IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 00-20942

___________________

CRAIG NEIL OGAN,

PetitionerAppellant,

versus

JANIE COCKRELL, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL

DIVISION, Respondent-Appellee.

___________________________________________

Appeal from the United States District Court

for the Southern District of Texas

__________________________________________

June 28, 2002

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

CARL E. STEWART, Circuit Judge:

Petitioner-Appellant, Craig Neil Ogan (“Ogan”), appeals the district court’s denial of his

Petition for Writ of Habeas Corpus regarding his claims of ineffective assistance of counsel. For the

reasons assigned herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Facts of the Crime

In late 1989, Ogan moved from St. Louis, Missouri to Houston, Texas. Ogan had acted as

a confidential informant for the Drug Enforcement Agency (“DEA”) in St. Louis. However, upon2

his request, the DEA relocated him to Houston after state court prosecutions for narcotics trafficking

revealed his identity.

In Ho ust o n, DEA Agent Norman Houle (“Agent Houle”) supervised Ogan. Agent Houle

warned Ogan that the DEA did not permit informants to carry weapons. However, while in Houston,

Ogan carried a firearm despite the DEA policy. Agent Houle also instructed Ogan not to get involved

in any drug deals and to “just let his face be known” around Houston. N evertheless, Ogan sought

involvement in drug transactions.

On December 8, 1989, Ogan called Agent Houle from Taco Rico, a Houston restaurant, and

told him that he had encountered someone with whom he had previously attempted to set up a drug

deal. The drug deal had not realized, but resulted in an armed confrontation. Ogan told Agent Houle

that at the restaurant the man had put a gun to Ogan’s head, and that he had put a gun to the man’s

head. The man was still outside the restaurant when Ogan called Agent Houle. Ogan told Agent

Houle that he was afraid and asked him to come to the restaurant and escort him safely out.

Agent Ho ule arranged for Houston police officers to accompany Ogan off the premises.

Houston Police Offi cer Darryl O’Leary (“Officer O’Leary”) arrived to assist Ogan at around 8:00

p.m. According to Officer O’Leary, Ogan was extremely excited. Ogan requested that the officer

take him to his apartment so that he could remove some papers and tapes related to a DEA

investigation. However, Officer O’Leary told him that he could not take him there until after backup

arrived. Ogan then became impatient, hostile, and lo ud. Houston Police Officer Steven Hanner

(“Officer Hanner”) arrived to provide backup for Officer O’Leary. The officers took Ogan to his

apartment. Ogan retrieved some items from his apartment, including a .38 caliber pistol, a “sawedoff” shotgun, and at least two hunting knives. The officers followed Ogan to a Best Western Motel,3

now a Motel 6, and left him there at around 9:00 p.m.

Ogan made two or three long-distance telephone calls after he checked in to his motel room

.

Shortly thereafter, a motel employee disconnected his long-distance service because he had failed to

leave a deposit for such servic e. Ogan phoned the motel office and requested that the service be

reconnected. He then went to the office to pay for his calls and to leave a deposit. While there, he

complained that the heater in his room was not functioning properly. He was loud and upset as he

complained. He eventually left the office but returned sho rtly thereafter, at around 12:30 a.m., to

c o mplain again. He requested his money back for the long-distance calls. Because Ogan grew

angrier as he confronted the motel attendant, the attendant threatened to call security. Ogan began

kicking the office door, and the attendant dialed 911. Ogan then left the motel and began walking

tow ard a St o p-n-Go store. As he was leaving, he saw a police officer across the street from the

motel. He walked over to the patrol unit and looked in the passenger side window. Houston Police

Officers Morgan Gainer (“Officer Gainer”) and James Boswell (“Officer Boswell”) were sitting in the

patrol unit. They had driven into a parking lot to make a traffic stop.

Ogan knocked on the window of the patrol unit. Officer Boswell let his window down and

asked Ogan what he wanted. Ogan responded that the DEA had left him at the motel and that he was

cold. Officer Boswell told Ogan to back away from the car until the officers finished the traffic stop

and then let his window back up. However, Ogan knocked on the window again. Officer Boswell

opened the door and again asked Ogan to step away from the car. Ogan stated that he was a DEA

informant and that he was cold. Officer Boswell again told Ogan to wait. Ogan repeated his previous

statements, and Officer Boswell told him that he would have to wait, leave, or go to jail.

Officer Boswell then go t o ut o f t he patrol unit. Ogan demanded immediate assistance. Officer1 Special Issue No. 1 asked: “Was the conduct of the defendant, Craig Neil Ogan, that caused

the death of the deceased committed deliberately and with the reasonable expectation that the death

of the deceased or another would result?”

4 Boswell unholstered his weapon, and holding the gun behind his right leg, reached into the patrol unit

to unlock the back door. At this point, Ogan pulled out a gun and shot Officer Boswell in the head

and then stated “Well, fuck you then.” O gan then ran. Officer Gainer, who had seen Officer Boswell

fall against the back door of the patrol unit, chased Ogan. The officer caught Ogan, wounding him

in the process.

II. Ogan’s Trial: Guilt-Innocence Phase and Penalty Phase

On February 2, 1990, the State of T exas indict ed Ogan for the capital murder of a police

officer. A t trial, Ogan testified that Officer Boswell had threatened to tell people that he was a “DEA

snitch.” He also testified that Officer Boswell was “lunging” toward him and frantically attempting

to remove his gun from the holster. Ogan claimed to have killed Officer Boswell in a reflexive action,

without thinking and fearing that Officer Boswell was going to shoo t him. Sally Webster

(“Webster”), a forensic psychologist, testified on Ogan’s behalf during the guilt/innocence phase of

the trial. She testified that Ogan was anxious, agitated, and fearful for his life aft er mo ving to

Houston. She also stated that he suffered from functional paranoia, which, according to Webster,

is not a form of insanit y. She testified that Ogan was intelligent but used his intelligence inefficiently.

She also determined that Ogan had a passive aggressive personality disorder. The jury found Ogan

guilty.

During the pen alty phase of the trial, the State presented testimony from several witnesses

regarding Ogan’s history of aggressive behavior. Ogan countered this evidence with testimony from

several friends and relatives. The jury answered affirmatively the three special issues given after the

sentencing hearing 1 , and the trial court sentenced Ogan to death.Special Issue No. 2 asked: “Is there a probability that the defendant, Craig Neil Ogan, would

commit criminal acts of violence that would constitute a continuing threat to society?”

Special Issue No. 3 asked: “Was the conduct of the defendant, Craig Neil Ogan, in killing the

deceased unreasonable in response to the provocation, if any, by the deceased?”

5 III. Direct Appeal to the Texas Court of Criminal Appeals

Ogan filed a direct appeal to the Texas Court o f Criminal Appeals, raising three points of

error. He challenged (1) the sufficiency of the evidence demonstrating his deliberate conduct in

causing Officer Boswell’s death; (2) the sufficiency of the evidence establishing his future

dangerousness; and (3) the effectiveness of his trial counsel at the penalty stage regarding counsel’s

requested jury instruction on mitigation. The Court of Criminal Appeals affirmed Ogan’s conviction

and s entence. On December 21, 1993, the United States Supreme Court denied Ogan’s writ of

certiorari petition.

IV. State Habeas Proceedings and Appeal

On February 4, 1999, the 230th District Court of Harris County, Texas, Judge Belinda Hill,

adopted the State’s proposed findings of fact, conclusions of law, and order and recommended that

the Texas Court of Criminal Appeals deny Ogan’s application for habeas relief. The state distri ct

court concluded that Ogan had failed to demonstrate ineffective assistance of his trial counsel with

regard to counsel’s failu re t o employ a mitigation specialist and with regard to counsel’s alleged

failure to investigate Ogan’s history in an effort to discover mitigating evidence. The court also found

that Ogan had failed to demonstrate that his conviction was unlawfully obtained.

On April 28, 1999, the Texas Court of Criminal Appeals denied Ogan’s petition for habeas

relief. In a brief order, the court stated:

In the instant cause, applicant presents a single allegation challenging the validity of

his conviction and resulting sentence. The trial court has entered findings of fact and

co nclusio ns of law recommending the relief sought be denied. This court has2 Ogan does not seek a Certificate of Appealability (“COA”) on these issues in his petition to

this court.

6 reviewed the record. The findings and conclusions entered by the trial co urt are

supported by the record and upon such basis th e relief sought by the applicant is

denied.

Ex Parte Ogan , No. 41,220-01 (Tex. Crim. App. April 28, 1999) (per curiam) (unpublished).

V. Federal Habeas Proceedings

On August 3, 1999, Ogan filed a preliminary petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. On December 30, 1999, Ogan filed a supplemental petition for a writ of habeas

corpus. The petition requested relief on the following bases: (1) insufficient evidence to sustain the

jury’s affirmative answer to the statutory punishment issue on deliberate conduct; (2) insufficient

evidence t o sustain the jury’s affirmative answer to the statutory punishment issue on future

dangerous ness; (3) ineffective assistance of counsel based on trial counsel’s limitation of the jury

instruction on mitigation; (4) ineffective assistance of counsel based on trial c ounsel’s failure

adequately to develop and present mitigation evidence; and (5) Ogan’s purported incompetency to

stand trial. The State moved for summary judgment on all of Ogan’s claims, and the district court

granted that motion.

The district court rejected Ogan’s two insufficiency-of-the-evidence claim s regarding the

special issues on the merits. 2 Additionally, the court rejected Ogan’s claim of ineffective assistance

of counsel regarding the jury instructions on mitigating evidence. The district court found that Ogan

had failed to present his claim of lack of competency t o st and trial on direct review, or during the

state habeas proceedings and that he had failed to demonstrate cause and prejudice for this failure.

Nevertheless, the court considered the claim on the merits and rejected it. The district co urt also

applied the procedural bar to O gan’s claim that his trial counsel was ineffective for failing to7

recognize the extent of his mental health problems. The district co urt rejected Ogan’s remaining

“miscellaneous” ineffective assistance claims regarding state trial and habeas counsel and the Texas

state courts’ obligations to provide him with effective counsel. The court based its rejection of these

claims on either a procedural bar, the merits, or both. The district court also denied Ogan’s request

for an evidentiary hearing. Additionally, the court found that Ogan had failed to make a substantial

showing of the denial of a constitutional right, and refused to grant a COA even though Ogan had

not yet requested one. Ogan now appeals the district court’s rulings.

DISCUSSION

I. Standard of Review

Ogan filed his preliminary habeas petition pursuant to 28 U.S.C. § 2254 in the district court

on August 3, 1999, and his supplemental petition on December 30, 1999, both after the effective date

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Thus, AEDPA applies to his §

2254 application. S ee Lindh v. Murphy

, 521 U.S. 320, 335-36 (1997); Nobles v. Johnson

, 127 F.3d

409, 412-13 (5th Cir. 1997). Under AEDPA, a petitioner seeking habeas relief must obtain a

certificate of appealabilty (“COA”). S ee 28 U.S.C. § 2253(c)(2). A COA may be issued only if the

prisoner makes a

subst antial showing of the denial of a constitutional right. S ee id. A petitioner

makes this showing if he demonstrates that his petition involves issues which are debatable among

r e asonable jurists, that a court could resolve the issues differently, or that the issues are adequate

enough to deserve encouragement to proceed further. M iller-El v. Johnson

, 261 F.3d 445, 449 (5th

Cir. 2001) ; see also Lamb v. Johnson , 179 F.3d 352, 356 (5th Cir. 1999).

Although the nature of the death penalty is a proper consideration for determining whether

the court should issu e a COA, its severity alone is not sufficient to warrant the issuance of the

certificate. S ee Lamb

, 179 F.3d at 356. Nevertheless, doubts regarding the propriety of issuing the8

certificate should be resolved in favor of the petitioner. I d. Section 2254(d), as amended by AEDPA,

provides that:

(d) An applica t io n for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment o f a St ate court shall not be granted with respect to any

claim that was adjudicated on the merits in State court pro ceedings unless the

adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.

“Section 2254(d)(1) provides the standard of review for questions of law and mixed questions

of law and fact.” C aldwell v. Johnson

, 226 F.3d 367, 372 (5th Ci r. 2000). The court m ay grant

habeas relief under the “unreasonable application” clause “if the state court identifi es the correct

governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the

scope intended by the Supreme Co u rt.” I d. Furthermore, the state court’s application “must be

‘unreasonable’ in addition to being merely ‘incorrect.’ ” I d. In other words, the appropriate inquiry

is “ ‘wh et her the state court’s application of clearly established federal law was objectively

unreasonable.’ ” Id. (quoting Williams v. Taylor

, 5 29 U.S. 362, 409 (2000)). W ith respect to the

“contrary to” clause of § 2254(d)(1), “a federal court may grant the writ if the state court has arrived

at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state

court decides the case differently than the Supreme Court on a set of materially indis tinguishable

facts.” Id.

This Court reviews a district court’s grant of summary judgment in a habeas proceeding de9

novo

. S ee Soffar v. Joh nson , 237 F.3d 411, 449 (5th Cir. 2000). “When reviewing summary

judgment on a petition for habeas corpus, consistent with the provisions of 28 U.S.C. § 2254(d), we

‘presume all state court findings of fact to be correct in the absence of clear and convincing evidence.’

” Id. ; see Caldwell , 226 F.3d at 372.

II. Procedurally Defaulted Claims

In considering Ogan’s writ of habeas corpus petition, the district determined that the

following claims were procedurally defaulted: (1) Ogan’s claim that the state failed to provide

competent habeas counsel; (2) his assertion that he was incompetent to stand trial; and (3) Ogan’s

contention that his trial counsel was ineffective because counsel failed to realize t he extent of his

mental health problems. The law requires that “a state prisoner seeking to raise claims in a federal

petition for habeas corpus ordinarily must first present those claims to the stat e court and must

exhaust state remedies.” M artinez v. Johnson

, 255 F.3d 229, 238 (5th Cir. 2001) (citing 28 U.S.C.

§ 2254(b)). Generally, if the petitioner fails to follow these procedures, his claims will be considered

procedurally defaulted and will not be regarded as a bases for granting federal habeas relief. Id. at 239

(citing Keeney v. Tamayo-Reyes , 504 U.S. 1, 9 (1992)). However, a petitioner can overcome this

procedural default, and thus procure federal habeas corpus review of his barred claims, i f he can

demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal

law. Id. (citing Jones v. Johnson , 171 F.3d 270, 277 (5th Cir. 1999)).

A. Failure to Provide Competent Habeas Counsel

Ogan argued for the first time in his federal habeas petition that the state courts violated his

rights to meaningful access to the courts, equal protecti on, and due process by refusing to remedy3 The trial court appointed habeas counsel, Stephen Taylor (“Taylo r ”), to represent Ogan.

After the trial court recommended to the Texas Court of Criminal Appeals that Ogan’s habeas

application be denied, and while the habeas application before the Texas Court of Criminal Appeals

was pending, Ogan sent a letter to the Court of Criminal Appeals. In the letter, dated April 7, 1999,

Ogan requested that the court dismiss Taylor and appoint another attorney to represent him. Ogan

also included a pro se motion requesting the removal of Taylor from his case and providing examples

of Taylor’s alleged incompetence. The Court of Criminal Appeals did not act on Ogan’s request.

4 In Teague

, the Supreme Court declared that new constitutional rules of criminal procedure

may not be announced on collateral review. 489 U.S. 288, 310 (1989). The Court clarified that “in

general,.

. . a case announces a new rule when it breaks new ground or imposes a new obligation on

the States or the Federal Government.” Id. at 301.

10 its earlier error of appointing him ineffective counsel. 3 The district court determined that the claims

were procedurally defaulted and could not constitute cause for any other procedurally barred claims.

The district court further noted that there is no underlying right to counsel in state post-conviction

review and that there is no cognizable constitutional claim based on the ineffectiveness of state habeas

counsel. The district court concluded that to recognize a constitutional claim fo r ineffective

assistance of state habeas counsel would require the retroactive application of a new constitutional

principle on collateral review in violation of the Supreme Court’s decision in Teague v. Lane

, 489

U.S. 288 (1989). 4

Ogan challenges the distric t court ’s determination that he could not assert a constitutional

claim on the basis of ineffective assistance of state habeas counsel. He asserts that the Texas courts’

appointment of incompetent counsel was a violation of his statutory right to competent counsel, as

well as a violation of his due process rights under the Fourteent h Amendment . Ogan avers that

because Texas has opted to provide post-conviction review of death sentences under article 11.071

of the Texas Code of Criminal Procedure, and has guaranteed the appointment counsel under that

statute, it must follow the statutory requirements in accordance with due process. He concedes that5 Ogan also argues in depth that, whereas ordinarily the conduct of an attorney is imputed to

the client, the conduct of his state habeas counsel should not be imputed to him. He provides several

instances in which his state habeas counsel demonstrated incompetency. He notes that habeas counsel

did not invest igate the possibility of an ineffective-assistance-of-trial counsel claim; that habeas

counsel did not obtain and review trial counsel’s files or speak to counsel; that habeas counsel was

not aware of basic habeas procedural rules; that habeas counsel filed an inadequate writ application,

containing only a boilerplate claim that he had raised before and that he “cut and pasted” to Ogan’s

writ application; that habeas counsel failed to elaborate on the argument in Ogan’s writ application;

and t hat the application was only nine pages long. It is apparent that Ogan is attempting t o do

indirectly what the law precludes him from doing directly, i.e., asserting an ineffective assistance of

habeas counsel claim. Since Ogan does not have a constitutional right to effective habeas counsel,

we find that this argument must fail.

11 the Sixth Amendment does not guarantee effective assistance of counsel in sta te post-convi cti on

proceedings. However, he argues that there are other constitutional bases to support his claim that

he was entitled to effective assistance of state habeas counsel, namely the First Amendment right to

meaningful access to courts and the Fourteenth Amendment due process requirement that state

forums and procedures be administered in a reasonably fair and consistent manner.

Ogan’s claim that the Texas court s vio lated his constitutional rights by providing him

ineffective habeas counsel is meritless. This Court has repeatedly held, usually in the context of

rej ect ing pet itioners’ arguments that ineffective habeas counsel is sufficient cause to overcome a

procedural bar, that there is no constitutional right t o compet ent habeas counsel. S ee Jones v.

Johnson , 171 F.3d 270, 277 (5th Cir. 1999) (“The law is well-established . . . that such error

committed in a post-conviction application, where there is no constitutional right to counsel, cannot

constitute cause.”); Callins v. Johnson

, 89 F.3d 210, 212 (5th Cir. 1996) (“[T]here is no constitutional

right to counsel in habeas proceedings.”). Accordingly, Ogan’s request for a COA on this issue is

denied. 5

B. Competency to Stand Trial6 Under the Texas Code of Criminal Procedure article 11.071 § 5, a capital defendant may not

file mult iple applications for review unless he can show that (1) the factual or legal basis of the claim

was unavailable on the date of the previo us application or the last date for timely filing of an

appl icat io n, or (2) by a preponderance of the evidence, but for a violation of the United States

Constitution, no rational juror would have answered in the state's favor to one or more of the special

issues. Since Ogan’s ineffective assistance of counsel claim does not fall within either of t hese

exceptions, any application filed would be dismissed as an abuse of writ. We have held that claims

are procedurally barred on federal habeas review if the petitioner would be precluded from exhausting

the same claims in state court by the abuse-of-the-writ doctrine of Article 11.071 of the Texas Code

12 In the court below, Ogan argued that he was incompetent to stand trial. The district court

correctly determined that Ogan failed to raise this argument on direct appeal to the Texas Court of

Criminal Appeals or during the state habeas proceedings. Thus, Ogan’s claim is procedurally

defaulted unless he can demonstrate cause and actual prejudice. Ogan appears to assert that there

was cause for his procedural default on two bases: (1) the ineffectiveness of his state habeas counsel,

and (2) the Texas state courts’ violation of his constitutional rights by allowing ineffective counsel

t o represent him. As stated previously, these claims do not constitute cause for purposes of t he

exception to the procedural default rule. Jones , 171 F.3d at 270. Therefore, Ogan’s request for a

COA on the issue of his competency to stand trial is also denied.

C. Failure to Realize the Extent of Ogan’s Mental Health Problems

In his federal habeas petition, Ogan claimed that his trial counsel was ineffective for failing

to recognize the extent of his mental health pro blems. The district court ruled that this claim was

procedurally defaulted. The court noted that although Ogan presented a claim to the state habeas

court that pertained to trial counsel’s failure to retain a mitigation expert, he did not raise the present

claim, which focuses on the effect that his mental health problems may have had on his abilit y to guide

his own defense. Thus, the court determined that the ineffective assistance claim regarding his mental

health problems would be dismissed under Texas law as an abuse of writ. 6of Criminal Procedure. Horsley v. Johnson , 197 F.3d 134, 137 (5th Cir. 1999).

13 A review of the record reveals t hat Ogan did not raise this claim with the Texas courts.

Ogan’s claim in his state habeas application pertained to trial counsel’s failure to have a mitigation

expert testify, not counsel’s failure to recognize that his participation in his defense was colored by

his alleged mental illness. Because Ogan is now proceeding on a different theory than that advanced

in the state habeas court, we find this ineffectiveness of habeas counsel claim to be unexhausted.

Whitehead v. Johnson

, 157 F.3d 384, 387 (5th Cir. 1998). (“The exhaustion requirement is satisfied

when the substance of the federal habeas claim has been fairly presented to the highest state court.

. . . A federal court claim must be the ‘substantial equivalent’ of one presented to the state courts if

it is to satisfy the ‘fairly presented’ requirement.”) ; see also Dispensa v. Lynaugh

, 847 F.2d 211, 217

(5th Cir. 1988) (stating that this circuit “has consistently held that a fede ral habeas petitioner has

failed to exhaust his state remedies when he relies on a different legal theory than he did in state court

or when he ma kes t he same legal claim to a federal court but supports the claim with factual

allegat ions that he did not make to the state court”). Furthermore, Ogan has wholly failed t o

demonstrate cause or prejudice for his default. Accordingly, Ogan is not entitled to a COA on this

claim.

III. Jury Instructions on Mitigation

Lastly, Ogan argues that his trial counsel was ineffective in failing to request an adequate and

accurate jury instruction on mitigating evidence and in failing to object to the “nullif i cation

instruction” given by the trial court during the sentencing phase. On direct review, the Texas Court

of Criminal Appeals rejected Ogan’s claim. The court determined that the aggravating and mitigating7 See Penry v. Lynaugh , 492 U.S. 302 (1989) ( Penry I ).

8 The supplemental instruction given in Penry II provides as follows:

If you find that there are any mitigating circumstance, you must decide how

much weight they

deserve, if any, and therefore, give effect and consideration

14 evidence did not rise to the level of Penry 7 evidence and that the evidence was properly submitted for

the jury’s consideration. Also, the district court rejected Ogan’s claim, finding that the trial court’s

instruction to the jury met the requirements of Penry

.

At the close of the penalty phase of Ogan’s trial, the court instructed the jury on mitigating

evidence in addition to the Texas special issues. Specifically, the mitigation instruction stated:

You are instructed tha t when you deliberate on the questions posed in the special

issues, you are to consider all relevant mitigating circumstances, if any, supported by

the evidence presented in both phases of the trial, whether presented by the State or

the defendant. A mitigating circumstance may include, but is not limited to, any

aspect of the defendant’s character, backgr o und, record, emotional inst abilit y,

intelligence, or circumstances of the crime which you believe could make a death

sentence inappropriate in this case. If you find that there are any mitigating

circumstances in this case, y o u must decide how much weight they deserve, and

thereafter, give effect and consideration to them in assessing the defendant’s personal

culpability, at the time you answer the special issue. If you determine, when giving

effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative

finding to the issue under conside rat ion, rather than a death sentence, is an

appropriate response to the personal culpabil it y o f the defendant, then a negative

finding should be given to that special issue under consideration.

Ogan’s counsel requested that the trial judge include the mitigating circumstances of “intelligence”

and “emotional inst abilit

y” in the jury instruction. The judge declined the opportunity to include any

more specific instructions on mitigating circumstances.

Recently, on June 4, 2001, the United States Supreme Court held constitutionally inadequate

an instruction, in conjunction with the three Texas special issues, near ly ident ical to the above

instruction. See Penry v. Johnson

, 532 U.S. 782, 804 (2001) ( Penry II ). 8 Specifically, the Courtt o them in assessing the defendant's personal culpability at the time yo u

answer the special i ssue. If you determine, when giving effect to the

mitigating evidence, if any, that a life sentence, as reflected by a negative

finding to the issue under consideration, rather than a death sentence, is an

appropriate response to the personal culpability of the d e fendant a negative

finding should be given to one of the special issues.

Id. at 782-83.

9 As a side note, we are aware of the Supreme Court’s recent decision in Atkins v. Virginia

, No. 00-8452, 2002 WL 1338045, at * 1 (U.S. June 20, 2002), which announced that executing

mentally retarded defendants violates the Eighth Amendment prohibi t io n against “cruel and usual

punishment.” However, this decision has no impact on our ruling today because Ogan has not alleged

that he suffers from mental retardation, nor has he asserted any violations of the Eighth Amendment

.

15 stated:

The three special issues su bmit t ed t o the jury were identical to the ones we found

constitutionally inadequate as applied in Penry I

. Although the supplemental

instruction made mention of mitigating evidence, the mechanism it purported to create

for the jurors to give eff ect t o t hat evidence was ineffective and illogical. The

comments of the court and counsel accomplished little by way of clarification. Any

realistic assessment of the manner in which the supplemental instruction ope r ated

would therefore lead to the same conclusion we reached in Penry I : “[A] reasonable

juror could well have believed that there was no vehicle for expressing the view that

Penry did not deserve to be sentenced to death based upon his mitigating evidence.”

Id. (alteration in original). The jury instructions given in Ogan’s case may raise Eighth Amendment

concerns under this recent Supreme Court precedent. However, Ogan presents this claim as a Sixth

Amendment ineffective-assistance-of-counsel claim, and it must be analyzed accordingly. 9 In order

to establish ineffective assistance of counsel, Ogan must prove (1) deficient perfo rmance, which

requires a showing that counsel's representation "fell below an objective standard of reasonableness,"

and (2) that the deficient performance resulted in actual prejudice. Strickland v. Washington

, 46616

U.S. 668, 688, 692 (1984). In Strickland , the Supreme Court directs reviewing courts to “indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. As the Court stated “ [ a] fair assessment of attorney performance requires

that every effort be made to eliminat e the distorting effects of hindsi ght, to reconstruct the

circumstances of counsel's challenged conduct, and t o evaluate the conduct from counsel's

perspective at the time." Id

. “The determination whether the performance of counsel was deficient

is based upon the law as it existed at the time of trial.” L ucas v. Johnson

, 132 F.3d 1069, 1078 (5th

Cir. 1998) (citing Lockhart v. Fretwell , 506 U.S. 364, 371 (1993)).

When Ogan’s t rial t ook place, the Supreme Court had not y et decided whether the

supplemental instruction given during Penry’s second trial was sufficient to remedy the constitutional

infirmit ies that the Court found existed in his first trial. Ogan’s trial counsel did not have the benefit

of the Supreme Court’s guidance in Penry II

, and we have held tha t “co unsel is not required to

anticipate subsequent developments in the law.” L ucas

, 132 F.3d at 1078-79; see also Gray v. Lucas

,

677 F.2d 1086, 1096 (5th Cir. 1982) (holding that trial counsel’s failure to object to the prosecutor’s

interjection of future dangerousness through expe rt testimony did not constitute deficient

performance where this circuit’s ruling discrediting such testimony was decided three yea rs after

trial). We find that counsel’s failure to object to the supplemental instruction given at the conclusion

of the sentencing phase of Ogan’s trial was not objectively u nreasonable. In fact, p r ior to the

Supreme Court’s ruling in Penry II

, we had consistently approved supplemental mitigating evidence

instructions similar to the instruction given in this case. See Emery v. Johnson , 139 F.3d 191, 200

(5th Cir. 1997); Miller v. Johnson , 200 F.3d 274, 290 (5th Cir. 2000).

In Emery , the petitioner was sentenced to death under the same version of article 37.071 of17

the Texas Code of Criminal Procedure used in Ogan’s trial. At the conclusion o f t he punishment

phase, the trial court gave the following instruction:

[Y]our answers to the Special Issues, which determine the punishment to be assessed

the defendant by t he court, should be reflective of your finding as to the personal

moral culpability of the defendant in this ca se. When you deliberate about the

questions posed in the Special Issues, you are t o consider any mitigating

circumstances supported by the evidence presented in both phases of t h e trial. A

mitigating circumstance may be any aspect of the defendant's background, character,

and record, or circumstance s o f t he crime, which you believe makes a sentence of

death inappropriate i n t his case. If you find that there are any mitigating

circumstances, you must decide how much weight they deserve and give them effect

when you answer the special issues. If you determine, in consideration of this

evidence, that a life sentence, rather than a death sentence, is an appropriate response

to the personal moral culpability of the defendant, you are instructed to answer the

Special Issue under consideration "No.”

Id. at 200. We concluded that

[t]his instruction allowed the jury to co nsi der any appropriate mitigating circumstance,

. . . and required the jury not to sentence [the petitioner] to death if a life sentence was

appropriate in light of his moral culpability. The instruction adequately addressed the

Court's concerns about Texas's death penalty scheme by giving the jury the abilit y to

consider any appropriate mitigating circumstance.

Id. We would be hard pressed to now find that trial counsel's decision not t o object to the

supplemental instruction given in Ogan’s case , in light of the pre- P enry II rulings of this court,

constituted deficient performance under Strickland

. Because we find that Ogan has failed to

demonstrate deficient performance, he h as not met the first prong of the S trickland inquiry. We

conclude therefore that Ogan has not substantially shown the denial of his right to effective assistance

of counsel. Thus, his application for a COA on this issue is denied.

CONCLUSION

For the reason stated herein, we find that the district court properly refused to grant habeas

relief to Ogan.18

AFFIRMED.