Revised August 28, 1998

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-10240

____________

LARRY KEITH ROBISON,

Appellant,

versus

GARY JOHNSON, Director, Texas Dept. of

Criminal Justice, Institutional Division,

Respondent.

Appeal from the United States District Court

For the Northern District of Texas

August 13, 1998

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Larry Keith Robison was sentenced to death after being

convicted of capital murder in Texas state court. Robison filed a

petition for habeas corpus relief in federal district court. The

district court denied Robison’s petition and his subsequent request

for Certificate of Appealability (“COA”). Robison now requests a

COA on eight separate issues he raised below. We deny COA with1 Penry v. Lynaugh , 492 U.S. 302, 109 S. Ct. 2934, 106 L.

Ed. 2d 256 (1989).

-2- regard to all but his Penry 1 claim, with regard to which we grant

COA but affirm the district court’s dismissal on the merits.

I

In 1983, Larry Keith Robison stood trial for intentionally

killing Bruce Gardner in the cou rse of committing robbery, in

violation of Tex. Penal Code § 19.03(a)(2). Robison pursued an

insanity defense, pre senting evidence that he was a paranoid

schizophrenic, but the jury returned a verdict of guilty. On

direct appeal, the Texas Court of Criminal Appeals reversed

Robison’s conviction, holding that the trial court had abused its

discretion by improperly limiting defense counsel’s voir d i re

questioning regarding potential bias towards the insanity defense,

in violation of Article I, § 10 of the Texas Constitution.

Robinson v. Texas , 720 S.W.2d 808 (Tex. Crim. App. 1986).

In 1987, Robison stood trial again on the same charge, relying

as before on a defense of insanity. The jury returned a verdict of

guilty and then, during the sentencing phase t hat followed,

answered affi rmatively to the two special issues set forth in

article 37.071 of the Texas Code of Criminal Procedure. The trial

court accordingly sentenced Robison to death by lethal injection.

On direct appeal, the Texas Court of Criminal Appeals affirmed

Robison’s conviction and sentence. R obison v. Texas

, 888 S.W.2d-3-

473 (Tex. Crim. App. 1994)(en banc). After Robison’s application

for habeas corpus relief in state court was denied, Robison filed

the instant habeas corpus petition in district court. The district

court denied Robison’s petition without an evidentiary hearing and

later denied his request for COA on each issue raised here.

II

Robison seeks a COA from this court on each of the following

issues: (1) Whether Robison received ineffective assistance of

counsel in violation of the Sixth Amendment because his a ttorney

failed to keep a psychiatrist’s report from the jury; (2) Whether

Robison received ineffective assistance of counsel because his

attorney failed to present evidence of Robison’s though t process

during the commission of the offense; (3) Whether Robison received

ineffective ass istance of counsel because his attorney advised

Robison not to testify; (4) Whether Robison received ineffective

assistance of counsel and was d enied his constitutional right to

counsel based on his attorney’s failure to follow Robison’s written

instructions as to how to conduct his defense; (5) Whether the

Texas “special issues” scheme for determining when to impose a

sentence of death violates the Eighth and Fourteenth Amendments to

the U.S. Constitution as appli ed to Robison because the special

issues did not allow the jury to consider Robison’s mental illness

as a mitigating factor (“ Penry claim”); (6) Whether Robison’s claim2 Before addressing these issues, we briefly disp ose of

Robison’s contention that the Antiterrorism and Eff ective Death

Penalty Act (“AEDPA”) does not apply to his case. Following the

Supreme Court’s decision in Lindh v. Murphy

, we requested

supplemental briefing on the issue of whether AEDPA applied to

Robison’s habeas claim. S ee Lindh v. Murphy

, ___U.S.___, 117 S.

Ct. 2059, 138 L. Ed. 2d 481 (1997) (holding that AEDPA applies only

to cases filed after the effective date of April 24, 1996).

Robison argues that the “filing date” referred to by Lindh should

be interpreted to mean the date of conviction. The state, on the

other hand, argues that the appropriate filing date should be the

-4- of newly discovered evidence states a ground for federal habeas

relief; (7) Whether Texas Code of Criminal Procedure article 46.03

§ 1(e), which mandates that jurors not be informed of the

consequences of a verdict of not guilty by reason of insanity,

deprived Robison of his right to due process; and (8) Whether the

district court erred in denying Robison’s motion for an evidentiary

hearing.

“A [COA] may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Specifically, the applicant must demonstrate

that the issue on which he seeks a COA is “debatable among jurists

of reason.” F uller v. Johnson

, 114 F.3d 491, 495 (5th Cir.), cert.

denied

,

___ U.S.

___, 118 S. Ct. 399, 139 L. Ed. 2d 312 (1997). In

determining whether to grant a COA, “[w]e resolve doubts . . . in

favor of the petitioner, and we may properly consider the severity

of the penalty in making this determination.” Id . (citations

omitted). With these standards in mind, we consider in turn each

of the issues raised by Robison. 2date on which the defendant filed the particular feder al habeas

petition in question. Following our request for supplemental

briefing, we resolved this issue in favor of the state, holding

that AEDPA applies to habeas petitions file d in federal district

court after AEDPA’s effective date. See United States v. Carter

, 117 F.3d 262 (5th Cir. 1997 ); United States v. DeLario , 120 F.3d

580 (5th Cir. 1997). Because Robison filed this federal habeas

petition in the Northern District of Texas on December 12, 1996,

several months after AEDPA’s effective date of April 24, 1996, we

will apply AEDPA standards to his habeas claim.

-5- A

Robison contends that his trial attorney rendered ineffective

assistance of counsel by giving the report of a psychiatrist, Dr.

Buckholtz, to his testifying expert, Dr. Price, thereby allowing

the report to be discovered and then us ed by the state in crossexamination. After spending several hours with Robison over the

course of two v isits, Dr. Buckholtz rendered an opinion that

Robison was sane at the time he committed the murders and prepared

a detailed, written rep o rt summarizing his conversations with

Robison and disclosing his ultimate opinion. Robison contends that

his counsel’s performance was deficient because he allowed this

damaging report to be discovered by the state and used against him

in front of the jury. The state habeas court made the following

findings of fact related to this issue:

(1) At his first trial in 1983, [Rob i son] was

represented by J.R. Molina and Charles Roach.

In preparation for [Robison]’s first trial and

just seven months after the crimes, counsel

employed C.D. Buckholtz, M.D., to conduct a

mental evaluation of [Robison].

(2) Dr. Buckholtz found that [Robison] was not

insane during the commission of the crimes and-6- counsel elected not to present his testimony

at the 1983 trial.

(3) [Robison] was represented by different

counsel, David Bays and Sherry Hill (now

presiding Judge of County Criminal Court

Number One of Tarrant Cou nty), at his second

trial nearly five years after the commission

of the crimes. In preparation for [Robison]’s

second trial, his mother, Lois Robison,

retained Randall Price, Ph.D., to evaluate

[Robison].

(4) Along with other materials, [Robison]’s new

counsel gave Buckholtz’s report to Price.

Price testif i ed at the 1987 trial, and on

cross-examination, the State reviewed Price’s

materials, including Buckholtz’s report. The

State subsequently cross-examined Price about

the report and mentioned it during argument.

The jury did not otherwise see the report.

(5) While, at their request, the jury received

portions of Price’s testimony on crossexamination during deliberations, it also

received at its request portions of the

defense ’s cross-examination of the State’s

psychiatrist Dr. Griffith.

(6) Counsel provided Buckholtz’s report to Price

in order that Price should have before him all

available information in making his evaluation

of [Robison] and to deflect any criticism from

the State on cross-examination.

(7) The prosecutor at [Robison]’s second trial,

Greg Pipes, reviews the jail and penitentiary

records of an accused in a major trial.

Tarrant County Jail records reflect that Dr.

Buckholtz visited [Robison] on May 17, 1983.

(8) Price testified that the totality of

[Robison]’s medical history was critical in

evaluating his mental state.

(9) Notwithstanding the trial court’s express

consent to [Robison] raising issues

independently of his counsel, at no time

during trial did [Robison] assert any-7- privilege to prevent disclosure of Buckholtz’s

report, nor did he voice any objection to the

trial court. Moreover, in a letter [Robison]

submitted with his final affidavit in this

writ proceeding, he gave written instructions

to h is counsel expressing a desire to be

forthright with the jury and he deferred to

counsel on matters of strategy.

Robison does not challenge these findings of fact, and we presume

them to be correct. S ee 28 U.S.C. § 2254(e). The state habeas

court concl uded as a matter of law that “[c]ounsel’s challenged

actions are presumptively within the scope of sound trial strategy”

and that “[g]iven [Robison]’s instructions to counsel and his

silence at trial, counsel’s action of providing Buckholtz’s report

to Price was justifiable as sound trial strategy.”

To succeed on an ineffective assistance of counsel claim,

Robison mu st show that (1) his counsel’s performance was

constitutionally deficient and (2) his counsel’s ineffectiveness

resulted in actual prejudice. S ee Strickland v. Washington

, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To

satisfy the first prong of the Strickland test, the petitioner must

show that his “counsel’s representation fell below an o bjective

standard of reasonableness.” I d

. Moreover, petitioner must

“overcome the strong presumption that counsel’ s conduct falls

within the wide range of reaso n able professional assistance,”

Williams v. Cain

, 125 F.3d 269, 276 (5th Cir. 1997) (internal

quotations and citation omitted), and this presumption of adequacy

includes making “[e]very effort . . . to eliminate the distorting-8-

effects of hindsight” and to assume “that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’”

Bridge v. Lynaugh

, 838 F.2d 770, 773 (5th Cir. 1988) (quoting

Strickland

, 466 U.S. at 689, 104 S. Ct. at 2065). The second

prong, prejud ice, “requires a showing that counsel’s errors

deprived the defendant of a fair trial.” S ee Strickland

, 466 U.S.

at 687, 104 S. Ct. at 2064.

Robison argues that his counsel’s performance was

constitutionally defective because he essentially handed over this

confidential, damaging report to the state. The state disagrees,

contending that counsel exercised sound trial strategy in providing

Price with Buckholtz’s report to aid Price in his evaluation of

Robison and to protect him on cross-examination.

The state’s position is supported by the state habeas court’s

findings of fact that Robison’s counsel showed the report to Price

to ensure that Price had “all available information” and to aid in

“deflecting criticismfrom the state on cross-examination.” We

recognize that Buckholtz’s report contained certain damaging

passages and an opinion contrary to defense’s position. However,

given the state habeas court’s factual findings, we conclude that

Robison has failed to overcome the strong presumption that his

counsel’s decision to provide Buc kholtz’s report to Price

constituted sound trial strategy. S ee Strickland

, 466 U.S. at 689,

104 S. Ct. at 2065. We therefore hold that Robison has not made a-9-

substantial showing of the denial of a constitutional right with

regard to this issue.

B

Robison next contends that his counsel was in effective in

failing to present evidence of his thought process at the guiltinnocence stage of trial by either introducing his autobiography,

e ntitled “The Making of a Schizophrenic,” or, assuming th e

autobiography was inadmissible, developing and presenting that

thought process through his expert, Dr. Price. The autobiography

is Robison’s 31-page account of his thoughts leading up to and

including the time of the murders. The state habeas court made the

following findings of fact with regard to the autobiography:

(10)

. . . At the punishment stage of his trial, in

order to evade cross-examination, [Robison]

elected not to testif y

, but he desired to

introduce the document into evidence.

(11) After a conference with the prosecution,

defense counsel advised [Robison] that the

State would not acquiesce to the admission of

the document unless [Robison] took the stand.

[Robison] then requested the document be

introduced into the record for purposes of

review, which the trial court permitted. . .

.

The court concluded that the autobiography was in admissible as

evidenc e and, alternatively, that counsel could have omitted the

autobiography as a matter of trial strategy.

Applying the two-prong Strickland test to this claim, we first

address counsel’s failure to intr o duce the autobiography into-10-

evidence. The state court determined that the autobiography was

inadmissible, an d we do not question that determination. S ee

Estelle v. McGuire

, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L.

Ed. 2d 38 5 (1991) (“[I]t is not the province of a federal habeas

court to reexamine state court determinations on state-law

questions.”). This essentially forecloses Robison’s claim under

Strickland that his counsel pe rformed deficiently in failing to

introduce inadmissible evidence. C f. Murray v. Maggio

, 73 6 F.2d

279, 283 (5th Cir. 1984) (“Counsel is not required to engage in the

filing of futile motions.”).

We also conclude that Robison has failed to show that his

counsel was deficient in developing his thought process through Dr.

Price. First, we note that to the extent that it was relevant,

Robison’s counsel did, in fact, elicit testimony regardin g how

Robison’s “t h ought process” supported a diagnosis of paranoid

schizophrenia. Dr. Price explained to the jury that Robison

suffered from an “u nderlying fixed delusional system,” which

manifested itself in beliefs such as the following:

He believed that

. . . after he killed the first person,

that the clock in the )) it was in the bathroom, I believe,

a digital clock, he said that it flipped over to where it

was zeros, and then it started acting like it was a stop

clock, and he thought that was a message that he was

supposed to start trying to free other souls.

Robison’s counsel went on to elicit from Dr. Price testimony as to

why this particular episode demonstrated the type of “underlying

fixed delusional system” typical of paranoid schizophrenics:-11- I said to [Robison]

. . . “Well, but, you know

clocks don’t do that.” And he said, “Well, this one

really did that.” And I said, “Well, don’t you think

that was something that you thought it did?” And he

said, “No, that’s what it did.”

So, there was still underlying )) if you asked enough

questions and spent enough time, there was still an

underlying symptomology or a picture there of c hronic

paranoid schizophrenia.

Furthermore, in light of the contents of the autobiography, we

cannot conclude that counsel employed unsound trial strategy in not

having Dr. Price extensively quote from or otherwise refer to the

document. Robison appears to allege that had the jury known more

about his “thoughts” during the murders, they might have been more

convinced that he was “crazy.” Having reviewed the autobiography,

however , we conclude that reasonable lawyers may well disagree

about whether the jury would in fact have reacted as Robison

theorizes or would instead have reached the opposite conclusion.

Because Robison’s argument fails the first prong of

Strickland , Robison has failed to make a substantial showing that

he was deprived of constitutionally effective counsel in this

instance.

C

Robison argues that trial counsel rendered ineffective

assistance by advising him not to testify at the guilt-innocence

stage of the trial. In response, the state contends that counsel’s

advice not to testify was well within the bounds of reasonable

p rofessional assistance. We evaluate this claim of ineffective-12-

assistance under the two-prong standard of Strickland , keeping in

mind that “the decision whether to put a Defendant on the stand is

a ‘judgment call’ which should not easily be condemned with the

benefit of hindsight.” U nited States v. Garcia

, 762 F.2d 1222,

1226 (5th Cir. 1985).

The state habeas court found that Robison’s counsel “strongly

advised [Robison] against testifying because of the risk that he

might adversely expose himself before the jury on crossexamination.” The court also made the following findings:

(16) Counsel did not deny [Robison] the opportunity

to testify at the guilt/innocence stage of

trial. [Robison] voluntarily gave up his

right to testi f y in order to avoid crossexamination. . . .

(29) [Robison] realized during trial that counsel

could not prevent him from testifying and

[Robison] has failed to complain about any

inability to testify in the previous nine

years; thus, counsel did not deny [Robison]

the right to testify.

The state habeas court concluded that “[p]roperly, counsel strongly

advised [Robison] against testifying.”

Robison challenges findings (16) and (29) as not supported by

the record. Specifically, he argues that the discussion on the

record about his desire to testify took place at the punishment

stage of trial and that it was not until the punishment stage that

counsel overbore his will and persuaded him not to testify.

Robison contends that the soundness of trial counsel’s strategy was

questionable consideri ng the nature of the defense ) ) insanity )) and3 The trial record reveals that during the p u nishment

phase, Robison’s couns el questioned him about his desire to

testify. During that exchange, Robison acknowledged that counsel

had warned him that the prosecutor “would try to make him angry and

look real bad in front of the jury.” Robison further admitted that

counsel had spoken to him many times about testifying and had

consistently and strongly recommended against it because of the

anticip ated, intense cross-examination. Counsel then asked him,

“Taking all of that into consideration, I can’t keep you off the

witness stand, and you know that?” Robison answered, “Yes.” When

counsel specifically asked Robison whe ther he wanted to testify,

Robison said that he wanted to have his autobiography introduced

into evidence but did not want to be subjected to crossexamination. The state refused that request, however, so Robison

asked that the autobiography be entered into the record for

purposes of appellate review, which the court allowed.

-13- his desire to testify. Although he concedes that the decision was

partially one of strategy, he argues that the decision ultimately

should rest with the accused and not his lawyer.

The se objections do not provide the type of clear and

convincing evidence necessary to rebut the presumed correctness of

the state habeas court’s factual finding that Robison voluntarily

relinquished his right to testify at the guilt-innocence st age. 3

We therefore conclude that Robison has not shown that his trial

counsel perform ed deficiently in advising and persuading Robison

not to testify. Moreover, even with the benefit of hindsight, we

find that counsel’s strong recommendation against Robison’s

testifying represented reasonable trial strategy. See Hollenbeck

v. Estelle

, 672 F.2d 451, 454 (5th Cir. 1982) (holding that it was

not unreasonable trial strategy for counsel to advise defendant not

to testify as to self-defense where defendant “might do more harm-14-

than good by attemp ting to explain how six shots were fired in

self-defense”). For these reasons, we hold that Robison has failed

to make a substantial showing of the denial of his constitutional

right to effective assistance of counsel.

D

Robison contends that his trial counsel’s failur e to follow

his explicit instructions, as detailed in a letter he wrote to

counsel, constituted constitutionally ineffective assistance and

violated his Sixth Amendment right to counsel. In response, the

state maintains that these claims are procedurally barred and, in

any event, meritless.

Robison presented this claim in a supplemental habeas petition

to the state habeas court. Relying on Texas Code of Criminal

Procedure article 11.071 §§ 4(b) and (f), the state court found

that Robiso n’s supplemental petition was untimely filed and that

Robison had failed to demonstrate good cause to excuse the delay.

On review of Robison’s federal habeas petition, the district court

held that this claim was procedurally barred.

When the d istrict court dismisses a petition on procedural,

nonconstitutional grounds, we employ a two-step COA process. See

Murphy v. Johnson

, 110 F.3d 10, 11 (5th Cir. 1997). First, we must

determine if the applicant has made a credible showing that his

claim is not procedurally barred. S ee id. If the applicant meets

that requirement, we then determine if he “has ‘made a substantial4 Robison does not contend that the state procedural rule

in this case has not been strictly or regularly applied by the

state. S ee Stokes v. Anders on , 123 F.3d 858, 859-60 (5th Cir.

1997), cert. denied , ___ U.S. ___, 118 S. Ct. 1091, 140 L. Ed. 2d

147 (1998) (explaining that to establish that a s tate procedural

bar is not “adequate,” the “petitioner bears the burden of showing

that th e state did not strictly or regularly follow [the]

procedural bar around the time of his direct appeal”).

-15- showing of the denial of a constitutional right’” with respect to

the underlying claim. Id. (quoting 28 U.S.C. § 2253(c)(2)).

The state argues that because t he state court unambiguously

based its denial of relief on a state procedural default and

Robison is unable to show cause or prejudice for this default, the

district court correctly held that this claim was procedura lly

barred. S ee Meanes v. Johnson

, 138 F.3d 1007, 1010 (5th Cir. 1998)

( “It is well settled that federal habeas review of a claim is

procedurally barred if the last state court to consider the claim

expressly and unambiguously based its denial of relief on a state

procedural default.”); id

. at 1011 ( “Where a state court has

explicitly relied on a procedur al bar, a state prisoner normally

may not obtain federal habeas relief absent a showing of cause for

the default and actual prejudice.”). Robison, however, maintains

that he can show cause and prejudice. 4 In order to show cause,

Robison must demonstrate that some objective factor external to his

defense prevented him from raising this claim. See United States

v. Guerra

, 94 F.3d 989, 993 (5th Cir . 1996). One such objective-16-

factor is “a showing that the factual or legal basis for the claim

was not reasonably available to counsel at the prior occasion.”

Id

.

Robison claims to have demon strated cause by presenting

evidence that h is current counsel was prevented from obtaining

access to the trial file that included Robison’s letter to his

trial counsel until a fter the state limitations period had run.

Even assuming arguendo that Robison’s excuse is true, however,

Robison has not sufficiently demonstrated cause for the procedural

default. Robison was obviously aware of the letter and of the

instructions he had given his counsel therein. It was Robison’s

instructions, however communicated, and not the letter itself, that

form the “factual basis of the claim.” S ee Guerra

, 94 F.3d at 993.

Robison thus knew of the factual basis of the claim before his

current counsel’s discovery of the letter. The fact that Robison

may have been unable to produce the best evidence of this

communication until later does not constitute cause for the delay

in bringing this claim before the court. We thus conclude that

Robison has failed to make a credible showing that his claim is not

procedurally barred.

E

Relying on Penry v. Lynaugh

, 492 U.S. 302, 109 S . Ct. 2934,

106 L. Ed. 2d 256 (1989), Ro bison contends that his sentence of

death was rendered in violation of the Eighth and Fourteenth-17-

Amendments, as applied to him, because the special issues provided

in Texas Code of Criminal Procedure article 37.071 did not provide

an adequate vehicle for the jury to take into account Robison’s

mitigating evidence of mental illness. Pursuant to article 37.071,

the trial court asked the jury the two foll owing statutorily

mandated special issues at sentencing:

(1) Was the conduct of the Defendant, Larry Keith

Robison, that caused the death of Bruce

Gardner, committed deliberately and with the

reasonable expectation that the death of the

deceased or another would result?

(2) Is there a probability that the Defendant,

Larry Keith Robison, would commit criminal

acts of violence that would constitute a

continuing threat to society?

The trial court also gave the following instruction:

You are further instructed that in determining each

of these Special Issues, you may take into consideration

all of the evidence submitted to you in the full trial of

this case, that is, all of the evidence submitted to you

in the first part of this case wherein you were called

upon to determine the guilt or innocence of the

Defendant, and all of the evidence, if a ny, admitted

before you in the second part of the trial wherein you

are called upon to determine the answers to the Special

Issues hereby submitted to you.

Upon receiving a unanimous, affirmative response to each of the two

questions, the judge assessed a sentence of death.

In Pen ry , the Supreme Court set aside Penry’s capital

sentence, holding that although Penry’s evidence of mental

retardation and childhood abuse was placed before the jury at

sentencing, the sentencer had no reliable means of giving-18-

mitigating effect to that evidence. P enry

, 492 U.S. at 328, 109 S.

Ct. at 2952. “ Penry ’s application has since been limited to that

narrow class of situations in which the peti tioner’s mitigating

evidence was placed beyond the jury’s effective reach.” Lucas v.

Johnson

, 132 F.3d 1069, 1082 (5th Cir. 1998), petition for cert.

filed

, (U.S. Jun. 8, 1998) (No. 97-9463); see, e.g.

, Johnson v.

Texas , 509 U.S. 350, 369-70, 113 S. Ct. 2658, 2670, 125 L. Ed. 2d

290 (1993) (holding that the Texas special issues permitted jurors

to consider mitigating evidence of youth in evaluating petitioner’s

future dangerousness); Graham v. Collins

, 506 U.S. 461, 475-76, 113

S. Ct. 892, 902, 122 L. Ed. 2d 260 (1993) (holding that the Texas

special issues permitted jurors to consider mitigating evidence of

youth, family background, and positive character traits because the

evidence “had mitigating relevance to the second special issue

concerning his likely future dangerousnes s”). The question

presented by Robison’s claim is, therefore, “whether the mitigating

evidence [he] presented was within the effective reach of the jury

under either of the interrogatories considered by the jury.” I d. ;

s ee also Lackey v. Scott

, 28 F.3d 486, 489 (5th Cir. 199 4) (“A

state’s refusal to give additional instructions does not amount to

constitutional error unless there is a ‘reasonable likelihood that

the jury applied the challenged instruction in a way that prevents

the consideration of constitutionally relevant mitigating

evidence.’”) (quoting Johnson

, 509 U.S. at 367, 113 S. Ct. at 26695 The Supreme Court decided Penry after Robison’s

conviction but before his direct appeal. Thus, the Texas Court of

Criminal Appeals imposed no procedural bar and instead reached the

merits of Robison’s Penry claim.

-19- (1993)).

Robison raised this claim in his direct appeal to the Texas

Court of Criminal Appeals, claiming, as he does here, that “the

jurors were not able to consider the mitigating effect of his

mental disease or defect during the punishment phase of the

trial.” 5 R obison

, 888 S.W.2d at 486. Consistent with our case

law, the court explained that to successfully raise a Penry claim,

Robison had to show that he had presented mitigating evidence that

was “beyond the effective reach of the sentencer.” I d

. at 487. In

setting forth the requirements for making such a showing, the court

emphasized that it is not the labels imposed by socie ty that are

mitigating, but rather the “specifics of the evidence, presented at

trial, and how that evide nce affected the personal moral

culpability of the defendant.” I d. The court distinguished P enry

in this respect, explaining that “it was not that [Penry] was

‘mentally retarded’ and abused as a child,” but rather the fact

that “[a] psychiatrist testi fied that Penry was unable to learn

from his mistakes

. . . . It is this testimony, and not the label

of ‘mental retardation,’ that society believes is mitigating.” I d.

at 488.

The court review ed in detail the evidence of mental illness-20-

that Robison presented at trial. The court noted that Robison’s

expert witness, Dr. Price, testified on behalf of Robison about his

insanity defense, speaking extensively about the nature of

schizophrenia and describing the typical behavior of a person

s uffering from schizophrenia. The court further noted that

evidence at trial indicated that several of Robison’s relatives had

been diagnosed as schizophrenics and that there may be a hereditary

link to the disease. The court also indicated that much evidence

of Robison’s history of drug and alcohol abuse was admitted,

includi n g accounts of Robison’s hospitalization for drug use.

Price testified that certain drugs, such as LSD and amphetamines,

tend to cause a person to exhibit symptoms that appear

schizophrenic, and th e state’s witness, Dr. Griffith, testified

that Robison was faking mental il lness, had engaged in extensive

drug use, and that Robison’s behavior was at tributable to druginduced psychosis, which exhibits similar symptoms to

s chizophrenia. Finally, evidence at trial indicated that

schizophrenia was episodic and could become man ifest at certain

times and then go into remission at others. Both Price and

Griffith testified that schizophrenia is treatable. After

recounting all of this evidence, the court concluded that it was

“insufficient to raise a ‘ Penry ’ issue,” explaining that even

“assuming arguendo that [Robison] was schizophrenic, there was no

evidence that [Robison’s] mental disease decrease[d] his personal-21-

moral culpability.” I d. at 488-89. The court therefore overruled

Robison’s point of error that the special issues failed to provide

an adequate mechanism for the jury to consider and give effect to

his mitigating evidence.

With respect to the first special issue, the Supreme Court

explained in Penry that a rational juror could have concluded based

on Penry’s confession, that Penry acted deliberately in killing his

victim. However, because Penry was mentally retarded, and “thus

less able than a normal adult to control his impulses or to

evaluate the consequences of h is conduct, . . . that same juror

cou ld also conclude that Penry was less morally culpable than

defendants who have no such excuse, but who acted ‘deliberately’ as

that t erm is commonly understood.” I d

. at 322-23, 109 S. Ct. at

2949 (internal quotations and citations omitted). The Court

therefore concluded that it could not be sure that the jury was

able to give effect to Penry’s mitigating evidence in answering the

first special issue, reasoning that a juror could believe that

Pe nry’s mental retardation diminished his moral culpability but

also believe that he committed the crime deliberately. I d

. at 323,

109 S. Ct. at 2949. Turning to the second special issue, the Court

concluded that Penry’s evidence of mental retardation and resultant

inability to learn from his mistakes was relevant only as an

aggrav ating factor because it suggested that Penry would be a

continuing threat to society and therefore would compel the jury to-22-

answer “yes” to the second special issue. According to the Court,

Penry’s mental retardation and history of abuse was thus a “twoedged sword: it may diminish his blameworthiness for his crime

even as it indicates there is a probability he will be dangerous in

the future.” I d

. at 324, 109 S. Ct. at 2949. Therefore, the Court

concluded that the second special issue also did not provide a

vehicle for the jury to give mitigating effect to Penry’s mental

retardation.

Robison contends that the reasoning of Penry applies equally

to him. He argues that the first special issue did not allow the

jury to give mitigating effect to his mental illness.

Specifically, he claims that not knowing one’s conduct is wrong and

not being able to conform one’s conduct to the requirements of the

law do not disable one from acting deliberately. Thus, he

continues, the jury could have concluded that he acted deliberately

but at the same time concluded that he could not conform his

conduct to the law. With respect to the second issue, he contends

that despite the treatable nature of schizophrenia, the jury could

have nonetheless found him to be more dangerous, not less so

because treatability does not give assurance of a lasting cure.

G iven the similarities between Robison’s evidence of ment a l

illness and the evidence discussed in Penry , we find that Robison

has made a “substantial showing of the denial of a constitutional

right” on this issue, and we accordingly grant COA on it. 28-23-

U.S.C. § 2253(c)(2). We therefore review this claim under the

standard set forth in 28 U.S.C. § 2254(d): we will grant Robison’s

petition for writ of habeas corpus only if the state court

adjudication of the claim “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court.” An application

of federal law is “unreasonable” only if it is “so clearly

incorrect that it would not be debatable among reasonable jurists.”

Nobles v. Johnson

, 127 F.3d 409, 418 (5th Cir. 1997), cert. denied

,

118 S. Ct. 1845, 140 L.Ed.2d 1094 (1998) (internal quotations and

citation omitted). In other words, “an application of law to facts

is unreasonable only when it can be said that reasonable jurists

considering the question would be of one view that the state court

ruling was incorrect.” I d

. at 416 (internal quotations and

citation omitted).

Although we question whether Robison could show that his

mitigating evidence was beyond the effective reach of the jury with

respect to the first special issue, s ee Lucas

, 132 F.3d at 108 2

(holding that the sentencer could effectively consider the

mitigating aspects of Lucas’s evidence of mental illness )) including

expe rt testimony that Lucas was psychotic and suffered from

schizophrenia )) under the first special issue), we need not decide

that issue here because we can affirm the district court’s decision

with respect to the second special issue. See Davis v. Scott , 51-24-

F.3d 457, 464 (5th Cir. 1995) (concluding that it “need not

consider whether the second special issue p rovided another,

separate, adequate means” for the jury to con sider Davis’s

mitigating evidence because it had already determined that the jury

had an adequate means through the first special issue). In

relation to the second issue, the state distinguishes Penry’s

mental retardation from Robison’s mental illness, arguing that the

former is constant while schizophrenia is treatable and capable of

going into remission. Furthermore, the state points out that

defense counsel itself argued during the punishment phase that for

precisely those reasons, the jury should answer “no” to the second

question: there was no probability of future dangerousness because

Rob ison had improved, was ) ) according to his own expert )) in

remission, would be in a controlled environment for life, and

therefore could continue to be in remission. Robison responds by

arguing that the treatable nature of his mental illness does not

assure a long-lasting cure and, therefore, the jury could

nonetheless have found Robison to be more dangerous, not less.

Based on the evidence Robison presented at trial, we conclude

that the jury could give mitigating effect to Robison’s evidence of

mental illness in answering the second special issu e, which

concerned Robison’s future dangerousness. S ee Davis

, 51 F .3d at

464 (explaining that “a P enry claim does not arise when

constitutionally relevant evidence ‘can be given mitigating effect-25-

in some way under the Texas special issues’”) (quoting Motley v.

Collins

, 18 F .3d 1223, 1234 (5th Cir. 1994)) (emphasis in

original). In Lucas , experts testified that Lucas was “psychotic

and suffered fromschizophrenia.” Lucas

, 132 F.3d at 1082. The

trial t estimony also indicated that Lucas “responded well to

antipsychotic drugs like Thorazine and that his particular illness

could be treated in a controlled environment.” I d

. Distinguishing

Penry

, we held that “[t]his prospect of medical treatment placed

the evidenc e of his mental illness and abusive childhood within

‘the effective reach of the s entencer’ as a potential mitigating

factor with respect to the second issue” because “the jury could

have considered w hether, in an institutional setting, the

probability that Lucas posed as a future danger to society was not

so great as to merit imposition of the death sentence.” Id. ; see

also Davis

, 51 F.3d at 464 (concluding that jury could give

mitigating effect to Davis’s evidence under t he second special

issue because the evidence did not demonstrate “that he was unable

to learn from his mistakes” but did demonstrate that “he responded

positively to a structured environment”). That distinction applies

with equal weight to Robison’s case: both Robison’s expert and the

s t ate’s expert testified that schizophrenia is treatable, and

Robison’s expert testified that he was currently in a state of

remission, which he attributed to being a result of the structure

of prison life. S ee Graham

, 506 U.S. at 475, 113 S. Ct. at 902-26-

(h o lding that “Graham’s evidence )) unlike Penry’s )) had mitigating

relevance to the second special issue concerning his likely future

dan g erousness” because his evidence “quite readily could have

supported a negative answer”) (emphasis in original). We thus hold

that the conclusion of the Texas Court of Criminal Appeals that

Robison’s evidence did not raise a Penry issue was not a “decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court.” 28 U.S.C. § 2254(d). We accordingly affirm the district

court’s dismissal of this claim.

F

Robison claims he has newly discovered evidence supporting his

claim of insanit y, and he contends that his execution without

examination of this new evidence would be so fundamentally unfair

as to violate due process under the Fourteenth Amendment. Robison

alleges no other constitutional violation in conjunction with his

claim of newly discovered evidence. He raised this claim in both

his state and federal habeas petitions, and both courts rejected

the claim without an evidentiary hearing.

Robison’s alleged new evidence is that after his conviction

was affirmed on direct appeal, his half-si ster was diagnosed as

manic depressive and schizoaffective. Dr. Price, who testified on

Ro bison’s behalf at the second trial, concluded in an affidavit-27-

attached to Robison’s state habeas petition that this new

information w ould “lend very heavy weight in support of [his]

diagnosis.” In addition, Dr. Duckers, an expert subpoenaed to

testify at R obison’s trial but ultimately not called because he

attributed Robison ’s psychosis more to drug use than to

schizophrenia, swears in an affidavit that Robison’s new evidence

“would change [ his] professional opinion of the cause of Mr.

Robison’s psychosis and [would cause him to] attribute [the

psychosis] more to schizophrenia than drug use.”

The state habeas court found that “in the context of the

jury’s awareness of [Robison’s] own medical his tory and his

family’s medical history, the fact that [Robison’s] half-sister has

succumbed to a mental health problem years after the commission of

the crimes is of little or no import and does not support a claim

of actual innocence.” In support of this finding, we note that at

trial Robison presented testimony regarding his own mental health

history, which included diagnoses of schi zophrenia, as well as

evidence that four people in Robison’s family were diagnosed with

schizophrenia (including a great-grandfather and two uncles). In

addition, Dr. Price testified about the possible genetic basis of

schizophrenia.

We re ject Robison’s claim of newly discovered evidence.

Contrary to Robison’s reliance on the often-quoted “actual

innocence” dicta in the Supreme Court case Herrera v. Collins

, 5066 Robison refers to the following passage in Herrera :

We may assume, for the sake of argument in deciding this

case, that in a capital case a truly persuasive

demonstration of ‘actual innocence’ made after trial

would render the execution of a defendant

unconstitutional, and warrant federal habeas relief if

there were no state avenue open to process such a claim.

Id. at 417, 113 S. Ct. at 869.

7 We also note that in Robison’s case, “a further bar to

construing Herrera as effecting such a substantial expa nsion of

federal habeas law is the language ignored by the petitioner that

federal habeas relief would be warranted only ‘if there were no

state avenue open to process such a claim.’” Lu cas , 132 F.3d at

1075 (quoting Herrera

, 5 06 U.S. at 417, 113 S. Ct. at 869).

Following the Supreme Court’s Herrera case, Texas began recognizing

“actual innocence” claim s. See State ex rel. Holmes v. Court of

Appeals

, 885 S.W.2d 389 (Tex. Crim. App. 1994) (announcing that it

would begin entertaining postconviction applications for the writ

of habeas corpus alleging actual innocence as an independent ground

for relief).

-28- U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), 6 we have held

in this circuit that “the existence merely of newly discovered

evidence relevant to the guilt of a state prisoner is not a ground

for relief on federal habeas corpus,” and “the Supreme Court’s

Herrera opinion does not alter this entrenched habeas principle.” 7

Lucas v. Johnson , 132 F.3d 1069, 1074 (5th Cir. 1998). Moreover,

even as suming the application of the “actual innocence” dicta in

Herrera (and assuming additionally that proof of insanity deserves

the same treatmen t as claims of “actual innocence”), Robison’s

demonstration here that yet another relative suffers from a related

but not identical mental disorder does not rise to the standard of

“truly persuasive.” Robison has failed to make a substantial8 Robison challenges this statute only as it applies to the

particular circumstances of his case; he explicitly states in his

application for COA that he does not challe nge the statute

“globally.”

9 Specifically, Robison argues that the state m ade the

following and other similar statements:

“[O]ur law says that if a person is insane at the exact

time of the offense, then he cannot be held responsible

for his actions.”

If the jury return an NGI verdict, “that would be the end

of the trial. He would be found not guilty by reason of

insanity, and you’d be discharged and return to [your

job].”

“But the law says that if they [the defense] prove it to

you by a preponderance of the evidence, then the law

excuses them for having met that burden of insanity.”

“Our law says

. . . that if someone meets our legal

definition of insanity, and if they are insane under our

legal definition, that their conduct is excused under the

-29- showing of the denial of a constitutional right with respect to

this issue.

G

Robison contends that Texas Code of Criminal Procedure article

46.03 § 1(e) violates due process because it prohibits the accused

from informing the jury of the consequences of a not guilty by

reason of insanity (NGI) verdict. 8 Robison claims that members of

a venire may have erroneous impressions about the consequences of

such a verdict that should be corrected in order to ensure

fundamental fairness, and more specifically, that in his particular

trial, the state played on these erroneous impressions by implying

that Robison would be released into society after an NGI verdict. 9law.”

“Ou r law says we don’t have temporary insanity, and a

person can’t get off or relieve himself of responsibility

for his acts unless he proves himself legally insane.”

10 The Court of Criminal Appeals also rejected Robison’s

facial challenge to this statute, reasoning that the statute

reflects the policy judgment of the legislature. R obison v. State

, 888 S.W.2d 473, 475-76 (Tex. Crim. App. 1994).

11 Specifically declining to address the situation in which

the state does indicate that a defendant would be released into

society upon a finding of NGI, the court did, however, state that

“[a]t that point the trial court would possibly be permitted to

declare a mistrial or instruct the jury that the state is incorrect

as to the law of insanity, but the law precludes any discussion of

the consequences of a finding of not guilty by reason of insanity.”

Id. at 476 n.3.

-30- A ddressing this issue on direct appeal, the Texas Court of

Criminal Appeals held that the state did not erroneously indicate

that a verdict of NGI would result in Robison’s release into

society. 1 0 R obison v. State

, 888 S.W.2d 473, 475-76 (Tex. Crim.

App. 1994). Distinguishing the remarks made by the state in this

case from an explicit declaration that a defendant will go free

following an NGI verd ict, the court did not find fault with the

state for “confront[ing] the premise of the insanity defense,

[which is that] a defendant is excu sed of the criminal

responsibility for his actions and that the jurors’

responsibilities end at that point.” 11 Id . at 476.

We conclude that Robison has not made a substantial showing of

the denial of a constitutional right with regard to this issue. As

the Texas Court of Criminal Appeals found, th e state did not say-31-

that the defendant would go free if the jury rendered a verdict of

NGI and instead said only that the defendant is relieved of

responsibility. See Shannon v. United States , 512 U.S. 573, 587,

114 S. Ct. 2419, 2428, 129 L. Ed. 2d 459 (1994) (holding that

instruction concerning the consequences of an NGI verdict “is not

to be given as a matter of general [federal criminal] practice,”

but “ recogniz[ing] that an instruction of some form may be

necessary under certain limited circumstances” such as when “a

witness or prosecutor states in the presence of the jury that a

particular defendant wou ld ‘go free’”). Furthermore, the court

instructed the jury that it should neithe r “consider nor discuss

the effect of a verdict of not guilty by reason of insanity,” and

this instruction should have sufficiently safeguarded Robison’s due

process rights. See U nited States v. Levi ne , 80 F.3d 129 (5th

Cir.), cert. denied

, 117 S. Ct. 83, 136 L. ED.2d 40 (1996) (finding

no violation of due process or right to fair trial where the

prejudicial effect of the prosecutor’s statement that “buy[ing]

[Levine’s] insanity defense” would mean that Levine “walk[s] out of

this courtroom a free man,” was minimized by two instructions by

the district court).

H

Lastly, Robison argues that the district court erred in

denying his motion for an evidentiary hearing, wh ich Robison

requested with respect to (1) his newly discovered evidence claim-32-

(regarding his half-sister’s recent diagnosis) and (2) his claim of

ineffective assistance of counsel based on the failure to develop

Robison’s state of mind through his expert. The district court

denied Robison’s motion for evidentiary hearing on the grounds that

he did not meet the test set forth in 28 U.S.C. § 2254(e)(2), which

provides, in relevant part:

If the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that ))

(A) the claim relies on ))

(i) a new rule of constitutional law,

m ade retroactive to cases o n

collateral review by the Supreme

Court, that was previously

unavailable; or

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due

diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable factfinder

would have found the applicant guilty of the

underlying offense.

Robison contends that any failure to develop the factual basis of

his claim was not attributable to his lack of attempt to do so but

to the state’s denial of a “true” hearing. He argues that the

state denied him such a “true” hearing by not hearing witnesses,

observing their demeanor, or seeing thei r credibility tested by

cross-examination.

We have stated that “a petitioner cannot be said to have

‘failed to develop’ a factual basis for his claim unless the-33-

undeveloped record is a result of his own decision or omission.”

McDonald v. Johnson

, 139 F.3d 1056, 1059 (5th Cir. 1998). Assuming

arguendo that Robison has cleared this initia l hurdle of §

2254(e)(2), he must still show that the district court abused its

discretion in denying the hearing. S ee id

. at 1060 (explaining

that § 2254(e)(2) “spe c ifies the situations where evidentiary

hearings a re a llowed

, not where they are required ”) (emphasis in

original); see also id

. (stating that the subsequent decis ion to

hold an evidentiary hearing is “committed to the district court’s

discretion pursuant to Rule 8 of the Rules Governing § 2254

Cases”). Given our resolution of these two claims, s ee supra Parts

II.B and II.F, which reveals no relevant factual disputes that

would require development in order to assess the claims, we hold

that the district court did not abuse its discretion in denying

Robison’s motion for an evidentiary hearing.

III

For the foregoing reasons, we DENY COA on all issues except

the Penry claim, on which we GRANT COA. With respect to the P enry

claim, we AFFIRM the district court’s dismissal on the merits.