IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-7331

JESUS ROMERO, JR.,

Petitioner-Appellee,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(May 19, 1992)

Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

The State of Texas asks that we vacate an order of the United

States District Court for the Southern District of Texas staying an

execution scheduled between the hours of midnight and sunrise on

May 20, 1992. For the reasons stated, we grant the State's motion

and vacate the stay of execution.

I.

A jury in the 197th District Court of Cameron County, Texas

convicted Romero of capital murder on July 19, 1985. The jury

answered "yes" to the statutory special issues and the trial judge

sentenced Romero to death as required by Texas law.2

The Texas Court of Criminal Appeals affirmed Romero's

conviction and sentence on direct appeal on September 17, 1986.

See Romero v. State

, 716 S.W.2d 519 (Tex. Crim. App. 1986). On

January 27, 1987, the Supreme Court denied Certiorari. S ee Romero

v. Texas , 479 U.S. 1070 (1987). On March 20, 1987, Romero sought

habeas corpus relief in state post-conviction proceedings, and the

state district court recommended that Romero be denied relief. The

Texas Court of Criminal Appeals remanded the case to the trial

Court with instructions to conduct a hearing on the issue of

ineffective assistance of counsel

. See Ex Parte Romero

, No.

16,943-01 (Tex. Crim. App. March 24, 1987). On May 28, 1987, after

the hearing, the trial court issued findings of fact and

conclusions of law, recommending that relief be denied. The Texas

court of Crim inal Appeals denied Romero's petition without a

written order. S ee Ex Parte Romero

, No. 16,943-01 (Tex. Crim. App.

June 9, 1987).

Romero filed a Petition for Writ of Habeas Corpus in the

United States District Court for the Southern District of Texas on

July 16, 1987. In his petition, Romero argued that his trial

counsel was i neffective for several reasons, among them that

counsel failed to argue Romero's youth, intoxication and troubled

family background as mitigating factors during the penalty phase of

his trial. The federal district court granted the writ based on

counsel's failure to offer more extensive argument re garding

Romero's mitigating factors. We reversed and remanded with3

instructions to dismiss the petition. See Romero v. Lynaugh , 884

F.2d 871 (5th Cir. 1989), cert. denied , 110 S.Ct. 1311 (1990).

On April 4, 1990, Romero filed a second Petition for Writ of

Habeas Corpus in the 197th District Court of Cameron County, Texas

and in th e Texas Court of Criminal Appeals. Relying on the U.S.

Supreme Court's decision in Penry v. Lynaugh

, 492 U.S. 302 (1989),

Romero alleged that the Texas specia l issues precluded the jury

from considering and giving full effect to the mitigating evidence

of Romero's youth, intoxi cation and turbulent family background.

On November 6, 1991, the Texas Court of Criminal Appeals, en banc

with two dissents, denied relief. Romero's Motion for Rehearing

was denied on December 11, 1991. On December 16, 1991, the Texas

Cou rt of Criminal Appeals granted Romero's motion to stay the

mandate. On March 10, 1992, Romero filed a Petition for Writ of

Certiorari in the U.S. Supreme Court. This petition is still

pending.

On April 1 5, 1992, the state trial court set the date for

Romero's execution for May 20, 1992. On May 15, 1992, Romero filed

a third Application for Post-conviction Habeas Corpus in the 197th

Judicial District Court, Cameron County, Texas and in the Court of

Criminal Appeals. Romero asserted the first five of his six claims

for the first time in his third state habeas petition. The sixth

claim, asserting Penry violations, was made for the first time in

the second state habeas petition. On May 18, 1992, the state trial

court entered findings of fact and conclusions of law recommending

that all relief be denied. The Texas Court of Criminal Appeals4

denied relief on May 19, 1992 and Romero filed his second federal

petition with the United States District Court for the Southern

District of Texas. On May 19th the federal district court granted

Romero's petition for stay and set an evidentiary hearing for May

22, 1992 to consider the issue of writ abuse, whether petitioner

received competent psychiatric evaluations before trial,

prosecutorial misconduct "concerning the issue of petitioner's

mental state," and effectiveness of counsel's "invest igation" of

petitioner's mental state at the time of the crime and trial. The

state has moved to vacate the stay of execution.

II.

In this, his second fe deral habeas petition, Romero asserts

six claims for relief. He first argues that because he was insane

at the time of the offense and thus innocent, his execution would

violate the eighth and fourteenth amendments. Second, Romero

claims that he was denied effective assistance of counsel at trial.

Third, Romero claims that he was denied due process because the

state failed to disclose excu lpatory evidence in its possession.

Fourth, Romero claims that he was denied due process because his

court-appointed psychiatrist was incompetent. Fifth, Romero claims

that he raised his competency, but it was not adequately resolved

as required by Pate v. Robinson

, 383 U.S. 375 (19 66). Sixth,

Romero argues that the Texas Sentencing Scheme prevented the jury

from giving mitigating effect to his youth, turbulent family

history, and diminished role at the time of the offense, contrary

to Penry v. Lynaugh , 492 U.S. 302 (1989).5 III.

Our role in deciding a successive wr it is limited. "[T]o

excuse his failure to raise [his present claims] Romero

. . . must

show cause for failing to raise it and prejudice therefrom as those

concepts have been defined in

. . . procedural default decisions."

McCleskey v. Zant , 111 S.Ct. 1454 (1991).

the cause standard required the petitioner to show that

"some objective factor extern al to the defense impeded

counsel's efforts" to raise the claim in state court.

Murray v. Carrier

, 477 U.S., at 488, 106 S.Ct., at 2645.

Objective factors that constitute cause include

"`interference by officials'" that makes compliance with

the state's procedural rule impracticable, and "a showing

that the factual or legal basis for a claim was not

r easonably available to counsel." I bid

. In addition,

constitutionally "ineffective assistance of counsel

. . . is cause." I bid

. Attorney error short of ineffective

assistance of counsel, however, does not constitute cause

and will not excuse a procedural default. I d

. at 486-

488, 106 S.Ct., at 2644-45. Once the petitioner has

established cause, he must show "`actual prejudice'

resulting from the errors of which he complains." U nited

States v. Frady

, 456 U.S. 152. 168, 102 S.Ct. 1584, 1594,

71 L.Ed.2d 816 (1982).

If petitioner cannot show cause, the failure to raise the

claim in an earlier petition may nonetheless be excused

if he or she can show that a fundamental miscarriage of

justice would result from a failure to entertain the

claim.

The Court in McCleskey explained further that the f ederal courts

are in any event required to entertain a successive petition when

a petitioner supplements a constitutional claim with a "colorable

showing of factual innocence." I d

. at 1471. We recently explained

the requirements of actual innocence in Sawyer v. Whitley

, 945 F.2d

812 (5th Cir. 1991), cert. granted , 112 S.Ct. 434. Sawyer

require[s] the petitioner to show, based on the evidence

proffered plus all record evidence, a fair probability

that a rational trier of fact would hav e entertained a6

reasonable doubt as to the existence of those facts which

are prerequisite under state or federal law for the

imposition of the death penalty. That is, a petitioner

is not actually innocent of the death penalty unless he

dem onstrates, under all the evidence that was and

arguably should have been presented, that the jury would

not have been authorized to sentence him to death.

Id . at 820 (footnotes omitted).

In Romero's first habeas trip, he also complained that his

trial counsel was ineffective in fourteen respects. We found that

Romero was "represented by competent counsel and rece ived a fair

trial." Romero v. Lynaugh , 884 F.2d 871 (5th Cir. 1989).

IV.

Romero offers two reasons why we should entertain his present

claims although they were not presented in his first petition. He

first argues that the state withheld mitigating evidence from him

[Claim 3]. The contention is that the state impeded his efforts to

previously raise the claim. Judge Hester, the state habeas judge,

found on May 18, 1992, however, that:

4. The State did not fail to disclose exculpatory

material to Applicant. The medical records of Romero

were at least equally available to Appl icant and the

State at all times material. The report of Dr. Jorge

Cardenas dated April 2, 1985, which Applicant alleges the

State to have withheld, was a report to this Court in

Cause No. 85-CR-51-C in which R omero was charged and

convicted of Attempted Sexual Assault. Such report was

filed in the papers of that cause on April 2, 1985, a

public record and equally available to the Applicant and

the State at all times.

Romero offers no reason why we should not accord deference to this

finding of fact.

Romero argues that in hi s Claims 1, 2, 4 and 5, he presents

evidence of actual innocence due to his insanity. He relatedly7

argues that our recent decision in Sawyer v. Whitley

, 945 F.2d 812

(5th Cir. 1991), is inapplicable to Texas' Sentencing scheme.

We need not decide the abstract question of whether legal

insanity implicates actual innocence under the McCleskey doctrine.

We are not persuaded that the recently proffered affidavits of Drs.

Diaz and Cardenas implicate actual innocence. At best, they

demonstrate, albe it not without equivocation, that had they been

aware of two earlier episodes involving Romero they would have

reached a different opinion regarding his menta l capacity. Dr.

Cardenas states that he would have concluded that "at the time of

the alleged offense R omero was acting with severely diminished

capacity such that he was temporarily insane." He further

expres sed doubts "whether Romero was competent to stand trial."

Dr. Diaz concluded that had he been provided with certain records

and other documents "at the time of my examination of Mr. Romero,

I might have determined, contrary to my original findings, that at

t he time of the alleged offense, and as a result of his mental

disorder, he had a markedly decreased ability to know that his

conduct was wrong." The state habeas court attached to its

findings Dr. Diaz's letter to the court dated June 28, 1985. Dr.

Diaz stated then that he found Romero to be "candid and cooperative

with the examination." He explained that Romero had told him that

he had been recently released from jail on a previous charge, and

he denied any significant history of neurological or psychiatric

illnesses. He noted that "the defendant is able to remember the

events and circumstances preceding and followi ng the incident."8

The state habeas judge found that "there is no credible evidence

that Applicant was insane at the time of the offense. To the

contrary, all the credible evidence is that the Applicant was sane

at the time of the offense and mental ly competent at trial." In

short, the state habeas judge was not persuaded by the late-filed

and somewhat equivocal affidavits, a finding that is due deference

by this court.

Regardless of whether the finding o f the state habeas judge

regarding the recent affidavits is fairly supportive by the record,

we are not persuaded that had this newly developed evidence been

offered at trial the jury would not have been "authorized" to

return a death sentence. The claim raises at best legal error,

short of actual innocence, howeve r actual innocence might be

translated to the Texas system.

V.

Romero's sixth claim rests on Penry v. Lynaugh

, 109 S.Ct. 2934

(1989), urging that the jury was not able to give expression to his

mitigating evidence of youth, turbulent family history,

intoxication, and role in the offense. We find that this claim

cannot be hea rd in this successive writ. It is no answer that

Penry was not decided until after Romero's first habeas trip. In

Selvage v. Lynaugh

, 842 F.2d 89, 94 (5th Cir. 1988), we found that

as early as April 1980, a " P enry " contention, as it later became

known as, was "not a recently found legal theory not knowledgeable

by competent counsel." We found that a P enry claim was subject to

the McClesky bar. Cuevas v. Collins , 932 F.2d 1078, 1082 (5th +9

968+Cir. 1991). S ee also Ellis v. Collins

, 956 F.2d 76, 80 (5th

Cir. 1992). It is true that Romero had commenced his first federal

habeas trip before Penry was decided and that Cuevas' first federal

habeas was pending before the United States Distric t Court when

Penry was decided. Romero's petition was still before the federal

district court three months after the grant of certiorari in Penry

.

108 S.Ct. 2896. We see no reasoned basis, however, for excusing

Romero's failure to assert a Penry claim in his first federal

habeas. We are pointed to no legal cause for Romero's not doing

so.

In sum we cannot entertain this claim unless it implicates

actual innocence. In making this judgment, we are limited to

evidence offered at trial. Texas continues to insist on its

contemporaneous objection to Penry -type claims resting on evidence

not in fact offered. B lack v. State

, 816 S.W.2d 350 (Tex. Cr. App.

1991). The proffered evidence of abuse as a child and of Romero's

limited role in the crime was less than compelling--as was his

evidence of intoxication. It is also the case that the jury was

able to give some effect to much of the mitigating evidence by its

answers to the interrogatories. As we said in Cuevas

,

little of this Penry evidence remains after we look only

to the evidence that cou ld not find expression in the

answer to the first i nterrogatory; at the least not in

such measure as to persuade that the absence of

explanatory instructions causes this trial and sentence

to be fundamentally unfair--or so raised the risk of an

erroneous sentence as to implicate actual innocence.

Id . at 1083.10

Finally, this claim fares no better if treated as an assertion

that trial counsel was ineffective in not developing the mitigating

e vidence. This would add only to the P enry mix more evidence of

Romero's mental state. We have rejected directly the assertion

that this evidence sufficiently implicated factual innocence.

Relatedly, we are asked to stay this execution pending review

by the Supreme Court of our decision in Graham v. Collins

, 950 F.2d

1009 (5th Cir. 1992). We are told that the Supreme Court has

scheduled the pending petition for writ of certiorari for

conference on May 29, 1992. We also note that there remains

pending, Romero's petition for writ of certiorari from the decision

of the Texas Court of Criminal Appeals denying his second state

hab eas petition. As we understand it, that petition requests

relief similar to that requested here. We do not decide whether a

stay should be gr anted in cases reaching the merits of a G raham

contention. Rather, we are persuaded that the P enry claims now

asserted, including Romero's youth, do not sufficiently implicate

actual innocence to allow their consideration in this petition.

Romero also urges that we should grant a stay pending our

application of Sawyer v. Whitley to t he Texas death penalty. We

decline to do so. Whatever actual innocence may be determined to

mean, we are not persuaded that it is sufficiently implicated here.

The state's application to vacate the stay of exe cution is

GRANTED.