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. 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
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 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.
3 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
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 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
3 Barnard has abandoned his facial challenge to the Texas death penalty statute brought before the district court.
5 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
6 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
7 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
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 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
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 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
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 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
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 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).
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 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
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 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
helped to support her financially and around the house.
14 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
10 Barnard urges that the evidence demonstrates that he could be safely employed within a prison setting in a manner that benefitted society.
15 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
16 428 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 common-
sense 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
17 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.
18 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
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 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.
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.