We stated that "[w]e cannot close our eyes to the fact that the granting of certiorari by the Supreme Court in Franklin has at least raised the possibility that what had become accepted as established legal authority may be modified, at least to some extent." 837 F.2d 1294 (5th Cir. 1988).Williams, 837 F.2d at 1296.
The Supreme Court granted certiorari in Franklin to consider "[w]hether the jury must be instructed on the effect of mitigating evidence under the Texas capital punishment scheme." In Williams v. Lynaugh, 837 F.2d 1294, 1295-96 (5th Cir. 1988), we refused to stay an execution pending decision by the Supreme Court in Franklin v. Lynaugh, 823 F.2d 98 (5th Cir.), cert. granted, ___ U.S. ___, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987), and the Supreme Court in turn granted the requested stay on February 10, 1988. See Williams v. Lynaugh, ___ U.S. ___, 108 S.Ct. 1000, 98 L.Ed.2d 967 (1988).
We have previously ruled that a defendant's deliberate failure "to introduce mitigating evidence as a tactical decision ... does not come within the requirements announced in Penry." DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir. 1989); see also Williams v. Lynaugh, 837 F.2d 1294, 1296-98 (5th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); Bell v. Lynaugh, 699 F. Supp. 597, 600 (E.D.Tex.), aff'd on other grounds, 858 F.2d 978 (5th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989). Accordingly, the district court's order denying all habeas relief is AFFIRMED.
The first claim is, therefore, clearly a successive petition under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, and the ends of justice would not be served by reaching the merits again. Williams v. Lynaugh, 837 F.2d 1294, 1295 (5th Cir. 1988) (quoting Moore v. Blackburn, 806 F.2d 560, 564 (5th Cir. 1986)). The second claim, relating to absence of a jury instruction on the heinous, atrocious or cruel aggravating circumstance, was not presented in Byrne's first habeas petition.
This analysis is not in accord with precedents, requiring a colorable showing of innocence before concluding that the ends of justice would warrant an adjudication of successive constitutional claims: "If the petitioner raises a claim that a federal court has already considered in a previous habeas corpus petition, we may review the merits of the successive claim only when `the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'" Sawyer, 945 F.2d at 815 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)); Andre v. Guste, 850 F.2d 259, 262 n. 3 (5th Cir. 1988) (noting that "the claim raised by Andre, even if it were of constitutional dimensions, does not itself create any question as to his guilt or innocence'" (quoting Kuhlmann, 477 U.S. at 455, 106 S.Ct. at 2628)); Williams v. Lynaugh, 837 F.2d 1294, 1295 (5th Cir. 1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); McDonald, 806 F.2d at 621-22 n. 9. See also Campbell, 982 F.2d at 1331 ("The `ends of justice' permit us to entertain successive claims only where a petitioner supplements his constitutional claims with a `colorable showing of factual innocence'") (quoting Kuhlmann); Blair v. Armontrout, 976 F.2d 1130, 1135 (8th Cir. 1992) (the Supreme Court's decision in Sawyer "ended all questions about the status of the plurality opinion in Kuhlmann")).
Id. 477 U.S. at 454, 106 S.Ct. at 2627; see Williams v. Lynaugh, 837 F.2d 1294, 1295 (5th Cir. 1988) (per curiam) (using Kuhlmann test to dispose of successive claims), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); Byrne v. Butler, 847 F.2d 1135, 1138 (5th Cir. 1988) (per curiam) (same). Citing the law review article authored by Judge Henry Friendly which made the case for federal consideration of habeas petitions only when they raise a colorable showing of factual innocence, the Court indicated that to satisfy the test a petitioner must "`show a fair probability that, in light of all the evidence, including . . . evidence tenably claimed to have . . . become available only after the trial, the trier of the facts would have entertained a reasonable doubt of his guilt.'"
If the petitioner raises a claim that a federal court has already considered in a previous habeas corpus petition, we may review the merits of the successive claim only when "the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion); see also McCleskey v. Zant, ___ U.S. ___, ___, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Williams v. Lynaugh, 837 F.2d 1294, 1295 (5th Cir. 1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989). If the petitioner raises a new claim in a second or successive habeas petition, we may review that claim on the merits only if the petitioner's failure to raise the claim in the prior petition was not due to inexcusable neglect.
109 S.Ct. at 2948-51.See, e.g., Fierro v. Lynaugh, 879 F.2d 1276, 1281-82 (5th Cir. 1989); King v. Lynaugh, 868 F.2d at 1405; but see id. at 1407 (Rubin, J., concurring) (citing Williams v. Lynaugh, 837 F.2d 1294, 1296 (5th Cir. 1988)). IV.
That the Supreme Court has granted certiorari in a particular case does not allow us to grant relief to other petitioners who raise a similar claim.See, e.g., Graham v. Lynaugh, 854 F.2d 715 (5th Cir. 1988); Williams v. Lynaugh, 837 F.2d 1294, 1298 (5th Cir. 1988) (per curiam).See Bell v. Lynaugh, 858 F.2d 978, 984 (5th Cir.), stay granted, ___ U.S. ___, 109 S.Ct. 254, 102 L.Ed.2d 243 (1988); Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
In some instances, our court conducts review on the merits of such claims, pretermitting the issue of procedural bar so that we can demonstrate the claims are not justified on their merits. See, e.g., Williams v. Lynaugh, 837 F.2d 1294 (5th Cir. 1988). Both the Supreme Court and our Court have, however, held that the death sentence alone does not constitute prejudice that permits us to overlook a procedural bar.