*2 RUBIN, hospital Springfield Before KING and al and found HIGGINBOTHAM, Judges. competent represent hearing himself in a reviewing stay by without argument This court. in federal appealed by court which is the state district merit. abuse, grounds must of writ court its hear- sentencing judge, at The state petitioner’s avoiding consider “likelihood explicitly found on November *3 charge Selvage the state’s of writ abuse.” competent. He ob- that (5th Cir.1988), 842 F.2d Lynaugh, v. 89 we, noted, do as his demeanor and served — 1283, U.S.-, 108 stay granted, S.Ct. of at the time statement made that his (1988). this 99 L.Ed.2d 494 We consider a lucid demonstrated sentencing was necessary par- in issue as connection with present of his circum- appreciation full by ticular claims raised Hawkins. We, course, accept finding this of stance. fairly supported fact because of particular We now turn to those 2254(d). claim of The record. 28 U.S.C. § First, attack the vol- claims. Hawkins’ incompetency is without merit. present untariness of his confession has been earli courts, and by er decided state and federal II pointed no to we are reason reach a handling the procedure for Our This claim is mer different result. without petition a penalty requires cases death it. aof state court stay the enforcement same whether or not the judgment state pointed As out in our we order sought previously relief aris plaintiff has 10, “Franklin-Penry” December Hawkins’ the the matter from same out of same by proper the state’s attacks are foreclosed any These other federal court. or from contemporaneous objection of its invocation state, put the explicitly and therefore rules 845 Lynaugh, v. 823 F.2d Selvage rule. notice, a second petitioner on habeas State, (5th Cir.1987). also Adams See v. may be dis petition habeas or successive (en 717, (Tex.Ct.Crim.App.) 577 S.W.2d new different allege if it fails to or missed 1979) (considering Franklin-Penry a banc to assert for relief or if the failure grounds long made before those cases reached claim prior petition a consti grounds in those Court). Supreme the The of the writ. rules tutes an abuse is only remaining issue then whether The that, event, any the provide in dis further present claims that his trial coun- Hawkins’ expedite consideration of trict court should preserving in not was ineffective sel petition. any or successive second arguments are Franklin-Penry foreclosed vacated made in his they should because where stay a for abuse of the writ grant of petition. federal habeas earlier stay a of execution and “application for writ abuse first consider the corpus relief We petition habeas a new per We are why problem above. explanation no as to described filed with [were] responsible jurists may differ why earlier or suaded claims were raised present Hawkins’ petition.” in the issue whether all raised one over were not is 377, assistance counsel Hutchins, claim ineffective v. 464 U.S. 377- Woodard Had 752, 753, doctrine writ abuse. 78 L.Ed.2d 541 barred S.Ct. all that, represented by counsel at (1984). cases involv Hawkins been This indicates attack, execution, during times the collateral district court is ing stay a compelling. argument would seem comply pro usual state’s with the Cir.1983) (5th Estelle, 722 F.2d 159 opportunity to re v. of notice and Jones cedures hand, (en banc). if other On the petitioner expect is thus spond. A habeas pro se in his 9(b) proceeded at all times response” at the had a “Rule ed submit attack, argument that successive federal collateral he files a second or strong. Pass If, thereafter, he should not be barred an eviden- petition. habeas (5th Blackburn, Cir. 797 F.2d hearing can tiary hearing required, such man Butler, 1986). expressly waived See, Here Hawkins e.g., Brogdon v. expedited. whether the (5th Cir.1987). have not decided We counsel. 824 F.2d rule controls or the Passman such issues case and stay Jones that a We, therefore, per- granted are not pending circumstance. should be the outcome of We, therefore, district court’s denial of a urge suaded that the those events. the Su- probable certificate of cause preme stay pending a its ought on the basis of writ to be affirmed Penry appli- determination of and the writ abuse. Selvage. cation in course, But, the matter does not HIGGINBOTHAM, PATRICK E. Hawkins is entitled to end here. Whether Judge, concurring: and a certificate of cause The rule in this circuit is that the law of likelihood of his rests success *4 this circuit determines stay whether a of Franklin-Penry claims. For granted; execution should be the reasons, each of us is somewhat different grant of by certiorari the United States persuaded application that Hawkins’ for Supreme Court review an issue settled in probable stay and certificate of cause on require this circuit will not stay itself a this issue must be denied. execution and certificate cause. KING, B. RUBIN and ALVIN I Selvage, my noted unease with the Judges, concurring: fairness application of that rule’s to the group of the Resolution of issues re- Moreover, Franklin-Penry issue. Justice per ferred to in the curiam—the Frank- concurring opinion O’Connor’s in Franklin lin-Penry-Selvage issues—turns on the causes me to doubt further the wisdom of constitutionality of the Texas sen- applying the rule to these issues. tencing procedure, whether these issues aside, Those concerns I voted not can now be considered because were a in this case because Hawkins trial, not raised at and whether trial coun- had showing present made no that he can in doing sel was ineffective so. Like any substantial evidence that cannot find Judge Higginbotham, uneasy ap- we are in expression in the jury’s answer to the issue plying the of the circuit in law rule plain It is deliberateness. that evidence capital case, by prior but we are bound responsibility diminished can be con- are, precedent therefore, of this circuit and answering sidered in the delib- deny application a inquiry. erateness We have so held. See because, on these under issues this circuit’s Estelle, 673, (5th Granviel v. 655 F.2d 675 precedents, they arguable are without mer- Cir.1981); McCotter, 947, Riles v. 799 F.2d Court, Supreme however, it. The has (5th Cir.1986); 952-53 Bell v. Lynaugh, granted application an for a in Penry writ 978, (5th Cir.1988). 858 F.2d 985 (5th Lynaugh, Cir.1987), v. 832 F.2d 915 — U.S. -, 2896, granted cert. 108 S.Ct. The testimony evidence included the 101 (1988); Hugh Pennal, L.Ed.2d psychiatrist 930 Dr. a opinion rendered an who saw — U.S. -, in Lynaugh, Franklin v. approximately Hawkins ten during times (1988), S.Ct. in L.Ed.2d pretrial incarceration. Hawkins’ histo- concurring opinion which the ry of Justices early included a According difficult life. Pennal, O’Connor and Blackmun is particularly rel to Dr. father, Hawkins told of his a evant, 2332; at granted minister, S.Ct. and has a who beat him “and instilled in him stay pending appli consideration of a writ an intense hatred people, for white cation in Selvage Lynaugh, v. conveyed 842 F.2d 89 way even to him that the best — (5th Cir.1988), U.S. -, stay granted, get people through back at white was their (1988). 108 S.Ct. 99 L.Ed.2d 494 argues women.” Hawkins that Dr. Rich- Wall, cumulative effect of these actions seems to ard psychologist, a clinical offered continuing us to undermine the validity of testimony at trial that should have been precedents the Fifth Circuit mitigation. demon considered in Dr. testified Wall jurists might strates that reasonable find that he suffered from a serious mental both that the including decisions disorder being delusions of blacks dispositive those cases would oppressed; of the and that he had been chosen to These delusions it. something about do at INSURANCE EMPLOYERS’ TEXAS Dr. Wall persuaded Plaintiff-Appellee, ASSOCIATION, he insane, although legally times that Hawkins opinion an express could Dr. murder. of the the time insane Defendant-Appellant. JACKSON, Leroy asserted, explained it report, Wall’s 85-2583, 85-2690. Nos. his sex difficulty coping had tolerate inability to an drive, coupled with of Appeals, States United Wall, Hawkins According to Dr. anxiety. Fifth Circuit. system delusional from a suffered 13, 1988. Dec. which: blacks oppressed Whites Egyptians just as

long period times inAs biblical

oppressed Jews. others prophets and appointed

when God Jews, God so release gain the *5 today to people black some appointed white from release gain the blacks

help young on the attacks His

oppression. simply in his mind question

lady in one assigned as task

carrying out his his fa- He remembers appointed.

God’s get way to the best saying that ther women. through his isman

the white circumstances argues, the he

Finally, cooperation confession, including his mitigating themselves were police, full give unable jury was facts to.

effect will may be that

It deliberateness issue of

conclude than to less give effect jury allows spectrum constitutionally full, however, Once, factors.

mitigating expres- find that can

“mitigating” factors are of deliberateness issue under

sion evi- so little is left with

removed, Hawkins responsible no “mitigation” that dence capi- the wisdom about judgment

juror’s influenced could punishment

tal instruction explicit absence mitigation. it in could consider block more before we must insist on

We in a a state judgment the solemn

case.