IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-5093

_______________

DAVID LEE HOLLAND,

Petitioner-Appellant,

VERSUS

JAMES A. COLLINS,

Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________

(May 22, 1992)

Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

David Lee Holland makes application for a certificate of

probable cause ("CPC") to appeal the district court's denial of his

petition for writ of habeas corpus. On December 17, 1991, without

acting on the application f or CPC, the panel majority granted

Holland's motion for stay of execution "pending the court's en banc

decision in G raham v. Collins

. . . ." Shortly thereafter, an

opinion was issued in Graham

. S ee Graham v. Collins

, 950 F.2d 1009

(5th Cir. 1992) (en banc), petition for cert. filed (Mar. 9, 1992)2

(No. 91-7580). In light of Graham , and for the other reasons

hereinafter expressed, we now deny CPC and vacate the stay of

execution.

I.

Holland was convicted for the capital murder, on July 16,

1985, of two bank employees in the course of committing and

attempting to commit bank robbery. The facts and earlier procedural history of the case are set forth in the comprehensive

opinion of the Texas Court of Criminal Appeals. S ee Holland v.

State

, 761 S.W.2d 307 (Tex. Crim. App. 1988), cert. denied

, 489

U.S. 1091 (1989). Holland filed a state habeas petition with the

court of criminal appeals, which denied all relief. See Ex parte

Holland

, No. 70,970 (Tex. Crim. App. Oct. 16, 1991). Holland filed

his first federal habeas petition on December 11, 1991.

In a lengthy memorandum and order, the district court on

December 17, 1991, denied Holland's motion for stay of execution,

dismissed his habeas pe tition, and denied CPC. Also on

December 17, Holland filed a motion for stay of execution and

application for CPC with this co urt. That same day the panel

majority, without taking action on the application for CPC, granted

the stay. H olland v. Collins

, 950 F.2d 169 ( 5th Cir. 1991) (per

curiam).

In his application for CPC, Holland presents two issues.

First, he asserts that mitigating evidence of his positive

character traits required an additional instru ction to the jury1 Art. 37.071(b) reads in relevant part as follows:

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 with the reasonable expectation that

the death of the deceased or another would result;

[and]

(2) whether there is a probability that the

defendant would commit criminal acts of violence that

would constitute a continuing threat to society. . . .

3 under Penry v. Lynaugh , 492 U.S. 302 (1989). Second, he contends

that a confession was obtained from him in violation of, inter

alia

, Miranda v. Arizona , 384 U.S. 436 (1966).

II.

A.

Holland presented evidence of positive character traits,

including a g ood work history, honesty, and courtesy. Other

evidence indicated that he was remorseful for the murder of which

he was convicted. Holland's attorney requested that additional

i nstructions be given to the jury in order to cure what Ho lland

claims is a constitutional defect in the Texas capital sentencing

statute, Tex. Code Crim. P. art. 37.071, 1 as it existed at the time

of his conviction.

Specifically, Holland claims that without such instructions,

the jury was unable to give full effect to Holland's mitigating

evidence, as the evidence had value for Holland outside the second

special issue regarding future dangerousness. Thus, Holland argues

that a "rational juror could have concluded that, even if likely to

be dangerous in the future, David Holland nevertheless deserved to4

live because of his long productive life of good deeds, loving

family and caring and respectful friends."

Holland also claims that the failure to define certain terms

in the second punishment question rendered such mitigating evidence

irrelevant. That is, he asserts that, without some standard to

guide the jury's deliberations, the standard of proof for "future

dangerousness" is so uncertain that a small amount of evidence will

support an affirmative answer to the second jury interrogatory and

that such evidence is not subject to being offset by mitigating

evidence.

As the state notes, however, all that is required is that the

jury be permitted to consider the mitigating evidence and give it

effect. As we stated in G raham

, where the major thrust of a

defendant's mitigating evidence can be considered by the jury,

there is no need for additional jury instructions. G raham

, 950

F.2d at 1026-30. "That is particularly appropriate in a case such

as this, where there is no { major thrust z of any of the mitigating

evidence which is not relevant to support a negative answer to the

second special issue . . . ." Id. at 1027.

The mitigating evidence presented by Holland is the same type

of evidence that we determined in Graham to be sufficiently

cognizable in the jury's consideration of the second jury

interrogatory . As in G raham

, Holland's evidence of positive

attributes would have indicated to the jury that the crime was

aberrational and that he would not be a continuing threat to

society. As we observed in Graham

,5

this sort of evidence is different in kind from that

involved in Penry

, as its relevan ce to each of the

special issues, and particularly the second, is entirely

in the direction of a negative answer, and it has no tendency to reduce culpability for the particular crime

charged in any way not encompassed within one or more of

the s pecial issues. Unlike P enry type disability

evidence, which can reduce culpab ility where it is

inferred that the crime is attributable to the disability

while other similar offenders have no such "excuse," good

character evidence provides no variety of "excuse."

Further, absent some unusual indication of an essentially

permanent adverse change in character (e.g., brain

damage), to the extent that the testimony is convincing

that the defendant's general character is indeed good it

will also, to essentially the same extent, be convincing

that he will not continue to be a threat to society.

Id. at 1033.

Important to the Graham analysis is that no additional jury

instr uction is required "where no major mitigating thrust of the

evi dence is substantially beyond the scope of all the special

issues." I d. at 1027. Thus, the jury was able adequately to

consider Holland' s mitigating evidence under the second special

issue even if, arguably, such evidence had so me mitigating

relevance beyond the scope of the Texas special issues. Similarly,

we noted in Graham that

it appears to us that the principal mitigating thrust of

all this evidence is to suggest that the [murder was]

aberrational and atypical of Graham's true character and

that he thus had potential for rehabilitation and would

not be a continuing threat to society. As such, the

mitigating force of this evidence can adequately be given

effect under the second special issue.

Id. at 1032.

B.

The above-discussed evidence is all the evidence that, prior2 Holland did not even raise the issue regarding APD in his application

for CPC but, instead, waited until his execution had been stayed and he had

been given an opportunity to file a post- Graham brief.

6 to Graham , Holland claimed was mitigating. Now, in a post- Graham

brief requested by the court, he asserts, as mitigating evidence,

the fact that he arguably suffers from antisocial personality

disorder (APD). At the punishment phase, the state sought to

establish that Holland suffers from APD and used it to support an

affirmative answer to the issue on future dangerousness. Holland,

on the other hand, argued to the jury that he did not suffer at all

from APD.

Because of this diametric reversal of pos ition, Holland is

raising an argument for the first time on appeal, a tactic

condemned by, e.g., Buxton v. Lynaugh

, 879 F.2d 140, 148 (5th Cir.

1989), cert. denied, 110 S. Ct. 3295 (1990). Particularly in

view of the fact that, prior to the filin g of this latest brief,

Holland always has contended that the diagnosis of APD was

erroneous, he cannot, in the light of an unfavorable decision in

Graham , now make an about-face and attempt, for the first time on

appeal, 2 to present APD as mitigating evidence of the sort that is

cognizable under Penry

.

IV.

As the only other issue presented in his application for CPC,

Holland argues that the state secured a confession from him in the

absence of a valid waiver of his right to remain silent. We find

this issue to be without merit and adopt the explanation set forth7

in part VI of the dissenting opinion to the panel majority's order

granting stay. S ee Holland v. Collins

, 950 F.2d at 172-73 (Smith,

J., dissenting).

III.

In light of Graham

, Holland has failed to make a "substantial

showing of the de nial of a federal right." B arefoot v. Estelle

,

463 U.S. 880, 893 (1983). He has not "demonstrate[d] that the

issues are subject to debate among jurists of reason; that a court

could resolve the issues in a different manner; or that the

questions are worthy of encouragement to proceed further." Byrne

v. Butler

, 845 F.2d 501, 505 (5th Cir. 1988) (citing Barefoot

, 463

U.S. at 893 n.4). Accordingly, his application for CPC must be,

and is hereby, DENIED. The stay of execution previously entered by

this court is hereby VACATED.