REVISED - JANUARY 30, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-10389

_____________________

HENRY LEE LUCAS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas, San Angelo

_________________________________________________________________

January 9, 1998

Before KING, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Henry Lee Lucas was sentenced to death after being convicted

of capital murder in Texas state court. Following affirmance of

the con viction and sentence on direct appeal, Lucas filed three

applications for habeas corpus relief in state court. After the

denial of the final state application, Lucas filed his first

applicatio n for habeas corpus relief in federal district court,

setti ng out seventeen alleged errors that he contended warranted

relief. The district court denied the application and denied2

Lucas’s request for a certificate of probable cause. Lucas then

filed an application for a certificate of probable cause with this

court, advancing all seventeen points of error. It is this

application that is before us today.

I

Lucas filed his application f or a certificate of probable

cause in May 1996. One month prior to his filing, Congress enacted

the Antiterrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”). In the light of the application of the Supreme Court’s

recent ruling in Lindh v. Murphy , 117 S.Ct. 2059, 2063-68 (1997),

and this court’s previous determina tion that Texas does not meet

the requirements to “opt in” under the AEDPA, the amendments to the

federal habeas statutes do not govern this appeal. 28 U.S.C.

§ 2261(b); Carter v. Johnson , 110 F.3d 1098, 1104 (5th Cir. 1997)

(noting Texas f ails to qualify to opt in under AEDPA); M ata v.

Johnson

, 99 F.3d 1261, 1267 (5th Cir. 1996), vac’d in part on other

grounds

, 105 F.3d 209 (5th Cir. 1997). Under pre-AEDPA law, a

habeas petitioner must obtain a certificate of probable cause

(“CPC”) prior to pursuing an appeal. 28 U.S.C. § 2253. Generally,

the standard used to determine whether a CPC should issue, or,

under the AEDPA, whether a certificate of appealab ility (“COA”)

should issue, is the same. Drinkard v. Johnson , 97 F.3d 751, 756

(5th Cir. 1996), cert. denied

, 117 S.Ct. 1114 (1997) (noting the3

standards for issuance of CPC and COA are identical). Specifically,

in order to obtain a CPC, a petitioner must make “a substantial

showing of the denial of a federal right.” Id.

We therefore analyze Lucas’s application for a certificate of

probable cause under the pre-AEDPA relevant statutory authority and

case law and examine his allegations to determine whether he has

made the requisite “substantial showing of the denial of a federal

right” with respect to any of the seventeen alleged errors. Under

the pre-AEDP A standard, we require the habeas petitioner to

“demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues (in a different manner); or

that the questions are adequate to deserve encouragement to proceed

further.” D rinkard

, 97 F.3d at 755 (citing Barefoot v. Estelle

,

463 U.S. 880, 893 n.4 (1983)). We hold that Lucas has met his

burden in this respect and we grant his request for a CPC.

We turn now to the merits of the arguments advanced by Lucas

in his application.

II

A

Lucas raises the following seventeen issues:

1. His execution would violate the Due Process Clause

of the Fourt eenth Amendment because he is actually

innocent of the crime of capital murder in this case.

2. H e has been deprived of due process of law as

guaranteed by the Fifth, Sixth, and Eighth Amendments by4

the actions of the State in seeki ng his execution when

the State has announced, via the Lucas Report, and public

statements by the Attorney General, that the ev idence

acquired and reviewed by the State’s chief legal officer

substantiates the fact that he is innocent of the charge.

3. His conviction violates th e Due Process Clause of

the Fourteenth A mendment because the State failed to

prove the corpus delicti of capital murder (murder in the

course of committing or attempting to commit aggravated

sexual assault).

4. His execution in a case in which the victim was

never identified would be fundamentally unfair and would

be cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments.

5. His counsel on direct appeal failed to provide

effective assistance, because she failed to challenge the

State’s failure to identify the victim.

6. His attorneys failed to raise several meritorious

points, depriving him of the ef fective assistance of

counsel in violation of the Sixth and Fourteenth

Amendments.

7. The prosecutor improperly commented on his silence

at trial and thereby violated his rights under the Fifth

and Fourteenth Amendments.

8. The introduction of prior convictions to impeach his

chief witness violated the Due Process C lause of the

Fourteenth Amendment and rendered his trial fundamentally

unfair.

9. The admission of his videotaped statement ma de in

February 1984 undermined the fundamental fairness of his

trial, because the statement was taken in violation of

his rights to due process and assistance of counsel under

the Fifth, Sixth, and Fourteenth Amendments.

10. He was denied the presumption of innocence

guaranteed by the Fourteenth Amendment by the admission

of his August 1983 videotaped confession, because he is

handcuffed in the video.5

11. The admission of his June 1983 written statement was

erroneous because it was obtained in violation of his

right to counsel guaranteed by the Fifth and Sixth

Amendments.

12. The admission of his J uly 28, 1983 confession was

erroneous because it was obtained in violation of his

right to c ounsel guaranteed by the Fifth and Sixth

Amendments.

13. The admission of his July 31, 1983 audiotaped

confession was erroneous because it was obtain e d in

violation of his right to counsel guaranteed by the Fifth

and Sixth Amendments.

14. His trial was rendered fundamentally unfair by the

admission of evidence of extraneous offenses contained in

his July 31, 1983 audiotaped confession.

15. His due process rights under the Fourteenth

Amendment were violated by the State’s withhold ing of

material exculpatory evidence concerning another suspect

in this case.

16. His right to a fair trial was violated by the trial

court’s failure to provide instructions at the penalty

stage t hat would have allowed the jury to consider the

mitigating aspects of evidence of mental illness and an

abusive childhood.

17. His original arrest was illegal for lack of probable

cause and his subsequent confessions in this matter are

tainted by that unlawful arrest in violation of the

Fourth Amendment.

We will now address each of Lucas’s contentions to determine

whether the district court erred when it refused to award Lucas

habeas relief.

III

A1 See infra note 3.

6

Lucas contends that evidence, newly discovered and accumulated

after his conviction, conclusively establishes that he is innocent

of the crime for which he was sentenced to death. At the outset,

we should observe that much of the evidence alleged by Lucas to be

newly discovered is neither new nor newly discovered, but in its

essence and character, was presented, or available to present, to

the trial jury. 1 S ee United States v. Freeman

, 77 F.3d 812, 816-17

(5th Cir. 1996) (setting forth the “Berry” rule for other relief

based on newly discovered evidence) (citing B erry v. Georgia

, 10

Ga. 511 (1851)). Lucas’s trial jury had ample opportunity to

consider whether such evidence was convincing of actual innocence

and obviously determined that it was not. In any event, it has

long been a habeas rule that “the existence merely of newly

discovered evidence relevant to the guilt of a state prisoner is

not a ground fo r relief on federal habeas corpus.” H errera v.

Collins

, 954 F.2d 1029, 1034 (5th Cir. 1992)(quoting Townsend v.

Sain

, 83 S.Ct. 745, 759 (1963)), aff’d

, 113 S.Ct. 853 (1993).

Contrary to what Lucas argues, the Supreme Court’s Herrera opinion

does not alter this entrenched habeas principle.

C laims of actual innocence based on newly discovered

evidence have never been held to state a ground for

federal habeas relief absent an independent

constitutional violation occurring in the underlying

state criminal proceeding.

. . . This rule is grounded in7

the principle that federal habeas courts sit to ensure

that individuals are not imprisoned in violation of the

Constitution--not to correct errors of fact.

Herrera

, 113 S.Ct. at 860. Throughout the opinion, the Court

returns to its original premise that “a claim of ‘actual innocence’

is not itself a constitutional claim, but instead a gateway through

which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” I d. at 862.

Justice Rehnquist further clarifies that the Court has “never held

that [the fundamental miscarriage of justice exception] extends to

freestanding claims of actual innocence.” Id. at 863.

The language Lucas seizes upon appears at the end of the

opinion where the Court writes:

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 869. The Court never held, however, that actual innocence

would entitle a petitioner to habeas relief. It simply assumed

such a premise arguendo. Id. at 874 (“Accordingly, the Court has

no reason to pass on, and appropriately reserves, the question

whether federal co urts may entertain convincing claims of actual

innocence. That difficult question remains open.”).

Still a further bar to construing Herrera as effecting such a

substantial expansion of federal habeas law is the language ignored8

by the pe titioner that federal habeas relief would be warranted

only “if there were no state avenue open to process such a claim .”

This conditional statement was made in the context of the Court’s

discussion of clemency and the availability of such procedures in

Texas specifically, with the Court noting that “all 36 States that

authorize capital punishment have constitutional or statutory

provisions for clemen cy.” I d. at 866-69 (executive clemency is

proper remedy to be sought by convicted person claiming actual

innocence). Thus, the relief requested of us in this Texas case,

even i f somehow cognizable, nevertheless is thwarted by the

restrictive language of the Herrera Court.

In subsequent opini o ns, our court has discussed Herrera

,

although not in any great detail. In P emberton v. Collin s , we

noted the “properly limited role” that a federal habeas court fills

when the constitutionality of a state court conviction is brought

before it. 991 F.2d 1218, 1223 (5th Cir. 1993). “A federal habeas

court asks o nly whether a constitutional violation infected the

trial.” Id. (emphasis added) (citing Herrera ).

This court reemphasized this limited role in Bryant v. Scott

,

28 F.3d 1411, 1420 n.14 (5th Cir. 1994). The petitioner argued

that the district c ourt erred in refusing to grant relief on the

basis of his actual innocence claim. B ryant

, 28 F.3d at 1420 n.14.

In discussing his claim, the Bryant Court basically noted that the2 Boyd v. Puckett

, 905 F.2d 895, 896-97 (5th Cir.) (relying on

Townsend v. Sain

, 83 S.Ct. 745, 759 (1963), for the ho lding that

habeas relief is unavailable where new evidence bears only upon the

petitioner’s guilt or innocence), cert. denied

, 111 S.Ct. 526

(1990).

3 We must note that on the basis of the allegedly newly

discovered evidence set out in the record before us, Lucas has

failed to demonstrate that he is actually innocent of the “Orange

Socks” murder. The H errera Court said that only a “truly

persuasive demonstration of ‘actual innocence’ made after trial

9 Supreme Court had affirmed our opinion in Herrera holding that

claims of actual innocence based on newly discovered evidence are

not cognizable under federal habeas corpus, id. (quoting Herrera

,

954 F.2d at 1034; H errera

, 113 S.Ct. at 860), and summarily h eld

Bryant’s actual innocence claim to be without merit.

We more fully discussed the Herrera issue in Jacobs v. Scott

,

31 F.3d 1319, 1 324-25 (5th Cir. 1994). A brief quote, however,

will suffice to sum up the panel’s holding:

The [ Herrera ] Court did not reach the issue of whether a

defendant on death row can be executed if he can show

that he is “actually innocent.” Thus, Herrera does not

affect the precedential valu e of B oyd

. 2 We need not

engage in the Court’s hypothetical analysis of whether

the defendant has made a “truly persuasive demonstration

of ‘actual innocence.’”

Jacobs

, 31 F.3d at 1324. H errera does not overrule previous

holdings (nor draw them into doubt) that a claim of actual

innocence based on newly discovered evidence fails to state a claim

in federal habeas corpus. Lucas’s request for federal habeas

relief on this basis is denied. 3 Lucas’s road to relief on hiswould render the execution of a defendant unconstitu tional” and

that “the threshold showing for such an assumed right would

necessarily be extraordinarily high.” Herrera , 113 S.Ct. at 869.

The Court premised its observation on the assumption that the claim

of actual innocence was grounded on newly discovered evidence. I d.

Requests for relief based on newly discovered evid ence generally

must demonstrate that:

(1) the evidence is newly discovered and was unknown to

the defendant at the time of the trial; (2) the

defendant’s failure to detect the evidence was not due to

a lack of diligence; (3) the evidence is material, not

merely cumulative or impeaching; and (4) the ev idence

would probably produce acquittal at a new trial.

Freeman

, 77 F.3d at 817 (citing United States v. Pena , 949 F.2d

751, 758 (5th Cir. 1991)) (discussing motion for new trial based on

newly discovered evidence); see also Herrera

, 113 S.Ct. at 860

(quoting Townsend v. Sain

, 83 S.C t. 745, 759 (1963)) (noting

standard for federal habeas evidentiary hearing premised on newly

discovered evidence). Lucas suggests the following “newly

discovered evidence” suffices to demonstrate his innocence:

1) An audit conducted by John Reeves, the owner of the Florida

company for which Lucas work ed, which indicated that the work

records showing that Lucas was at work at the time of t he murder

were correct;

2) Testimony by Lucas’s neighbors that because Lucas was one

of the few white resid ents in that area, they would have noticed

his absence had he been out of town for an extended time to commit

the murder and they had not noticed any such absence;

3) Expert testimony by Dr. Gudjonnson that Lu cas fit the

profile of a liar and explaining the impetus behind Lucas’s

confessions and why they were false;

4) The Lucas Report prepared by the Texas Attorney General’s

o ffice that documented Lucas’s whereabouts at the time of the

murder and purportedly concluded that he was in Florida when the

Texas murder took place;

5) The preferred treatment Lucas received while incarcerated

and providing the authorities with information concerning different

crimes; and

6) Polygraph results that Lucas w as being truthful when he

disavowed any involvement with the “Orange Socks” murder.

Although this “ new” evidence provides support for Lucas’s

defense at trial, it is insufficient to demonstrate that he is

actually innocent of the murder for which he was sentenced to die.

Indeed, it is hardly correct to classify the evidence as “new” or

10as “newly discovered.” The evidence is more aptly described as

simply corroborative of the al ibi defense presented to the jury.

Furthermore, it was available, if not accumulated in its present

form, at the time of the state trial.

At trial, Lucas’s alibi defen se was supported by testimony

that he was on a construction job in Florida at th e time the

“Orange Socks” murder occurred. The “newly discovered” evidence of

the post-trial audit conducted by Lucas’s employer does not purport

to demonstrate the unequivocal correctness of the wor k records

indicating his presence in Florida. The accuracy of these records

was thoroughly litigated at trial. Furthermore, testimony adduced

at trial indicated that a kickback system for falsifying attendance

records was well established at Lucas ’s workplace. In addition,

the State counters Lucas’s neighbors’ testimony that they would

have noticed an extended absence with the assertion that Lucas did

not move to the neighborhood in question until after the time of

the murder. As such, their testimony is irrelevant.

The testimony proffere d by defense expert Dr. Gudjonnson

appears for the main part only to corroborate evidence presented at

trial. Because Lucas’s defense was an alibi, his confessions were

naturally placed under strict scrutiny. Indeed, Lucas’s attorneys

argued in closing that the jury should disregard Lucas’s statements

because he was attempting to commit “legal suicide.”

The Lucas Report does not contain any significant new evidence

that in substance was not presented to the jury. It merely helps

to document Lucas’s wher eabouts and corroborates the defense’s

alibi theory, which was presented at trial, that Lucas was in

Jacksonville, Florida, at the time of the murder. One new piece of

evidence that the Report does set out is Lucas’s description of a

car fire that took place in Florida on the day of the murder--the

import being that Lucas had to be present at the fire in order to

s o accurately describe it. At the federal evidentiary hearing,

however, testimony indicated that Lucas could have learned of the

fire from two different acquaintances.

Further, although the treatment that Lu cas received while

inca rcerated is certainly suggestive of favors bartered for

information and confessions, it is insufficient to raise a serious

question as to actual innocence. Moreover, such evidence was

available at the time of trial.

Finally, a jury would not have been permitted to hear any

polygraph evidence.

Thus, even were a claim of actual innocence cognizable under

federal habeas corpus, this accumulation of evidence that tracks

and corroborates the evidence presented at trial and that largely

11was available at the time of trial, does not qual ify to meet the

extraordinarily high threshold as newly discovered evidence

demonstrating actual innocence that is necessary to suggest a

federal constitutional right arising from this Texas conviction.

12 actual innocence claimlies, if anywhere, in Texas state

procedures.

B

On the other hand, in S chlup v. Delo

, 115 S.Ct. 851 (1995),

t he Supreme Court recognized the distinction between habeas

petitioners who assert that t heir actual innocence in itself

presents a violation of their constitutional rights--as in

H errera

- -and habeas petitioners who assert that their actual

innocence acts as a catalyst to bring them within that “narrow

class of cases” in which the refusal of the court to hear their

underlying constitutional claims will result in “a fundamental

miscarriage of justice.” 115 S.Ct. at 860-61. Actual innocence in

this second type of petition is not itself a basis for federal

habeas relief; it is, however, “a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional

claim considered on the merits.” I d. at 861. We will address

later in the opinion this “actual innocence” argument in the

c o ntext of the constitutional deprivations that Lucas alleges

occurred during trial in order to determine whether those claims

are procedurally barred.4 Johnson disputes whether th e Lucas Report contains any

admission that Lucas is innocent of the “Orange Socks” murder.

Testimony before the district court indicated that the Attorney

General’s Office reached no official con clusion with respect to

Lucas’s guilt or innocence of the “Orange Socks” murder.

Furthermore, the statements of former Attorney General Jim Mattox,

relied upo n by Lucas for support of this claim, were made after

Mattox’s last term as Attorney General expired in January 1991. As

su ch, they may not be attributed to the State as an official

admission.

5 Teagu e set out two exceptions to its prohibition on

retroactive application of new rules. Teague , 109 S.Ct. at 1075-

78. Neither of the exceptions applies in this instance.

13 IV

Lucas next argues that it is inherently unconstitutional for

a state to execute someone when the state has admitted that

person’s innocence, 4 and that this unconstitutionality exists

separate from the value of the state’ s admission as newly

discovered evidence of his innocence. There is no authority in

Fifth Circuit case law for such a claim and it is thus barred as an

improper request for recognition of a new constitutional rule on

collateral review. T eague v. Lane

, 109 S.Ct. 1061, 1070-75 (1989)

(“[A] case announces a new rule if the result was not dictated by

precedent existing at the time the defendant’s conviction became

final.”). 5

V

A14

Lucas failed to raise the issues numbered 3 through 7 (noted

earlier) above until his third state application for habeas corpus.

The state court dismissed Lucas’s third habeas petition as an abuse

of the writ under state law and refused to review the merits.

Dismissal of a Texas habeas petition on abuse grounds creates a

procedural bar to consideration of the dismissed issue by federal

courts. F earance v. Scott

, 56 F.3d 633, 642 (5th Cir. 1995 ). A

petitioner may avoid this bar by demons trating “cause for the

default and actual prejudice as a result of the alleged violation

of federal law.” C oleman v. Thompson

, 111 S.Ct. 2546, 2565 (1991).

Lucas has not made either showing. However, this bar may also be

overcome by a showing that the “failure to consider the claims will

result in a fundamen tal miscarriage of justice.” I d. Such a

fundamental miscarriage of justice may be demonstrated by a showing

that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” S chlup

, 115 S.Ct. at

864 (citing Murray v. Carrier

, 106 S.Ct. 2639, 2649 (1986)). To

satisfy this standard, a petitioner must show that he is “actually

innocent.” Id. To demonstrate actual innocence, it is necessary

that the petitioner “show that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a

reasonable doubt . . . in light of all of the evidence, including

that alleged to have been illegally admitted (but with due regard15

to any unreliability of it) and evidence tenably claimed to have

been wrongly excluded or to have become available only after the

trial.” Id.

Thus, consideration of these claims is barred unless Lucas has

made the requisite showing of actual innocence. The state court

conviction was based, primarily, upon Lucas’s confessions of guilt.

Lucas now contends, however, that evidence obtained after his

conviction--largely contained in the compilation of information

p repared by the Texas Attorney General’s office (including th e

audit of work records that purportedly establish his pres ence in

Florida on the date of the murder in Texas, the results of a

polygraph examination, and the corroboration of his story regarding

his observation of an automobile fire in Florida on the day of the

murder)--supports his claim of actual innocence. This evidence is

indeed probative of Lucas’s claims of innocence. As we have

indicated in footnote th ree, s upra

, however, we cannot say that

Lucas has succeeded in demonstrating actual innocence.

Nevertheless, we will assume for the purposes of this portion of

the opinion that Lucas has made a sufficient showing of actual

innocence to allow further inquiry into his constitutional claims.

B

Lucas contends that he was denied due process because the

State did not present any e vidence to corroborate his confession16

that the murder occurred in the course of committing or attempting

to commit aggravated sexual assault--an e lement necessary to his

conviction for capital murder. In the alternative, he argues that

he is entitled to relief because the State failed positively to

identify the victim of the murder. These arguments, based upon

Texas law, fail to raise issu es of constitutional dimension.

Texas’ corpus delicti requirement is not constitutionally mandated.

See West v. Johnson , 92 F.3d 1385, 1393-94 (5th Cir. 1996); Autry

v. Estelle

, 706 F.2d 1394, 1407 (5th Cir. 1983) (stating that

“[s]uch a state rule of ‘corpus delecti’ has no independent

constitutional footing”).

Moreover, to the extent that Lucas attempts to challenge his

conviction based upon the sufficiency of the evidence establishing

capital murder, our review is limited to determining whether based

“upon the record evidence adduced at the trial no rational trier of

fact could have found proof of guilt beyond a reasonable doubt.”

Jackson v. Virginia , 99 S.Ct. 2781, 2791-92 (1979). In the light

of all the evidence presented at trial, including Lucas’s

confession, we find that a rational juror could have found that

Lucas committed the murder dur ing the course of committing or

attempting to commit aggravated sexual assaul t. We further

conclude that no due process deprivation resulted from the failure

of the State positively to identify the victim of the murder. The17

district court did not err by denying Lucas’s request for habeas

relief on these points.

C

Lucas contends that he was denied effective a ssistance of

counsel. He points out that on appeal his attorney raised neither

the failure of the State to produce independent e vidence

corroborating that the murder occurred during the cours e of a

sexual assault nor the failure of the State to identify the murder

victim. To warrant habeas relief, Lucas must make a substantial

showing that his attorney’s conduct was deficient and that he

suffered prejudice as the result of the deficiency. S trickland v.

Washington

, 466 U.S. 668, 687 (1984). Lucas has failed to make

such a showing.

With respect to the claim of his counsel’s failing to object

to the State’s failure to identify the victim, we must first note

that the prejudice prong of the Strickland test is measured at the

time the ineffect ive assistance claim is raised. L ockhart v.

Fretwell

, 113 S.Ct. 838, 843-44 (1993); Westley v. Johnson

, 83 F.3d

714, 723 (5th Cir. 1996). Current Texas law (nor the law at the

time of the trial for that ma tter) does not require the State to

prove the identity of the victim. S ee Fisher v. State

, 851 S.W.2d

298, 303 (Tex. Cr. App. 1993). Therefore, Lucas has not been18

prejudiced by the failure of his counsel to object on direct

appeal.

Lucas’s second claim of ineffective assistance focuses on

c ounsel’s failure to object to the State’s lack of corroborat ing

evidence of an underlying sexual assault. The determination

whether the performance of counsel was deficient is based upon the

law as it existed at the time of trial. L ockhart

, 113 S.Ct. at 844

(citing Strickland

, 104 S.Ct. at 2066). Until the decision of

Gribble v. Stat e , 808 S.W.2d 65, 71 (Tex. Cr. App. 1990), it was

not clear under Te xas law whether corroborating evidence of the

underlying offense was necessary to support a conviction based upon

extrajudicial confessions. Lucas’s counsel on direct appeal did

not have the benefit of Gribble and, thus, Lucas ha s failed to

demonstrate deficient performance because counsel is not required

to anticipate subsequent developments in the law. S ee Gray v.

Lucas

, 677 F.2d 1086, 1096 n.9 (5 th Cir. 1982). We therefore

decline to hold that the district court erred by refusing to grant

the requested relief on these grounds.

D

Lucas next as serts that he is entitled to habeas relief

because of the improper comments made by the prose cution during

closing argument, which he alleges denied his rights under the6 The prosecutor stated, “The handwriting comparison on the

matches with Henry Lee Lucas was inconclusive. We don’t know that

those are his matches; they might have been the girl’s matches.

She might have written in the matchbook; we don’t know that. Only

one person does know that, and that’s Henry Lee Lucas.”

19 Fifth Amendment. The subject remark 6 was neither a di r ect nor an

indirect comment on Lucas’s failure to testify. S ee United States

v. Borchardt

, 809 F.2d 1115, 111 9 (5th Cir. 1987). The overall

point of the prosecutor’s statements appears to be an argument that

Lucas’s guilt did not hinge on whether Lucas or the victim owned

the matches. Furthermore, even if the remark were construed as a

comment on his failure to testify, there is no indication that it

was an error having a “substantial and injuriou s effect or

influence in determining the ju ry’s verdict.” B recht v.

Abrahamson

, 113 S.Ct. 1710, 1722 (1993). The district court did

not err when it denied habeas relief on this basis.

E

Lucas also advances the argument that he was denied a fair

trial by the improper admission of prior convictions to impeach his

chief alibi witness. The Texas Court of Criminal Appeals held that

the trial court erroneously allowed the prosecution to impeach Mark

Caulder--one of Lucas’s construction job supervisors at the time of

the murder--with stale convictions. L ucas v. State

, 791 S.W.2d

35, 52 (Tex. Cr. App. 1989). The state court nevertheless

concluded that “beyond a reasonable doubt . . . the error did not20

contribute to either appellant’s conviction or his sentence.” I d.

When a habeas petitioner claims the erroneous adm ission of

evidence, our role “is limited to determining whether [the] error

[was] so extreme that it cons tituted denial of fundamental

fairness” under the due process clause. Andrade v. McCotter , 805

F.2d 1190, 1193 (5th Cir. 1986). Habeas relief is warranted only

when the erroneous admission played a “crucial, critical [and]

highly significant” role in the trial. I d. The legitimacy of the

particular convictions is a relevant factor in determining whether

the improper impeachment “‘constituted denial of fundamental

fairness.’” S mith v. Collins

, 964 F.2d 483, 486 (5th Cir. 1992)

(quoting Evans v. Thigpen , 809 F.2d 239, 242 (5th Cir. 1987)).

Here, Lucas was not denied due process as a result of the

admi ssion of the convictions to impeach Caulder. The State’s

impeachment of Caulder was not the only evidence that it offered to

counter Lucas’s alibi defense that he was working in Florida at the

time the Texas murder occurred. For example, Kenneth Emery,

Lucas’s coworker, testified that forgery of records by foremen in

exchange for kickbacks was a common practice and that workers would

often announce absent coworkers as present. Lucas himself related

to investigators how the kickback system worked. In sum, the

improper impeachment of Caulder simply was not of such a crucial

n ature to Lucas’s defense as to warrant habeas relief.21

Furthermore, the case upon which Lucas principally relies, Loper v.

Beto , 92 S.Ct. 1014 (1972), is easily distinguishable in that the

convictions offered in that case were constitutionally invalid.

There is no indication--and Lucas does not allege--that Caulder’s

convictions suffered from any constitutional infirmity.

Thus, this alleged error is no basis for habeas relief.22 F

Luca s next argues that his trial was fundamentally unfair

because of the admi ssion of his videotaped statement of February

16, 1984, in which he discussed the practice of paying supervisors

to falsify work records for him. Lucas’s contention is that the

statement was tak en in violation of his right to counsel and his

right to due process.

In November 1983, the trial judge signed an order that

prohibited questioning of Lucas about any matter unless he

consented, and the n only after his attorneys had been notified.

The order further prohibited interrogation concerning “the offense

for which he ha[d] been indicted” under all circumstances. Lucas

was questioned--after the entry of this order and w ithout an

atto rney present--about the validity of his work records. On

direct appeal, the Texas Court of Criminal Appeals found that the

statement was not in violatio n of the order because the

interrogation did not relate to the offense for which Lucas had

been indicted and because Lucas’s attorneys had agreed with the

State, after the order was signed, to waive the notice requirement

unless the proposed interrogation related to the instant offense.

Factual findings by a state court after a hearing on the

merits are presumed to be correct and can be overcome only by

“convincing evidence.” 28 U.S.C. § 2254(d) (West 1997 & Supp.23

1990). Although certain exceptions exist to the application of

this presumption, Lucas has failed to establish, and it does not

otherwise appear, that any of the listed exceptions apply. I d. We

therefore as sume that the factual issues before the state court

were resolved correctly. Questions of law are reviewed d e novo and

mixed questions of fact and law generally remain subject to

independent review. W right v. West

, 112 S.Ct. 2482, 2495-96 (1992)

(O’Connor, J., concurring) (the Supreme Court consistently reviews

mixed questions of law and fact in pre-AEDPA habeas corpus cases de

novo ); Perillo v. Johnson

, 79 F.3d 441, 445 (5th Cir. 1996);

Kirkpatrick v. Wh itley , 992 F.2d 491, 494 (5th Cir. 1993).

Although the presumption of correctness does not attach to a state

court’s determination of a mixed question, the presumption does

apply to the historical facts underpi nning the state court’s

ultimate legal conclusion. S umner v. Mata

, 102 S.Ct. 1303, 1306-07

(1982); Black v. Collins

, 962 F.2d 394, 401 (5th Cir.), cert.

denied , 112 S.Ct. 2983 (1992).

In determining this mixed question of law and fact, we must

agree with the state court that the interrogation did not relate to

the offense for which Lucas was indicted and that the state trial

court’s order was thus not violated. Even if the order were

violated, that fact alone is insufficient to warrant habeas relief

unless the violation also rises to a constitutional level. In this24

case, the record clearly indicates Lucas’s willingness to continue

discussions with the auth orities without benefit of counsel.

Because Lucas waived his right to the presence of counsel during

the relevant interviews under both the Fifth and Sixth Amendments,

no constitutional violation occurred ei ther in the taking of his

February 16, 1984 statement or in its admission at his trial.

Contrary to Lucas’s assertions, he is not entitled to habeas

relief on this ground.

G

Lucas next contends that he is entitled to relief because the

admission of his videotaped confession of August 1983, in which he

is handcuffed, deprived him of the right to be presumed innocent.

Lucas cannot point to an established constitutional principal that

dictates this result. Instead, he argues that the reasoning of our

cases concerning the rights of accused persons who are restrained

during the trial proceedings should be extended to the circumstance

of a brief video exposure. In short, Lucas argues for the creation

and retro active application of a new rule of constitutional law.

Teague controls this issue and mandates that we rejec t the7 The Supreme Court has stated that a holding sets out a new

rule “‘if the result was not dictated by precedent existing at the

time the defendant’s conviction became final.’” P enry v. Lynaugh

, 109 S.Ct. 2934, 2944 (1989) (quoting Teague

, 109 S.Ct. at 1070)

(emphasis in original). Difficult questions are presented when the

new holding is reached through an extension of reasoning contained

in previous cases. “But the fact that a court says that its

decision is within the ‘logical compass’ of an earlier decision, or

indeed that it is ‘controlled’ by a prior decision, is not

conclusive for purposes of deciding whether the current decision is

a ‘new rule’ under Teague .” B utler v. M cKellar , 110 S.Ct. 1212,

1217 (1990). If the outcome of the case is “susceptible to debate

among reasonable minds ,” then the decision is not dictated by

existing precedent and is a new rule barred by Teague unless one of

the two exceptions emb races it. I d. The holding requested by

Lucas is susceptible to debate and thus constitutes a new rule

unde r the reasoning of B utler

. The claim does not fall within

either Teague exception and we are thus precluded from considering

it.

25 argument. 7 The district court properly declined to grant relief on

this basis.

H

Lucas’s next three alleged errors (noted earlier as 11, 12 and

13) all relate to statements that he contends were taken in

violation of his rights under the Fifth and Sixth Amendments.

These stat ements were taken prior to the institution of

adversarial proceedings in the respective cases; therefore, there

was no violation of Lucas’s Sixth Amendment rights. The protection

provided by the Sixth Amendment is “offense specific” and , thus,

does not attach simply because the accused has invoked the right

with respect to adversarial proceedings involving another offense.

McNeil v. Wisconsin , 111 S.Ct. 2204, 2207 (1991). At the time of26

the statements, Lucas had not been formally charged in either the

present case (the subject of the June 22 and July 31 statements) or

the Abilene case (the subject of the July 28 statement).

Therefore, n otwithstanding the Texas Court of Criminal Appeals’

finding to the cont rary, the interrogations leading to the

statements do not implicate Sixth Amendment concerns.

On the other hand, the Fifth Amendment right to have counsel

present during custodial interrogatio n, once invoked, applies to

all interrogati ons. A rizona v. Roberson

, 108 S.Ct. 2093 (1988).

This right is invoked where a person indicates that he wishes to

speak to an attorney or t o have an attorney present during the

questioning. Davis v. United States , 114 S.Ct. 2350, 2355 (1994)

(noting that the request must be made “sufficiently clearly that a

reasonable police officer in the circumstances would understand the

statement to be a request for an attorney.”); Miranda v. Arizona

,

86 S.Ct. 1602 (1966).

The Texas Court of Criminal Appeals eng aged in a lengthy

consideration of this issue and concluded that Lucas never invoked

his right to counsel under the Fifth Amendment. L ucas

, 791 S.W.2d

at 45-50. The facts as found by the state court are supported by

substantial evidence and we thus presume their correctness. Prior

to the taking of the statements in question, Lucas never verbally

requested the presence of an attorney nor did he otherwise indicate27

that he wished to speak with an attorney or have one present during

questioning. S ee Edwards v. Arizona

, 101 S.Ct. 1880 (1981). Lucas

consistently expressed his desire to cooperate with the authorities

without the benefit of counsel. “[T]he tapes of the conversations

in question undeniably demonstrate appe llant’s ongoing desire to

talk to the authorities, regardless of the personal cost to

himself.” L ucas

, 791 S.W.2d at 50. Lucas’s Fifth Amendment right

to counsel was not infringed by the taking of these statements

because he had not invoked this particular federal right. Habeas

relief should not issue on these grounds.

I

Lucas also co ntends that he is entitled to habeas relief

because of the admiss ion of evidence of his extraneous offenses

through the State’s introduction of portions of his July 31, 1983

confession. The Texas Court of Criminal Appeals found that the

evidence was properly admitted because Lucas “opened the door” by

presenting other portions of the confession that gave the jury a

false impression of the confession. L ucas

, 791 S.W.2d at 53-54.

In view of these circumstances, we agree that the introduction was

proper. In the alternative, even if the trial judge committed

error, our role “is limited to determining whether [the] error

[was] so extreme that i t constituted denial of fundamental

fairness” under the due process clause. Andrade v. McCotter , 80528

F.2d 1190, 1193 (5th Cir. 1986). Habeas relief is warranted only

when the erroneous admission of evide nce played a “crucial,

critical [and] highly significant” role in the trial. Id.

The portion of the confession to which Lucas objected

contained only “implied references” to other offenses. Moreover,

the trial judge instructed the jury not to consider any evidence

regarding other crimes in determining Lucas’s guilt. We conclude

that, even if the evidence were erroneously admitted, Lucas has not

made a substantial show ing that he was denied the fundamental

fairness required by the Constitution and he is not entitled to

habeas relief on this ground.

J

Lucas contends that the State violated the mandate of Brady v.

Maryland

, 83 S.Ct. 1194 (1963), by failing to disclose exculpatory

evidence in the form of information concerni ng another credible

suspect in the murder.

The state court entered findings of fact, after an evidentiary

hearing, that establish that there was never another credible

suspect in this matter. Lucas presented no convincing evidence

that casts doubt on the state court’s factual findings; nor has he

demonstrated, and it does not otherwise appear, that any of the

listed exceptions to the presumption of the corre ctness of state

court findings, found under 28 U.S.C. § 2254(d), apply. Thus, we29

presume the correctness of the state court findings and conclude

that no Brady violation occurred. S ee 28 U.S.C. § 2254(d). The

application for relief on this basis was properly denied.

K

Lucas next maintains that he is entitled to habeas relief

because the trial court failed to provide special instructions at

the punishment phase of the trial that would allow the jury

specifically to consider his mitigating evidence of mental illness

and childhood abuse. Lucas relies on Penry v. Lynaugh , 109 S.Ct.

2934 (1989), for this claim. In P enry

, the Supreme Court held that

the petitioner was constitutionally entitled to further jury

instructions because, although his mitiga ting evidence had been

placed before the sentencer, the sentencer “had no reliable means

of giving mitigating effect to that evidence.” G raham v. Collins

,

113 S.Ct. 892, 902 (1993) (citing Penry ). P enry ’s application has

since been limited to that narrow class of situations in which the

petitioner’s miti g ating evidence was placed beyond the jury’s

effective reach. Id. The question we must decide, therefore, is

whether the mitigating evidence presented was within the effective

reach of the jury under either of the interrogatories considered by

the jury.

In accordance with Texas law, the trial court put to the jury

the following two statutory punishment-phase interrogatories:8 Expert testimony indicated that Lucas’s traumatic childhood

could be credited as a likely cause of his mental instability.

Consideration of t his evidence was within the effective reach of

the sentencer under the first interrogatory in that the sentencer

could have appraised the relationship between his abusive childhood

and his mental illness and, if that relationship were sufficiently

substantial, given mitigating effect to the deliber a teness of

Lucas’s actions in the context of considering the mitigating effect

of his mental illness.

30 (1) Do you find from the evidence, beyond a r easonable

doubt, that the conduct of the defendant that caused the

death of the deceased was committed deliberately and with

the reasonable expectation that the death of the deceased

would result?

(2) Do you find from the evidence, beyo nd a reasonable

doubt, that there is a probability that the def endant

would commit criminal acts of violenc e that would

constitute a continuing threat to society?

The mitigating evidence at issue here relates to Lucas’s

mental illness and his abusive childhood. With respect to his

mental illness, experts testified at trial that Lucas was

psychotic and suffered from schizophrenia. One expert further

explained that if Lucas had committed the Orange Socks murder, then

at the time of the act “[h]e would have been psychotic, meaning out

of touch with reality, out of control over his impulses, over his

drives.

. . . insane.” It is clear to us that the sentencer could

have effectively considered the mitigating aspect of such evidence

under the first interrogatory, that is, whether Luca s acted

deliberately when he committed the murder. 831

Further, the testimony at trial indicated that, although Lucas

had mental problems, he responded well to antipsychotic drugs like

Thorazine and that his particular illness could be treated in a

controlled environment. This prospect of medical treatment placed

the evidence of his mental illness and abusive childhoo d within

‘the effective re ach of the sentencer’ as a potential mitigating

factor with respect to the second issue, that is, the jury could

have consider ed whether, 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. S ee Johnson

v. Texas

, 113 S.Ct. 2658, 2669 (1993) (“[T]here is no reasonable

likelihood th at the jury would have found itself foreclosed from

considering the relevant aspects of petitioner’s [mitigating

evidence].”); Graham

, 113 S.Ct. at 902 (“[I]t is apparent that

Graham’s evidence-- unlike Penry’s--had mitigating relevance to the

second special issue concerning his likely future dangerousness.”);

Motley v. Collins , 18 F.3d 1223, 1230-35 (5th Cir. 1994).

Furthermore, to the extent that Lucas seeks relief beyond the

narrow purview provided in Penry

, he has failed to show that

reasonable jurists would feel compelled by precedent existing at

the time his conviction became final in 1990 to rule in his favor.

He is thus requesting retroactive application of a new rule and

consequently we are barred from considering the merits of this32

c laim pursuant to the non-retroactivity principles under Teague

.

Lucas is not entitled to relief on this ground.

L

Lucas’s final contention is that his original arrest was in

violation of the Fourth Amendment because it was not supported by

probable c a use and, therefore, the subsequent confessions are

tainted. This argument fails to state a basis for federal habeas

relief. See Stone v. Powell , 96 S.Ct. 3037, 3052-53 (1976).

VI

In conclusion, we grant Lucas’s m otion to reconsider

application of the Antiterrorism and Effective Death Penalty Act.

In accord with the Supreme Court’s opinion in Lindh , we hold that

the AEDPA does not go vern this appeal. Under pre-AEDPA law, we

find that Lucas has made a “substantial showing of the denial of a

federal rig ht.” We therefore grant the application for a CPC in

all respects. After reaching the merits, however, we hold that

Lucas is not entitled to federal habeas relief. We therefore

affirm the district court’s denial of Lucas’s petition.

MOTION TO RECONSIDER GRANTED;

REQUEST FOR CPC GRANTED; and

JUDGMENT OF DISTRICT COURT AFFIRMED.