas

action should not be set aside unless they are clearly erroneous.'"

Self v. Collins

, 973 F.2d 1198, 1203 (5th Cir. 1992) (footnote and

citations omitted) (quoting Guzman v. Lensing

, 934 F.2d 80, 82 (5th

Cir. 1991)), cert. denied

,

___ U.S. ___, 113 S. Ct. 1613, 123 L.

Ed. 2d 173 (1993).-4- A

Scott argues first that the district cour t erroneously held

that the state trial court judge coerced the jury into answering

the Texas special issues affirmatively. We review de novo a

district court's determination that a habeas petitioner's trial

court coerced the jury into rendering a verdict. B oyd v. Scott

, 45

F.3d 876, 882 (5th Cir. 1994), cert. denied , ___ U.S. ___, 115 S.

Ct. 1964, 131 L. Ed. 2d 855 (1995).

After deliberating on the special issues for an hour and forty

minutes, the jury foreman sent the court two notes. The first

read: "We have not been able to reach a unanimous decision on yes

or no." The second, which the court received minutes later, read:

"We are awaiting further instructions. We are all definite in our

decisions." The court proposed asking the jury, "Ladies and

Gentlemen of the Jury: Without telling me for what answer the jury

has cast its votes, could you please indicate what the numerical

vote is for each special issue?" While the court discussed this

proposal with counsel, the jury sent a third note indicating that

they were no l onger deliberating and were awaiting further

instructions. Defense counsel moved for a directed verdict, and

the court, which noted that the jury had been deliberating for only

an hour and forty minutes, overruled the motion and sent its note

inquiring as to the jury's vote.

The jury responded that it was divided nine to three on the

first special issue a nd ten to two on the second special issue.

Defense counsel renewed his motion for a directed verdict, but the"The phrase ` Allen charge' refers to supplemental jury instructions

that urge dead locked juries to forego their differences in order to reach a

unanimous verdict. The original A llen charge urged the minority of the jury to

consider the views of the majority in an effort to determine whether the minority

views were reasonable under the circumstances." B oyd

, 45 F.3d at 878 (c i ting

Allen v. United States

, 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528

(1896)); see also United States v. Anderton

, 679 F.2d 1199, 1202 (5th Cir. 1982)

("An Allen charge, as all criminal law devot ees know, is a sharp punch to the

jury, reminding them of the nature of their duty and the time and expense of a

trial, and urging them to try again to reach a verdict."). An Allen charge is

also referred to as a "dynamite" charge. S ee, e.g., United States v. Bailey

, 468

F.2d 652, 666 (5th Cir. 1972) ("By whatever label identified )) the Allen charge,

the dynamite charge, the third degree instruction, the shotgun instruction, or

the nitroglycerin charge )) the standard supplemental instruction has been wellreceived by the nation's trial court judges. The charge is used precisely

because it works, because it can blast a verdict out of a jury otherwise unable

to agree that a person is guilty."), aff'd on reh'g en banc , 480 F.2d 518 (5th

Cir. 1973).

-5- court sent the following note to the jury: "Would you please

deliberate for another 30 minutes to see if you are able to reach

an answer to the special issues in accordance with the Court's

instructions and please report to me after that." Forty minutes

later, the jury informed the court that it had reached a verdict.

The district court held that the state trial court's request

that the jury continue deliberating for thirty minutes, following

its inquiry into the jury's numerical division, unconstitutionally

coerced the jury. In so holding, the district court relied

primarily on our decision in United States v. Lindell

, 881 F.2d

1313 (5th Cir. 1989), cert. denied

, 496 U.S. 926, 110 S. Ct. 2621,

110 L. Ed. 2d 642 (1990). The district court's reliance on L indell

was misplaced, however, because our decision in Lindell was an

exercise of our federal supervisory powers over the use of " Allen

charges" 3 in federal criminal trials. S ee id. at 1320-21. On

direct review of a federal criminal conviction, we "scrutinize the

Allen charge for compliance with two requirements: `(1) theThe Supreme Court has explained the distinction between the standard

for reversible error on direct appeal from a federal criminal conviction and the

constitutional standard for challenging a state court conviction in habeas corpus

as follows:

[E]ven substantial unanimity among federal courts of appeal s that

the instruction in question ought not to be given in United States

district court s within their respective jurisdictions is not,

without more, authority for declaring th at the giving of the

instruction makes a resulting conviction invalid under the

Four teenth Amendment. Before a federal court may overturn a

convic tion resulting from a state trial in which this instruction

was used, it must be established not merely that the instruction is

undesirable, erroneous, or even "universally condemned," but that it

violated some right which was guaranteed to the defendant by the

Fourteenth Amendment.

Cupp v. Naughten

, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973).

See also United States v. Cherami e

, 520 F.2d 325 (5th Cir. 1975).

This Court, pursuant to its general supervisory powers, can restrict

the utiliz a tion in this Circuit of supplemental instructions more

narrowly than wo u ld otherwise be required by the United States

Constitution. However, because this supervisory jurisdiction does

not extend to state courts , we apply only the constitutional

-6- semantic deviation from approved " Allen " charges cannot be so

prejudicial to the defendant as to require reversal, and (2) the

circumstances surrounding the giving of an approved " Allen " charge

must not be coercive.'" L indell

, 881 F.2d at 1321 (quoting United

States v. Bottom , 638 F.2d 781, 787 (5th Cir. 1981)).

In the habeas context, in contrast, the standard for

disturbing a state convictio n is considerably stricter; a habeas

petitioner must establish th at the court's charge, under the

totality of the circumstan ces, was so coercive as to have

unconstitutionally rendered the petitioner's trial fundamentally

unfair. B oyd

, 45 F.3d at 881. 4 Thus, we evaluate the

constitutionality of a state court's supplemental instructions by

comparing them to other charges challenged on co nstitutional

grounds in habeas corpus cases, not by focusing on deviations from

charges approved of on direct appeal. S ee id. at 881-84. 5 Instandard in habeas corpus actions arising from state criminal

prosecutions.

Id. at 330 n.6 (citations omitted).

See United States v. Warren

, 594 F.2d 1046, 1050 (5th Cir. 1979)

(noting that court's instruction to jury to continue deliberating, in response

to two notes suggesting jury was deadlocked, was not traditional Allen charge);

see also United States v. Williams , 626 F.2d 697, 704 (9th Cir. 1980) (holding

that court's restatement of its instructions after jury notified trial judge of

its inability to reach a verdict was not modified Allen charge), cert. denied

, 449 U.S. 1020, 101 S. Ct. 586, 66 L. Ed. 2d 482 (1980). Cf. Cheramie

, 520 F.2d

at 329 n.3 ("It might be argued that the terse charge objected to here is so

lacking in the elements composing either the Fifth Circuit's approved version or the original `Allen' pronouncement that this Court should not subsume its

analysis under the banner of the traditional `Allen' cases. For example, no

reference was made by the trial judge regarding the expense of trial, or the need

for minority reconsideration of their votes. While this view presents an

interesting definitional question, the denomination of the charge is of only

tangential importance.").

-7- Boyd , we reversed a district court's grant of habeas relief based

on an allegedly coercive Allen charge, holding that while similar,

"almost identical" instructions had been held reversible error on

direct appeal, the supplemental charge was not so coercive as to

have rendered the petitioner's trial fundamentally unfair. I d. at

884.

The trial court's supplemental instruction in Montoya's case

was not a traditional Allen charge; it did not contain what we have

called "the most troublesome feature of the Allen charge )) the

exhortation to the minority to reexamine its views in light of the

majorit y's arguments," U nited States v. Cheramie

, 520 F.2d 325,

330-31 (5th Cir. 1975), and it did not "remind[] [the jury] of the

nature of their duty and the time and expense of a trial, and

urg[e] them to try again to reach a verdict," U nited States v.

Anderton , 679 F.2d 1199, 1202 (5th Cir. 1982). 6 The trial court

simply stated, "Would you please deliberate for another 30 minutes

to see if you are able to reach an answer to the special issues inWe also stated that:

In addition, after reviewing the additional circumstances

surrounding the charge, we are even more firmly convinced that any

coerciveness generated by the court's instruction fell short of the

level of a constitutional violation. The jury deliberated between

-8- acco rdance with the Court's instructions and please report to me

after that."

Regardless of the label we attach to the court's supplemental

instruction, we emphasize that the instruction c ontained none of

the explicit "dynamite" language contained in more tra ditional

Allen charges. In B oyd

, we reviewed a habeas pe titioner's

challenge to an Allen charge in which the court instructed the jury

to continue its deliberations, informing the jury that its verdict

"should represent the opinion of each individual juror," but

explicit ly instructing the dissenting jurors to reconsider their

views in light of those of the majority. I d. at 878. The

petitioner specifically objected to the following language: "The

issue has been tried out very ably by both sides, wh o have

presented this evidence to you, and a decision has to be reached by

a jury. You are that jury, and it seems to me that you ought to

make every effort to arrive at a unani mous verdict and reach a

conclusion." I d. at 878. We noted that the trial court's

instruction resembled other Al len charges that we had held

constituted reversible error on direct review. However, we held

that the court's charge did not deprive the defendant of a

fundamen tally fair trial, reasoning that the instruction, in

context, "did more to encourage the jurors to reach a verdict than

it did to coerce them." Id. at 883-84. 74 1/2 and 5 hours before it notified the court that it was deadlocked. Only

after hearing that the jury was deadlocked did the court read the Allen charge

and encourage the jury to contin ue deliberating. Approximately one hour and

twenty minutes after hearing that charge the jury returned with its verdict.

Id. at 884.

The court instructed the jury:

Wh en you enter the jury room it is your duty to consult with one

another to consider each other's views and to discuss the evidence

with the objective of reaching a verdict if you can do so withou t

violence to that individual judgment.

Each of you must decide the case for yourself but only after

discussion and impartial consideration of the case and impartial

consi deration of the case with your fellow jurors. You are not

advocates for one side or the other. Do not hesitate to reexamine

your own views and to change your opinion if you are convinced you

are wrong but do not surrender your honest belief as to the weight

and effect of evidence solely because of the opinion of your fellow

jurors or for the mere purpose of returning a verdict.

Id. at 235, 108 S. Ct. at 549.

-9- In Lowenfield v. Phelps , 484 U.S. 231, 108 S. Ct. 546, 98 L.

Ed . 2d 568 (1988), the Supreme Court held that the state trial

court had not unconstitutionally coerced the jury when it (1)

inquired as to how many jurymembers felt that further deliberations

would help them arrive at a verdict; and then (2) gave the jury a

modified Allen charge. 8 The Supreme Court held that, although the

jury returned its verdict thirty minutes after the court gave them

the supplemental instruction, "the combination of the polling of

the jury and the supplemental instruction was not `coercive' in

such a way as to deny petitioner any constitutional right." I d. at

241, 108 S. Ct. at 552. The Court specifically noted that the

suppleme ntal instruction did not inform the jury that it was

required to reach a verdict. Id. at 239, 108 S. Ct. at 551-52.

In Bryan v. Wainwright

, 511 F.2d 644 (5th Cir.), cert. denied

,

423 U.S. 837, 96 S. Ct. 63, 46 L. Ed. 2d 55 (1975), we held that a

dis trict court had erroneously granted habeas relief on a claim-10-

that the state trial court had coerced the jury into rendering a

verdict. In that case, the trial court had given the jury an A llen

charge in which the court explicitly instructed the minority jurors

to reconsider their views. After six hours, the court again called

the jury into the co urtroom, "whereupon the following discussion

took place:

THE COURT: Ladies and Gentlemen of the Jury, do you

believe that you can arrive at a verdict in a short

period of time? JUROR: I believe we're closer to it

than we were. I have that idea. The COURT: If I give

you another 20 minutes, will that be enough? You want to

give it a try for 20 minutes? JUROR: All right. THE

COURT: All right. We'll give you another 20 minutes and

see if you can arrive at a verdict within the next 20

minutes. You can retire to the jury room.

Id. at 645. After seventeen minutes, the jury returned a guilty

verdict. I d. We held that the court's instruction, combined with

the ensuing dialogue regarding an additional twenty-minute period

of deliberations "was not so prejudicial as to make the trial

fundamentally unfair." Id. at 646.

The trial court's instruction in this case was substantially

less coercive than the Allen charges hel d constitutional in B oyd

and Bryan

. Unlike the instructions in B oyd and Bryan

, the state

trial court's instruction in Montoya's case was not directed to the

minority or dissenting jurors. Unlike the instruction in B oyd

, the

trial court's instruction did not contain language suggesting that

the jury w as required to reach a verdict. Instead, the court's

instruction simply asked the jury to deliberate for another half

hour "to see if you are able to reach an answer to the specialWe note that the state trial court's supplemental instruction also

did not contain countervailing language, like that contained in the Allen charges

at issue in Boyd

, Lowenfield , and Scott , to the effect that a juror should not

merely acquiesce in the majority's view. In the direct appeal context, we have

suggested that such countervailing language is required in a traditional Allen

charge, see Posey v. United States

, 416 F.2d 545, 552 (5th Cir. 1969), c ert.

denied , 397 U.S. 946, 90 S. Ct. 964, 25 L. Ed. 2d 127 (1970), and at least one

circuit court has "looked with favor" on such language in reviewing state court

supplemental instructions in the habeas context. S ee Elli s v. Reed , 596 F.2d

1195, 1200 (4th Cir. 1979).

Montoya does not argue that the trial court erred in not including such

language, and we have found no authority suggesting that it is constitutionally

required, either in the co ntext of a traditional A llen charge, or a simple

instruction to continue deliberating like the charge in this case. Further, we

have found no evidence that such language, in the absence of the "dynamite"

language of a traditional Allen charge, is required in federal criminal trials

in this circuit. See United States v. Straach , 987 F.2d 232, 242-43 (5th Cir.

1993) (holding that trial court's instruction to jury to continue deliberating

after jury informed court that it had reached verdict on counts two through five

but was unable to reach verdict on count one was not reversible error where trial

court's instruction "simply said, `Members of the jury: Considering the length

of the trial and the amount of evidence to be considered, the Court requests that

you continue your deliberations in an effort to reach a verdict on all counts'");

United States v. Warren

, 594 F.2d 1046, 1050 (5th Cir. 1979) (holding that trial

court's instructions to "continue deliberati ons" were not traditional A llen

charges and not reversible error).

-11- issues." 9

Montoya further argues that the fact that the jury returned

its verdict forty minutes after receiving the court's supplemental

instruction suggests it was coerced by the court's supplemental

instruction. While the time a jury deliberates after receiving a

supplemental instruction is a factor to consider, Lowenfield , 484

U.S. at 240, 108 S. Ct. at 552, we do not agree that the fact that

the jury arrived at unanimous answers to the special issues after

forty minutes of deliberat ions indicates that the court's

instruction was unconstitutionally coercive, see id. (holding

supplemental instruction constitutional where jury rendered verdict

thirty minutes after receiving instruction); Boyd , 45 F.3d at 884

(same, one hour and twenty minutes); Bryan

, 511 F.2d at 645 (same,Montoya also argues that the trial court's "deadline" rendered its

supplemental instruction coerc ive. The trial court did not instruct the jury

that it was required to reach a verdict in thirty minutes; rather, it instructed

to jury to continue deliberating for thirty minutes and then report back to the

court. Under the circumstances, such an instruction may in fact have rendered

the supplemental instruction less coercive by suggesting to the holdout jurors

that the end was in sight. In any event, while a deadline on jury deliberations

may constitute reversible error on direct review, see United States v. Amaya

, 509

F.2d 8 (5th Cir. 1975), cert. denied , 429 U.S. 1101, 97 S. Ct. 1125, 51 L. Ed.

2d 551 (1977), a dea dline does not necessarily render a state criminal trial

fundamentally unfair, see Bryan

, 511 F.2d at 645. In B ryan

, the trial court sua sponte summoned the jury into the courtroom and gave the jury an Allen charge.

Six hours later, the court again called the jury into the court room, and gave

the jury "another 20 minutes" to "see if you can arrive at a verdict within the

next 20 minutes." I d. at 645. We held that the trial court's conduct "was not

so prejudicial as to make the trial fundamentally unfair." Id. at 646.

-12- seventeen minutes). 10

Montoya al so contends that the trial court's supplemental

instruction was rendered unconstitutionally coercive because it

followed the court's inquiry into the jury's num erical division.

The trial court asked the jury, "Without telling me for what answer

the jury ha s cast its votes, could you please indicate what the

numerical vote is for each special issue?", and the jury responded

that it was divided nine to three on the first special issue, and

ten to two on the second.

Although in Brasfield v. United States

, 272 U.S. 448, 47 S.

Ct. 135, 71 L. Ed. 345 (1926), the Supreme Court held that such an

inquiry was per se reversible error on direct review of a federal

criminal conviction, id. at 450, 47 S. Ct. at 135-36, every court

of appeals that has addressed the issue has held that Brasfield 's

per se rule does not apply in the habeas context, see Williams v.

Parke

, 741 F.2d 847, 851 (6th Ci r. 1984), c ert. denied

, 470 U.S.

1029 , 105 S. Ct. 1399, 84 L. Ed. 2d 787 (1985); L ocks v. Sumner

,

703 F.2d 403, 406-07 (9th Cir.), cert. denied

, 464 U.S. 933, 104 S.See also Lowenfield

, 484 U.S. at 240 n.3, 108 S. Ct. at 552 n.3 ("Our

decision in Brasfield makes no mention of the Due Process Clause or any other

constitutional provision. The Federal Courts of Appeals have uniformly rejected

the notion t h at Brasfield's per se reversal approach must be followed when

reviewing state proceedings on habeas corpus." (citing cases)).

-13- Ct. 338, 78 L. Ed. 2d 307 (1983); U nited States ex rel. Kirk v.

Director, Dep't of Corrections

, 678 F.2d 723, 727 (7th Cir. 1982);

Cornell v. Iowa

, 628 F.2d 1044, 1048 (8th Cir. 1980), cert. denied

,

449 U.S. 1126, 101 S. Ct. 944, 67 L. Ed. 2d 112 (1981); E llis v.

Reed , 596 F.2d 1195, 1200 (4th Cir.), cert. denied , 444 U.S. 973,

100 S. Ct. 468, 62 L. Ed. 2d 388 (1979). 11 We agree with those

courts that an inquiry into the numerical division of the jury

warrants federal habeas relief only if, under the totality of the

circumstances, the inquiry, coupled with a s u bsequent charge,

rendered the petitioner's trial fundamentally unfair. See, e.g.,

Williams , 741 F.2d at 851; Cornell , 628 F.2d at 1048.

Montoy a correctly points out that an inquiry into the

numerical division of the jury during the penalty phase of a Texas

capital trial creates additional risks not present in a non-capital

trial or in the guilt/innocence phase of a capital trial.

Consistent with the Texas special issues statute, the trial court

instructed the jury that if ten jurors or more vote "no" as to any

special issue, then the answer should be "no" to that issue, while

the jury must be unanimous to vote "yes." S ee Tex. Crim. Proc.

Code Ann. art. 37.071(d). Thus, when a jury reveals that it is

divided ten to two or eleven to one on a special issue and that it

has not answered that issue, its numerical split will necessarily

communicate to the trial court that the majority favors "yes." In-14-

denying habeas relief based on a state court's inquiry into the

jury's numerical division, other circuits have emphasized that the

court did not ascertain which verdict the majority favored.

Compare Jones v. Norvell

, 472 F.2d 1185, 1185-86 (6th Cir.) (per

curiam), cert. denied , 411 U.S. 986, 93 S. Ct. 2275, 36 L. Ed. 2d

964 (1973) (holding that state trial court coerced jury in part

because it ascertained the j ury's numerical division and how the

majority voted) with Williams

, 741 F.2d at 851 (holding that state

trial court had not coerced jury and distinguishing Jones in part

on grounds that court inquired as to jury's numerical division

without asking how many jurors favored a guilty verdict); see also

Cornell

, 628 F.2d at 1048 (holding state trial court's inquiry into

numerical division of jury constitutional in part because court did

not inquire and was not told whether majority favored acquittal).

In Montoya's case, although the court asked the jury, " Without

telling me for what answer the jury has cast its votes , could you

please indicate what the numerical vote is for each special issue?"

(emphasis added), the jury's answer risked communica ting which

answer the m ajority favored because it was divided ten to two on

the second special issue. However, this risk was substantially

undercut by the fact that the jury did not, as Montoya contends,

clearly communicate to the trial court that it was unable to reach

an answer with respect to ei ther special issue. The jury's note

simply stated, "We have not been able to reach a unanimous decision

on yes or no." Furthermore, regardless of whether the trial court

suspected that a majority of the jury favored "yes" on each specialIn Williams

, the state trial court had given the jury a modified

Allen charge after inquiring into the jury's numerical division, which the jury

informed the court was seven to five. The jury returned a verdict within thirty

minutes of receiving the instruction. The Sixth Circuit noted that the state

trial court's instruction did not "expressly remind jurors of their continuing

right to disagree," id. at 851, which the Sixth Circuit had held on direct appeal

to be "one of the most important parts of the Allen charge," id. (quoting United

States v. Scott

, 547 F.2d 334, 337 (6th Cir. 1977)). However, the Sixth Circuit

distinguished its direct appeal cases as "turning on this court's exercise of its

supervisory powers." I d. at 851 . It also emphasized that the state trial

court's instruction did not single out minority jurors and did not suggest that

the jury was r equired to agree. I d. at 850-51. The court thus held that the

state trial court's instruction, following an inquiry into the numerical division

of the jury, while "less than ideal," id. at 850, was no t "so coercive as to

deprive petitioner of his constitutional rights," id. at 852.

In Cornell , the Eighth Circuit reversed the district court's grant

of habeas relief in a case involving an inquiry into the jury's numerical

division (seven to five) and a balanced Allen charge. The court held that

"neither the inquiry nor the A llen charge, nor the two in combination, was

coercive of the jury's ultimate verdict of guilty." The court emphasized that:

The judge did not ask nor was he told whether the majority at that

time favored acquittal or which offense was being considered. The

supplemental charge that was given was mildly worded and did not

address itself to the minority members of the jury. Finally, nearly

five hours elapsed between the time the supplemental instruction was

-15- issue, it is by no means certain that the jury would have deduced

that its numerical division implied to the court how each side

stood. Therefore, the court's inquiry, which explicitly disclaimed

a desire to know how the jury stood, was less coercive than an

explicit request as to which answer the majority favored.

On balance, we conclude that the state trial court's

instructio n to the jury to continue deliberating for thirty

minutes, following its inquiry as to the numerical division of the

jury with respect to each special issue, was not under the

circumstances so coercive as to have rendered Montoya's trial

fundamentally unfair. While we have not previously addressed

identical circumstances in this circuit, the weight of authority in

other circuits supports our holding. C ompare Williams

, 741 F.2d at

851-52; 12 Cornell

, 628 F.2d at 1048; 13 Ellis

, 596 F.2d at 1197; 1 4given and the time the jury returned its verdict.

Id. at 1048.

In Ellis , the Fourth Circuit affirmed a denial of habeas relief in

a case in which the state trial court had inquired into the jury's numerical

division, which the court learned was eleven to one, and had given the jury a

mild A llen charge. The jury returned a verdict within eight minutes after

receiving the supplemental instruction. The Fourth Circuit held that "neither

the inquiry as to the numerical division of the jury nor the supplemental modest

charge had the coercive effect attributed to them by the appellant," and noted

that "we look with particular favo r upon the two admonitions in the modified

Allen charge that no jury surrender any conscientious convictions." I d. at 1200.

In Locks

, the Ninth Circuit affirmed the denial of habeas relief in

a case in whi ch the state trial court inquired as to the jury's numerical

division (eight to three to one) and then dismissed the jury for the weekend.

Id. at 405. The Ninth Circuit held that the trial court's inquiry into the

jury's numerical division was not coercive, noting that "he did not ask whether

the jurors in the majority were for acquittal or a guilty verdict; the judge did

not follow the inquiry with any statement imploring the jury to come to a

decision; and the jury was not sent back to conti nue deliberations, but was

dismissed for the weekend." Id. at 407.

In Jones

, the Sixt h Circuit reversed a district court's denial of

habeas relief in a case in which the trial court had inquired not only as to the

split but also the majority's inclination and asserted that "it is your duty to

reach a verdict if you can possibly do so )) you 12 people are the only ones that

can do it. The Court can't do it, nor anyone else. You twelve people are the

only ones." Id. at 1185. In addition, the jury had returned a guilty verdict

within five minutes of recei ving the court's supplemental charge. The Sixth

Circuit held that the state trial court's "identification of a deadlocked jury's

majority-minority count" and "coercive jury charge," and "the speedy return of

a verdict" constituted a totality of circumstances which violated the

petitioner's constitutional rights. Id. at 1186.

-16- Locks , 703 F.2d at 407 15 with Jones , 472 F.2d at 1186. 16

In Jiminez v. Myers

, 40 F.3d 976 (9th Cir. 1993) (per curiam),

petition for cert. filed

, 63 U.S.L.W. 3861 (U.S. May 22, 1995) (No.

94-1934), Montoy a's strongest support for his claim, the Ninth

Circuit reversed a denial of habeas relief on facts similar in some

respects to those in this case. However, in J iminez

, the state

trial court had repeatedly inquired into the jury's numerical

split, expressed approval of the jury's movement from nine-to-three

to eleven-to-one, and then instructed the jury to continue

deliberating until the end of the day. I d. at 979. The Ninth-17-

Circuit held th at the state trial court's "comments and conduct

amounted to giving the jury a de facto Allen charge." I d. at 980.

The court then reasoned that the trial court's instruction "sent a

clear message that the jurors in the majority we re to hold their

position and persuade the single hold-out juror to join in a

unanimous verdict, and the hold-out juror was to cooperate in the

movement toward unanimity." Id. at 981.

Although the facts in Jiminez are distinguishable on the

grounds that the trial court in this case did not repeatedly

inquire into the jury's "split" or express approval of its movement

toward unanimity, we also question the persuasiveness of the Ninth

Circuit's reasoning. S ee id. at 981 (Kozins ki, J., dissenting)

(characterizing as "sheer phantasy" majority's asses sment of the

effect of the trial court's instructions).

In sum, guided by Lowenfield

, Boyd

, and Bryan

, we hold that

the trial court's inquiry into the numerical division of the jury

and its supplemental instruction to continue delibe r ating for

another thirty minutes were not so coercive as to have rendered

Montoya's tr ial fundamentally unfair. Although its inquiry into

the numerical division of the jury was potential ly more coercive

than such an inquiry would have been in the context of a jury's

deliberations over a guilt/innocence verdict, the court's

supplemental instruction to continue deliberating for thirty

minutes "to see if you can reach an answer to the special issues"

was less coercive than the instructions at issue in Boyd and Bryan

.

While it lacked protective language assuring minority jurors thatMontoya also argues that the trial court's instruction to the jury

to continue deliberating was improper because under the Texas death penalty

statute, "if the jury is unable to answer any special issue, the defendant is to

be assessed a life sentence," M ontoya v. State

, 810 S.W.2d 160, 166 (Tex. Crim.

App. 1989), cert. denied

, 502 U.S. 961, 112 S. Ct. 426, 116 L. Ed. 2d 446 (1991).

Montoya contends that the trial court erred in not sentencing him to life

imprisonment after the jury first indicated that it had deadlocked. The Texas

Court of Criminal Appeals rejected this claim, holding that "[u]nless the record

reveals that the trial court abused its discretion in holding the ju ry for

deliberations, reversal is not mandated." S ee id. In any event, errors of state

law are not grounds for granting habeas relief. E stelle v. McGuire

, 502 U.S. 62,

67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991).

To the extent Montoya argues that the trial court's failure to render a

life imprisonment sentence violated his constitutional rights, we note that we

rejected a similar argument in Monroe v. Blackburn

, 748 F.2d 958 (5th Cir. 1984),

cert. denied

, 476 U.S. 1145, 106 S. Ct. 2261, 90 L. Ed. 2d 706 (1986), a case in

which the state trial court, in a Louisiana capital case, did not impose a life

sentence after the jury deadlocked during the sentencing phase of petitioner's

tr ial. We noted that the Louisiana courts had rejected Monroe's claim as a

matter of st ate law, and we held: "We accept that decision and reject the

argument that a constitutional deprivation occurred." Id. at 961.

-18- they were not required to relinquish firmly held convictions, the

court's instruction contained none of the "dynamite" language of a

traditional Allen charge. Under the totality of circumstances

surrounding the court's communications with the jury, we hold that

the trial court's instruction was not so coercive as to have

rendered Montoya's trial fundamentally unfair. Consequently, we

hold that the district court erred in granting Montoya's request

for habeas relief on the grounds that the state trial court

u nconstitutionally coerced the jury into answering "yes" to the

special issues. 17

B

Scott also challenges the district cou rt's holding that the

state trial court unconstitutionally instructed the jury on Texas'

"law of parties" because Montoya had not been charged with

conspiracy to commit murder. The trial court instructed the jury,

under Texas' "law of parties" statute, Tex. Penal Code Ann. § 7.02Montoya's brief erroneously suggests that a "law of parties"

instruction is distinct from a conspiracy instruction. He contends, quoting the

court's instruction, that the court instructed the jury on the law of parties and

conspiracy. In fact, the court instructed the jury on aiding and abetting, under

§ 7.02(a)(2), and conspiracy, under § 7.02(b), both of which are "law of parties"

instructions. S ee Jackson v. State

, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995)

(referring to "the law of parties as it is set out in both

. . . § 7.02(a)(2) and

in § 7.02(b)").

-19- (West 1994), on an "aiding and abetting" theory of criminal

liability, see § 7.02(a)(2), and a consp iracy theory of criminal

liability, see § 7.02(b). 1 8 Under section 7.02(b) of the Texas

Penal Code:

If, in the attempt to carry out a conspiracy to commit

one felony, another felony is commit ted by one of the

conspirators, all conspirators are guilty of the felony

actually committed, though having no intent to commit it,

if the o ffense was committed in furtherance of the

unlawful purpose and was one that should have been

anticipa ted as a result of the carrying out of the

conspiracy.

Tex. Penal Code Ann. § 7.02(b). We have held that Texas' "law of

parties" may support a conviction for capital murder. S ee Skillern

v. Estelle

, 720 F.2d 839, 846-47 (5th Cir. 1983), cert. denied

, 469

U.S. 873, 105 S. Ct. 224, 83 L. Ed. 2d 153 (1984).

Our recent decision in Jacobs v. Scott

, 31 F.3d 1319 (5th Cir.

1994), cer t. denied , ___ U.S. ___, 115 S. Ct. 711, 130 L. Ed. 2d

618 (1995), forecloses the district court's holding. Like Montoya,

Jacobs was convicted of capital murder after the trial court gave

the jury a "law of parties" conspiracy instruction under § 7.02(b).

Id. at 1322. Jacobs argued "that the trial court erred by charging

the jury at the guilt phase on a consp iracy theory of liability

even though the indictment contained no such charge." I d. at 1329.

We rejected this argument, which is identica l to Montoya's,-20-

stating:

We have held that "one who has been indicted as a principal may, on proper instruction s, be convicted on

evidence showing only that he aided and abetted the

commission of the offense." U nited States v. Ro blesPantoja , 887 F.2d 1250, 1255 (5th Cir. 1989) (citations

omitted). Similarly, it was not error for Jacobs to be

indicted as a pr incipal and then to be convicted under

the "law of the parties."

Id. Under Jacobs , Montoya is not entitled to habeas relief based

on the trial court's § 7.02(b) instruction.

III

A

In his cross-appeal, Montoya argues first that the district

court erroneously rejected his eighth claim, in which he contended

th at the trial court's jury instructions prevented the jury from

considering his mitigating evidence that he was not the principal

actor in the murder. "The Eighth Amendment requires that the jury

be able to consider and give effect to all relevant mitigating

evidence offered by petitioner." B oyde v. California , 494 U.S.

370, 377-78, 110 S . Ct. 1190, 1196, 108 L. Ed. 2d 316 (1990)

(citing Lockett v. Ohio

, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d

973 (1978); Eddings v. Oklahoma , 455 U.S. 104, 102 S. Ct. 869, 71

L. Ed. 2d 1 (1982); P enry v. Lynaugh

, 492 U.S. 302, 10 9 S. Ct.

2934, 106 L. Ed. 2d 256 (1989)).

Montoya argues t hat because the trial court instructed the

jury on Texas' "law of parties" but failed to clarify that the "law

of parties" does not apply during the penalty phase of his trial,

the jury was precluded from considering or giving effect to his-21-

mitigating evidence that Villavicencio and not he killed Kilheffer.

In Boyde

, the Supreme Court clarified its standard for such a

claim: "We think the proper inquiry in such a case is whether

there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence." Id. at 380, 110 S. Ct. at

1198; see Johnson v. Texas

,

___ U.S.

___, ___, 113 S. Ct. 2658,

2669, 125 L. Ed. 2d 290 (1993) (holding that petitioner's

Penry/Eddings/Lockett claim with res pect to Texas special issues

was governed by Boyde standard).

We have repeatedly rejected claims similar to Montoya's,

holding that if a jury believed that the def endant's accomplice

killed the murder victim, it could answer "no" to either of the

first two Texas special issues. S ee Harris v. Collins

, 990 F.2d

185, 188-89 (5th Cir.), c ert. denied

,

___ U.S.

___, 113 S. Ct.

3069, 125 L. Ed. 2d 746 (1993); Stewart v. Collins , 978 F.2d 199,

201 (5th Cir. 1992), cert. denied , ___ U.S. ___, 113 S. Ct. 1951,

123 L. Ed. 2d 656 (1993); Bridge v. Collins

, 963 F.2d 767, 770 (5th

Cir. 1992), cert. denied

,

___ U.S.

___, 113 S. Ct. 3044, 125 L. Ed.

2d 729 (1993). In Stewart we held:

[The petitioner] does not sat isfy his burden of

demonstrating a "reasonable likelihood that the jury

. . . appli[ed] the challenged instructions in a way that

prevent[ed] the consideration of constitutionally

relevant evidence." Boyde v. California , 494 U.S. 370,

371, 110 S. Ct. 1190, 1191, 108 L. Ed. 2d 316 (1990).

The punishment phase issues allowed th e jury to give

mitigating effect to [the petitioner's] alleged nontriggerman status if they chose to credit his version of

the offense.Although in Simmons the Supreme Court specifically limited its

holding to the due process cla use of the fourteenth amendment, expressing "no

opinion on the question whether [its] result [was] also compelled by the Eighth

Amendment," id. at

___, 114 S. Ct. at 2193 n.4, Montoya states his Simmons claim

as both a fourteenth amendment claim and an eighth amendment claim.

-22- Id. at 201. Our holding in Stewart forecloses Montoya's claim.

B

Montoya argues next that the trial court's instructions

unconstitutionally prevented the jury from giving mitigating effect

to the fact that if he had been sente nced to life in prison, he

would have been required to serve twenty years in prison before

becoming eligible for parole. At the penalty phase, the trial

court instructed the jury not to consider Montoya's eligibility for

parole, as Texas law required it to do, O 'Bryan v. Estelle

, 714

F.2d 365, 388 (5th Cir. 1983) ("Under Texas law, a jury may not

consider the possibility of parole in its deliberation on

punishment."), cert. denied

, 465 U.S. 1013, 104 S. Ct. 1015, 79 L.

Ed. 2d 245 (1984). Montoya's claim relies on the Supreme Court's

holding in Simmons v. So uth Carolina , ___ U.S. ___, 114 S. Ct.

2187, 129 L. Ed. 2d 133 (1994), that when a defendant convicted of

capital murder is statutorily ineligible for par ole, the due

process clause entitles him to rebut the prosecution's "future

threat to society" evidence with his sta tutory ineligibility for

parole. Id. at ___, 114 S. Ct. at 2194-96. 19

Montoya's Simmons claims are foreclosed by recent circuit

authority rejecting an extension of S immons beyond situations in

which a defendant is statutorily ineligible for parole. In

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

, ___In Kinnamon v. Scott

, 40 F.3d 731 (5th Cir.), cert. denied

, ___ U.S.

___, 115 S. Ct. 660, 130 L. Ed. 2d 595 (1994), we similarly declined to extend

Simmons beyond statutory ineligibility for parole:

[Petitioner] next asserts constitutional error in his inability to

argue to the jury in sentencing that if spared the death penalty

[petitioner] would be required to serve a minimum of 20 calendar

years without good time before becoming eligible for parole.

[Peti tioner] rests this claim on S immons

. . . . If we were to

ignore the absence of a contemporaneous objection and the bar of

Teague

. . . , we would not extend Simmons beyond cases in which the

sentencing alternative to death is life without parole.

Id. at 733.

-23- U.S.

___, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995), a habeas

petitioner had been prevented from arguing to the jury that he was

almost certain not to be granted parole. He argued that under

Simmons , the trial court's exclusion of his evidence and "refusal

to instruct the

. . . jury that [petitioner] almost certainly would

serve the remainder of his life in prison" violated his fourteenth

amendment right to due process. I d. at 220. We rejected his

claim, reading Simmons "to mean that due process requires the state

to inform a sentencing jury about a defendant's pa role

ineligibility when, and only when

, (1) the state argues that a

defendant represents a futur e danger to society, and (2) the

defendant is legally ineligible for parole." I d. at 222 (footnote

omitted); see also id. at 222-23 (rejecting similar claim asserted

as eighth amendment Penry claim). We also noted that an extension

of Simmons to encompass situations in which a defendant was

eligible for parole would be barred under Teague v. Lane

, 489 U.S.

288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). I d. at 222 n.11. 20

C

Montoya also argues that the district court erroneously denied

him discovery and an evidentiary hearing on his claim that one ofIf so, then a remand is in order for the petitioner to pursue his

requested discovery. Then, after discovery, the district court will be required

to determine whether an evidentiary hearing is necessary, that is, whether

genuine issues of material fact remain. Id. at 1002 (citing Ward v. Whitley

, 21 F.3d 1355, 1367 (5th Cir. 1994), cert. denied

,

___ U.S.

___, 115 S. Ct. 1257,

131 L. Ed. 2d 137 (1995)).

-24- the jurors who convicted Montoya knew the victim. "The opportunity

for an evidentiary hearing in a federal habeas corpus proceeding is

mandatory only where there is a factual dispute which, if resolved

in the petitioner's favor, would entitle the petitioner to relief

and petitioner has not received a full and fair evidentiary hearing

in state court." E ast v. Scott

, 55 F.3d 996, 1000 (5th Cir. 1995)

(citing Townsend v. Sain

, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d

770 (1963), overruled in part on other grounds

, Keeney v. TamayoReyes , 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992)).

In East

, we reviewed a district court's denial of a request

for discovery and an evidentiary hearing, and we follow a similar

approach in this case. First, we examine the legal basis for the

petitioner's claim to determine whether the petitioner's

allegations state a prima facie due process claim. East , 55 F.3d

at 1000-01. Second, we determine whether the petitioner's

allegations, which must be specific and may not be speculative or

conclusory, establish "good cause" for discovery under Rule 6(a) of

the Federal Rules Governing § 2254 Cases. Id. at 1001-02. 21

Thus, the first question we must address is whether Montoya's

allegations are sufficient to establish a prima facie due process

claim. In his amended habeas petition, Montoya alleged:

All jurors were asked at voir dire whether they knew the

alleged victim, John E. Kilheffer. No juror admitted anyMontoya supported these alleg ations with an affidavit by another

juror, Juror Y. In the affidavit, Juror Y states:

At some point during the trial (I believe it was during the

gu ilt/innocence phase deliberations), another juror, who was a

young, short, hispanic girl, and I were talking about where we were

from and where we worked. This juror, whose first name is ____ and

I believe her last name is

____, said sh e was working, or had worked, at the

Yacht Club Restaurant in Port Isabel.

When I learned that [Juror X] worked at the Yacht Club

Restaurant, I mentioned that the victim was from South Padre Island

and might have frequented the restaurant. I asked [Juror X] if she

had ever met him. She responded that she had known him and, in fact, had known

him for a while. I got the impression that [Juror X] had known him personally

because, for one thing, she referred to him by his first name. I then asked her

how she got on the jury if she knew the victim since we had been asked about that

before we were selected, but she would no longer talk about it.

At one point, [Juror X] said she was not sure she believed in

the death penalty and she also told me that she believed criminals

could be rehabilitated. On the other hand, [Juror X] was one of the

first to say the defendant deserved the death penalty. In fact, the

main reason I am coming forth with this information is because I had

the impression she may have been biased towards awarding the death

penalty due to her personal connection with the victim.

Record on Appeal, vol. 3, at 531-32. We note that although Scott contends that

the affidavit improperly lacked a stamp indicating the expiration date o f the

notary public's commission, the original affidavit, which appears in the district

court record, does contain such a stamp.

-25- knowledge of him. In fact, [Juror X] knew Kilheffer, had

known him for a while, and admitted this to a fellow

juror. Her failure to respond to the court's inquiry on

voir dire concealed critical information regarding

grounds for striki ng her for cause and her potential

biases and prejudices. . . .

[Juror X's] failure to tell the truth on voir dire

is itself evidence of bias. The law implies bias in this

situation. In the unlikely event that the court does not

find bias as a matter of law, Petitioner will demonstrate

actual bias at the evidentiary hearing.

Record on Appeal, vol. 3, at 523. 22 In response to the State's

motion for summary judgment, Montoya described his claim in these

terms: "[Juror X's] concealment of her acquaintance with the

deceased was obviously a failure to answer honestly a material

question on voir dire. Further, her friendship with the deceased

certainly would have formed the basis of a challenge for cause."Montoya's discovery request was similarly limited to this issue:

In Claim 24, Mr. Montoya alleges that he was deprived of his right

to a fair and impartial jury because one juror concealed during voir

dire that she knew the alleged victim. This claim is supported by

the affidavit of a fellow juror

. . . . That affidavit documents a

conversation with juror X in which she disclosed the fact that she

knew the alleged victim )) something she had denied at voir dire. Her

deposition is necessary to establish the fact that she failed to

disclose at voir dire that she knew the alleg ed victim. This

evidence cannot be gathered by any method short of a deposition.

Record on Appeal, vol. 2, at 397.

Although the quoted language appears in a plurality opinion, we have

treated the standard as the Co urt's holding. S ee United States v. Ortiz

, 942

F. 2d 903, 909 (5th Cir. 1991) ("In M cDonough

. . . , the Supreme Court

established a two-pronged test that governs this very situation. In the words

of the Court . . . .").

-26- Record on Appeal, vol. 1, at 195. 23

Montoya's claim that Juror X dishonestly failed to reveal her

acquaintance with Kilheffer and that this prevented Montoya from

challenging her for cause is grounded in the Sup reme Court's

decision in McDonough Power Equipment, Inc. v. Greenwood

, 464 U.S.

548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). In that case, a

civil case on direct review, a juror had allegedly failed to

disclose a material fact. Justice Rehnquist wrote in his plurality

opinion that:

to obtain a new trial is such a situation, a party must

first demonstrate that a juror failed to answer honestly

a material question on voir dire, and then further show

that a correct response would have provided a valid basis

for a challeng e for cause. The motives for concealing

information may vary, but only those reasons that affect

a juro r's impartiality can truly be said to affect the

fairness of a trial.

Id. at 556, 104 S. Ct. at 850. 2 4 The district court evaluated

Montoya's juror bias claim under the M cDonough standard, a n d

M ontoya makes no argument on appeal that the court improperlyMontoya specifically cited McDonough in his state habeas petition,

and his federal habeas petition allegations and response to the State's motion

for summary judgment track the two prongs of the McDonough standard.

-27- applied that standard to his claim. 25

We have applied the McDonough standard for a claim of juror

bias based on failure to disclose a material fact in criminal cases

on direct review. See United States v. Scott , 854 F.2d 697, 698-

700 (5th Cir. 1988) (holding that juror bias warranted new trial

where juror knowingly concealed fact that his brother worked in

prosecutor's office and parties did not dispute that juror "would

have been challenged and excused for cause had he revealed that his

brother was a deputy sheriff

. . . ."); United States v. Ortiz

, 942

F.2d 903, 909 (5th Cir. 1991) (noting that juror's "familial ties

to employees of law enforcement agencies may well not support a

challenge for cause," but holding that juror "answered the voir

dire query honestly yet ina ccurately," as permitted under

McDonough ), cert. denied

, 504 U.S. 985, 112 S. Ct. 2966, 119 L. Ed.

2d 587 (1992); s ee also United States v. Collins

, 972 F.2d 1 385,

1403 (5th Cir. 1992) (declining to apply M cDonough framework for

juror bias claim where alleged misstatement was of subjective

belief rather than objective fact), cert. denied

,

___ U.S.

___, 113

S. Ct. 1812, 123 L. Ed. 2d 4 44 (1993). Our application of the

McDonough standard to claims for juror bias on direct appeal from

federal convictions does not necessarily mean that we apply an

equivalent standard in a habeas case. See Murphy v. Florida , 421

U.S. 794, 797-98, 95 S. Ct. 2031, 2035, 44 L. Ed. 2d 589 (1975)See, e.g., Burton v. Johnson , 948 F.2d 1150, 1159 (10th Cir. 1991)

(holding that juro r's failure to disclose exposure to family and child abuse

denied petit ioner fair trial under M cDonough because juror failed to answer question honestly and correct response would have provided basis for challenge

for cause); Tinsley v. Borg

, 895 F.2d 520, 524-26 (9th Cir. 1990) (same), cert.

denied

, 498 U.S. 1091, 111 S. Ct. 974, 112 L. Ed. 2d 1059 (1991); Cannon v.

Lockhart , 850 F.2d 437, 440 (8th Cir. 1988) (applying McDonough and finding no

actual bias based on state court findings, which court held were entitled to

presumption of correctness).

We also assume, arguendo, that granting habeas relief on a McDonough

theory of juror bias would not be barred b y the non-retroactivity doctrine of

Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

It is also questionable whether Montoya's allegations state a prima

facie case with respect to the first prong of the McDonough standard, that is,

whether Juror X "failed to answer hon e stly a material question on voir dire ."

Id. at 556, 104 S. Ct. at 850. The trial court asked the jury pool whether

anyone knew "Mr. Kilheffer" from South Padre Island. No juror responded. The

allegations in Juror Y's affidavit may suggest that Juror X realized during the

trial that she knew Kilheffer, but they do not necessarily suggest that Juror X

realized when sh e was asked that she knew Kilheffer. Thus, it is speculative

whether Juror X (1) lied to get on the jury; or (2) honestl y but mistakenly

failed to realize she knew Kilheffer when asked. During her examination by

counsel at voir dire on an unrelated issue, Juror X referred to t he victim as

"this man from Padre Island" and not by name. Thus, Montoya's allegations with

respect to the first prong may, to some degree, be speculative, and speculative

allegations are insufficient to entitle a habeas petitioner to discovery and an evidentiary hearing. East , 55 F.3d at 1003.

-28- (distinguishing between constitutional standard for reversing

conviction based on juror bias and standard applied in Court's

exercise of federal sup ervisory power over federal criminal

convictions). However, other circuits have applied McDonough in

the habeas context, 26 and we assume, arguendo, that a M cDonough

theory of juror bias would be sufficient to obtain federal habeas

relief. 27

Montoya's claimfails on the second prong of the M cDonough

standard because he has failed to establish that Juror X's correct

response, that is, that she knew Kilheffer, would have constituted

a valid basis for challenging Juror X for cause. 28 Although Montoya

alleged in the district court that he could have challenged JurorWe have looked to state law as the nonexclusive basis to determine

the grounds for challenges for cause because those were the grounds applicable

to Montoya's trial. We have found no evidence that an independent federal

constitutional standard would have provided a valid basis for challenging Juror

X in these circumstances for cause over and above Texas law governing challenges

for cause. See, e.g., Patton v. Yount , 467 U.S. 1025, 1035, 1037 n.12, 104 S.

Ct. 2885, 2891, 2891-92 n. 12, 81 L. Ed. 2d 847 (1984) (noting federal

constitutional standard for determining whether juror's ability to lay aside preformed opinion and render verdict based on evidence presented in court makes

juror impartial, citing Irvin v. Dowd

, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d

751 (1961), but holding that state trial court determinations of impartiality are

factual findings entitled to a presumption of correctness in federal habeas

proceedings). For example, in J ones v. Butler

, 864 F.2d 348 (5th Cir. 1988), we addressed a habeas petitioner's claim that the state trial court

had erroneously deni ed his challenge for cause to a juror who lived near the

victim, knew her by sight, had visited the funeral home to view the body, etc.

We noted that under Louisiana law, a juror could be challenged if the juror was

"not impartial, whatever the cause of his partiality." I d. at 362. We held that

the state trial court's implicit finding of impartiality in its denial o f the

petitioner's challenge for cause was entitled to a presumption of correctness

under 28 U.S.C. § 2254(d) and therefore precluded federal habeas relief. Id.

-29- X for cause had she answered correctly whether she knew Kilheffer,

he cited no authority for this contention and makes no such

argument on appeal. Challenges for cause in Texas criminal trials

are governed by article 35.16 of the Texas Code of Criminal

Procedure. S ee Butl er v. State , 830 S.W.2d 125, 130 (Tex. Crim.

App. 1992) ("We hold that Article 35.16 is a comp lete list of

challenges for cause."). 29 Article 35.16(c) contains two grounds

on which a defendant may challenge a venireperson, neither of which

applies to this case. Article 35.16(a) lists grounds that either

the State or a defendant may assert. Among them, the only arguably

applicable basis is the ninth: "That [the venireperson] has a bias

or prejudice in favor of or against the defendant."

Consistent with the language of article 35.16(a)(9), the Texas

courts have focused on a venireperson's bias in favor of or against

the defendant rather than the victim. We have found no published

opinion upholding a challenge for cause based on a venireperson'sAccord Williams v. State , 682 S.W.2d 538, 541-43 (Tex. Crim. App.

1984) (holding that trial court properly rejected challenge for cause to juror

who attended church with murder victim and victim's wife, knew of murder victim,

and knew, although was not close friend with, victim's wife (citing Anderson ).

In Jernigan v. State

, 661 S.W.2d 936 (Tex. Crim. App. 1983), cert. denied

, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 368 (198 3), the Texas Court of

Criminal Appeals affirmed a trial court's rejection of a challenge for cause to

a venireman who knew the victim "all of his life" and admitted that he might have

a "small amount of bias." The court upheld the trial court's ruling under

Anderson

, holding that "[i]n the instant case, as in Anderson

, the alleged bias

was based upon the veniremember's relationship with the victim, and no bias was

directed to ward appellant." I d. at 940. The court acknowledged that the

personal relationship was closer than the relationships in Anderson

. The court

also stated, in d icta

, that "it seems likely that the relationship might have

affected [the veniremember's] ab ility to avoid bias against appellant in

considering the questions on punishment once the jury had determined guilt," but

noted that "the voir dire was directed entirely to the issue of the determination

of guilt or innocence." The voir dire in this case was part of the court's

initial questions to the jurors and related generally to the case. However, even

if we took the court's dicta as more than just that, the relationship in Jernigan

was closer than the acquaintance alleged in this case.

-30- mere acquaintance with the victim of the crime for which the

defendant has been charged, and the Texas Court of Criminal Appeals

has squarely held that the mere fact that a juror knows the victim

is not sufficient basis for disqualification. S ee Anderson v.

State

, 633 S.W.2d 85 1, 853 (Tex. Crim. App. 1982). In A nderson

,

the juror was a school teacher at the school where the rape at

issue occurred and knew the victim, who attended the school, and

several of the State's witnesses, but did not know the defendant.

The court stated: "Although such knowledge [of the victim] may be

the source of an existing bias, `the mere fact that a juror knows,

or is a neighbor, or an intimate acquaintance of, and on friendly

relations with, one of the parties to a suit , is not sufficient

basis for disquali fication.'" I d. at 853 (quoting Allbright v.

Smith , 5 S.W.2d 970 (Tex. Comm. App. 1928)). 30

Because Montoya's allegations fail to establish a prima facie

case under M cDonough

, the district court did not abuse its-31-

discretion in denying Montoya's request for disc overy and an

evidentiary hearing, see East

, 55 F.3d at 1003 (affirming denial of

request for discovery and evidentiary hearing where petitioner's

allegations that district attorney might have known about witness'

mental illness were insufficient to support Brady claim).

D

Montoya contends next that the trial court, in its

instructions to the jury during voir dire, diminished the jury's

sense of responsibility for imposing the death penalty by

misinforming it of its role in determining whether Montoya should

receive the death penalty. In C aldwell v. Mississippi

, 472 U.S.

320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), the Supreme Court

held that "it is c onstitutionally impermissible to rest a death

sentence on a determination made by a sentencer who has been led to

believe that the responsibility for determining the appropriateness

of the defendant's death rests elsewhere." Id. at 328-29, 105 S.

Ct. at 2639. In D ugger v. Adams

, 489 U.S. 401, 109 S. Ct. 1211,

103 L. Ed. 2d 435 (1989), the Supreme Court clarified its holding

in Caldwell and held that to "establish a Caldwell violation, a

defendant necessarily must s how that the remarks to the jury

improperly described the role assigned to the jury by local law."

Id. at 407, 109 S. Ct. at 1215; accord Sawyer v. Butler , 881 F.2d

1273, 1285 (5th Cir. 1989) (en banc), aff'd , 497 U.S. 227, 110 S.

Ct. 2822, 111 L. Ed. 2d 193 (1990). In evaluating a C aldwell

claim, we look to the "total t rial scene," including jury

selection, the guilt phase of the trial, and the sentencingThe court instructed the jury:

[I]n the event that there's a find ing of guilty, then a

separate hearing has to be held to determine the punishment to be

assessed in the case. And in other felony cases the jury may assess the punishment if the defendant elects to have the jury assess his

punishment in the event he is found guilty.

In capital murder cases the jury does not assess punishment.

A hearing has to be held and the jury will be asked a couple of

questions, and the burden of proof is on the State.

[Reciting special issues.]

Now, if you answer the two questions yes, then the Court, the

judge, is required to assess the punishment of death to the accused.

In the event you answer one or both questions no, then the

punishment is life in prison, assessed again by the Court, and the jury does not

assess the punishment but answers those questions. And then the Court is the one

that assesses the punishment. I do, however, need to tell you the effect of your answers to those particular questions.

State Record, vol. IX, at 33-35.

-32- hearing, examining both th e court's instructions and counsel's

arguments to the jury. Id. at 1286-87.

In this case, Montoya points to the trial court's instructions

during voir dire, which he suggests minimized the jury's role. 31

The instructions he points to, however, accurately characterize the

jury's role under Texas law. Under the Texas death penalty statute

in effect at the time of Montoya's conviction, the jury answers the

special issues "yes" or "no" and then the trial court imposes the

punishment that follows from those answers:

If the jury returns an affirmative finding on each issue

submitted under this artic le, the court shall sentence

the defendant to death . If the jury returns a negative

finding on any iss ue submitted under this article, the

court shall sentence the defendant to confinement in the

Texas Department of Corrections for life.

Tex. Code Crim. Proc. Ann. art. 37.071(e) (West 1981). Thus, the

trial court did not misinform the jury of its role under local law

and therefore did not violate Caldwell

. S ee D ugger , 489 U.S. at

407, 109 S. Ct. at 1215; Sawyer , 881 F.2d at 1285.

In addition, the "total trial scene" contains ample-33-

communications to the jury of their responsibility for determining

whether Montoya would receive the death penalty. For example, the

prosecutor explicitly asked the potential jurors during voir dire

if they understood that the jury's answers to the special issues

would determine whether or not Montoya received the death penalty.

Because the trial court accurately conveyed to the jury its role

under Texas law in determining whether Montoya should receive the

death penalty, and because the "total trial scene" leaves no doubt

that the jury was not misinformed of its role, we hold that the

district court properly rejected Montoya's Caldwell claim.

E

The remainder of Montoya's claims warrant little discussion.

Montoya argues that the trial court violated his fifth, eighth, and

fourteenth Amendment rights by introducing evidence of

unadjudicated criminal conduct at the penalty phase of his trial.

Montoya raises these issues to preserve them for future appeal to

the Supreme Court, and as he concedes, they are foreclosed by

circuit precedent. S ee Duff-Smith v. Collins

, 973 F.2d 1175, 1184

(5th Cir. 1992), cert. denied , ___ U.S. ___, 113 S. Ct. 1958, 123

L. Ed. 2d 661 (1993); Landry v. Lynaugh , 844 F.2d 1117, 1121 (5th

Cir.), cert. denied

, 488 U.S. 900, 109 S. Ct. 248, 102 L. Ed. 2d

236 (1988).

Montoya also argues that he was illegally detained without a

prompt determination of probable cause, in violation of Gerstein v.The Suprem e Court held in G erstein that the State "must provide a

fair and relia ble determination of probable cause as a condition for any

significant pretrial restraint of liberty, and this determination must be made

by a judicial officer either before or promptly after arrest." Id. at 125, 95

S. Ct. at 868-69 (footnotes omitted).

-34- Pugh , 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). 32 Not

only is Montoya's claim unsupported by the record, but the Supreme

Court clearly stated in Gerstein that in requiring a prompt

determination of probable cause it did not mean to "retreat from

the established rule that illegal arrest or detention does not void

a subsequent conviction." I d. at 119, 95 S. Ct. at 865; accord

Lofton v. Whitley

, 905 F.2d 885, 889 (5th Cir. 1990) ("Even if [the

petitioner] were illegally detained, illegal `detention does not

void a subsequent conviction.'" (quoting Gerstein

, 420 U.S. at 119,

95 S. Ct. at 865)). Consequently, Montoya's claim, even if it were

supported by the record, would not entitle him to habeas relief.

III

For the foregoing reasons, we AFFIRM in part, REVERSE in part,

and REMAND with instructions to deny relief.-35-

GARWOOD and JONES, Circuit Judges, specially concurring.

While concurring in Judge Garza's fine opini on in this

case, we deem it appropriate to note an additional ground for

rejecting petitioner Montoya's allegation that the federal district

court erroneously denied him discovery and an evidentiary hearing

on his claim that one of the jurors knew Montoya's victim. S ee

Part IIIC of Judge Garza's opinion. Judge Garza holds that

Montoya's petition in federal court did not sufficiently allege a

prima facie vio lation of M cDonough Power Equipment, Inc. v.

Greenwood

, 464 U.S. 548, 104 S.Ct. 845 (1984), to necessitate a

federal factfinding endeavor.

We would also poin t out that Montoya alleged even less

about this purported con stitutional violation in his last-minute

habeas petition filed in state court. In that venue, Montoya

merely stated "on information and belief" that a juror knew the

vict im but did not disclose the fact in voir dire, and he sought

time to conduct discovery thereon. He did not attach the affidavit

of the other juror that he soon after filed in federal court, nor

was there any allegation that the juror's acquaintance with Montoya

was just discovered or was not discoverable sooner. He did not

allege that the juror's familiarity with the victim was such that

it would have biased her against Montoya.

Under these circumstances, Montoya did not allege

sufficient facts to establish a prima facie McDonough violation in

state court, and the state court properly denied relief on the-36-

ground that he failed to "reasonably show the existence of any fact

or facts which would be material to the issue of the legality of

his incarceration."

Because Montoya fail ed to develop in state court the

material facts surrounding this issue of juror disqualification, he

was not entitled to a federal court evidentiary hearing unless he

established cause and prejud ice excusing the default. K eeney v.

Tamayo-Reyes , ___ U.S. ___, 112 S.Ct. 1715, 1721 (1992). Montoya

alleged in his federal petition neither of these preconditions to

the gran ting of a federal evidentiary hearing. Consequently, we

agree with the alternate holding of the district court that Keeney

did not require it to conduct the initial factfinding proceeding.

As the Supreme Court stated in Keeney

, . . . "little can be said

for holding a habeas petitioner to one standard for failing to

bring a claim in state court and excusing the petitioner under

another, lower standard for failing to develop the factual basis of

that claim in the same forum." ___ U.S. ___, 112 S.Ct. at 1720.