Mann v. Scott

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-9006
_____________________

FLETCHER THOMAS MANN,

Petitioner-Appellant,

v.

WAYNE SCOTT, Director
Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(December 21, 1994)

Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

KING, Circuit Judge:

Fletcher Thomas Mann, a Texas death row inmate convicted of

capital murder, appeals the district court's denial of his

petition for a writ of habeas corpus. For the reasons set forth

below, we affirm.

I. PROCEDURAL POSTURE

Mann was convicted of the 1981 murder of Christopher Lee

Bates and sentenced to death by a Texas jury. Mann's conviction
was affirmed by the Texas Court of Criminal Appeals on October

22, 1986. Mann v. State, 718 S.W.2d 741 (Tex. Crim. App. 1986).

The United States Supreme Court denied certiorari on April 6,

1987. Mann v. Texas, 481 U.S. 1007 (1987).

Mann began a collateral attack on his conviction by filing

his first petition for a writ of habeas corpus and stay of

execution in the Criminal District Court of Dallas County, Texas;

the judge recommended that Mann's petition be denied on the

merits. On June 23, 1987, the Texas Court of Criminal Appeals

accepted the state trial court's recommendation and denied Mann's

petition in an unpublished opinion. The same day, Mann filed a

petition for a writ of habeas corpus in the United States

District Court for the Northern District of Texas. The district

court granted a temporary stay of execution, but ultimately found

Mann's petition to be meritless. Mann v. Lynaugh, 688 F. Supp.

1121 (N.D. Tex. 1987). Mann next filed notice of appeal to this

court, which dismissed the appeal because it was not timely

filed. Mann v. Lynaugh, 840 F.2d 1194 (5th Cir. 1988).

On June 17, 1988, Mann filed a motion for relief from

judgment pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure, claiming that his trial counsel's negligent failure to

file a timely appeal should not deny him his right to appellate

review. While Mann's 60(b) motion was pending in federal

district court, Mann simultaneously filed another petition for a

writ of habeas corpus with the Texas Court of Criminal Appeals.

2
 The federal district court granted Mann's 60(b) motion,

staying his execution; it also retained jurisdiction over the

case and directed Mann to exhaust state court remedies on certain

new claims. Mann v. Lynaugh, 690 F. Supp. 562 (N.D. Tex. 1988).

The Texas Court of Criminal Appeals dismissed Mann's petition

without prejudice on grounds that Mann was required by state law

to first seek relief from the state trial court. Mann filed his

petition with the state trial court on July 12, 1988; however,

the state trial court abstained on grounds of comity because the

federal district court still retained jurisdiction.

On November 10, 1988, the federal district court lifted its

stay of Mann's execution, thereby relinquishing its jurisdiction

over the case and freeing the state courts to proceed. Mann then

refiled his habeas petition in state court. On January 10, 1989,

in an unpublished opinion, the Texas Court of Criminal Appeals

denied relief on the recommendation of the state trial court.

Since there was no longer any stay order in effect, Mann's

execution was scheduled for December 5, 1990.

Mann next sought and received a stay of execution and leave

to reinstate his federal habeas petition in the federal district

court.1 The federal magistrate to whom Mann's case was assigned

recommended that relief be denied. On September 7, 1993,

1
The state does not argue that Mann's second federal habeas
petition constituted an abuse of the writ in violation of
McCleskey v. Zant, 499 U.S. 467 (1991), perhaps on the theory
that the district court's withdrawal of its original opinion
precludes such an argument. We express no opinion on the merits
of such a theory had it been argued.

3
following a de novo review, the federal district court concurred

with the magistrate and entered final judgment denying relief.

Mann then filed a timely notice of appeal. Shortly thereafter,

the district court issued a certificate of probable cause. For

the reasons set forth below, we affirm.

II. FACTUAL BACKGROUND

In the early evening hours of September 11, 1980, Mann and

Martin David Verbrugge knocked on the door of a Dallas apartment

shared by Christopher Bates and Robert Matzig, who were watching

a football game with their friend Barbara Hoppe. When Matzig

answered the door, Mann and Verbrugge brandished pistols and

forced their way inside. Bates and Matzig were instructed to lie

on their stomachs on the living room floor and were bound at the

arms and legs. Mann and Verbrugge went through their pockets and

took their money. Hoppe was taken into the bedroom, where she

was beaten, raped and stabbed to death.

Mann exited the bedroom and pointed a gun at the back of

Matzig's head. Matzig pleaded for his life, offering to write

Mann a check for the full amount in his account. Mann and

Verbrugge agreed and ordered Matzig to write several smaller

checks and cash them at local grocery stores. Over the next

several hours, the four men drove around Dallas in Matzig's car,

attempting to cash Matzig's checks. Bates and Matzig were held

under gunpoint the entire time. Due to the late hour, Matzig was

able to cash only about $75.00 worth of checks. Matzig wrote a

4
final check in the amount of $1,000 which was to be cashed by

Mann or Verbrugge the following morning.

Mann directed Matzig to drive to a secluded area. When Mann

and Verbrugge alighted from the car, Matzig attempted to drive

away, but the car stalled. Mann and Verbrugge forced Matzig and

Bates from the vehicle, took them into the woods, and ordered

them to lie on their stomachs. Matzig saw Mann standing over

Bates' head, preparing to shoot. Matzig tried to run away, but

he tripped and fell. Bates was shot in the back of the head with

a .38 revolver. Matzig was shot in the neck with a .38 revolver

and was severely wounded, but still alive. Matzig heard the

gunshots, but he did not see who pulled the trigger. Mann and

Verbrugge fled the scene in Matzig's car. Meanwhile, Matzig

crawled to a nearby bulk mail center and was rescued. Fearing

that Matzig was not dead, Mann and Verbrugge returned to the

scene to finish the job; however, the authorities had already

arrived on the scene, and the two fled once again.

Mann was charged with murdering Bates in the course of

robbing Matzig, a capital crime under Texas law. TEX. PENAL CODE

ANN. § 19.03(a)(2) (West 1994).2 Pursuant to article 37.071 of

2
Section 19.03 states in relevant part:
(a) A person commits an offense if he commits murder
as defined under Section 19.02(b)(1) and:
. . . .

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

TEX. PENAL CODE ANN. § 19.03 (West 1994).

5
the Texas Code of Criminal Procedure, the jury answered each of

6
three special issues3 in the affirmative, and Mann was sentenced

3
The three special issues are set forth in article 37.071
of the Texas Code of Criminal Procedure which, at the time of
Mann's offense, read in relevant part:

Procedure in a capital case

(a) Upon a finding that the defendant is guilty of a
capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the defendant shall
be sentenced to death or life imprisonment. The proceeding
shall be conducted in the trial court before the trial jury as
soon as practicable. In the proceeding, evidence may be
presented as to any matter that the court deems relevant to
sentence. This subsection shall not be construed to
authorized the introduction of any evidence secured in violation
of the Constitution of the United States or of the State of
Texas. The state and the defendant or his counsel shall be
permitted to present argument for or against sentence of
death.
(b) On conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused
the death of the decedent was committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would constitute
a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of
the defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased.

. . . .

(e) if the jury returns an affirmative finding on each
issue submitted under this article, the court shall sentence
the defendant to death. If the jury returns a negative
finding on any issue submitted under this article, the court
shall sentence the defendant to confinement in the Texas
Department of Corrections for life. . . .

TEX. CODE CRIM. PROC. ANN. art. 37.071 (West 1981).

It should be noted that article 37.071 has since been
revised, but the revisions apply only to offenses committed after
September 1, 1991. See TEX. CODE CRIM. PROC. ANN. art. 37.071(i)
(West Supp. 1994).

7
to death by lethal injection.

III. STANDARD OF REVIEW

In considering a federal habeas corpus petition presented by

a prisoner in state custody, federal courts must generally 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.

Barnard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992), cert.

denied, 113 S. Ct. 990 (1993); Humphrey v. Lynaugh, 861 F.2d 875,

876 (5th Cir. 1988), cert. denied, 490 U.S. 1024 (1989).

IV. ANALYSIS

Mann posits eight arguments in his petition to this court:

(1) his confession was obtained in violation of his Sixth

Amendment right to counsel; (2) the trial court's failure to

instruct the jury on the lesser included offense of murder

violated his Fourteenth Amendment right to due process; (3) the

Texas sentencing statute unconstitutionally prevented him from

introducing mitigating evidence at trial; (4) the trial court

unconstitutionally excluded certain venire members for cause; (5)

the prosecutor's closing comments regarding the word "deliberate"

in the Texas capital sentencing statute violated state law and

rendered his conviction constitutionally defective; (6) his trial

counsel was constitutionally ineffective; (7) the prosecutor's

closing argument unconstitutionally misled jurors into believing

8
that they were not responsible for imposing the death sentence;

and (8) the federal district court erred by refusing to hold an

evidentiary hearing regarding certain mitigating evidence. We

analyze each of these claims.

A. Sixth Amendment Right to Counsel.

Mann argues that the state trial court erred in allowing his

confession to be placed before the jury because it was obtained

in violation of his Sixth Amendment right to counsel.

Specifically, Mann contends that the police knowingly

circumvented his right to have counsel present during his

interrogation in violation of Maine v. Moulton, 474 U.S. 159

(1985).

1. Factual Background.

A brief recitation of the events leading up to Mann's

confession is required in order to fully evaluate his claim. In

June 1981, the Dallas police learned that Mann was being held in

custody in Bulitt County, Kentucky, on an unrelated rape charge.

Detective Gholston of the Dallas Police Department travelled to

Kentucky to serve arrest warrants on Mann and to attempt to

interview him.

Upon his arrival in Kentucky, Detective Gholston read Mann

his Miranda rights and informed Mann that he wanted to speak with

him following his arraignment on the Texas charges. The Kentucky

court appointed a local attorney, Sean Delahanty, to represent

Mann at the arraignment. Following the arraignment and

9
consultation with Mann, Delahanty informed Gholston that Mann was

willing to talk, but only if Delahanty were present and asked the

questions. Gholston rejected these terms. Delahanty remained at

the jail until the close of visiting hours, hoping to ward off

an interrogation of Mann.

Later that afternoon, officer Ronnie Popplewell of the

Bulitt County Sheriff's Department told Gholston that he intended

to transport Mann to a hospital in Louisville (approximately 25

miles away) in order to obtain a blood sample for use in the

Kentucky rape charge. Gholston, who had lost his luggage on the

flight from Dallas to Louisville, asked Popplewell if he could

ride along and stop at the airport to check on his luggage.

Popplewell agreed, and the trio set off for Louisville with

Popplewell behind the wheel, and Gholston and Mann in the back

seat.

There is conflicting trial testimony as to precisely what

conversation took place during the trip to Louisville. Gholston

and Popplewell testified that Mann initiated conversation

regarding the Texas charge and that he was curious to know what

information the police had regarding that crime. Conversely,

Mann testified that he told Gholston that he did not want to talk

and that he wanted a lawyer, but was told that he did not need

one.

Once the trio returned to the police station in Bulitt

County, several facts are undisputed: (1) Gholston called the

Dallas Police Department and asked them not to question Mann's

10
mother; (2) Gholston asked Mann if he would like to make a

statement, to which Mann responded affirmatively; (3) Gholston

read Mann his Miranda rights and asked Mann if he understood

them, including his right to counsel; (4) Mann stated that he

understood each of his Miranda rights; (5) Mann made an oral

confession which was simultaneously transcribed in longhand by

Popplewell; (6) Popplewell typed the confession and presented it

to Mann; (7) the typed confession was read out loud to Mann to

ensure its accuracy; (8) the top of each page of the typed

confession contained a recitation of the Miranda warnings and a

statement that those rights were being knowingly, intelligently,

and voluntarily waived;4 (9) Mann read the confession and signed

each of the four pages.

4
The confession was typed on a preprinted voluntary
statement form which contained the following recitation at the
top of each page:
I am giving this statement to J.M. Gholston I.D.
2297 , who has identified himself as Peace Officer of the
City of Dallas, Texas, and he has duly warned me that I have
the following rights: that I have the right to remain
silent and not make any statement at all; that any statement
I make may be used against me at my trial; that any
statement I make may be used as evidence against me in
court; that I have the right to have a lawyer present to
advise me prior to and during any questioning; that if I am
unable to employ a lawyer, I have the right to have a lawyer
appointed to advise me prior to and during any questioning
and that I have the right to terminate the interview at any
time.
Prior to and during the making of the statement, I have
and do hereby knowingly, intelligently, and voluntarily
waive the above explained rights and I do make the following
voluntary statement to the aforementioned person of my own
free will and without any promises or offers of leniency or
favors, and without compulsion or persuasion by any person
or persons whomsoever:
. . . .

11
 2. Standard of Review.

Whether a constitutional right has been waived-- including

the Sixth Amendment right to counsel-- is a question of federal

law over which we have plenary review power. Brewer v. Williams,

430 U.S. 387, 397 n.4 (1977); Self v. Collins, 973 F.2d 1198,

1204 (5th Cir. 1992), cert. denied, 113 S. Ct. 1613 (1993).

However, in the interest of comity, federal courts must presume

the correctness of underlying state court factual determinations

absent proof of some defect in the factfinding process. 28

U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 547 (1981).

We do not lightly find a waiver of a constitutional right.

Courts must "indulge in every reasonable presumption against

waiver," Brewer, 430 U.S. at 404; thus, the state bears the

burden of proving that an "intentional relinquishment or

abandonment" of the right has occurred. Id. (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). Whether a voluntary, knowing,

and intelligent waiver of constitutional rights has occurred is

determined according to the totality of the circumstances,

including the background, experience, and conduct of the accused.

Edwards v. Arizona, 451 U.S. 477, 482 (1981).

Thus, in the case at hand, the state bears the burden of

proving that Mann knowingly, intelligently, and voluntarily

waived his Sixth Amendment right to counsel.5 We must therefore

5
The parties do not dispute that the Sixth Amendment right
to counsel had attached in this case. We agree that this is the
correct conclusion. See United States v. Gouveia, 467 U.S. 180
(1984) (arraignment signals initiation of adversarial proceedings
necessary to trigger the Sixth Amendment); Barnhill v. State, 657

12
look to the totality of the circumstances to determine if a valid

waiver occurred.

3. Analysis.

The state argues that Edwards v. Arizona, 451 U.S. 477

(1981), provides the contours of analysis regarding waiver of the

Sixth Amendment right to counsel. In Edwards, the Supreme Court

held that interrogation of the accused must cease upon invocation

of his Fifth Amendment-- not Sixth Amendment-- right to counsel,

unless the accused "initiates further communication, exchanges,

or conversations with the police." Id. at 485. In Michigan v.

Jackson, 475 U.S. 625 (1986), the Court extended the Edwards

prophylactic "no further interrogation" rule to the Sixth

Amendment context. The Court held that "if police initiate

interrogation after a defendant's assertion, at an arraignment or

similar proceeding, of his right to counsel, any waiver of the

defendant's right to counsel for that police-initiated

interrogation is invalid." Id. at 636.

We assume in this case that Mann had asserted his right to

counsel prior to the time his confession was obtained, and the

parties do not contend otherwise. Thus, the rule of Jackson

prohibited "police-initiated interrogation" of Mann. At the

close of the suppression hearing that preceded Mann's trial, the

state trial court made these oral findings:

THE COURT: All right. First off, the Court will
observe that all of the testimony establishes that the

S.W.2d 131 (Tex. Crim. App. 1983) (adversarial proceedings begin
in Texas with filing of criminal complaint).

13
 confession was freely and voluntarily given. Further,
it will be the ruling of the Court that the giving of
the confession was not tainted in any way by any
conduct of any law enforcement officer.

Further, the Court will find specifically that,
under the believable testimony, that [sic] the
confession was obtained from the defendant at a time in
which he was voluntarily willing to talk and was not
requesting an attorney or objecting to being
interrogated.

. . .

I'm going to allow the statement to be admitted
for the jury's consideration.

The district court concluded that in making these findings, the

state trial judge necessarily found that Mann initiated the

conversations with Gholston during the trip to Louisville.

Although it is difficult to reach that conclusion when examining

only the findings themselves, when we look at those findings in

the context of the argument made by Mann's counsel, we agree.

Mann's counsel argued to the state trial judge that the Supreme

Court cases of Edwards, Rhode Island v. Innis, 446 U.S. 291

(1980), and Brewer v. Williams, 430 U.S. 387 (1977), imposed an

initiation requirement in the Sixth Amendment context whereby the

state was required "to desist approaching [Mann] any further,"

once Mann's Sixth Amendment right to counsel had attached.

Mann's counsel contended that by approaching Mann outside the

presence of counsel the police "were specifically going against

the tenets of those cases."

Against the backdrop of that argument, and faced with a

conflict in the testimony about who initiated the conversation

which led to Mann's confession, the district court believed that

14
the state trial court had credited the testimony of the police

officers and implicitly found that Mann had initiated the

conversation.6 See Marshall v. Lonberger, 459 U.S. 422 (1983)

(court is presumed to have implicitly found facts necessary to

support its conclusions). The district court also noted that the

state trial court explicitly found that Mann waived his right to

consult with his attorney or to have him present when the

confession was given. Again, in the context of the testimony and

the argument of Mann's counsel, we agree. These factual findings

are entitled to a presumption of correctness pursuant to 28

U.S.C. § 2254(d), and Mann has offered no evidence to overcome

this presumption. Thus, Mann's Sixth Amendment claim must fail.

Mann's counsel argues that the key issue regarding waiver in

this case is not whether Mann "initiated" any conversation with

police, but whether the state notified Mann's counsel prior to

engaging in interrogation and obtaining the confession, as Mann's

counsel testified he had requested. As authority for that

proposition, Mann cites Maine v. Moulton, 474 U.S. 159 (1985),

which condemns "knowing[] circumventi[on] [of] the accused's

right to have counsel present in a confrontation between the

accused and a state agent." Id. at 176. Neither Maine nor any

other case that predates the denial of Mann's petition for

certiorari stands for the proposition that the Sixth Amendment is

6
This fact alone distinguishes Mann's case from Felder v.
McCotter, 765 F.2d 1245 (5th Cir. 1985), cert. denied, 475 U.S.
1111 (1986), on which Mann places heavy, but unavailing,
reliance. In Felder, we emphasized that Felder had not initiated
the interview with the police. Id. at 1249-50.

15
violated when the police accept a defendant's invitation to

engage in conversation about the crime without first notifying

the defendant's counsel, even when the defendant's counsel has

demanded that he be so notified. Were we to adopt such a rule,

it would create a "new rule" of constitutional law under Teague

v. Lane, 489 U.S. 288 (1989) (per curiam), and its progeny.

Under Teague, a "new rule" is one which was not "dictated by

precedent existing at the time the defendant's conviction became

final." Id. at 301; see also Graham v. Collins, 113 S. Ct. 892,

897 (1993). Unless a reasonable jurist hearing petitioner's

claim at the time his conviction became final "would have felt

compelled by existing precedent" to rule in his favor, we are

barred from now doing so under the edict of Teague and its

progeny. Saffle v. Parks, 494 U.S. 484, 488 (1990); Graham, 113

S. Ct. at 898. We are not persuaded that a reasonable jurist

hearing Mann's claim at the time his conviction became final

would have felt compelled to rule in his favor; accordingly, we
7
are barred from doing so.

B. Failure to Provide Lesser Included Offense Instruction.

Mann next contends that his Eighth and Fourteenth Amendment

rights were violated when the state trial court refused a

7
Mann recognizes that our opinion in Self v. Collins, 973
F.2d 1198 (5th Cir. 1992), cert. denied, 113 S. Ct. 1613 (1993),
held that "[a] defendant [who is represented by counsel] may
waive his [Sixth Amendment] right to counsel without notice to
counsel." Id. at 1218. Mann argues that Self is wrongly
decided. We disagree, but in any event we are bound.

16
requested jury instruction on the lesser included offense of

murder. In the seminal case of Beck v. Alabama, 447 U.S. 625

(1980), the Supreme Court held that an instruction regarding a

lesser included offense is constitutionally required in capital

cases "when the evidence unquestionably establishes that the

defendant is guilty of a serious, violent offense-- but leaves

some doubt with respect to an element that would justify

conviction of a capital offense." Id. at 637. Later, in Hopper

v. Evans, 456 U.S. 605 (1982), the Supreme Court clarified that

"Beck held that due process requires that a lesser included

offense instruction be given when the evidence warrants such an

instruction. But due process requires that a lesser included

offense instruction be given only when the evidence warrants such

an instruction." Id. at 611. Thus, our task is to determine

whether "the jury could rationally acquit on the capital crime

and convict for the noncapital crime." Cordova v. Lynaugh, 838

F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S. 1061 (1988);

accord Hopper, 456 U.S. at 612; Keeble v. United States, 412 U.S.

205, 208 (1973). We conclude that no rational jury could have

acquitted Mann on the capital murder charge and convicted him on

a noncapital murder charge; thus, failure to provide an

instruction as to the lesser included offense of murder did not

violate Mann's constitutional rights.

Mann was charged with the capital crime of "intentionally

commit[ting] [] murder in the course of committing or attempting

to commit . . . robbery." TEX. PENAL CODE ANN. § 19.03(a)(2) (West

17
1994). Mann argues that a jury could rationally have acquitted

him of this capital crime because the state failed to prove,

beyond a reasonable doubt, that the murder of Bates occurred "in

the course of committing or attempting to commit . . . robbery,"

within the meaning of § 19.03(a)(2). Specifically, Mann contends

that there is a reasonable doubt as to whether the robbery of

Matzig was "completed" by the time Bates was murdered. We

decline to accept such a tortured interpretation of the Texas

statute.

The language "in the course of" has been construed to mean

conduct that occurs in an attempt to commit, during the

commission, or in immediate flight after an attempt or actual

commission of robbery. Barnes v. State, 845 S.W.2d 364, 367

(Tex. Crim. App. 1992); Fierro v. State, 706 S.W.2d 310, 313

(Tex. Crim. App. 1986); Riles v. State, 595 S.W.2d 858, 862 (Tex.

Crim. App. 1980) (en banc); cf. TEXAS PENAL CODE ANN. § 29.01(1)

(West 1994) (providing an analogous definition to the phrase "in

the course of committing theft"). Robbery, by statutory

definition, is essentially "theft plus"-- namely, it is theft

accomplished by the use of physical force or threats of bodily

injury. See TEXAS PENAL CODE ANN. § 29.01(a) (West 1994). Thus, in

order for a murder to be "in the course of" robbery it must be

"in the course of" committing a theft by force or threats of

bodily injury. Id.

The key issue in this case, therefore, is whether a rational

jury could have found that Mann was not "in the course of

18
committing theft" at the time of Bates' murder.8 Under either of

two alternative, independent grounds, we conclude that no

rational jury could find that the theft had been "completed" at

the time Bates was murdered.

First, the Texas Court of Criminal Appeals has construed the

phrase "in the course of" to include murder that occurs during a

continuous assaultive action, even if the murder occurs at a

different time or place than the robbery:

[W]e cannot subscribe to the Legislature an intent to
provide for capital murder . . . only where the killing takes
place at the same place and about the same time of the
robbery and permit a defendant who has committed a robbery to
escape capital murder charges where he removes the robbery
victim from the scene and takes him or her to another place
and there kills the victim to prevent the victim's testimony.

Moore v. State, 542 S.W.2d 664, 675 (Tex. Crim. App. 1976), cert.
denied, 431 U.S. 949 (1977).

Furthermore, in Dorough v. State, 639 S.W.2d 479, 480-81

(Tex. Crim. App. 1982), the Texas Court of Criminal Appeals

clarified that when significant elements of the enumerated felony

continue uninterrupted, the enumerated felony is kept "alive" for

purposes of the felony murder statute. Id. For example, in

Dorough, the continued use of force and threats directed against

a couple kept "alive" an aggravated sexual assault for purposes

of the capital murder statute, despite the fact that the murder

occurred approximately 45 minutes after the last sexual

encounter. Id.

8
The parties wisely do not dispute that, at the time of
Bates' murder, Matzig and Bates were being threatened with bodily
injury. Therefore, we assume this element of robbery was proven
beyond a reasonable doubt.

19
 We think Moore and Dorough make it unmistakably clear that

Mann was "in the course of" committing robbery when Bates was

murdered. Matzig was under forcible custody and undoubtedly in

fear of bodily injury at the time of the murder. Thus, a

significant element of robbery-- the use of force or threats--

was present at the time of the murder. There is no reasonable

doubt that the continuous assaultive conduct kept the robbery of

Matzig "alive" for purposes of Mann's capital murder charge.

Mann contends that a rational jury could have determined

that the murder of Bates was a mere "afterthought" unconnected to

the robbery. We need only note that this contention is

completely lacking in evidentiary support. Indeed, Mann's own

confession, which was placed before the jury, flatly contradicts

this contention. The confession relates that after driving

around town attempting to cash checks, Matzig asked Mann and

Verbrugge if they wanted to be dropped off anywhere, to which

Mann replied:

I told them no, and to drive where I told them, because I
knew the roads. And [Verbrugge] raised up to the passenger
seat and told me-- you know what we are going to have to
do. And I said, yea. Then [Matzig and Bates] started to--
they knew what we were going to do and were saying-- please
don't do it to us, we won't say nothing. Then I told him to
stop the jeep right there and told them to get out. Then
[Verbrugge] said you take care of them cause I took care of
the woman. . . .

This evidence unequivocally reveals that the murder of Bates was

not a mere "afterthought," but a coldly calculated attempt to

prevent future testimony. No rational jury could have found

otherwise on the evidence before it.

20
 Alternatively, Mann suggests that the murder was intended to

prevent testimony regarding the rape or kidnapping-- not the

robbery-- and that such a motive would take this case outside the

ambit of Moore. We disagree. Whether Mann's motive in killing

Bates was a desire to cover up the robbery, rape, kidnapping-- or

some combination thereof-- is irrelevant. The key factor,

according to Moore, is that the murder occur for the purpose of

preventing testimony of the assaultive conduct perpetrated

against the victim. The fact that a victim is murdered in order

to prevent testimony about rape or kidnapping does not mean that

the murder did not occur "in the course of" a robbery. So long

as the murder was committed in the course of the charged

enumerated felony, it matters not whether the murder was intended

to silence testimony about the specific felony charged or another

crime which occurred during the continuous assaultive conduct.

A second, independent reason for concluding that no rational

jury could have found the robbery had been "completed" at the

time of the murder is that the statute plainly says otherwise.

Under the Texas Penal Code, robbery has five elements:

(1) appropriation; (2) of the property of another; (3) without

the owner's consent; (4) by force or threat of imminent bodily

injury; (5) with an intent to permanently deprive. See TEXAS

PENAL CODE ANN. §§ 29.02(a), 31.03(a). When each of these elements

has occurred, the offense is ripe for purposes of prosecution,

One 1985 Chevrolet v. State, 852 S.W.2d 932 (Tex. 1993); Barnes

v. State, 824 S.W.2d 560 (Tex. Crim. App. 1991); however, the

21
elements may be considered "ongoing" for purposes of the capital

felony murder statute. The question, therefore, is whether any

of these five elements of robbery was "ongoing" at the time of

Bates' murder.

At least two of the elements of robbery were "ongoing" at

the time of Bates' murder. First, as discussed earlier, the

element of force or threat of imminent bodily injury continued up

until the time of the murder. As this significant element of

robbery was continuing at the time of the murder, the rule of

Moore and Dougherty, supra, demands the conclusion that the

robbery had not ended.

Second, we believe the element of appropriation was also

continuing at the time of the murder. Matzig's uncontroverted

testimony is that he wrote a check in the amount of $1,000 which

was to be cashed by Mann and Verbrugge when the banks opened the

following morning. Thus, while Mann and Verbrugge undoubtedly

had the check in their physical possession, the money represented

by the check (i.e., $1,000 cash) was not in their control at the

time of the murder. Thus, in order for the theft of the $1,000

to be "completed," it was necessary that Mann or Verbrugge cash

the check or deposit it into an account over which they had

control. See Evans v. State, 444 S.W.2d 641 (Tex. Crim. App.

1969); Jones v. State, 672 S.W.2d 812 (Tex. Ct. App. 1983), aff'd

in part and rev'd in part on other grounds, 672 S.W.2d 798 (Tex.

Crim. App. 1984); White v. State, 632 S.W.2d 752 (Tex. Ct. App.

1981). Because the attempted appropriation of the $1,000 was

22
continuing at the time of Bates' murder, the attempted robbery

was likewise ongoing. Thus, no rational jury could conclude that

the robbery had ended at the time of the murder, and the murder

was accordingly committed "in the course of committing or

attempting to commit . . . robbery" within the meaning of the

Texas capital murder statute. TEX. PENAL CODE ANN. § 19.03(a)(2).

C. Penry Claim.

In Penry v. Lynaugh, 492 U.S. 302 (1989), the Supreme Court

held that the Texas capital sentencing statute unconstitutionally

prohibited the jury from giving weight to Penry's mitigating

evidence of mental retardation. In the present case, the

district court, on the recommendation of the magistrate,

concluded that Mann's Penry claim is procedurally barred for his

failure to place such evidence before the jury during trial.

Mann argues that his Penry claim is not procedurally barred

because: (1) the magistrate misunderstood prior Fifth Circuit

precedent on this issue; (2) even if the magistrate did not

misunderstand our precedents, those precedents have incorrectly

interpreted Penry; and (3) the Texas sentencing statute is

unconstitutional as applied.

We turn first to the argument that the magistrate below

misunderstood our prior decisions which have applied a procedural

bar to Penry claims when the petitioner has not actually

proffered the mitigating evidence during trial. E.g., Motley v.

Collins, 18 F.3d 1223, 1228 (5th Cir. 1994); Black v. Collins,

23
962 F.2d 394, 407 (5th Cir.), cert. denied, 112 S. Ct. 2983

(1992); Lincecum v. Collins, 958 F.2d 1271, 1282 (5th Cir.),

cert. denied, 113 S. Ct. 417 (1992); Barnard v. Collins, 958 F.2d

634, 637 (5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993);

Wilkerson v. Collins, 950 F.2d 1054, 1061 (1992), cert. denied,

113 S. Ct. 3035 (1993); May v. Collins, 904 F.2d 228, 232 (5th

Cir. 1990), cert. denied, 498 U.S. 1055 (1991); DeLuna v.

Lynaugh, 890 F.2d 720, 722 (5th Cir. 1989). Specifically, Mann

contends that the first case to apply this procedural bar to a

Penry claim, DeLuna v. Lynaugh, 890 F.2d 720 (5th Cir. 1989), has

been impermissibly broadened by May and its progeny. According

to Mann, DeLuna was meant to stand for the narrow proposition

that decisions not to introduce mitigating evidence based upon

considerations other than the Hobson's Choice posed by the Texas

sentencing statute will be procedurally barred.

While it is true that the decision to keep mitigating

evidence away from the jury in DeLuna was based upon trial

counsel's fear that such evidence would "open the door" to

evidence of the accused's prior criminal record, DeLuna, 890 F.2d

at 722, nothing in DeLuna itself or our subsequent cases has so

limited it. Indeed, our subsequent decisions embodied in May and

its progeny have made it clear that any Penry claim will be

procedurally barred if the mitigating evidence is not actually

proffered at trial. Motley, 18 F.3d at 1228; Black, 962 F.2d at

407; Lincecum, 958 F.2d at 1282; Barnard, 958 F.2d at 637;

Wilkerson, 950 F.2d at 1061; May, 904 F.2d at 232.

24
 Mann also contends that the magistrate's analysis of his

Penry claim is defective because it relied upon prior decisions

of this court that he claims have impermissibly narrowed Penry.

Even assuming arguendo that the magistrate or district court

relied on other cases besides DeLuna and May and their progeny,

we need not address this issue because we find that the

procedural bar just discussed is an adequate ground for deciding

this issue.

Mann's final contention regarding his Penry claim is that

the Texas sentencing statute is unconstitutional as applied to

him because it "chilled" his ability to provide the jury with

mitigating evidence of his low intelligence and abusive

childhood. This "chilling" effect springs from the fact that

under the Texas capital sentencing statute, some evidence is

"double edged"-- i.e., the evidence may be simultaneously

mitigating and aggravating because it may make it more likely

that the jury will answer "yes" regarding the special issues.

Mann contends that this Hobson's Choice dilemma violated his

right to due process. We have previously declined invitations to

declare the Texas sentencing statute unconstitutional because of

such an alleged "chilling effect." See Lackey v. Scott, 28 F.3d

486, 490 (5th Cir. 1994); Andrews v. Collins, 21 F.3d 612, 630

(5th Cir. 1994); Black v. Collins, 962 F.2d 394, 407 (5th Cir.

1992); May, 948 F.2d at 167-68. We continue to adhere to our

statement in Andrews that "a constitutional violation does not

result simply because the Texas death penalty scheme triggers

25
certain tactical choices on the part of counsel." Andrews, 21

F.3d at 630.

D. Juror Exclusion.

Mann asserts that the state trial court improperly excluded

four jurors for cause because they voiced emotional opposition to

the death penalty. Specifically, Mann asserts that permitting

exclusion in these circumstances violated the rule of Witherspoon

v. Illinois, 391 U.S. 510 (1968), and Adams v. Texas, 448 U.S. 38

(1980).

The magistrate and the district court both rejected this

argument on grounds that the state trial court's decision to

exclude jurors for their views on capital punishment is entitled

to a presumption of correctness which Mann had not overcome.

Mann v. Lynaugh, 688 F. Supp. 1121, 1123-24 (N.D. Tex. 1987); see

also Wainwright v. Witt, 469 U.S. 412, 429 (1985) (holding that a

trial judge's decision to exclude jurors based upon their views

of capital punishment is entitled to § 2254(d)'s presumption of

correctness). Under the rule of Wainwright, the decisive

question is "whether the juror's views would `prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.'" Id. at 424

(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

The gravamen of Mann's complaint is that the prosecutor's

use of a hypothetical "intellectual/emotional dilemma" during

voir dire misled the potential jurors into believing that

26
emotional opposition to the death penalty would render them

unable to uphold their oath as jurors. Under this line of

questioning, the prosecutor told the prospective jurors that they

would be required to take the following oath:

You and each of you do solemnly swear that in the case
of The State of Texas against the defendant, you will a true
verdict render according to the law and the evidence, so
help you God.

TEX. CODE CRIM. PROC. ANN. art. 35.22 (West 1989).

The prosecutor asked the prospective jurors if they would be

able to impose the death penalty if they emotionally believed

that Mann did not deserve to die but intellectually they knew the

evidence required that the special issues should be answered

affirmatively. Each of the four excluded venire members informed

the prosecutor that faced with such a dilemma, they would not be

27
able to take the oath.9 The prosecutor challenged each of these

jurors for cause, and the trial court excused them.

Mann specifically contends that in upholding the trial

court's exclusion, the magistrate and the district court failed

to consider Adams v. Texas, 448 U.S. 38 (1980), and Witherspoon

v. Illinois, 391 U.S. 510 (1968). In Witherspoon, the Court held

that the state has no valid interest in excluding a juror for

"any broader basis" than an inability to follow the law or abide

by their oaths. Witherspoon, 391 U.S. at 522 n.21. The Court

made it clear, however, that

nothing we say today bears upon the power of a State to
execute a defendant sentenced to death by a jury from which
the only veniremen who were in fact excluded for cause were

9
The voir dire of venire member Tingle is representative of
the questions asked of the other venire members:

Q. All right. Now, when you say I don't think I could, I
know that's just a way of saying it, but we need something
clear and unequivocal. Are you saying, "I could not take
that oath"? Because if you can take the oath to base your
verdict strictly on the evidence, then we're right back to
square one.
See, if you can take the oath to base your verdict just
on the evidence, then you're saying that "Even though I feel
like he should not die, I can go on and answer the question.
I can compute the answers and come up with them and reach
them."
So if you tell us that you cannot take that oath, then
you're not qualified and that would be-- that would be it.

A. I can't take that oath.
Q. Fine. Are you firm and fixed on that, then?
A. Yes.

. . . .

Q. And so that no matter what degree of evidence they
produced you could never answer the question "yes"?
A. If I thought he should live and be imprisoned, I could
not give him the death penalty.

28
 those who made unmistakably clear (1) that they would
automatically vote against the imposition of capital punishment
without regard to any evidence that might be developed at
the trial of the case before them, or (2) that their attitude
toward the death penalty would prevent them from making an
impartial decision as to the defendant's guilt.

Id.

In Adams, the Court overturned a death sentence because

potential jurors had been excluded for admitting that their

opposition to the death penalty would render them unable to take

the then-existing Texas jury oath which required:

A prospective juror shall be disqualified from serving as a
juror unless he states under oath that the mandatory penalty
of death or imprisonment for life will not affect his
deliberations on any issue of fact.

TEX. PENAL CODE ANN. § 12.31(b) (1974) (repealed).

The constitutional infirmity in Adams was with the oath

itself, which by its terms prohibited jurors from taking account

of their emotions in deciding issues of fact. The Adams Court

made it clear, however, that the state has a "legitimate interest

in obtaining jurors who [can] follow their instructions and obey

their oaths," Adams, 448 U.S. at 44 (emphasis added), provided,

of course, that the oath itself is not constitutionally

defective. The Court recognized that, given a properly worded

oath, the Texas scheme would be constitutionally acceptable:

[i]f the juror is to obey his oath and follow the law of
Texas, he must be willing not only to accept that in certain
circumstances death is an acceptable penalty but also to
answer the statutory questions without conscious distortion
or bias. The State does not violate the Witherspoon
doctrine when it excludes potential jurors who are unable or
unwilling to address the penalty questions.

Id. at 46.

29
 We think Witherspoon and Adams make it unmistakably clear

that it is constitutionally permissible to exclude a venire

member for cause when it is clear that she cannot faithfully

render a verdict according to the evidence. If state law

mandates the imposition of the death penalty under certain

circumstances and the state proves those circumstances beyond a

reasonable doubt, a juror's emotional opposition to capital

punishment may, in certain instances, distort her ability to

uphold the law. While it is true, as Adams makes clear, that

mere emotional opposition to capital punishment alone is

insufficient cause for juror exclusion, it is equally clear that

emotional opposition may rise to the level where it interferes

with a potential juror's ability to sit as a dispassionate and

objective arbiter of justice. If a prospective juror's emotional

opposition is so severe that it compels her to ignore the law or

disables her from answering the statutory questions without

conscious distortion or bias, exclusion for cause is proper.

Adams, 448 U.S. at 50.

Under the facts of this case, we agree with the district

court's conclusion that the presumption of correctness of the

trial court's exclusion of these four jurors has not been

overcome. The prosecutor's "intellectual/emotional dilemma,"

while certainly no model of clarity, did manage to convey to the

prospective jurors a correct interpretation of the Texas capital

sentencing statute. A venire member who cannot answer the

special issues "yes" despite the fact that the evidence requires

30
a "yes" answer is, by definition, unable to render a verdict

"according to the law and the evidence" as required by the Texas

oath.

Furthermore, as the Supreme Court stated in Witt:

What common sense should have realized experience has
proven; many veniremen simply cannot be asked enough questions
to reach the point where their bias has been made
"unmistakably clear"; these veniremen may not know how they
will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their
true feelings. Despite this lack of clarity in the printed
record, however, there will be situations where the trial
judge is left with the definite impression that a
prospective juror would be unable to faithfully and
impartially apply the law. . . . [T]his is why deference must
be paid to the trial judge who sees and hears the jurors.

Witt, 469 U.S. at 424-26.

The state trial judge in Mann's case was in a far better

position than we to draw conclusions about the potential jurors'

ability to render a verdict in accordance with the law and

evidence. The record reveals that he posed several questions of

his own to the excluded venire members before excusing them for

cause. He determined, based upon their answers and demeanor,

that they were not qualified to serve because their opposition to

the death penalty would render them unable to keep their oath.

Such credibility determinations are more appropriately resolved

under the watchful eye of the trial judge than by an appellate

court staring at a cold record, which is precisely why they are

accorded a presumption of correctness under § 2254(d). Mann has

not overcome this presumption; therefore, his claim must fail.

E. Prosecutorial Definition of "Deliberate."

31
 Mann argued that the prosecutor misled a juror during voir

dire that the term "deliberate" (the requisite mental state

required under the first special issue of the Texas capital

sentencing statute) was synonymous with the term "intentional"

(the requisite mental state required for capital murder). He

maintains that the prosecutor's statements violate the rule of

Lane v. State, 743 S.W.2d 617 (Tex. Crim. App. 1987). The state

trial court, in considering Mann's second habeas petition,

concluded that this claim was barred for three reasons: (1)

failure of Mann's counsel to contemporaneously object; (2)

failure of Mann's counsel to attempt to correct the prosecutor's

alleged misstatement; and (3) on the merits, the statements did

not mislead the juror. The Texas Court of Criminal Appeals

agreed, stating that "the findings and conclusions entered by the

trial court are supported by the record." The district court

also concluded that the Texas contemporaneous objection rule

procedurally bars Mann from raising this claim. Mann argues that

he is not procedurally barred because his pretrial motion

adequately apprised the trial court of the gravamen of his

objection.

We agree with the state courts and the district court that

Mann has waived his claim by his failure to contemporaneously

object.10 See Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim.

10
We note that the contemporaneous objection rule may
operate as a procedural bar even though the state court in this
case also determined that Mann's claim failed on the merits. See
Fierro v. Lynaugh, 879 F.2d 1276, 1281 (5th Cir. 1989), cert.
denied, 494 U.S. 1060 (1990).

32
App. 1986) ("The failure of the appellant to complain or object

in the trial court constitutes a procedural default under [Texas]

law."); accord TEX. R. APP. P. 52(a). Mann's pretrial motion was

inadequate to place the trial court on notice that Mann was

objecting to the prosecutor's equation of the terms "deliberate"

and "intentional." His pretrial motion made only two arguments:

(1) that the Texas capital sentencing statute is

unconstitutionally vague; and (2) that the statute fails to

adequately define the terms "deliberately," "probability,"

"criminal acts of violence," and "constitute a continuing threat

to society," thereby rendering counsel's assistance per se

ineffective and permitting arbitrary imposition of the death

penalty. The trial court denied this motion.

Mann's pretrial motion mounted a constitutional attack on

the Texas sentencing statute itself; it did not alert the trial

court to the issue now being raised on appeal-- namely, whether

the prosecutor's comments violated the rule of Lane v. State, 743

S.W.2d 617 (Tex. Crim. App. 1987). Thus, the contemporaneous

objection rule blocks consideration of his claim on appeal.

Mann next contends that the contemporaneous objection rule

cannot bar our review of his claim on the merits because it is

not "strictly and regularly followed." See, e.g., Ford v.

Georgia, 498 U.S. 411, 423 (1991); Johnson v. Mississippi, 486

U.S. 578, 587 (1988); Wilcher v. Puckett, 978 F.2d 872, 879 (5th

Cir. 1992), cert. denied, 114 S. Ct. 96 (1993). We need not

decide this issue at this time. Even assuming arguendo that the

33
Texas contemporaneous objection rule is not strictly and

regularly followed, Mann's claim fares no better when analyzed on

the merits. The prosecutor in this case did not intimate that

"intentional" and "deliberate" are synonymous. In fact, the

prosecutor never even used the term "intentional" in his exegesis

of the term "deliberate." The complained of prosecutorial

statement is as follows:

Now, the judge isn't going to tell you what the word
"deliberately" means. It doesn't have any special meaning
with regard to this question. It means the same thing when
you or I use it in daily language.
You've probably heard one of your little boys say to
the other one, "Well, you did that deliberately." Well, it
means the same thing. You did it on purpose, you did it--
it wasn't an accident.

This statement conveyed to the juror that "deliberate"

requires something more than a voluntary physical act, something

akin to conscious purpose. See Fearance v. State, 620 S.W.2d

577, 584 (Tex. Crim. App.) (en banc) (holding that the term

"deliberately" as used in capital sentencing statute is "the

thought process which embraces more than a will to engage in

conduct and activates the intentional conduct."), cert. denied,

454 U.S. 899 (1981). Indeed, the prosecutor's comment in this

case echoes our conclusion in Milton v. Procunier, 744 F.2d 1091,

1096 (5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985), that

the jurors, in the context of a specific case, could not

reasonably assign different meanings to the word "deliberate."

As such, the prosecutor's comments conveyed a correct

34
interpretation of Texas law and Mann's contention is therefore

without merit.

F. Ineffective Assistance of Counsel.

Mann contends that the failure of his trial counsel to

develop and offer the "double-edged" mitigating evidence of low

intelligence and an abusive childhood rendered his counsel

ineffective in violation of the Sixth Amendment. We disagree.

The standard for assessing the effectiveness of counsel was

announced in Strickland v. Washington, 466 U.S. 668 (1984).

Strickland requires the defendant to prove two things: (1)

counsel's performance was deficient under an objective standard

of reasonableness, id. at 687-88, and (2) that "there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694.

When assessing whether an attorney's performance was

deficient, we "must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance." Id. at 689; Andrews v. Collins, 21 F.3d 612, 621

(5th Cir. 1994). To demonstrate prejudice, the defendant must

prove that there is a "reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant the

death penalty." Strickland, 466 U.S. at 695; Andrews, 21 F.3d at

622.

35
 In this case, Mann's trial counsel admitted in an affidavit

that he made a strategic decision not to introduce evidence of

his low intelligence or abusive childhood because such evidence

had a "double-edged" nature which may have harmed Mann's case.

Such strategic decisions are "granted a heavy measure of

deference in a subsequent habeas corpus attack." Wilkerson v.

Collins, 950 F.2d 1054 (5th Cir. 1992) (citing Strickland, 466

U.S. at 690-91), cert. denied, 113 S. Ct. 3035 (1993). Under an

objective standard of reasonableness, such a sound tactical

decision does not constitute deficient performance. See Sawyers

v. Collins, 986 F.2d 1493, 1505-06 (5th Cir.), cert. denied, 113

S. Ct. 2405 (1993). Mann has not overcome the strong presumption

that this strategic decision was unreasonable under the

circumstances; thus, he has not satisfied the deficiency prong of

Strickland.

Even assuming, arguendo, that Mann's counsel was deficient,

we find that Mann has failed to show the existence of evidence of

sufficient quality and force which, if introduced, would have

more likely than not persuaded the jury that the death penalty

was unwarranted.11 Callins v. Collins, 998 F.2d 269, 279 (5th

Cir. 1993), cert. denied, 114 S. Ct. 1127 (1994); Wilkerson v.

Collins, 950 F.2d at 1065. Thus, Mann has also failed to satisfy

11
We note that the forcefulness of Mann's evidence of low
intelligence is relatively weak. His I.Q. is estimated to be
approximately 80, a figure which falls on the low end of the
spectrum of average intelligence. As to Mann's evidence of an
abusive childhood, we note that it emanates only from potentially
biased family members.

36
the prejudice prong of Strickland. When either prong of

Strickland is not proven, the petitioner is not entitled to

relief. Strickland, 466 U.S. at 687.

G. Caldwell v. Mississippi Claim.

Near the end of his closing argument of the punishment

phase, the prosecutor in Mann's case told the jury:

When is Fletcher Mann going to stop hurting women, young
women and old women? When is he going to stop raping them,
robbing them, hurting people? When is he going to stop
hurting jailers? Huh? When is he going to stop hurting
inmates, have you thought about that? I'll tell you: when
he is executed. And not before. And I tell you, the only
shame in our system is that he's not going to be
executed tonight after you answer the three questions, because
that's what he deserves. But we know better than that, don't
we? But he deserves to be executed tonight.

Mann contends that this argument violated the rule of

Caldwell v. Mississippi, 472 U.S. 320 (1985), because it

diminished the jury's sense of responsibility for its sentencing

determination. Specifically, Mann contends that the phrase, "But

we know better than that, don't we?" suggested to the jury that

their sentence would be subject to appellate review, thereby

relieving them of fears that they would provide the "last word"

on Mann's sentence and making it more likely that they would

impose the death penalty.

In Caldwell, the Supreme Court held that the following

statement by the prosecution violated the Eighth Amendment

because it undermined "reliable exercise of jury discretion":

Now, [the defense] would have you believe that you're going
to kill this man and they know-- they know that your

37
decision is not the final decision. My God, how unfair can
they be? Your job is reviewable. They know it.

Id. at 325, 329.

While we do not endorse the prosecutor's arguments in this

case as a model of propriety, we do not believe they rise to the

level of a Caldwell violation. The statement, "But we know

better than that, don't we?" is ambiguous at best. A juror

hearing such a remark was not likely left with the impression

that her sentencing decision was not one of life and death. By

contrast, there was no mistaking the import of the prosecutor's

remarks in Caldwell. Thus, we conclude that the prosecutor's

comments did not "affect the fundamental fairness of the

sentencing proceeding [so] as to violate the Eighth Amendment."

Id. at 340.

G. Failure to Hold an Evidentiary Hearing.

Mann's final contention is that the district court erred in

not holding an evidentiary hearing on his habeas petition.

Specifically, Mann contends that a hearing was necessary to

adequately consider his newly discovered mitigating evidence of

low intelligence and an abusive childhood.12 The Supreme Court

12
Mann also contends that the district court abused its
discretion in failing to hold an evidentiary hearing to make a
factual determination of which party "initiated" the conversation
that led to his confession. In light of our determination that
Mann's claim of a Sixth Amendment violation is without merit, the
question of whether an evidentiary hearing was required is moot.
Even assuming the issue of initiation is not moot, Mann has not
offered any evidence of "cause" for failing to develop these
facts in the state court as required by Keeney v. Tamayo-Reyes,
112 S. Ct. 1717 (1992).

38
has held that a habeas petitioner is entitled to an evidentiary

hearing in federal court regarding a claim which was not

developed in the state courts only upon a showing of cause and

prejudice. Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992).

Under this standard, the habeas petitioner bears the burden of

establishing both cause for his failure to develop the facts in

state court, as well as actual prejudice. Id. at 1719. This

stringent standard is designed to further the interests of comity

and judicial economy. Id. An exception from the cause and

prejudice standard may be made only if the petitioner can show

that a fundamental miscarriage of justice would result from the

failure to hold a federal evidentiary hearing. Id. at 1721.

Mann's entire argument on this issue consists of generalized

assertions of unfairness13 and citation to one case, Wilson v.

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

(1988). Wilson, however, is distinguishable because it involved

13
Mann's brief states, "[Mann] has never received a hearing
on his habeas petition, whether in state court or in the federal
court. Moreover, the District Court gave no reason why it did
not provide a hearing, and declined to provide a reason even
after Mann specifically asked. . . . Mann's Reinstated Petition
included four fact affidavits and two expert reports which
present mitigating evidence, much of it regarding Mann's mental
impairment. That evidence needs to be considered at a hearing."
We respond to these generalized fairness arguments by noting that
the holding of an evidentiary hearing is the exception, not the
rule, for a typical habeas corpus petition. In 1988, for
example, only 1.11 percent of all habeas petitions obtained a
full evidentiary hearing. Charles D. Weisselberg, Evidentiary
Hearings in Federal Habeas Corpus Cases, 1990 B.Y.U. L. REV. 131,
167 (1990); see also ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS AI-78 (1993) (indicating that of
1,405 habeas petitions which were terminated between Sept. 30,
1992 and Sept. 30, 1993, 1,397 were terminated without any
hearing).

39
a claim of ineffective assistance of counsel in violation of the

Sixth Amendment, and we merely held that ineffective assistance

would be sufficient cause to warrant an evidentiary hearing

provided the petitioner has also established prejudice. Id. at

671-73. In this case, by contrast, Mann does not allege that

ineffective assistance of counsel caused his failure to develop

the mitigating evidence in state court.14 In fact, Mann proffers

no reason whatsoever for his failure to develop this evidence.

Furthermore, we note that Mann has not attempted to establish

prejudice; he offers no explanation as to how an evidentiary

hearing would have altered the outcome of his petition. As Mann

has failed to establish either cause or prejudice as required by

Tamayo-Reyes, we conclude that the district court did not err in

failing to hold an evidentiary hearing.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

14
In fact, as noted earlier, Mann's trial counsel submitted
an affidavit stating that he made a tactical decision not to
develop or present this mitigating evidence-- a tactical decision
which we have determined does not constitute ineffective
assistance of counsel.

40