823 F.2d 845

John Henry SELVAGE, Petitioner-Appellant,
v.
James A. LYNAUGH, Director, Texas Department of Corrections,
Respondent- Appellee.

No. 87-2285.

United States Court of Appeals,
Fifth Circuit.

July 23, 1987.
Rehearing Denied Aug. 19, 1987.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

John Henry Selvage appeals from the district court's denial of his petition for habeas corpus in which he attacks his state court conviction for capital murder and his resulting sentence of death. Selvage makes three related arguments attacking the sufficiency of the evidence. We affirm.

I

* On December 4, 1979, Selvage was indicted for the offense of capital murder of Albert Garza on two grounds: (1) that Garza was a peace officer known by Selvage to be acting in the lawful discharge of his duty; and (2) that Selvage or his confederate killed Garza while attempting to rob Stephen Ventura. A jury found him guilty, and after the punishment hearing, answered affirmatively the special interrogatories required by Texas law resulting in his sentence of death in February 1980. The Texas Court of Criminal Appeals affirmed his conviction and sentence. Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984) (en banc). Selvage did not seek review by the United States Supreme Court.

The 230th District Court of Harris County, Texas, set Selvage's execution date for November 14, 1985. Selvage did not seek state habeas relief, but on November 8, 1985, requested a stay of execution from the United States District Court for the Southern District of Texas, relying on arguments made to the Texas courts. The federal trial court granted a stay pending further order, and on December 16, 1985, directed Selvage to file an amended petition to meet the pleading requirements of the rules governing federal habeas. The district court denied his petition. After a rankle over notice of appeal, this appeal followed.

II

The attempted robbery and murder occurred on July 30, 1979. Stephen Ventura was the owner and operator of Ventura's Jewelry Store located in Houston, Texas. Albert Garza, a deputy sheriff with the Harris County Sheriff's Department and a friend of Ventura, visited his store shortly before 6:00 p.m. to use the telephone. Garza's duties included the service of process for state district courts in Harris County and he carried an arrest warrant, or instanter subpoenae, and other civil process when he entered the store. Garza engaged in conversation with Ventura and two employees, Charlye Jo Ivy and Ken Roberts. About this time, a black female entered the store and asked Ivy's assistance in choosing a birthday present. Ivy became suspicious when the woman did not remember the birthdate of her daughter for whom she claimed to be shopping. Shortly thereafter, two black males entered the store, each carrying a bag or satchel. Ventura told Garza that he was uncomfortable because he had seen the two black men in the store before and they were not regular customers. Garza, seeing that Ventura was nervous, came from the back of the store. As he did so, he removed his coat, making visible his gun and badge that were attached to his belt. Garza walked toward Selvage and volunteered to help him. When Garza asked Selvage if he could help, Selvage asked about the "big diamond" he had earlier seen, while the man with him asked Ventura about wedding sets. While Ventura was bending over to obtain a lay-a-way ticket he heard a shot, but no one saw who fired it. Garza, struck in the neck by the bullet, pushed Ventura toward the back office to which Ventura fled. Ventura obtained a pistol from his safe in the office and returned to the showroom where Selvage was removing jewelry from a showcase. Ventura opened fire as Selvage and his partner fled the store. Ventura chased them into a parking lot around the corner where Selvage and his partner returned the fire. While, as indicated, Garza was armed, he never had the opportunity to unholster his gun. Garza died of the gunshot wound to the neck. Ventura, Ivy and Roberts each identified Selvage as one of the two males who entered the store. According to the evidence, Wilbur Kelley was the other male.

III

* Selvage first argues that there was insufficient evidence to "show appellant is a party to capital murder on the charge presented to the jury"; that "there is no evidence of any kind to show appellant intended to kill Albert Garza or that he solicited, encouraged, anyone to do so." Relatedly, the argument continues "there is no evidence to show any pre-arranged plan or agreement to kill." We are unpersuaded.1

The district court applied the correct standard for the sufficiency of the evidence in a federal habeas review of a state court conviction. The inquiry is:

[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original; citation omitted). We turn to that issue.

B

The state trial judge's charge to the jury included an abstract definition of the law of parties and criminal responsibility set forth in the Texas Penal Code:

All persons are parties to an offense who are guilty acting together in the commission of an offense. "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both" (quoting Tex. Penal Code Ann. Sec. 7.01 (Vernon 1984));

"A person is criminally responsible for an offense committed by the conduct of another if[,] ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense" (quoting Tex. Penal Code Ann. Sec. 7.02(a)(2) (Vernon 1984));"If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy" (quoting Tex. Penal Code Ann. Sec. 7.02(b) (Vernon 1984)).

The judge also instructed the jury that "mere presence alone will not constitute one as a party to an offense."

In his sufficiency of the evidence argument, Selvage argues that those charges' abstract statements were not applied to the facts of the case and that his guilt, therefore, rested solely on the abstract instruction. But Selvage did not challenge the charge at trial. His failure to object was relied upon by the Texas Court of Criminal Appeals in rejecting his attack upon the charge. Selvage, 680 S.W.2d at 21. And he offers us no legal escape from the contemporaneous objection rule. Moreover, we note that, in any event, there is no deficiency of constitutional proportion in the charge. The Texas law of parties was sufficient to support the findings of guilt and, as we will see, the jury's findings of deliberateness are sufficient to support the death sentence. Relatedly, while the charge at the guilt stage was not sufficient to support an Enmund finding of the requisite personal culpability, a jury finding is not essential. See Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

There is, as the state convincingly argues, an abundance of evidence that Selvage and his partner planned the robbery. Ventura saw both of them in the store the Friday before the robbery. An acquaintance of Selvage testified that Selvage tried to get him to participate in the robbery and that Selvage had helped Kelley plan it. Moreover, there was significantly more evidence than mere presence at the scene. Selvage and Kelley entered the store armed with hidden pistols on the pretext of buying jewelry. While there is no direct evidence that Selvage fired the fatal shot, he was standing immediately in front of and talking to Garza at the time. There is evidence that Garza was struck in the neck at a distance of three to six feet from the triggerman. Finally, several witnesses saw Selvage fire his pistol during his escape. There is also evidence that the pistol which fired the fatal shot came from a brown bag which belonged to Selvage. But significantly, even if Kelley was the triggerman, the jury was entitled to conclude that Selvage aided or attempted to aid his companion in murdering Garza; no more is required.

IV

Selvage argues that there was insufficient evidence to support the affirmative answer to the first death penalty interrogatory. In that interrogatory the jury was asked:

(1) whether 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 or another would result.

As the state points out, the jury was entitled to find that the shooting of Garza was deliberate from the circumstance that Selvage entered the store with a deadly weapon, planning to use it in the robbery and escape, as well as from his demonstrated willingness to take life in the gunfire that accompanied his flight.

V

Selvage's last argument is that there is insufficient evidence for the jury to conclude that Selvage knew Garza was acting as a peace officer in the lawful discharge of his official duty. Ventura testified that Garza "brazenly" showed his gun and badge to the three individuals who walked into the store, and that they all turned to look at Garza. Ivy testified that when Garza walked from the back office, having removed his coat, he "directed his badge and gun toward one of the males." Finally, Roberts testified that Garza's badge was visible when Garza removed his coat and placed it in the chair. We are persuaded, as was the district court below and the Texas Court of Criminal Appeals, that the jury could have properly concluded that Selvage knew that Garza was a peace officer.

AFFIRMED.

1

842 F.2d 89

John Henry SELVAGE, Petitioner-Appellee-Appellant,
v.
James A. LYNAUGH, Director, Texas Department of Corrections,
Respondent-Appellant-Appellee.

No. 88-2278.

United States Court of Appeals,
Fifth Circuit.

March 28, 1988.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this, John Henry Selvage's second habeas trip to the federal courts, the United States District Court has granted a stay of his execution scheduled to be carried out before sunrise on March 30, 1988. The State of Texas asks this court to vacate that stay of execution. Selvage, in turn, requests a stay pending appeal of his dismissed claims, should we vacate the stay granted by the district court. Despite the shortness of time we will describe the history of this case and then turn to each of Selvage's claims. We conclude that we must vacate the stay and deny Selvage's request for stay because we are persuaded that Selvage's only substantial claim has not been preserved for review.

I

* Selvage was convicted of the capital murder of Albert Garza, a peace officer, while attempting to rob Stephen Ventura, a jeweler. The jury found Selvage guilty on February 8, 1980, and on February 11, answered affirmatively the requisite interrogatories submitted pursuant to Article 37.071, Tex.Code Crim.Proc. (Vernon Supp.1988), the Texas capital sentencing provision. The conviction and death sentence were affirmed by the Texas Court of Criminal Appeals on July 11, 1978. Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984). Selvage did not petition for a writ of certiorari.

With his execution scheduled for November 14, 1985, Selvage sought a stay of execution from the United States District Court for the Southern District of Texas. That stay was granted on November 8, 1985. After considering Selvage's amended petition, the district court denied relief and, after what we later described as a "rankle over notice of appeal," we affirmed the denial of habeas relief. Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 309, 98 L.Ed.2d 268 (1987). When the trial court rescheduled his execution for January 27, 1988, Selvage filed his second application for state habeas relief. In this state habeas petition, Selvage asserted four bases for relief:

(1) the state trial judge denied Selvage due process by refusing inquiry during the voir dire of the panel concerning veniremens' understanding of a life sentence under Texas law;

(2) the admission into evidence of "unreliable, unadjudicated crimes evidence during the penalty phase" was contrary to the eighth and fourteenth amendments;

(3) failure of the capital sentencing procedure in Texas to allow consideration by the jury of a defendant's evidence of mitigation contrary to the eighth and fourteenth amendments; and

(4) failure of Texas capital sentencing procedure to provide a means for the jury's independent consideration of mitigating evidence.

The execution then was rescheduled for March 30, 1988, and without an evidentiary hearing, the state trial court on March 14, 1988, denied a stay with detailed findings of fact and conclusions of law. The Texas Court of Criminal Appeals adopted the trial court's findings and denied the writ. See Ex Parte Selvage, No. 16, 884-02, Tex.Crim.App. (March 21, 1988).

In his application for a stay of execution and writ of habeas corpus filed in the United States District Court, Selvage made the same arguments, adding that trial counsel had failed to investigate and present evidence of Selvage's mental illness, depriving Selvage of effective representation required by the sixth and fourteenth amendments. While the last contention is arguably new, the state concedes that Selvage has exhausted his state remedies. However, the state moved to dismiss for abuse of the writ, arguing that all of Selvage's present arguments could have been made in his first habeas petition.

The district court granted both Selvage's motion to proceed in forma pauperis and his application for a stay of execution. The stay rested solely on Selvage's first claim that he was denied the right to conduct voir dire regarding veniremens' understanding of Texas parole law. The district court rejected all other grounds, denied a certificate of probable cause as to them, but did not address the state's contention that Selvage had abused the writ. Selvage has filed a cross-appeal and requests that we issue a certificate of probable cause and a stay pending that appeal.

II

Our standard for review of a stay is essentially the same as the measure for granting a stay. We must consider:

(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984); O'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir.1982), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982).

In a capital case "while the movant need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities [i.e. the other three factors] weighs heavily in the favor of granting the stay." O'Bryan v. McKaskle, 729 F.2d at 993 (quoting Ruiz v. Estelle, 666 F.2d at 856.).

Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987); see also Streetman v. Lynaugh, 835 F.2d 1521, 1524 (5th Cir.1988).

III

The district court rested its stay of execution upon King v. Lynaugh, 828 F.2d 257, reh'g en banc granted, 828 F.2d 269 (5th Cir.1987), concluding that the panel in King had found a constitutional right to inquire into veniremens' understanding of parole. To the extent the district court footed its grant of a stay upon its view that the panel opinion was binding, it was in error. The grant of a rehearing en banc vacates the panel opinion, which thereafter has no force. The controlling law must be stated without giving effect to that panel opinion. As we will explain, we are not persuaded that Selvage has shown the requisite likelihood of success on this issue.

Before turning to the merits of the claim, we pause to explain that we find no writ abuse in the failure of Selvage to include this claim in his earlier federal habeas petition. The question is whether Selvage withheld the claim "without legal excuse." Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985).

Legal excuse exists if "new claims[s] [are] based on facts or legal theories about which [the petitioner] had no knowledge when prosecuting his prior habeas petition." ... "A petitioner can prove that he has not abused the writ by showing, for example, [that] new facts have arisen since his prior petition, or that the law has changed in some substantive manner in the interim."

Id. (citations omitted).

The legal basis for the argument that Selvage was denied a constitutional right to inquire into the veniremens' understanding of parole enjoyed virtually no support in this circuit before the panel opinion in King v. Lynaugh, issued approximately six years after his trial and after our decision affirming the denial of his first federal petition for habeas relief. King, although short lived, presented a significant change in our circuit's law. We are persuaded then that this claim should not be dismissed for abuse of the writ; or in any event, that Selvage has a likelihood of avoiding the state's charge of writ abuse. It follows that whether this claim will support a stay requires that we ask whether the accused restriction on voir dire presents a serious question under our law.

We are not persuaded that a substantial legal question is presented. In Milton v. Procunier, 744 F.2d 1091 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985), we considered the type of information about post-sentence relief a defendant is entitled to have explained to the jury. The state trial judge in Milton gave a pattern instruction not to consider possible action by the Board of Pardons and Paroles or the governor or to consider how long the defendant would be required to serve. We observed that the instruction "to some degree narrows the inquiry into future dangerousness. It is the obverse of Ramos." 744 F.2d at 1100 n. 10.1 Under Texas law a jury may not consider the possibility of parole in its deliberation. We have rejected the assertion that this Texas rule is unconstitutional. O'Bryan v. Estelle, 714 F.2d 365, 388-89 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015-16, 79 L.Ed.2d 245 (1984).

If the Texas practice of instructing juries not to consider the effect of parole is sound the refusal to explore veniremens' "understanding" of the subject is an a fortiori case. The point is that the inquiry into parole matters in the selection of a jury cannot be required so long as the state may instruct the selected jury that it cannot consider the subject at all. A contrary assertion borders on the frivolous.

The decision of the Supreme Court in Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) is not to the contrary. In Turner, the Court held that a capital defendant accused of an interracial crime may on voir dire have the veniremen told the race of the victim and questioned about racial bias. The court observed that in such cases "[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected." Id., 106 S.Ct. at 1687. The Court plainly acted upon the reality of the significant risk of racial bias that could infect the entire proceedings. The Court also has made plain that its efforts to excise racial bias is driven by intrinsic as well as instrumental concerns about accurate decisionmaking. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). Of course, Turner was entitled to a jury instruction that the race of the victim and the defendant would not be considered.

In sum, Turner is inapposite, and in the face of our controlling cases we cannot conclude that refusing to examine veniremen about their understanding of parole or their understanding of a life sentence, a subject they later will be told they are not to consider at all, denied Selvage any right secured by the Constitution.

IV

Selvage next quarrels with the admission of "unadjudicated crime evidence during the penalty phase" of his trial. At the penalty phase, the court admitted the state's offer of two prior federal convictions--possession of a controlled substance and conspiracy to commit bank robbery. In addition, the state offered the testimony of a New Orleans police officer that Selvage had attempted to escape from a Louisiana state institution, injuring himself in the process. The state also produced two witnesses whose testimony at the penalty phase implicated Selvage in a July 6, 1979, robbery and murder at a convenience store. The store clerk testified that Selvage and an accomplice had demanded money from the register and ordered the clerk to a back room. After hearing gunshots, the clerk returned from the back room to find a customer who had been shot. That testimony was corroborated by a customer who had accompanied the customer who was killed.

Selvage contends that admission of this evidence rendered his sentence unreliable and unfair, that because he was not convicted he is presumed innocent of these crimes, and that the jury never was told that before it could consider this evidence, it had to be persuaded beyond a reasonable doubt that he was guilty of the offenses. The state points out that no objection to admission of this evidence was made at trial, and that both the state trial and appellate courts had relied upon the failure to object as a procedural bar. It follows that this claim must be tested under the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). That is, Selvage must show legal excuse--good cause for the default and resulting prejudice. Selvage, however, makes no such showing, and we find in the record no justification for his failure to object. Thus, his objection is procedurally barred.

In any event, we are persuaded that the state's evidence was admissible at the penalty phase and denied Selvage no right due him. This evidence was admitted only in the punishment phase and thus did not risk an erroneous finding of guilt. Furthermore, at the penalty phase, the jury must consider the issue of the future dangerousness of Selvage, and this evidence was directly relevant to that inquiry. Indeed, in Barefoot v. Estelle, the Supreme Court rejected the argument that psychiatric testimony regarding future dangerousness was too unreliable. The Court pointed out that testimony by psychiatrists undoubtedly increased the likelihood of the death sentence, but rejecting the evidence on that basis would undermine Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See Barefoot v. Estelle, 463 U.S. 880, 896-98, 103 S.Ct. 3383, 3396-97, 77 L.Ed.2d 1090 (1983); see also Williams v. Lynaugh, 814 F.2d 205 (5th Cir.) cert. denied, --- U.S. ----, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987); Milton v. Procunier, 744 F.2d at 1097.

V

Selvage next argues that the Texas capital sentencing procedure prevents the jury's consideration of mitigating evidence. We are not persuaded that Selvage has a likelihood of succeeding on this claim. Selvage's first difficulty is that he did not object to the court's charge at the punishment phase of the trial; he requested no instruction on mitigating evidence, and did not otherwise question the capital sentencing structure on the grounds he now urges. Ex Parte Selvage, No. 16, 884-02 (March 21, 1988). Of course, a federal habeas court cannot review a claimed error in the conduct of a state criminal trial when the state has refused review in reliance on its contemporaneous objection rule, absent cause and prejudice for failure to object. We find no legal cause for the absence of objection.

Approximately a month before Selvage's trial, the Texas Court of Criminal Appeals rejected a similar if not identical argument and the Supreme Court had not acted on the petition for certiorari in that case. Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). It follows that the issue is not a recently found legal theory not knowable by competent trial counsel. Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (so novel that its legal basis is not reasonably available). Nor is its rejection by the Texas Court of Criminal Appeals a legal excuse for not objecting. "If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim." Engle v. Isaac, 456 U.S. 107, 131, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). It is true that the Texas statute had been upheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); see also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Jurek, five years before Selvage's trial, the Court observed that "[i]t is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances.... We cannot ... construe the statute; that power is reserved to the Texas courts." Jurek, 428 U.S. at 272 n. 7, 96 S.Ct. at 2956 n. 7. We cannot read these cases to so foreclose Selvage's argument that his counsel should not have preserved the point. Finally, it is no answer that "counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it...." Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).

Second, even if Selvage could elude the procedural hurdle, we must ask whether he has presented a serious legal question. Selvage relies upon the granting of certiorari in Franklin v. Lynaugh, --- U.S. ----, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987), as well as our recent discussion of the issue in Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987). The Supreme Court granted certiorari in Franklin to consider "[w]hether the jury must be instructed on the effect of mitigating evidence under the Texas capital punishment scheme." In Williams v. Lynaugh, 837 F.2d 1294, 1295-96 (5th Cir.1988), we refused to stay an execution pending decision by the Supreme Court in Franklin v. Lynaugh, 823 F.2d 98 (5th Cir.), cert. granted, --- U.S. ----, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987), and the Supreme Court in turn granted the requested stay on February 10, 1988. See Williams v. Lynaugh, --- U.S. ----, 108 S.Ct. 1000, 98 L.Ed.2d 967 (1988).

It is argued that the stay by the Supreme Court in Williams explicitly rejected our conclusion in Williams that the Franklin issue did not present a "substantial case on the merits involving a serious legal question." Williams v. Lynaugh, 837 F.2d 1294, 1298 (5th Cir.1988). Pointing to Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983), the argument continues that this follows because the Supreme Court will not grant a stay of execution unless there is, inter alia, "a significant possibility of reversal of the lower court's decision...."

The argument has considerable force, but we have not concluded that a grant of certiorari necessarily warrants a stay. We have adhered to the rule that panels will decide death penalty cases by application of controlling circuit precedent;2 that precedent is that the Texas statute is constitutional. Penry v. Lynaugh, 832 F.2d at 926; see also Streetman v. Lynaugh, 835 F.2d 1519 (5th Cir.) stay denied, --- U.S. ----, 108 S.Ct. 588, 98 L.Ed.2d 634 (1988); cf. Johnson v. McCotter, 804 F.2d 300 (5th Cir.1986).

We would find it even more difficult rationally to order outcomes if we were required to guess the meaning of unexplained grants of a stay or writs of certiorari. Rather, we apply the settled law of our circuit until it is changed by our court or the Supreme Court has plainly signaled a change. A brief review of the cases in which the Supreme Court has granted requests for stays and petitions for writs of certiorari explain our sense that abiding our settled view of the law until told to do otherwise best strikes for rational and evenhanded justice. We agree that the grant of stay in Williams suggests that the Supreme Court may disagree with this court's assessment of the Franklin issue. But this is not the kind of plain disagreement with our law that ought to gird our grant of a stay in the teeth of our own decisions.

Yet, there is an additional circumstance that weighs in favor of Selvage. We ourselves have questioned our treatment of the Franklin issue. Penry v. Lynaugh, 832 F.2d 915 (1987). The grant of certiorari in Franklin effectively halted any reconsideration of the issue by our en banc court. In these circumstances the execution of a death sentenced prisoner with a properly preserved and potentially valid Franklin claim should be stayed. Our rejection of a stay on this claim then rests only upon Selvage's failure to object to the instruction at the punishment phase or to request additional instruction.

VI

Finally, Selvage contends that he suffered from ineffective assistance of counsel. As we understand Selvage's argument, it is that the state's process at the penalty phase denies his counsel the opportunity to provide effective counsel. This claim must fail for the reasons that the premise upon which it rests has been rejected.

Insofar as Selvage attempts to rely upon ineffective assistance of counsel as measured by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he must affirmatively demonstrate prejudice. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Selvage's counsel, John Crow, filed an affidavit. Crow asserts that he decided not to investigate Selvage's mental background, the asserted failure, because as he saw it, the state's rebuttal evidence would turn Selvage's mitigating evidence against him on the question of future dangerousness. We are left with a claim of ineffectiveness that is no more than a variation of the Franklin claim.

VII

Our decision to vacate this stay then rests only upon Selvage's failure to object and the state court's reliance upon Texas' contemporaneous objection rule. We are presented with no claim of factual innocence and under Engle v. Isaac, we find no legal excuse. We therefore vacate the stay of execution granted by the district court and deny Selvage's request for stay pending his appeal of the claims dismissed by the district court and for a certificate of probable cause pending appeal.

*****

1

2

"In the absence of declaration by the Supreme Court that executions should be stayed in cases presenting the issue raised by Wicker, we must follow our circuit's precedents and deny both a certificate of probable cause and a stay of execution on this issue." Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.1986)