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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 88-2278

JOHN HENRY SELVAGE,
Petitioner-Appellee-
Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellant-
Appellee.

Appeal from the United States District Court
for the Southern District of Texas

(August 27, 1992)
Before POLITZ, Chief Judge, HIGGINBOTHAM, and WIENER, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
I.
We return to the claims of John Henry Selvage including his
claim that the jury could not give due expression to his mitigating
evidence under the three question submission required at the time
of his trial in Texas.1 We rejected Selvage's claims in his second
1See Penry v. Lynaugh, 106 L.Ed.2d 256 (1989). Selvage
raises three interrelated "Penry" claims, including a claim that
the sentencing statute prevented the presentation of additional
mitigating evidence and also prevented trial counsel's
investigation of available mitigating evidence. None of these
claims was made in Selvage's first federal habeas.

federal habeas petition, because we found that his Penry claims
were barred by the absence of a contemporaneous objection.2
Ultimately, on a remand from the Supreme Court with instructions to
determine if Texas would persist in asserting the procedural bar,
we certified the question to the Texas Court of Criminal Appeals.3
The Texas Court of Criminal Appeals found no procedural bar.4
In the meantime the Supreme Court limited the scope of a successive
federal habeas claim.5 Absent legal cause and prejudice, a federal
court may not reach the merits of (a) claims made in a successive
federal habeas petition which raise grounds identical to grounds of
an earlier claim decided on the merits, (b) new claims, not
previously raised which abuse the writ, and (c) procedurally
defaulted claims, unless the claim implicates legal innocence. As
we will explain, Selvage cannot meet the cause and prejudice
requirement and must demonstrate that his new claims in this his
second federal habeas petition implicate legal innocence.6
II.
In Cuevas v. Collins, ___ F.2d ___ (1991), we found that the
legal basis for a Penry claim was available at least as early as
1980, some five years before Cuevas filed his second federal habeas
2Selvage v. Lynaugh, 842 F.2d 89 (5th Cir. 1988).
3Selvage v. Collins, ___ U.S.___, 110 S.Ct. 974 (1990); 897
F.2d 745 (5th Cir. 1990).
4Selvage v. Black, S.W.2d , No. 71,024 (Tex. Crim.
App. May 29, 1991).
5McClesky v. Zant, ___ U.S. ___, 111 S.Ct. 1454 (1991).
6Sawyer v. Whitley, 112 S.Ct. 2514, 2519 (1992).
2

petition. Selvage's first petition for habeas relief was filed in
1985. Applying Engle v. Isaac, 456 U.S. 107 (1982), we also
rejected as legal cause any perceived futility in pursuing a Penry
claim. Selvage can proceed then only if his claims implicate legal
innocence of the death sentence.
III.
Our task is to apply to the quite different Texas capital
sentencing scheme the Supreme Court's treatment of the Louisiana
sentencing scheme in Sawyer v. Whitley, 112 S.Ct. 2514 (1992).
Sawyer is part of the Court's continuing effort to define the
concept of legal innocence of a sentence. Chief Justice Rehnquist
explained for the majority:
[T]he actual innocence requirement must focus on those
elements which render a defendant eligible for the death
penalty, and not on additional mitigating evidence which
was prevented from being introduced as a result of a
claimed constitutional error.
Id. at 4659.
Chief Justice Rehnquist saw three possible ways to define
actual innocence. First, and the most stringent would be to "limit
the showing to the elements of the crime which the state has made
a capital offense." Id. at 2521. A second possible definition and
the most lenient would be to extend the definition to consideration
of mitigating evidence which bore on the discretionary decision to
impose the penalty. In the Court's view, the second definition
would be quite close to the definition of prejudice for many
constitutional errors and by requiring a petitioner to show little
3

more than an adverse effect on discretionary decisions would work
a practical evasion of the cause and prejudice limit.
The court took a third and middle course. The Chief Justice
observed that Louisiana uses both the elements of the crime and
aggravating factors to narrow the class of defendants eligible for
the death penalty. The court held that a petitioner must "show by
clear and convincing evidence that but for constitutional error at
his sentencing hearing, no reasonable juror would have found him
eligible for the death penalty." Id. at 2523. Actual innocence
means that a jury could not have found one or more essential
narrowing factors--that is, "elements which render a defendant
eligible to have the death penalty imposed." Id. at 4659.
IV.
Texas argues that Penry error cannot implicate actual
innocence of a capital sentence in Texas because any person
convicted of capital murder in Texas is "eligible" for the death
penalty. This is because, the argument continues, the two
statutory questions inform the jury's discretion and do not narrow
in a relevant way the class of defendants eligible for the death
penalty.
Selvage argues that "a capital jury in Texas is not authorized
to impose death unless and until it considers mitigating
circumstances." This is so Selvage argues, both as a matter of
state law and under Furman's required narrowing of the class of
death-eligible defendants.
4

Texas and Louisiana differ in their narrowing of the class of
persons eligible for a death sentence. In Louisiana the jury must
find an aggravating circumstance before it can exercise its
discretion. Texas narrows the offense. The difficulty is that
Texas continues its narrowing in the sentencing phase by requiring
affirmative answers to questions of deliberateness and future
dangerousness. Under state law if the jury gives an affirmative
answer to both questions, the trial court must impose the death
sentence. At the same time, the questions do not "hone in on the
objective factors or conditions that must be shown to exist before
a defendant is eligible to have the death penalty imposed." Id. at
2523. To the contrary, as Selvage's claims illustrate, it is a
"difficult task to assess how jurors would have reacted to
additional showings of mitigating factors." Id. at 2522.
Selvage's argument reduces to the contention that there was
"additional mitigating evidence which was prevented from being
introduced as a result of a claimed constitutional error." 112
S.Ct. at 2523. His argument is that evidence he did offer and
evidence he would have offered but for constitutional error would
have mattered--that it was prejudicial. Sawyer explicitly held
that such a claim did not focus on "actual innocence." 112 S.Ct.
at 2524. Selvage was "eligible" for the death penalty with or
without the evidence.
We recognize that in practical terms this means that federal
courts will not entertain "Penry" error in a successive federal
writ. This is the direct sum of McClesky and Sawyer. Justice
5

Stevens urged the court to adopt a "clearly erroneous" test to
escape this result, but he did so in a dissenting opinion joined
only by Justices Blackmun and O'Connor.7
We are persuaded that Selvage's claims failed to implicate
innocence of the death sentence and are foreclosed by McClesky and
Sawyer. We must affirm the district court's dismissal of the
petition and vacate the stay of execution.
7Sawyer v. Whitley, U.S. , 112 S.Ct. 2514, 2530
(1992) (J. Stevens, dissenting).
6