IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 90-2124

_____________________

HAROLD AMOS BARNARD, JR.,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director, Department of

Criminal Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

 (April 3, 1992)

Before KING, JOLLY and SMITH, Circuit Judges.

KING, Circuit Judge:

Harold Amos Barnard, Jr. appeals the district court's

dismissal of his petition for a writ of habeas corpus. He argues

that the district court erred in rejecting his contention that

the Texas capital sentencing statute as applied in his case

unconstitutionally prevented the jury from fully considering and

giving effect to all of the mitigating evidence he presented

during the conviction and sentencing phases of his trial. 

Finding no error, we affirm the district court's denial of habeas

relief and vacate the stay of execution.
 

1 For a more detailed recitation of the facts, see Barnard

v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987), cert. denied,

485 U.S. 929 (1988).

2

I. BACKGROUND

On June 6, 1980, Barnard killed sixteen-year-old Tuan Nguyen

during the robbery of a convenience store in Galveston, Texas.1 

A jury convicted Barnard of capital murder on April 1, 1981. 

After a punishment hearing, the jury affirmatively answered the

three special issues submitted pursuant to Texas law, and on

April 6, 1981, the court imposed a death sentence.

The Texas Court of Criminal Appeals affirmed Barnard's

conviction on April 8, 1987. Barnard v. State, 730 S.W.2d 703

(Tex. Crim. App. 1987), cert. denied, 485 U.S. 929 (1988). 

Barnard filed a petition for a writ of habeas corpus in the state

trial court on October 31, 1988. On November 22, 1988, the trial

court entered its findings of fact and conclusions of law and

recommended denial of the writ. The Court of Criminal Appeals

found the trial court's findings and conclusions to be supported

by the record and denied the writ on January 6, 1989. 

The trial court rescheduled Barnard's execution for March

14, 1989. On February 21, 1989, Barnard filed a petition for

habeas corpus relief and an application for stay of execution in

United States district court. The district court stayed the

execution pending its consideration of Barnard's petition.

On December 12, 1989, the district court entered a final

judgment dismissing the petition for a writ of habeas corpus and

lifting the stay of execution. Barnard timely filed a motion to
3

alter or amend the judgment pursuant to Federal Rule of Civil

Procedure 59(e), which the district court denied. After Barnard

filed a notice of appeal, the district court granted a

certificate of probable cause and entered a stay of execution on

February 7, 1990. This appeal followed.

On appeal, Barnard contends that the district court

erred in rejecting his claims that (1) the Texas death sentencing

statute prevented the jury in his case from considering and

giving effect to his mitigating evidence in violation of the

Sixth and Eighth Amendments to the United States Constitution;

(2) the court's instruction on temporary insanity caused by

intoxication prevented the jury from giving any mitigating

consideration to this evidence unless Barnard proved that he was

so intoxicated that he was insane at the time of the offense; (3)

evidence of his good character, including evidence of his

carpentry skills, work history, and familial responsibility and

support, was not adequately treated within the special issues;

and (4) Barnard received ineffective assistance of counsel. We

consider each of these claims below.

II. ANALYSIS

A. Standard of review

In considering a federal habeas corpus petition presented by

a petitioner in state custody, federal courts must accord a

presumption of correctness to any state court factual findings. 

See 28 U.S.C. § 2254(d). We review the district court's findings

of fact for clear error, but decide any issues of law de novo. 
 

2 Pursuant to the version of Texas Code of Criminal

Procedure Article 37.071 in effect at the time of Barnard's

sentencing, the trial court instructed the jury to consider the

following special issues:

1. Was the conduct of the Defendant that caused the death

of the deceased committed deliberately and with the

reasonable expectation that the death of the deceased

would result?

2. Is there a probability that the Defendant would commit

criminal acts of violence that would constitute a

continuing threat to society?

3. Was the conduct of the Defendant in killing the

deceased unreasonable in response to the provocation,

if any, by the deceased?

4

Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir. 1988), cert.

denied, 490 U.S. 1024 (1989).

B. Penry claim

Barnard first contends that the Texas capital sentencing

statute, as applied in his case, violated the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution by

failing to provide a vehicle by which Barnard's jury could

properly consider and give effect to the substantial mitigating

evidence he presented at trial. Barnard argues that the Texas

capital sentencing statute2 unconstitutionally limited the jury's

consideration of two types of mitigating evidence that he

presented at trial: (1) his head injury, evidence of permanent

characteristics and disabilities stemming from his troubled

childhood, and his drug and alcohol abuse; and (2) evidence of

his good character, including evidence of his carpentry skills,

work history, and familial responsibility and support. Barnard

maintains that, under the narrow focus of the special issues, no
 

3 Barnard has abandoned his facial challenge to the Texas

death penalty statute brought before the district court.

5

means existed by which the jury could give meaningful expression

to this evidence and vote for life as mandated by the Supreme

Court in Penry v. Lynaugh, 492 U.S. 302 (1989). 

The district court refused to review the merits of Barnard's

contention that the Texas death sentencing statute was

unconstitutional as applied3 in his case, concluding that Barnard

had procedurally defaulted this claim. In making this ruling,

the district court observed that both the trial court and the

Court of Criminal Appeals found on state habeas review that

Barnard was barred under state law from complaining of the trial

court's failure to give additional jury instructions on

mitigating evidence because he failed to request such a special

instruction. The district court determined that the state habeas

court unambiguously relied on the state procedural default

doctrine in its dismissal, and that Barnard demonstrated neither

good cause for his failure to comply with state court procedures

nor actual prejudice resulting from the alleged constitutional

violation. 

Over two years have elapsed since the district court rested

its decision on the procedural default doctrine. Since then, the

Texas Court of Criminal Appeals has clarified the state's

position on whether a habeas petitioner has defaulted on a Penry

claim. Selvage v. Collins, 816 S.W.2d 390 (Tex. Crim. App.

1991), explained that a Penry claim is preserved even if the
6

petitioner failed to request an instruction on mitigating

evidence or object to the instructions given at trial. Id. at

392. However, a petitioner cannot base a Penry claim on

mitigating evidence that could have been, but was not, proffered

at trial. May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990),

cert. denied, 111 S. Ct. 770 (1991); DeLuna v. Lynaugh, 890 F.2d

720, 722 (5th Cir. 1989); see also Ex parte Goodman, 816 S.W.2d

383, 386 n.6 (Tex. Crim. App. 1991) (in dicta, refusing to

consider arguments based on tactically withheld Penry evidence,

unless the appellant makes a contemporaneous offer of proof or

bill of exception detailing what mitigating evidence is being

withheld). With these constraints in mind, we examine whether

Barnard's challenge to the application of the Texas sentencing

statute in his case warrants relief.

Although the Supreme Court has upheld the constitutionality

of the Texas capital sentencing scheme, see Jurek v. Texas, 428

U.S. 262, 272 (1976) (opinion of Stewart, Powell & Stevens, JJ.),

it has found that under certain circumstances, the statutory

special issues must be augmented by jury instructions to preserve

the constitutionality of the statute's application. In Penry,

the Supreme Court held that a Texas jury could not give effect to

mitigating evidence of mental retardation and an abused childhood

through the special issues absent instructions informing the jury

that it could consider and give effect to this evidence by

refusing to impose the death penalty. 492 U.S. at 328. The

Court ordered resentencing in Penry's case because without such
7

an instruction, "the jury was not provided with a vehicle for

expressing its 'reasoned moral response'" to his mitigating

evidence in its sentencing decision. Id. 

In Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en

banc), petition for cert. filed Mar. 9, 1992 (No. 91-7580), this

court recently construed Penry to indicate that special jury

instructions are required only when the "major mitigating thrust

of the evidence is beyond the scope of all the special issues." 

Id. at 1027. We determined that Graham's evidence of his youth

as a mitigating factor found adequate expression through the

second special issue. Graham reasoned that because youth is a

transitory condition,

whatever is mitigating about youth tends to

lend support to a "no" answer to the second

special issue, and its tendency to do so is

essentially proportional to the degree to

which the jury concludes such factors were

influential in the defendant's criminal

conduct. The greater the role such

attributes of youth are found to have played

in the defendant's criminal conduct, the

stronger the inference that, as his youth

passes, he will no longer be a danger to

society. 

Id. at 1031. The majority distinguished evidence of transitory

conditions, such as youth, from evidence of "uniquely severe

permanent handicaps with which the defendant was burdened through

no fault of his own," such as mental retardation, organic brain

damage and an abused childhood. Id. at 1029. We turn now to

Barnard's contention that the mitigating evidence he presented at

trial differs materially from the type of evidence found

unproblematic in Graham and that, as a consequence, the lack of
 

4 Farquhar was also a licensed vocational nurse.

 

5 Barnard first filed a psychological evaluation, prepared

by a psychologist in October 1988, with his petition for habeas

corpus relief in the district court. The report reveals that, in

addition to the attack with the tire iron, Barnard suffered a

serious head injury from a car accident when he was seventeen

years old. The report also indicates that Barnard suffers from

extreme paranoia and delusional ideation and that, since his

incarceration, he has consistently been diagnosed as having a

paranoid disorder with possible schizophrenia. The psychologist

8

special jury instructions rendered his proceeding

unconstitutional. 

Barnard argues that because the evidence presented during

his trial raised an issue with regard to his head injury and its

effects, the jury could not have expressed the full mitigating

force of this evidence within the special issues. At trial,

Barnard testified that several months before he committed the

crime, his son-in-law beat him in the head with a tire iron. 

Barnard's friend, Marie Farquhar,4 and his mother, Maude Barnard,

testified to the apparent severity of the wounds resulting from

the beating. Barnard's mother also stated that Barnard was

unable to work for four or five months and that he was less

helpful around the house after the beating. She further stated

that since the beating, she thought he needed psychiatric help. 

On cross-examination, she also told of an occasion after the

beating when she accompanied Barnard to a hospital so that he

would get a psychiatric examination, recalling that he left the

hospital the same day, apparently without receiving treatment.

Barnard did not introduce expert testimony relating to his

psychological disorders during his capital trial.5 Nor does the
was unable to conclude that Barnard was afflicted with paranoid

delusions at the time he committed the capital offense. Because

Barnard did not present this evidence at trial, we cannot

consider it now. See May v. Collins, 904 F.2d 228, 232 (5th Cir.

1990), cert. denied, 111 S. Ct. 770 (1991). 

9

record contain any affirmative evidence of brain damage. The

evidence of the beating, without more, is insufficient to support

a Penry claim. The evidence must be able to raise an inference

"that the crime is attributable to the disability." Graham, 950

F.2d at 1033. Here, there is no evidence that the physical

trauma from the blows caused Barnard to suffer from mental

impairment, or that his criminal actions were attributable to

mental impairment. Barnard cannot rely on his mother's inexpert

speculation concerning Barnard's mental condition to demonstrate

a Penry-type disability. A juror would be compelled to share

this speculation to make such a finding. See Wilkerson v.

Collins, 950 F.2d 1054, 1061 (5th Cir. 1992) (refusing to

consider claim based upon conjecture rather than proof). 

Therefore, Barnard's claim is without merit.

Barnard further contends that, in the absence of a special

instruction, the jury was precluded from expressing the full

mitigating potential of his evidence of a troubled childhood. 

Testimony during Barnard's trial revealed that his parents

divorced when he was four years old and that he lived alone with

his mother until he was thirteen. His father was absent from his

life during this period. At age thirteen, Barnard was sent to

live with his father, but had difficulties with him and

eventually lived with an uncle. Barnard's mother testified that
 

6 Maude Barnard noted that she retired from her job when she

had a nervous breakdown in the 1960s. Barnard was eighteen years

old in 1961.

10

she had been in a mental hospital four times, but specified the

approximate date of her institutionalization for only one

occasion, which apparently occurred after Barnard was eighteen

years old.6 Barnard did not offer any affirmative evidence to

show that his mother received institutional care during his

childhood. Nor did he attempt to show that his alcohol and drug

use or any mental impairment or psychological problem was

attributable to his childhood experiences. 

We reject Barnard's attempt to portray this testimony as

mitigation evidence of permanent characteristics and disabilities

stemming from his troubled childhood. Although the Graham

majority observed that a defendant who introduced evidence of the

adverse effects of a troubled childhood might well raise a Penry

issue, in this case, as in Graham, there was no evidence that

these childhood experiences had any psychological effect on

Barnard. Graham, 950 F.2d at 1033. Accordingly, we find no

substantial evidence that Barnard's "criminal conduct was

'attributable to a disadvantaged background, or to emotional and

mental problems[.]'" Id. (quoting Penry, 109 S. Ct. at 2947). 

Nor are we convinced by Barnard's efforts to characterize

the record as raising the issue of an addictive disorder. The

scattered testimony recounting Barnard's evidently frequent

episodes of heavy alcohol consumption, alcohol intoxication and

marijuana use does not demonstrate that the episodes were
 

7 During the punishment phase of Barnard's trial, the court

gave the following instructions to the jury:

You are instructed that under our law neither

intoxication nor temporary insanity of mind

caused by intoxication shall constitute any

defense to the commission of crime. Evidence

of temporary insanity caused by intoxication

should be considered in mitigation of the

penalty attached to the offense.

By the term "intoxication" as used

herein is meant disturbance of mental or

physical capacity resulting from the

introduction of any substance into the body.

By the term "insanity" as used herein,

11

attributable to a permanent handicap. Although the evidence

showed that Barnard was intoxicated at the time of the offense,

"voluntary intoxication is not the kind of 'uniquely severe

permanent handicap[] with which the defendant was burdened

through no fault of his own' that requires a special instruction

to ensure that the mitigating effect of such evidence finds

expression in the jury's sentencing decision." Cordova v.

Collins, 953 F.2d 167, 170 (5th Cir. 1992) (quoting Graham, 950

F.2d at 1029). A juror who concluded that Barnard suffered from

alcoholism or drug addiction would have necessarily relied solely

on speculation to reach that conclusion. Accordingly, Barnard

cannot prevail on this claim. See Wilkerson, 950 F.2d at 1061. 

Barnard alternatively argues that the jury instruction on

his intoxication at the time of the crime prevented the jury from

giving any mitigating consideration to this evidence unless

Barnard proved that he was so intoxicated that he was insane at

the time of the offense.7 This instruction, he contends, did not
is meant, that as a result of the

intoxication the defendant either did not

know that his conduct was wrong or he was

incapable of conforming his conduct to the

requirements of the law he allegedly

violated. 

Now if you find from the evidence that

the defendant, Harold Amos Barnard, Jr., at

the time of the commission of the offense for

which he is on trial, was laboring under

temporary insanity as above defined, produced

by voluntary intoxication, then you may take

such temporary insanity into consideration in

mitigation of the penalty which you attach to

the offense, if any.

12

allow a juror who found that Barnard acted deliberately and was

not temporarily insane at the time of the offense to give

mitigating effect to Barnard's evidence of intoxication even

though the juror also found that the intoxication diminished

Barnard's capacity and militated in favor of a life sentence. 

Therefore, he maintains that the mitigating thrust of this

evidence of intoxication extended beyond the special issues. 

In reviewing Barnard's state habeas petition, the trial

court determined that Barnard's failure to request a special

instruction or to object to this instruction at trial established

a procedural bar to consideration of this claim. The Court of

Criminal Appeals denied Barnard state habeas relief based on this

determination. The district court concluded that the state

habeas court's reliance on the state procedural bar was

unambiguous and thus precluded it from reaching the merits of

this claim pursuant to Harris v. Reed, 489 U.S. 255 (1989). 
 

8 At the time of Barnard's trial, it was already well

established that a capital sentencing statute must allow the

sentencer to consider "as a mitigating factor any aspect of a

defendant's character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence

less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(emphasis omitted); see also Jurek, 428 U.S. at 271 (opinion of

Stewart, Powell & Stevens, JJ.). 

 

9 Three former employers testified for Barnard and stated

that he was a competent worker and that they felt no fear for

themselves or their families when he was present. Barnard also

introduced evidence that he had worked to receive a General

Equivalency Diploma, and that he spent time with his children and

supported his family. Barnard's mother testified about how he

13

We agree with the district court that the state procedural

bar precludes our review of this claim. In Selvage, the Texas

Court of Criminal Appeals held that Selvage's Penry claim was not

procedurally barred under Texas law because it was "an assertion

of a right not previously recognized." 816 S.W.2d at 391. This

rationale does not pertain here. In contrast to Penry, Barnard

does not contend that the Texas special issues prevented the jury

from considering Barnard's evidence of voluntary intoxication; he

asserts that the court's erroneous instruction prevented the jury

from giving full mitigating effect to his evidence of voluntary

intoxication. Since a jury can express the mitigating force of

evidence of voluntary intoxication through the Texas special

issues, Barnard's failure to object to the additional instruction

on temporary insanity resulted in the state procedural default of

this claim.8

In his final Penry claim, Barnard argues that evidence of

his good character, including evidence of his carpentry skills,

work history, and familial responsibility and support9 fell
helped to support her financially and around the house. 

14

outside the scope of the second special issue. However, this

court has concluded that evidence of good character does not

require a special instruction under Penry. Graham, 950 F.2d at

1032. Since the principal mitigating thrust of good character

evidence is to show that the defendant acted atypically in

committing the capital crime, this evidence can find adequate

expression under second special issue. Id. Specifically, the

Graham majority observed that

[u]nlike Penry evidence, which can reduce

culpability where it is inferred that the

crime is attributable to the disability while

other similar offenders have no such

"excuse," good character evidence provides no

variety of "excuse." Further, absent some

unusual indication of an essentially

permanent adverse change in character (e.g.,

brain damage), to the extent that the

testimony is convincing that the defendant's

general character is indeed good it will

also, to essentially the same extent, be

convincing that he will not continue to be a

threat to society.

Id. at 1033 (emphasis in original). Barnard, however, maintains

that, unlike the good character evidence offered in Graham, the

mitigating potential of his good character evidence is not to

show that Barnard does not have the capacity for future violence. 

Rather, he contends, the evidence shows that his life should be

spared despite his need to be placed in a controlled environment. 

To the extent that Barnard asserts that a capital sentencer

must be able to express the mitigating potential of evidence

unrelated to a defendant's culpability or capacity for
 

10 Barnard urges that the evidence demonstrates that he

could be safely employed within a prison setting in a manner that

benefitted society. 

15

rehabilitation, ample authority supports the contrary conclusion. 

See, e.g., Penry, 492 U.S. at 319 ("Underlying Lockett and

Eddings is the principle that punishment should be directly

related to the personal culpability of the defendant."); Tison v.

Arizona, 481 U.S. 137, 149 (1987) ("The heart of the retribution

rationale is that a criminal sentence must be directly related to

the personal culpability of the criminal offender."); Skipper v.

South Carolina, 476 U.S. 1, 5 (1986) ("Consideration of a

defendant's past conduct as indicative of his probable future

behavior is an inevitable and not undesirable element of criminal

sentencing[.]"). Further, Barnard portrays the qualitative

effect of this mitigating evidence in a way that continues to

bear on the question of Barnard's rehabilitative potential,10

which is adequately addressed within the second special issue. 

Thus, we find no merit to this contention.

C. Unconstitutionally vague terms

Barnard contends that the Texas capital sentencing statute

was unconstitutionally applied to him because its operative terms

are so vague and indefinite that they deprive the jury of

meaningful guidance in its sentencing deliberations. Without

clarifying instructions on terms such as "probability" and

"deliberateness," he argues, the statute unduly restricts the

scope of the mitigating evidence which the jury can consider. To

support his contention, Barnard points out that in Penry, the
16

Supreme Court expressed doubt about whether the jury could give

effect to Penry's mitigating evidence of mental retardation and

child abuse "[i]n the absence of jury instructions defining the

term 'deliberately.'" 492 U.S. at 323. 

This claim is without merit. Both the Texas Court of

Criminal Appeals and this court have held that the common meaning

of the term "deliberately" is sufficiently clear to allow the

jury to decide the punishment phase issues. Ellis v. Lynaugh,

873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970 (1989). 

In Penry, the Court was concerned that the trial court did not

direct the jury to consider Penry's mental retardation in a way

that bore fully on his moral culpability. The Court observed

that "Penry's mental retardation was relevant to the question

whether he was capable of acting 'deliberately,' but it also 'had

relevance to [his] moral culpability beyond the scope of the

special verdict questio[n].'" 492 U.S. at 322 (quoting Franklin

v. Lynaugh, 108 S. Ct. at 2332) (alterations in original). 

Barnard has not presented any evidence that would require

additional sentencing instructions pursuant to Penry. Thus, the

doubt expressed in Penry does not apply to Barnard's case. See

DeLuna, 890 F.2d at 722-23. 

Moreover, Barnard fails to demonstrate that the jurors were

confused about the meanings of the challenged terms "probability"

and "society" as used in the second special punishment issue. In

Jurek, the Supreme Court rejected the petitioner's contention

that the second special issue was unconstitutionally vague. See
17

428 U.S. at 274-75 (opinion of Stewart, Powell & Stevens, JJ.);

id. at 279 (White & Rehnquist, JJ. & Burger, C.J., concurring)

("the issues posed in the sentencing proceeding have a commonsense core of meaning and . . . criminal juries should be capable

of understanding them"). We conclude that these terms "have a

plain meaning of sufficient content that the discretion left to

the jury was no more than that inherent in the jury system

itself." Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir.

1984), cert. denied, 471 U.S. 1030 (1985).

 D. Ineffective assistance of counsel

Finally, Barnard argues that he was denied effective

assistance of counsel in violation of the Sixth Amendment. 

Specifically, he points out that his trial counsel (1) failed to

have a psychiatric expert evaluate Barnard; (2) failed to conduct

an adequate examination into Barnard's family history; (3) failed

to obtain a medical examination to determine whether Barnard

suffered from brain damage; and (4) allowed Barnard to testify in

his own defense at trial. These errors and omissions, Barnard

contends, prejudiced his right to a fair trial. 

We review an ineffective assistance of counsel claim under

the two-prong standard enunciated in Strickland v. Washington,

466 U.S. 668 (1984). See, e.g., Wilkerson, 950 F.2d at 1063. 

Under Strickland, a defendant must show

[f]irst . . . that counsel's performance was

deficient. This requires showing that

counsel made errors so serious that counsel

was not functioning as the "counsel"

guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show
18

that the deficient performance prejudiced the

defense. This requires showing that

counsel's errors were so serious as to

deprive the defendant of a fair trial, a

trial whose result is reliable. Unless a

defendant makes both showings, it cannot be

said that the conviction or death sentence

resulted from a breakdown in the adversarial

process that renders the result unreliable. 

Strickland, 466 U.S. at 687. We determine the reasonableness of

the challenged conduct by viewing the circumstances at the time

of that conduct. Id. at 690. Further, "[w]e must strongly

presume that trial counsel rendered adequate assistance and that

the challenged conduct was the product of a reasoned trial

strategy." Wilkerson, 950 F.2d at 1065 (citing Strickland). 

Barnard fails to demonstrate that his counsel would have

reason to believe that Barnard suffered from a mental defect at

the time of the offense or trial. Thus, he cannot sustain the

argument that his counsel was ineffective for failing to employ

experts to explore the psychological, medical or physical origins

of Barnard's mental condition. Likewise, he does not show that

counsel's investigation into Barnard's family background was

unreasonably deficient. Counsel elicited testimony from

Barnard's mother, who favorably described some of Barnard's

personal characteristics to the jury. Barnard also fails to

provide factual support for the allegations of childhood neglect

that he urges would have come to light had counsel conducted a

more thorough investigation. As such, he fails to show that his

counsel performed in a constitutionally deficient manner. 
 

11 Barnard makes other conclusory allegations that his

counsel rendered ineffective assistance. In the absence of a

specific showing of how these alleged errors and omissions were

constitutionally deficient, and how they prejudiced his right to

a fair trial, we conclude that there is no merit to these

additional contentions. See Knighton v. Maggio, 740 F.2d 1344,

1349 (5th Cir.), cert. denied, 469 U.S. 924 (1984).

19

Moreover, Barnard does not demonstrate that his trial

counsel's decision to waive Barnard's Fifth Amendment right not

to testify constitutes ineffective assistance of counsel. 

Barnard argues that this waiver resulted in the extraction of

incriminating testimony, some of which was elicited by defense

counsel himself, concerning Barnard's participation in and

preparation for the crime. However, as the district court

observed, he has not demonstrated that trial counsel neglected to

weigh the possible harm from potentially incriminating testimony

against the need for Barnard to testify in favor of the defense

theory of his case. Nor does Barnard show that but for this

alleged error, the result of the proceeding would have been

different. The jury already had considerable evidence before it

to find that Barnard planned to participate and acted

deliberately in committing the crime.

Since Barnard's allegations do not satisfy the Strickland

test, we find no merit to this claim.11 In addition, we reject

Barnard's assertion that he is entitled to an evidentiary hearing

on the issue of ineffective assistance of counsel to make

findings of fact as to whether counsel's decisions were grounded

in a deliberate trial strategy. The reliance of the trial court

and the federal district court on this rationale in denying
 

12 In his supplemental brief, Barnard argues for the first

time that the prosecution's closing argument violated his

constitutional rights because it erroneously permitted the jury

to presume from the mere act of shooting that Barnard intended to

kill the victim. As Barnard did not present this argument in his

opening brief, we conclude that it is waived. See United States

v. Miller, 953 F.2d 866, 874 (5th Cir. 1992); United States v.

Mejia, 844 F.2d 209, 214 n.1 (5th Cir. 1988). Moreover, because

Barnard did not raise this claim either before the trial court on

state habeas review, or before the federal district court, we

cannot consider the claim here. 

20

relief derived from a legal presumption dictated by Strickland,

see 466 U.S. at 690, not from any unsubstantiated speculation on

the record. Because Barnard fails to present allegations

sufficient to overcome this presumption, we conclude that he is

not entitled to an evidentiary hearing. See Ellis, 873 F.2d at

840.

12 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court and VACATE the stay of execution.