concurring:
The rule in this circuit is that the law of this circuit determines whether a stay of execution should be granted; that the grant of certiorari by the United States Supreme Court to review an issue settled in this circuit will not itself require a stay of execution and certificate of probable cause. In Selvage, I noted my unease with the fairness of that rule’s application to the Franklin-Penry issue. Moreover, Justice O’Connor’s concurring opinion in Franklin causes me to doubt further the wisdom of applying the rule to these issues.
Those concerns aside, I voted not to grant a stay in this case because Hawkins had made no showing that he can present any substantial evidence that cannot find expression in the jury’s answer to the issue of deliberateness. It is plain that evidence of diminished responsibility can be considered by the jury in answering the deliberateness inquiry. We have so held. See Granviel v. Estelle, 655 F.2d 673, 675 (5th Cir.1981); Riles v. McCotter, 799 F.2d 947, 952-53 (5th Cir.1986); Bell v. Lynaugh, 858 F.2d 978, 985 (5th Cir.1988).
The evidence included the testimony of Dr. Hugh Pennal, a psychiatrist who saw Hawkins approximately ten times during the pretrial incarceration. Hawkins’ history included a difficult early life. According to Dr. Pennal, Hawkins told of his father, a minister, who beat him “and instilled in him an intense hatred for white people, and even conveyed to him that the best way to get back at white people was through their women.” Hawkins argues that Dr. Richard Wall, a clinical psychologist, offered testimony at trial that should have been considered in mitigation. Dr. Wall testified that he suffered from a serious mental disorder including delusions of blacks being oppressed; and that he had been chosen to *491do something about it. These delusions persuaded Dr. Wall that Hawkins has at times been legally insane, although he could not express an opinion that Hawkins was insane at the time of the murder. Dr. Wall’s report, it is asserted, explained that Hawkins had difficulty coping with his sex drive, coupled with an inability to tolerate anxiety. According to Dr. Wall, Hawkins suffered from a delusional system in which:
Whites have oppressed the blacks for a long period of time just as the Egyptians oppressed the Jews. As in biblical times when God appointed prophets and others to gain the release of the Jews, so God has appointed some black people today to help gain the blacks release from white oppression. His attacks on the young lady in question was in his mind simply carrying out his assigned task as one of God’s appointed. He remembers his father saying that the best way to get at the white man is through his women.
Finally, he argues, the circumstances of his confession, including his cooperation with police, were themselves mitigating facts that the jury was unable to give full effect to.
It may be that the Supreme Court will conclude that the issue of deliberateness allows a jury to give effect to less than the full, constitutionally required spectrum of mitigating factors. Once, however, the “mitigating” factors that can find expression under the issue of deliberateness are removed, Hawkins is left with so little evidence of “mitigation” that no responsible juror’s judgment about the wisdom of capital punishment could have been influenced by the absence of explicit instruction that the jury could consider it in mitigation. We must insist on more before we block the solemn judgment of a state in a capital case.