Lincecum v. Collins

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 90-2142
_____________________

KAVIN WAYNE LINCECUM,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(April 7, 1992)

Before KING, JOLLY, and JONES, Circuit Judges.

KING, Circuit Judge:

Kavin Wayne Lincecum, a Texas prisoner under a sentence of

death, appeals the dismissal of his petition for a writ of habeas

corpus. Although Lincecum raised 18 claims in the district

court, his appeal involves only three issues: (1) whether the

state trial court erred in refusing to give his requested

instruction on the lesser included offenses of murder and

voluntary manslaughter; (2) whether the district court erred in

denying his motion for an evidentiary hearing on the claims that

(a) his trial counsel rendered constitutionally ineffective

assistance and (b) the Texas death penalty statute is
unconstitutional because no rational jury can answer the second

special issue relating to future dangerousness; and (3) whether

the Texas capital sentencing statute was unconstitutionally

applied because the jury had no vehicle through which to consider

his mitigating evidence of a troubled childhood and emotional

difficulties around the time of the crime. Having carefully

considered all three issues, we affirm the denial of habeas

relief.

I. FACTS AND PROCEDURAL HISTORY

Lincecum was convicted of capital murder in a Texas court

for killing Kathy Ann Coppedge during the course of a kidnapping,

robbery and attempted sexual assault. The jury answered the

three special issues in the affirmative and sentenced Lincecum to

death. The facts are fully presented in the opinion of the Texas

Court of Criminal Appeals affirming Lincecum's conviction on

direct appeal, Lincecum v. State, 736 S.W.2d 673 (Tex. Crim. App.

1987), cert. denied, 486 U.S. 1061 (1988). The facts we recite

here are largely taken from the only account of the crime,

Lincecum's confession,1 and are presented only to the extent

necessary for an understanding of the issues presented in this

appeal.

On August 11, 1985, Lincecum encountered Kathy Ann Coppedge

and her son, Casey, at a parking lot across the street from a

1
The confession was introduced at trial. Lincecum did not
testify in his own behalf.

2
church in Brenham. As Kathy and Casey entered Kathy's car,

Lincecum forced his way in and drove off toward the town of

Burton. After driving a few miles, he turned off on a gravel

road and stopped. He went through Kathy's purse and took her

money. He then told Casey to get in the back seat, and, when

Casey asked him not to hurt his mother, Lincecum replied that he

would not.

Lincecum ordered Kathy out of the car and told her to take

off her clothes. They got back in the car, and Kathy picked up

Lincecum's knife and stabbed him in the left side. Lincecum

retrieved the knife, folded it up, and proceeded to choke her.2

He then bound Casey's hands with the strap from Kathy's purse and

placed Casey in the trunk. He eventually bound Kathy's hands and

placed her in the trunk as well. He drove the car to another

location and abandoned it, taking Kathy's rings and watch. The

evidence showed that the temperature that day exceeded 100

degrees. Kathy and Casey Coppedge were found dead in the trunk

of the car later that night.

The evidence showed that Kathy most likely died as a result

of strangulation rather than being placed in the trunk, while

Casey probably was still alive when placed in the trunk. Aurelio

Espinola, the chief deputy medical examiner for Harris County who

2
Lincecum stated in his confession that he choked her with
her panty hose, but Aurelio Espinola, the chief deputy medical
examiner for Harris County who testified regarding the post
mortem examination conducted on Kathy Coppedge, disputed that
panty hose was the ligature used to strangle her. He contended
that it was more likely that Lincecum used the strap from her
purse or a length of twine found underneath the bodies.

3
testified concerning the post mortem examination, testified that

the ligature marks around Kathy's neck indicated that she

probably was strangled for a long period of time. He estimated

that she would have lost consciousness after about three minutes,

but that the ligature probably was held around her neck for

approximately three more minutes.

Two persons testified at trial that they saw a black man

drive off from the parking lot in a blue car with a woman, and

both testified that they heard cries for help. There also was

testimony from a state forensic serologist that Kathy Coppedge's

dress had male semen stains all over the inside of the skirt part

of the dress. Testing disclosed that a person having Lincecum's

blood type could have deposited the semen on the dress. When

Kathy was found, her dress and bra were ripped, and her panties

were found beneath her legs.

Lincecum did not offer any evidence at the punishment phase

of the trial. During the guilt phase, however, his aunt, Eula

Belle Moore, testified that in June of 1985 she discussed

Lincecum's state of mind with Lincecum's parole officer, Mary

Kathryn Hebert. Moore had been concerned that Lincecum was not

talking much, and asked Hebert whether she could encourage

Lincecum to see a psychiatrist. She told Hebert that she thought

Lincecum "was disturbed . . . he was down under and I could see

he was very quiet. I felt he needed to talk to somebody."

Later, Moore testified that she thought Lincecum "felt that his

momma didn't care for him." Hebert confirmed the discussions

4
with Moore about Lincecum's welfare. Reading from her notes, she

stated that Moore had told her that Lincecum did not want to talk

and that Lincecum's problems may have stemmed from feeling

unloved by his mother.

Lincecum's conviction and sentence were affirmed on appeal.

Lincecum v. State, 736 S.W.2d 673 (Tex. Crim. App. 1987), cert.

denied, 486 U.S. 1061 (1988). Lincecum then sought state post-

conviction relief in the 23rd Judicial District of Brazoria

County, Texas, raising many of the same claims he later raised in

his federal petition. The state court entered findings of fact

and conclusions of law and denied the petition on December 9,

1988. The Texas Court of Criminal Appeals affirmed. On January

12, 1989, six days before his scheduled execution, Lincecum filed

the instant petition for habeas corpus relief in the district

court.3 The district court granted a stay of execution. On

December 6, 1989, the district court denied relief on all claims

and vacated the stay of execution. After Lincecum's request for

a certificate of probable cause was granted, we reinstated the

stay of execution pending final disposition of the appeal. After

the original briefing was completed, we requested supplemental

briefing on the applicability, if any, of our recent decision in

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

(addressing mitigating evidence and the Texas capital sentencing

statute), on the case. We are now prepared to render a decision.

3
The record of the state habeas proceedings shows, and the
State agrees, that Lincecum exhausted the claims presented in his
federal petition in state court.

5
 II. DISCUSSION

A. Failure to Instruct on Lesser Included Offenses

At trial, Lincecum requested instructions on the lesser

included offenses of murder and voluntary manslaughter. The

trial judge refused, instructing the jury only on the offense of

capital murder. Lincecum argues that the failure to instruct on

the lesser included offenses violated his rights under the Eighth

and Fourteenth Amendments.

In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court

invalidated that aspect of the Alabama capital murder statute

which prohibited the trial judge from giving an instruction on a

lesser included offense of capital murder. The Court's central

concern was that the unavailability of a lesser included offense

instruction would increase the risk of an unreliable adjudication

of guilt, a risk that cannot be tolerated in a capital case. Id.

at 637-38. The Court indicated that the basic rule extant in the

states on when a defendant is entitled to a lesser included

offense instruction would comport with federal due process

requirements. This standard was expressed as "a defendant is

entitled to a lesser included offense instruction where the

evidence warrants it." Id. at 636 & n.12 (citing, inter alia,

Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1975)); see Hopper

v. Evans, 456 U.S. 605, 610 (1982) (Beck stands for the

proposition that juries in capital cases must have the

opportunity to consider a lesser included noncapital offense

whenever the evidence would have supported such a verdict). This

6
standard continues to apply in Texas. See Godsey v. State, 719

S.W.2d 578, 584 (Tex. Crim. App. 1986) (instruction must be given

if there is "some evidence in the record that if the defendant is

guilty, he is guilty of only the lesser offense"); Lincecum, 736

S.W.2d at 678. Although Beck itself spoke only to a statute

under which the judge could not give the requested instruction,

we have held that its rationale applies equally to cases in which

a trial judge refuses to give an instruction which is available

under state law. Cordova v. Lynaugh, 838 F.2d 764, 767 & n.2

(5th Cir.), cert. denied, 486 U.S. 1061 (1988); Reddix v.

Thigpen, 805 F.2d 506, 511-12 (5th Cir. 1986).

In federal trials, "a lesser included offense instruction

should be given 'if the evidence would permit a jury rationally

to find [a defendant] guilty of the lesser offense and acquit him

of the greater.'" Hopper, 456 U.S. at 612 (citing Keeble v.

United States, 412 U.S. 205, 208 (1973)). We recognized in

Cordova that the standard described in Beck and the federal

standard are equivalent. 838 F.2d at 767. Thus, the question is

whether a rational jury could have convicted Lincecum on the

lesser included offense of murder or voluntary manslaughter yet

acquitted him on the offense of capital murder.

1. Murder

Lincecum was convicted for the offense described in section

(a)(2) of the Texas capital murder statute. The statute, Tex.

Penal Code Ann. § 19.03, provides in relevant part:

§ 19.03 Capital Murder

7
 (a) a person commits an offense if he commits murder as
defined under Section 19.02(a)(1) of this code and:

. . .

(2) the person intentionally commits the murder in
the course of committing or attempting to commit
kidnapping, burglary, robbery, aggravated sexual
assault, or arson . . . .

The murder statute in Texas, Tex. Penal Code Ann. § 19.02,

provides in relevant part:

§ 19.02 Murder

(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of
an individual;

(2) intends to cause serious bodily injury and
commits an act clearly dangerous to human life that
causes the death of an individual; or

(3) commits or attempts to commit a felony, other
than voluntary or involuntary manslaughter, and in the
course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or
attempt, he commits or attempts to commit an act
clearly dangerous to human life that causes the death
of an individual.

The district court, in rejecting the claim that a murder

instruction should have been given, held that a jury could not

rationally have convicted Lincecum of murder because the only

evidence that Lincecum was at the scene placed him there in the

course of the commission of a robbery, kidnapping or aggravated

sexual assault. Lincecum argues that this analysis is erroneous

in that it assumes that under Texas law the jury could not have

found him guilty of a murder committed in the course of one of

the three underlying offenses yet acquitted him of capital

murder. A jury rationally could come to this conclusion, he

8
points out, because capital murder under § 19.03(a)(2), in

addition to requiring proof that the murder was caused while in

the course of committing one of the underlying offenses, requires

proof that the defendant acted knowingly and intentionally in

causing the victim's death. Because the crimes described in

§§ 19.02(a)(2) and (3) do not require an intent to kill, he could

have been convicted of one of the lesser included offenses even

if the same evidence which placed him at the scene of the murder

(chiefly, his own confession) showed that he had committed a

robbery, kidnapping or aggravated sexual assault.

Lincecum is correct that the intent element of capital

murder makes it possible for him to have been acquitted of that

crime yet convicted of murder. Not every death which is caused

in connection with a robbery, kidnapping or aggravated sexual

assault leads to a conviction for capital murder; a person can be

convicted of the lesser included offense of murder if he caused

the death in connection with one of these offenses with intent

only to cause serious bodily injury (§ 19.02(a)(2)) or if his

only intent was to commit the underlying offense. (§

19.02(a)(3)).4 The question whether an instruction on murder was

warranted therefore depends on whether a rational jury could have

found that Lincecum did not intend to kill Kathy Coppedge.

4
For example, felony murder under § 19.02(a)(3) requires
only the intent to commit the underlying offense. Livingston v.
State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987), cert. denied,
487 U.S. 1210 (1988). Evidence that placed Lincecum at the scene
of the murder while committing a robbery therefore did not
necessitate a capital murder conviction.

9
 On the evidence in this case, we hold that such a jury

finding would have exceeded the bounds of rationality, for the

evidence of Lincecum's intent to kill was simply overwhelming.

Lincecum attempts to demonstrate otherwise by pointing to that

part of his confession in which he allegedly told Casey Coppedge

that he would not hurt Kathy Coppedge. This statement, viewed in

light of Lincecum's actions shortly after making it, does not

evince a lack of intent to kill Kathy Coppedge, but rather an

intent to mollify or reassure Casey. It is entirely inconsistent

with the brutal treatment of Kathy that followed. By Lincecum's

own admission, the statement was made before he ordered Kathy

Coppedge out of the car, before she stabbed him with his knife,

before he choked her and before he locked her in the trunk.

Given the evidence that Lincecum continued choking Kathy for

approximately three minutes after she was dead, no rational juror

could have taken his statement to Casey as demonstrating a lack

of an intent to kill. Quite the contrary, the significant amount

of time he choked Kathy is strong evidence of his intent to kill.

Cf. Fearance v. State, 620 S.W.2d 577, 584 (Tex. Crim. App. 1980)

(evidence that defendant repeatedly stabbed victim shows intent

to murder), cert. denied, 454 U.S. 899 (1981).

Even if the jury disbelieved the expert medical testimony

that the choking continued after Kathy Coppedge was dead5 -- and

therefore proceeded on the assumption that she was still alive

5
A rational jury might have disbelieved this testimony, as
it contradicted Lincecum's statement.

10
when placed in the trunk -- Lincecum's action in locking her in

the trunk on a day in which the temperature exceeded 100 degrees

clearly reveals an intent to kill. Lincecum focuses exclusively

on the statement he allegedly made to Casey, but the rest of his

statement, as well as the physical evidence, can lead only to the

conclusion that he intended to kill Kathy Coppedge.

2. Voluntary Manslaughter

Lincecum also was not entitled to an instruction on

voluntary manslaughter. The voluntary manslaughter statute in

Texas, Tex. Penal Code Ann. § 19.04, provides in relevant part:

§ 19.04 Voluntary Manslaughter

(a) A person commits an offense if he causes the death
of an individual under circumstances that would constitute
murder under Section 19.02 of this code, except that he
caused the death under the immediate influence of sudden
passion arising from an adequate cause.

Sudden passion is defined as "passion directly caused by and

arising out of provocation by the individual killed or another

acting with the person killed which passion arises at the time of

the offense and is not solely the result of former provocation."

Tex. Penal Code Ann. § 19.04(b). Adequate cause is defined as

"cause that would commonly produce a degree of anger, rage,

resentment, or terror in a person of ordinary temper, sufficient

to render the mind incapable of cool reflection." Tex. Penal

Code Ann. § 19.04(c). Lincecum contends that the evidence from

his confession that he strangled Kathy Coppedge only after she

stabbed him with his knife could lead a rational jury to find

that he acted with sudden passion arising from adequate cause.

11
 The Texas Court of Criminal Appeals observed that Kathy

Coppedge stabbed Lincecum in self defense and in the defense of

her son. Under these circumstances, the court held, Lincecum,

even if assumed to be acting under sudden passion, could not

claim that he acted with adequate cause. Lincecum, 736 S.W.2d at

679. The court cited Penry v. State, 691 S.W.2d 636 (Tex. Crim.

App. 1985), cert. denied, 474 U.S. 1073 (1986), and Goff v.

State, 681 S.W.2d 619 (Tex. App. - Houston [14th Dist.] 1983),

aff'd, 720 S.W.2d 94 (Tex. Crim. App. 1986), in support of its

conclusion. In Penry, the court had held that the issue of

voluntary manslaughter was not raised where the victim stabbed

the defendant with a scissors while being raped, but where the

defendant initiated the criminal episode, committed an aggravated

rape before killing the victim, and revealed in his confession an

intent to kill the victim. Penry, 691 S.W.2d at 641-42. In a

footnote, the court noted that it would be difficult to imagine a

situation in which sudden passion could arise from adequate cause

while the defendant was in the course of committing one of the

underlying offenses which would support a capital murder

conviction under Tex. Penal Code Ann. § 19.03. 691 S.W.2d at 642

n.2. In Goff, the court of appeals had held that there was no

adequate cause where the victim may have stabbed the defendant,

but where the defendant's testimony evidenced an intent to hurt

the victim. 681 S.W.2d at 625.

According to Lincecum's own confession, he retrieved the

knife from Kathy Coppedge, folded it up, and then proceeded to

12
strangle her and place her in the trunk, all while committing one

of the underlying offenses of § 19.03. Texas law plainly does

not consider adequate cause to arise under these circumstances.

Thus, because the jury was precluded as a matter of state law

from finding that Lincecum committed voluntary manslaughter, the

trial judge's failure to instruct the jury on this offense was

not constitutional error.6

B. Refusal to Grant Evidentiary Hearing

Lincecum next argues that the district court erred in

6
As in Hill v. Black, 920 F.2d 249 (5th Cir. 1990) (per
curiam), opinion on rehearing, 932 F.2d 369 (5th Cir. 1991), our
conclusion is driven by the unavailability, as a matter of state
law, of an instruction on the lesser included offense under the
facts presented to the jury. In Hill, the petitioner sought an
instruction on a lesser included offense of capital murder. In
our opinion on rehearing, we responded to the petitioner's
argument that Cordova required an independent examination of the
evidence by explaining that "[w]here, as here, a claim turns on
an application of state law rather than federal law, this court
must give deference to the articulation by the state's highest
court of how the state law applies to the facts of the case."
Hill, 932 F.2d at 374. The evidence in that case showed that the
murder took place during the commission of a robbery, Hill, 932
F.2d at 374; Hill v. State, 432 So. 2d 427, 440 (Miss.), cert.
denied, 464 U.S. 977 (1983), and Mississippi law precluded a
conviction for anything less than capital murder if these two
crimes "'are connected in a chain of events and occur as part of
the res gestae.'" Hill v. State, 432 So. 2d at 441 (quoting
Pickle v. State, 345 So. 2d 623, 627 (Miss. 1977)). The effect
of state law on Lincecum's entitlement to an instruction is the
same as in Hill: under the state law of voluntary manslaughter as
articulated by the Texas courts, a defendant is not, as a matter
of law, entitled to an instruction under the facts presented to
Lincecum's jury. Thus, even taking as true all the evidence
which might establish adequate cause, a jury is precluded as a
matter of state law from finding that Lincecum satisfied the
elements of voluntary manslaughter. Whether this analysis is
expressed as invocation of the § 2254(d) presumption of
correctness, as in Hill, or as a simple application of the state
law governing the lesser included offense, the result is the
same.

13
denying, without holding an evidentiary hearing, his claims that

he received ineffective assistance of counsel and that the

inability of a jury rationally to determine the future

dangerousness of convicted murderers renders unconstitutional the

Texas capital sentencing statute.

1. The Ineffective Assistance Claim

In the district court, Lincecum alleged thirteen separate

ways in which his appointed trial counsel, Robert J. Kuhn,

provided ineffective assistance. The district court found that

all the allegations were too conclusory to raise an

ineffectiveness claim under Strickland v. Washington, 466 U.S.

668 (1984), and refused to grant an evidentiary hearing. Among

Lincecum's claims were that counsel "fail[ed] to introduce

available mitigating evidence at the penalty phase of the trial

in the form of testimony from the defendant's family members,

acquaintances, clergy and former girlfriend and her children" and

"fail[ed] to introduce any evidence whatsoever at the penalty

phase of the trial." On appeal, Lincecum contests the denial of

his motion for an evidentiary hearing as to these claims of

ineffectiveness only.

To succeed on an ineffectiveness claim, Lincecum must show

(1) that counsel's performance was deficient in that it fell

below an objective standard of reasonableness and (2) that the

deficiency actually prejudiced the defense. Strickland, 466 U.S.

at 688-94; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990),

cert. denied, 111 S. Ct. 694 (1991). As the range of attorney

14
conduct that may be considered reasonable is extremely wide and

highly dependent on the necessities of a given case, Strickland,

466 U.S. at 688-89, our review on the first "prong" of the

Strickland test is highly deferential. Id. The second "prong"

requires a defendant to demonstrate a reasonable probability

that, but for the attorney's unprofessional errors, the result of

the proceeding would have been different. Id. at 694. A court

reviewing an ineffectiveness claim need not approach these

inquiries in any particular order; a failure to establish either

requirement necessarily defeats the claim. Id. at 697; Smith,

907 F.2d at 584. With these standards in mind, we proceed to

consider Lincecum's contention that a federal evidentiary hearing

was necessary to evaluate this claim.

In the state collateral proceedings, Lincecum raised

substantially the same allegations of ineffectiveness in Kuhn's

failure to investigate and present mitigating evidence as he

raised in the district court. He did not, however, offer any

affidavits or other evidence which would indicate that other

persons were in fact willing to testify on his behalf had they

been contacted, nor did he reveal what the likely substance of

the undiscovered mitigating evidence would have been. The court

ordered Kuhn to respond to all of Lincecum's allegations of

ineffective assistance. Kuhn did so in a detailed affidavit,

explaining that he pursued all potential avenues of mitigating

evidence but decided that only Lincecum's aunt and parole officer

could be of assistance. He further stated that Lincecum's former

15
girlfriend, Rita Mathis, had turned out to be antagonistic toward

Lincecum and that, despite attempts to locate additional

character witnesses, he was aware of no one else who could have

testified in Lincecum's behalf and of no other evidence that

could have helped. He also pointed out that he decided to

abandon any defense based on a mental defect after the

psychologist who interviewed Lincecum told Kuhn that she did not

believe Lincecum suffered from any such defect. Finding the

assertions in Kuhn's affidavit to be true, the state court

concluded that Lincecum had received the reasonably effective

assistance of counsel demanded by the Constitution with respect

to the presentation of mitigating evidence.7

A federal evidentiary hearing on a constitutional claim must

be held only where the state court has not provided a hearing,

where the petitioner alleges facts which, if proved, would

entitle him to relief, and where the record reveals a genuine

factual dispute. Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.

1983), cert. denied, 465 U.S. 1009 (1984). Where the state court

has held a hearing to consider the claim, we must presume the

correctness of its factual findings. 28 U.S.C. § 2254(d); Sumner

v. Mata, 449 U.S. 531 (1981); King v. Collins, 945 F.2d 867, 868

(5th Cir. 1991). The predicate facts which form the basis for a

claim of ineffective assistance of counsel are subject to this

presumption. Strickland, 466 U.S. at 698; Carter v. Collins, 918

7
The state court did not address the prejudice prong of
Strickland.

16
F.2d 1198, 1202 (5th Cir. 1990). Lincecum argues that the

presumption does not apply here because the relevant finding

states that "[t]here was no 'mitigating evidence' which defense

counsel knew about, but failed to present to the jury during the

penalty phase of the trial." This, he says, means that the state

court made a finding only with respect to evidence Kuhn already

knew about, and made no finding about Kuhn's failure to discover

other available mitigating evidence. He also suggests that the

exception to the § 2254(d) presumption for findings made in

hearings that were not full and fair applies to a finding made on

the basis of Kuhn's affidavit alone.

We disagree with Lincecum's characterization of the scope of

the state court finding. Immediately before the language quoted

above, the court stated that "[t]he facts related in the

affidavit of Robert J. Kuhn filed in this cause pursuant to court

order are true, and present an accurate recitation of defense

counsel's pretrial and trial preparation and strategy." Kuhn's

affidavit describes not only the mitigating evidence he knew

about, but also his inability to locate additional witnesses who

could have been beneficial to Lincecum. The state court's

finding is not limited to Kuhn's actions with respect to

mitigating evidence he already knew about, but encompasses a

conclusion about all of Kuhn's actions in investigating the

available mitigating evidence. It is, therefore, a finding with

respect to the facts relevant to Lincecum's claim.

Lincecum also cannot detract from the presumption of

17
correctness by arguing that the state court's decision to rely

solely on Kuhn's affidavit deprived him of a full and fair

hearing. State courts do not necessarily have to hold live

evidentiary hearings for the presumption to attach, but may, in

appropriate circumstances, resolve factual disputes on the basis

of written affidavits. May v. Collins, ___ F.2d ___, ___ (5th

Cir. 1992); Clark v. Collins, ___ F.2d ___, ___ (5th Cir.), cert.

denied, ___ S. Ct. ___ (1992). We have held on more than one

occasion that the presumption may attach to the findings

underlying an ineffective assistance claim when those findings

are made on the basis of competing affidavits. Clark, ___ F.2d

at ___; Carter, 918 F.2d at 1202; Buxton v. Lynaugh, 879 F.2d

140, 146 (5th Cir. 1989), cert. denied, 110 S. Ct. 3295 (1990).

But here the state court was not even faced with competing

affidavits, for Lincecum offered nothing more than the conclusory

allegations in his pleadings in support of his claim that Kuhn

failed to investigate, develop and present relevant mitigating

evidence. Kuhn's affidavit was the only evidence on the

underlying question of what actions Kuhn had taken and what other

sources of mitigating evidence might have been available, so

there was no disputed fact question which would even require a

hearing. Thus, we cannot conclude that the state court's

procedures were so deficient as to strip that court's findings of

the presumption of correctness.

The legal conclusion of the state court and the district

court that Lincecum was not deprived of effective assistance of

18
counsel was correct. This is not a case like Wilson v. Butler,

813 F.2d 664 (5th Cir. 1987), cert. denied, 484 U.S. 1079 (1988),

where we held that an evidentiary hearing was necessary to fully

explore the petitioner's claim that his counsel had failed to

investigate and present evidence of mental impairment as a

mitigating factor. There, the petitioner had adduced a

significant amount of evidence, including the affidavit of a

psychologist, about his past and present mental impairment. The

petitioner's trial counsel did not assert that he had considered

investigating or presenting this evidence. We held that, because

the state court record did not contain evidence sufficient to

enable the district court to resolve the claim, and because the

evidence put forward by the petitioner showed that counsel's

failure to investigate may have been unreasonable and may have

prejudiced him in the penalty phase, a hearing was warranted.

Id. at 671-73. Here, however, no hearing is necessary because

the state court record contains adequate, relevant evidence on

the factual basis for an ineffectiveness claim. See Prejean v.

Smith, 889 F.2d 1391, 1403 (5th Cir. 1989), cert. denied, 494

U.S. 1090 (1990); Joseph v. Butler, 838 F.2d 786, 788 (5th Cir.

1988). That Lincecum did not present to the state court any

concrete indications of what additional mitigating evidence could

have been presented does not undermine the adequacy of the

record; it merely means that he was unable to raise a genuine

19
dispute of fact about his trial counsel's ineffectiveness.8

Lincecum asserts that various family members, including his

mother (Louisa Gentry), his grandmother, his younger brothers and

his uncle, would have testified regarding his disadvantaged

background and diminished mental capacity. He also mentions

several persons in the Fort Worth area, including his former

girlfriend Sheila Harris, who could have provided similar

testimony. Finally, he refers to records of institutions in

which he resided which would show limited intelligence,

borderline to mild mental retardation and other unspecified

mitigating factors. He faults Kuhn for failing to provide this

information both to the court-appointed psychologist who

evaluated him and to the jury. The only indication that any of

his friends and relatives could have provided mitigating

evidence, however, comes from the affidavits of Gentry and

Christopher Kallaher, Lincecum's counsel in the federal habeas

proceeding. Neither requires an evidentiary hearing. Even

assuming that Kuhn's failure to contact Gentry was unreasonable,

she avers in her affidavit that she would have testified to the

fact that she left Lincecum with Eula Belle Moore (her sister)

and that Lincecum may have harbored some resentment for this.

This is precisely the same testimony Eula Belle Moore gave at

trial. Thus, Gentry's testimony would merely have been

8
Lincecum has not suggested that counsel was unable to
develop the record in state court due to time constraints imposed
by the court, as in Streetman v. Lynaugh, 812 F.2d 950 (5th Cir.
1987).

20
duplicative and could not have had an effect on the jury's

decision to assess the death penalty. See Lavernia v. Lynaugh,

845 F.2d 493, 498 (5th Cir. 1988) (failure to call witnesses

whose testimony would have been cumulative on issue of whether

defendant spoke English did not prejudice defendant).

As for Kallaher's affidavit, we are loathe to accept the

self-serving statements of habeas counsel as evidence that other

persons were willing and able to testify on Lincecum's behalf.

None of these persons has submitted an affidavit indicating that

he or she would have aided Lincecum had he or she been asked, so

we are left simply with Lincecum's assertions that unspecified

mitigating evidence existed. Absent any concrete indication of

the substance of the mitigating evidence his friends and family

would have provided, the law is clear that an evidentiary hearing

is not called for. Byrne v. Butler, 845 F.2d 501, 513-14 (5th

Cir.) ("bold assertions on a critical issue in a habeas petition,

unsupported and unsupportable by anything else contained in the

record, are insufficient to warrant an evidentiary hearing"),

cert. denied, 487 U.S. 1242 (1988); see also Joseph, 838 F.2d at

788; Ross v. Estelle, 644 F.2d 1008, 1011 (5th Cir. 1983) (per

curiam).

As for the evidence of mental impairment, there is nothing

in the record to demonstrate that Kuhn failed to present

Lincecum's records to the psychologist aside from the self-

serving affidavit of Lincecum's habeas counsel. There is no

affidavit from the psychologist indicating what was presented or

21
suggesting that the records to which Lincecum refers would have

altered her evaluation. The argument that Kuhn was ineffective

for failing to present the records as mitigating evidence to the

jury, apart from the alleged failure to present them to the

psychologist, was never argued to the district court and

therefore will not be considered on appeal. Alexander v.

McCotter, 775 F.2d 595, 603 (5th Cir. 1985). In sum, Lincecum

received an adequate hearing on his claim of ineffective

assistance in the state court, and the facts found by that court

lead to the conclusion that Kuhn acted in a reasonable manner.

He has provided nothing in the federal habeas proceedings that

would change this conclusion.

2. Unconstitutionality of the Texas Death Penalty Statute

Lincecum also was denied an evidentiary hearing on his claim

that the inability of juries accurately to predict future

dangerousness renders the Texas capital sentencing statute

unconstitutional. At the time of Lincecum's trial, the Texas

capital sentencing statute required the jury, after finding a

defendant guilty of capital murder, to answer up to three

"special issues" to determine whether the punishment should be

death or life imprisonment. Tex. Code Crim. Proc. Ann. art.

37.071.9 First, the jury must decide whether the defendant acted

deliberately. Id. art. 37.071(b)(1). Next, the jury must

9
The statute has since been amended, but the new
procedures apply only to trials held after September 1, 1991.
For discussion, see Graham v. Collins, 950 F.2d 1009, 1012 n.1
(5th 1992) (en banc).

22
determine whether there is a probability that the defendant would

commit acts of violence in the future that would constitute a

continuing threat to society. Id. art. 37.071(b)(2). In

appropriate cases, including this one, the jury may be asked to

determine whether the conduct of the defendant was unreasonable

in response to provocation by the victim. Id. art. 37.071(b)(3).

If the jury answers "yes" to all three special issues, punishment

is assessed at death. Lincecum submitted research performed by

Professors James Marquart, Sheldon Ekland-Olson and Jonathan

Sorensen of Sam Houston State University in which it was

concluded that defendants sentenced to death are no more likely

to commit violent acts in the future than defendants sentenced to

life imprisonment and released into the general prison

population.10 Lincecum contends that a hearing is necessary to

resolve the factual questions raised by this research before a

court can review his constitutional claim. We disagree.

The Supreme Court has never intimated that the factual

correctness of the jury's prediction on the issue of future

dangerousness, either in a particular case or over time, bears

upon the constitutionality of the Texas capital sentencing

statute. In Jurek v. Texas, 428 U.S. 262 (1976), the case in

10
The study compared life-sentenced inmates with defendants
whose death sentences were commuted following Furman v. Georgia,
408 U.S. 238 (1972), and inmates whose death sentences under the
current Texas statute had been overturned on appeal or commuted
by executive authority. See J. Marquart, S. Ekland-Olson & J.
Sorenson, Gazing into the Crystal Ball: Can Jurors Accurately
Predict Dangerousness in Capital Cases, 23 Law & Society Rev. 101
(1989).

23
which the Court upheld the present Texas statute, a majority

rejected the argument that the second special issue was vague and

meaningless because it is impossible for juries to predict future

behavior. The opinion of Justices Stewart, Powell and Stevens

observed that "[i]t is, of course, not easy to predict future

behavior. The fact that such a determination is difficult,

however, does not mean that it cannot be made. Indeed,

prediction of future criminal conduct is an essential element in

many of the decisions rendered throughout our criminal justice

system." Jurek, 428 U.S. at 274-75. After discussing some of

the types of predictions of future behavior common in the

criminal law, the opinion concluded that "[w]hat is essential is

that the jury have before it all possible relevant information

about the individual defendant whose fate it must determine.

Texas law clearly assures that all such evidence will be

adduced." Id. at 276.11

Later decisions which emphasize the centrality of the

defendant's ability to present all relevant mitigating evidence,

e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio,

438 U.S. 586 (1978), validate Jurek's focus on whether the second

special issue allows for consideration of mitigating evidence and

not whether juries' actual predictions are correct. The

11
The Court's later holding in Penry v. Lynaugh, 492 U.S.
302 (1989), does not cast any doubt on the constitutionality of
the second special issue per se; it merely holds that where the
second special issue does not give the jury an appropriate
vehicle to consider certain types of mitigating evidence, a
special instruction to the jury is necessary.

24
reluctance to disturb the predictive element of the second

special issue also comports with the requirement that capital

sentencing decisions be based on an individualized inquiry into

the circumstances of the crime and the characteristics of the

particular offender. See Gregg v. Georgia, 428 U.S. 153, 197

(1976) (opinion of Stewart, Powell & Stevens, JJ.); id. at 221-22

(White, J., concurring in the judgment); McCleskey v. Kemp, 481

U.S. 279, 311 (1987) ("The capital sentencing decision requires

the individual jurors to focus their collective judgment on the

unique characteristics of a particular criminal defendant."). In

McCleskey, the Court acknowledged that a statistical study

revealed the possibility that juries in Georgia impermissibly

took race into account in making capital sentencing decisions,

but declined to hold on the basis of this evidence that the risk

was constitutionally unacceptable. Id. at 312-13. The Marquart

et al. study is similar to the study in McCleskey in the sense

that it suggests that there is a risk that juries are unable to

make correct predictions about future dangerousness. The Court

acknowledged this risk and tolerated it in Jurek, and has done

nothing in the ensuing years that would suggest it considers the

risk constitutionally unacceptable. Accordingly, because

Lincecum's claim would fail as a matter of law, he is not

entitled to an evidentiary hearing.

C. Instruction on Mitigating Evidence

Relying on the principle of Penry v. Lynaugh, 492 U.S. 302

(1989), Lincecum next argues that the application of the Texas

25
capital sentencing statute was unconstitutional in this case

because, absent a special instruction, the jury could not give

proper consideration to his mitigating evidence. He also

suggests that the statute is unconstitutional because it

prevented the presentation of certain other mitigating evidence.

Initially, we note that Lincecum's trial counsel's failure

to request an instruction on the uses the jury may make of

mitigating evidence does not operate as a state procedural bar

which would preclude federal review. Under Texas law, a Penry

claim is preserved even if no instruction on mitigating evidence

is requested or no objection is made to the instructions given at

trial. Selvage v. Collins, 816 S.W.2d 390, 392 (Tex. Crim. App.

1991) (answering certified question from Fifth Circuit); Black v.

State, 816 S.W.2d 350 (Tex. Crim. App. 1991). On the other hand,

it is by now well-settled that no Penry claim can arise with

respect to mitigating evidence that could have been, but was not,

introduced 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). Thus, the only claim we

consider is the claim that Lincecum was entitled to an

instruction to guide the jury's consideration of his mitigating

evidence.12

Lincecum's mitigating evidence consisted primarily of the

12
Despite the fact that Lincecum's conviction became final
before Penry, the rule of Penry may be applied retroactively
because it does not enunciate a "new" rule for purposes of Teague
v. Lane, 489 U.S. 288 (1989). See Penry, 492 U.S. at 315.

26
testimony (during the guilt-innocence phase) of his aunt, Eula

Belle Moore. She testified that she had raised Lincecum until

the age of four because his mother was still in high school when

he was born. At four, Lincecum moved back with his mother in

Fort Worth. She further testified that in June 1985, two months

before Kathy Coppedge was murdered, she noticed that Lincecum

"was disturbed," "was down under," and "was very quiet." She

"felt he needed to talk to somebody," so she recommended to

Lincecum's parole officer, Mary Kathryn Hebert, that Lincecum

obtain psychiatric counseling. Moore also testified that she

told Hebert that she thought Lincecum always felt his mother did

not care for him. Hebert corroborated the substance of these

discussions with Moore.

As noted earlier, the Supreme Court in Jurek upheld the

constitutionality of Texas' decision to have the jury answer two

or three specific questions in order to determine whether a death

sentence is warranted. The Court was satisfied that the second

special issue, as construed by the Texas Court of Criminal

Appeals, satisfied the Eighth Amendment's requirement that the

jury be permitted to consider any and all mitigating evidence

which might counsel against a death sentence. See Jurek, 428

U.S. at 272 (opinion of Stewart, Powell & Stevens, JJ.). The

Court reaffirmed this view of the Texas statute in Franklin v.

Lynaugh, 487 U.S. 164 (1988), holding that no special instruction

was necessary to enable the jury to consider the mitigating

effect of the petitioner's evidence that he had a good prison

27
disciplinary record. The plurality pointed out that "Lockett[ v.

Ohio, 438 U.S. 586 (1978)] does not hold that the state has no

role in structuring or giving shape to the jury's consideration

of . . . mitigating factors," id. at 179, and the concurrence

found that the petitioner's evidence had no relevance as

mitigating evidence beyond the scope of the special issues. Id.

at 185 (O'Connor, J., concurring).

The following year, however, the Court held in Penry that

the special issues gave the jury no vehicle to express the view

that Penry's evidence of organic brain damage, mental retardation

and a troubled childhood reduced his culpability for the crime.

See Penry, 492 U.S. at 323. Penry's evidence had relevance to a

negative answer to the first special issue (deliberateness) but

also had relevance as a mitigating factor beyond the scope of the

finding the jury was instructed to make. As for the second

special issue, Penry's evidence was likely to have caused the

jury to consider Penry a future danger, while at the same time

reducing his moral culpability for the crime. Id. at 323-24.

The evidence was not considered to have any relevance to the

inquiry demanded by the third special issue. Thus, the Court

concluded that without an instruction that the jury could

consider the effect of Penry's evidence apart from the special

issues, Penry's sentence was imposed in violation of the Eighth

Amendment.

Our recent en banc opinion in Graham v. Collins, 950 F.2d

1009 (5th Cir. 1992) (en banc), confirmed that, despite Penry,

28
"Jurek continues to apply, in instances where no major mitigating

thrust of the evidence is substantially beyond the scope of all

the special issues." Graham, 950 F.2d at 1027. Graham had

proffered as mitigating his youth at the time of the crime, his

respect for his family, his lack of a history of violence, his

studiousness, and the fact that his mother had a "nervous

condition." Id. at 1032-33. The most difficult question was

whether the special issues allowed for adequate consideration of

Graham's youth. We determined that, although Graham may have

been less culpable because he was young, he was "also less likely

to be dangerous when no longer young." Id. at 1031. We

concluded, therefore, that because youth suggested a "no" answer

to the second special issue, it "afford[ed] an adequate vehicle

by which the jury can give effect to the mitigating aspect of

youth." Id. The other mitigating evidence (aside from Graham's

mother's illness) we considered akin to the "good character"

evidence which was proffered in Jurek and which the Court there

found could be taken into account by the second special issue.

As for the evidence of Graham's mother's illness, we pointed out

that there had been no indication that this had ever had an

adverse effect on Graham. Id. at 1033. Thus, we concluded that

Graham was not entitled to a special instruction to guide the

jury's consideration of his mitigating evidence.

Lincecum contends that Graham sharpens the contrast between

what is and is not "Penry-type" evidence. We agree, but do not

believe that the conclusion necessarily follows that simply

29
because Lincecum's mitigating evidence did not consist of the

transitory factor of youth, it falls in the category of Penry-

type evidence. The evidence Lincecum has emphasized most

strenuously throughout these proceedings is that of a troubled

childhood. Yet close examination of Moore's testimony at trial

reveals that she merely stated that Lincecum had been left to

live with her for the first four years of his life because his

mother was very young when he was born. Viewing this testimony

in the most favorable light possible, this hardly demonstrates

the kind of troubled childhood marked by savage abuse that was

present in Penry. As with the evidence that Graham's mother had

a nervous condition, there is simply no showing that living with

his aunt produced such a turbulent and unsteady family situation

that Lincecum suffered from emotional problems which would reduce

his moral culpability for his crime. Moore gave no details about

Lincecum's childhood apart from his place of residence for the

first four years of his life, and none appear in the record. The

only indication that this had a lasting emotional effect on

Lincecum comes from Moore's opinion that Lincecum thought his

mother did not care for him. This is hardly evidence of "a

disturbed childhood and adolescence which left him bitter and

resentful," as Lincecum claims.

Moore's testimony that in June 1985 Lincecum seemed

"disturbed," was "quiet," and seemed like he needed to talk to

someone likewise does not fall within the category of Penry

evidence necessitating a special instruction. In Graham, we

30
characterized "being under some particular emotional burden at

the time [of the crime]" as similar to youth in that its

transitory nature can be taken into account in answering the

second special issue. 950 F.2d at 1029. Assuming that Moore's

testimony could be construed by the jury as indicating that the

crime was in some way connected to whatever emotional problems

are implicated by seeming "disturbed" and being "quiet," the jury

could find that the crime was an atypical reaction to the

difficulties Lincecum was suffering at the time and could express

this view by finding that he would not pose a continuing threat

to society.

On the other hand, to the extent Moore's testimony showed

that Lincecum had emotional difficulties the significance of

which transcended the special issues, our opinion in Graham leads

to the conclusion that the evidence falls short of that proffered

in Penry. In Graham, we emphasized the importance of the fact

that Penry's evidence showed he was burdened, through no fault of

his own, with "uniquely severe permanent handicaps" including

mental retardation, organic brain damage, and an abused

childhood. 950 F.2d at 1029. Lincecum's evidence consisted

merely of the inexpert opinion of his aunt about his state of

mind, hardly the kind of comprehensive evaluation offered in

Penry's case. The source of his quietness and disturbance was

not explored and was not connected to any particular events or

past conditions. In short, if Penry represents "a set of

atypical circumstances . . . where the defense's mitigating

31
evidence would have either no substantial relevance or only

adverse relevance to the second special issue," Graham, 950 F.2d

at 1029, it cannot form the basis for relief here.

III. CONCLUSION

For all the foregoing reasons, the district court's denial

of habeas relief is AFFIRMED, and the stay of execution

previously entered by this court is VACATED.

32