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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-9137
RONALD KEITH ALLRIDGE,
Petitioner-Appellant,
VERSUS
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 15, 1994)
Before GARWOOD, SMITH, and DEMOSS, Circuit Judges.
DEMOSS, Circuit Judge:
Ronald Keith Allridge was convicted by a jury of capital
murder and sentenced to death. He appeals from the district
court's decision denying his petition for a writ of habeas corpus.
We now affirm the district court's decision to deny the writ.
I.
On March 25, 1985, at approximately 12:30 a.m., Ronald Keith
Allridge, Milton Ray Jarmon, and a third accomplice committed armed
robbery at a "Whataburger" restaurant in Fort Worth, Texas.
Allridge carried a shotgun while his accomplices each carried a

handgun. During the course of the robbery, Allridge shot and
killed Carla McMillen Otto. The state of Texas indicted and, in
September 1985, tried Allridge for the capital murder of Otto.
At trial, the evidence presented showed that there were three
gunshots during the course of the robbery. The sequence of events
was as follows. Immediately upon entering the restaurant, the
third accomplice shot out the glass door on the east side of the
restaurant with his handgun; he then remained positioned by the
west door for the duration of the robbery. Milton Jarmon went
immediately to the ordering counter and leapt over it to ransack
the cash registers. In the process of leaping over the counter,
Jarmon dropped his handgun, which discharged. At the same time
that Milton Jarmon was heading for the counter, Allridge confronted
Otto and her two friends, all of whom were seated in a booth.
Allridge pointed his shotgun at Otto, tossed a bag at her, and
said, "Fill it up bitch." The bag fell to the ground, whereupon
Allridge shot Otto.
Although Allridge confessed to killing Otto, he pled not
guilty to the charge of capital murder. In his confession to the
police, Allridge claimed the shotgun fired accidentally because he
was startled by another gunshot. He did not take the stand in his
defense, and his confession was only entered into evidence by the
prosecution at the sentencing proceedings. In his confession, he
stated that the initial shot, which was fired through the glass
door, was the shot which startled him. At trial, however, counsel
for Allridge claimed that Allridge was startled instead by the shot
2

fired accidentally by Milton Jarmon. Jarmon, in fact, had given a
statement to the police which corroborated Allridge's version of
the sequence of shots during the robbery, wherein Jarmon said that
his gun accidentally discharged as he leapt over the restaurant
counter during the robbery. Jarmon also stated that he then heard
another shot fire, which both parties agree was the shot by
Allridge that killed Otto. Prior to trial, the government informed
counsel for Allridge that Jarmon had given a statement to the
police. Allridge's counsel requested a copy of Jarmon's statement.
The government, citing a longstanding department policy against
disclosure of co-conspirators' statements, denied the request.
Rather than attempting to procure Jarmon's statement by other means
(such as asking Jarmon's lawyer or seeking a court order), counsel
for Allridge elected to proceed to trial without the benefit, if
any, of Jarmon's statement.1 He asserted that he was guilty not of
capital murder (i.e., intentional killing during the commission of
a robbery) but only of felony murder (i.e., unintentional killing
during the commission of a robbery).
Notwithstanding the omission of Jarmon's statement, Allridge
submitted other evidence to the jury that validated his version of
the sequence of shots. Melvin Adams, an employee at the time of
the robbery, gave a statement to the police immediately after the
murder. In his statement, Adams stated that he heard three
gunshots: the initial shot which broke the glass door, and then two
1Jarmon invoked his Fifth Amendment right at Allridge's trial
and refused to testify.
3

shots in rapid succession right before the robbers left the store.
At trial, however, Adams recanted and testified during direct
examination by the government that he heard only two gunshots,
separated by approximately one minute. Adams testified that he
first heard the gunshot that shattered the glass door. He then
stated that one of the robbers leapt over the counter to ransack an
open cash register and that, in the process, knocked over another
register.2 The robber then returned to the other side of the
counter and fled the restaurant. During cross-examination, counsel
for Allridge seized on Adams' statement to the police, wherein he
stated that he had heard three gunshots. Adams denied the accuracy
of his statement to the police. Nevertheless, counsel for Allridge
entered it into the record.
Two additional witnesses provided testimony that arguably
corroborates Allridge's version of events. Sharon Burns testified
for the defense that she noticed a robber leap over the counter and
also that she heard "two or three" popping sounds. Teresa Barton
also testified for the defense that she heard two shots separated
by only seconds.
Cary Jacobs, who was dining with Otto at the time of the
robbery, testified that as the robbers entered the restaurant, one
of them shattered the glass door with a single gunshot. Upon
entering with the others, Allridge pitched a bag to Otto and said,
"Fill it up, bitch." The bag fell to the ground, whereupon
2Milton Jarmon was the robber who leapt over the counter. It
was at this point, Jarmon said in his statement to the police, that
his gun accidentally fired.
4

Allridge shot Otto. Jacobs testified that Allridge then ordered
Jacobs to "pick up the bag." Jacobs complied, relinquished his
wallet, and observed the robbers leaving the store. Jacobs
testified that he heard neither Jarmon's gun discharge nor the cash
register hit the floor.
Finally, both the defense and the state proffered their own
firearms expert. Jack Benton testified for the defense that only
2.5 pounds of pressure was needed to pull the trigger on Allridge's
shotgun.3 Benton further testified that while 2.5 pounds did not
qualify as a "hair trigger," it nonetheless was "extremely low."
On cross-examination, Benton admitted that he attempted to make the
shotgun fire accidentally but failed. Frank Shiller testified as
a rebuttal witness for the state that four pounds of pressure is
needed to pull the trigger of Allridge's shotgun.
After the presentation of the evidence, Allridge requested the
trial court to instruct the jury on two lesser included offenses:
murder and felony murder. The court denied Allridge's request and
instructed the jury on capital murder and murder only. The jury
returned a capital murder verdict in November 1985. In accordance
with Texas' death penalty statute, TEX. CODE CRIM. PROC. ANN. art.
37.071(a) (Vernon 1981),4 the trial court held a separate
proceeding before the jury to determine whether Allridge should be
sentenced to death or life imprisonment. After the presentation of
3The shotgun was found the day after the robbery in Allridge's
apartment.
4Texas has since amended its death penalty statute.
5

the evidence, the trial court instructed the jury to answer two
"special issues:"
(1)
whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with
the reasonable expectation that the death of the deceased
or another would result; and
(2)
whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society.
Id. art. 37.071(b),(1)-(2). Because the jury unanimously answered
both questions affirmatively, the trial court in November 1985
sentenced Allridge to death. The Texas Court of Criminal Appeals
affirmed Allridge's conviction and sentence in May 1988. See
Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988). The
United States Supreme Court finalized Allridge's conviction and
sentence when it denied his writ of certiorari in February 1989.
Allridge v. Texas, 489 U.S. 1040 (1989). Allridge then commenced
state habeas proceedings. After his petition for state habeas
corpus relief in the Texas Court of Criminal Appeals was denied,
see Ex Parte Allridge, 820 S.W.2d 152 (Tex. Crim. App. 1991),
Allridge filed a petition for habeas corpus in federal district
court, pursuant to 28 U.S.C. � 2254 (1988). The district court
denied the petition. Allridge now appeals the district court's
denial of his habeas petition, presenting several issues on appeal.
We affirm.
II.
In his first claim, Allridge contends that the state failed to
disclose material and exculpatory evidence to him at trial. Prior
to trial, Allridge filed a motion to require the government to
6

disclose evidence tending to exculpate Allridge. The state did not
disclose Jarmon's confession. Allridge now claims that the state's
failure to disclose Jarmon's confession violated his Fourteenth
Amendment right to due process under Brady v. Maryland, 373 U.S.
83 (1963). The Supreme Court has established that a prosecutor
must disclose evidence to a criminal defendant if that evidence is
(1) favorable to the defendant, and (2) material to the defendant's
guilt or punishment. Brady, 373 U.S. at 87. We have defined
"material" to mean a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different. United States v. Weintraub, 871 F.2d 1257, 1261 (5th
Cir. 1989).
Allridge contends that he has a valid Brady claim with regard
to the Jarmon statement. First, he claims the statement is
favorable because it buttresses his version of events.
Specifically, Allridge claims that Jarmon's statement corroborates
Allridge's contention that the accidental firing of Jarmon's gun
startled him, causing the "accidental" shotgun blast that killed
Otto. Second, he claims the statement is material (i.e., it
probably would have affected the outcome) because it aids in
establishing Allridge's state of mind. The state was required to
prove that Allridge had the specific intent to kill Otto. The
Jarmon statement, Allridge claims, could have led the jury to
conclude that Allridge was, in fact, startled by Jarmon's gunshot
and therefore did not have the specific intent to kill Otto. The
state responds that Jarmon's statement is neither exculpatory nor
7

material because it does not speak to Allridge's state of mind.
Jarmon's statement says only that he heard a gunshot after his gun
discharged. Jarmon's statement, the state notes, does not -- and
cannot -- speak to Allridge's state of mind when he killed Otto.
We find Allridge's Brady claim unpersuasive. Allridge is in
a position to assert a Brady claim now simply because his trial
lawyer chose not to procure Jarmon's statement through other means.
Allridge's trial counsel testified at the state habeas proceeding
that, prior to trial, he had become aware of Jarmon's statement.
He stated that he requested a copy from the government but his
request was denied. Significantly, he further testified that he
did not attempt to procure the statement by other means, such as
perhaps asking Jarmon's lawyer or seeking a court order. Allridge,
in effect, now asks us on federal habeas appeal to remedy a
situation of his own making. We decline to do so because, once
again, our standard of review is whether there is a reasonable
probability that, had the evidence been disclosed (or, in this
case, otherwise procured), the result of the proceeding would have
been different. United States v. Bagley, 473 U.S. 667, 682-83
(1985).
We cannot say that it would be. To begin with, as the state
points out, the Jarmon statement does not speak to Allridge's state
of mind, which is the essence of Allridge's defense. The statement
establishes only what the evidence at trial showed to be obvious:
that three, and not two, shots were fired. The statement does not
raise any issue as to whether Allridge possessed the requisite
8

intent to kill Otto. Furthermore, to the extent that any evidence
of a third gunshot somehow speaks to Allridge's state of mind, the
jury was provided such evidence and obviously chose not to deduce
from that evidence that Allridge lacked the specific intent to kill
Otto. Allridge, for example, introduced evidence of the spent
shell from Jarmon's gun, thereby conclusively proving that a third
shot was fired.5 In addition, the jury was presented with Melvin
Adams' statement to the police, wherein he stated that three shots
were fired. While Adams later recanted, his statement nonetheless
was presented to the jury. In addition, the jury heard the
testimony of Sharon Burns and Teresa Barton, both of whom testified
that they heard a minimum of two shots after the original shot
which shattered the glass door. The Jarmon statement, in other
words, would have been cumulative evidence with regard to the issue
of whether a shot was fired immediately before Allridge fired the
shot that killed Otto and, therefore, would not have affected the
outcome of Allridge's trial. Bagley, 473 U.S. at 682.6 We find
that the government's failure to disclose the statement does not
constitute a Brady violation.
5The government nonetheless chose to argue at trial that only
two shots were fired. We find the government's trial strategy to
be somewhat puzzling in light of the evidence.
6Thus, we need not determine whether Allridge's Brady claim
alternatively fails simply because his own lack of reasonable
diligence is the sole reason for not obtaining the Jarmon
statement. See United States v. Ellender, 947 F.2d 748, 757 (5th
Cir. 1991) ("where the defendant's own lack of reasonable diligence
is the sole reason for not obtaining the pertinent material, there
can be no Brady claim").
9

III.
Allridge next argues that the state trial court's jury
instructions were constitutionally defective. At the conclusion of
his trial, Allridge requested the court to instruct the jury on the
lesser included offenses of murder and felony murder. The court,
however, instructed the jury only on capital murder and murder.7
Allridge now contends that the trial court's failure to include a
felony murder instruction violated his Fourteenth Amendment right
to due process as delineated in Beck v. Alabama, 447 U.S. 625
(1980).
In Beck, the capital defendant participated in a robbery in
which the defendant's accomplice struck and killed an 80-year-old
man. The defendant claimed that, while he intended to rob the
victim, he did not intend to kill him. The state nonetheless tried
the defendant for capital murder.8 At the conclusion of the trial,
the trial court, pursuant to state law, instructed the jury that it
could "either convict[] the defendant of the capital crime, in
which case it is required to impose the death penalty, or acquit[]
him, thus allowing him to escape all penalties for his alleged
participation in the crime." Id. at 629. In other words, even
though felony murder is a lesser included offense of the capital
7The trial court refused to give a felony murder instruction
because no evidence existed from which a jury could conclude that
Allridge's shot was involuntary.
8Under Alabama law at that time, one of fourteen capital
offenses included "[r]obbery or attempts thereof, when the victim
is intentionally killed by the defendant." ALA. CODE � 13-11-
2(a)(2) (1975).
10

offense of robbery/intentional killing, Alabama law forbade trial
courts from issuing a lesser included offense instruction in
capital cases.
The jury convicted the defendant of capital murder and, as
required, sentenced him to death. On direct appeal, the Supreme
Court held that the Alabama statute violated the defendant's right
to due process. The Court began by noting that, under both state
and federal criminal law, the standard for determining whether a
lesser included offense instruction is warranted in non-capital
cases is well-established: the defendant is entitled to an
instruction on a lesser included offense if the evidence would
permit a jury to rationally find him guilty of the lesser offense
and acquit him of the greater. Id. at 633-37 & n.12 (citing, among
other cases, Keeble v. United States, 412 U.S. 205 (1973), and Day
v. State, 532 S.W.2d 302 (Tex. Crim. App. 1975)). The purpose of
the standard, the Court stated, was to ensure that the jury would
accord the defendant the full benefit of the reasonable doubt
standard. Id. at 634. Though Alabama argued that its "all or
nothing" death penalty statute furthered that goal, the Court
concluded that the statute actually risked undermining the
reliability of a jury's verdict because "the unavailability of the
third option . . . may encourage the jury to convict for an
impermissible reason -- its belief that the defendant is guilty of
some serious crime and should be punished." Id. at 642. The Court
concluded that, if due process precluded such a risk in non-capital
cases, then due process certainly precluded the same risk in
11

capital cases, wherein the stakes are much higher. Thus, as we
have stated before, "Beck stands for the proposition that `the jury
[in a capital case] must be permitted to consider a verdict of
guilt of a noncapital offense "in every case" in which "the
evidence would have supported such a verdict."'" Cordova v.
Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988) (quoting Hopper v.
Evans, 456 U.S. 605, 610 (1982)).
Allridge contends that, even though the trial court in this
case issued a third instruction, i.e., murder, the jury for
practical purposes was not given that option because both capital
murder and murder require the jury to find that Allridge had the
specific intent to kill, which is precisely the element that
Allridge challenges. Allridge does not challenge whether he
intended to commit armed robbery; he concedes that point. Thus,
Allridge argues, the choice between capital murder and murder is
really a Hobson's choice because, once the jury concludes that
Allridge had the specific intent to murder, the jury will be driven
to choose capital murder over murder because the robbery element of
capital murder is uncontested. In other words, according to
Allridge, while the instructions in this case may be different in
form from the instructions in Beck, the two are functionally
equivalent in that the jury was not given a third option.
Allridge's point is not without merit. The more reasonable
alternative instruction would have been, as Allridge requested,
felony murder because of the elements at issue in this case.
Allridge's claim, however, ultimately fails because it rests on an
12

erroneous reading of Beck and its progeny. Even if we were to
assume that the evidence in this case warranted a felony murder
instruction,9 due process would not require that Allridge be given
an instruction that conforms with that evidence. In Schad v.
Arizona, 111 S. Ct. 2491 (1991), the defendant was charged with
first-degree murder for robbing and murdering an elderly man. The
defendant requested a jury instruction on theft as a lesser
included offense of first-degree murder. The trial court refused
and instructed the jury on first-degree murder, second-degree
murder, and acquittal. The jury, after being denied a theft
instruction by the court, convicted the defendant of first-degree
murder, whereupon the court sentenced him to death.
On direct appeal, the defendant argued that, pursuant to Beck,
he was entitled to a theft instruction. The Court rejected the
defendant's generous reading of Beck. The Court began by noting
that Beck addresses only those cases in which the jury is faced
with an "all-or-nothing" decision. Id. at 2504-05. In such cases,
9We note that that assumption is not easily made because the
only evidence regarding Allridge's state of mind at the time of the
shooting suggests, if anything, that Allridge intended to shoot
Otto. Specifically, Cary Jacobs was the only witness who testified
as to Allridge's demeanor at the time of the shooting. According
to Jacobs, Allridge entered the restaurant and approached the booth
where Otto, Jacobs, and a third person were eating. Jacobs
testified that Allridge threw the bag at Otto, said, "Fill it up,
bitch," and shot Otto when she failed to do so. After shooting
Otto, according to Jacobs, Allridge turned the gun on Jacobs and
directed Jacobs to pick the bag off the floor and fill it with his
valuables. Jacobs complied because, with the shotgun aimed at his
head, Jacobs feared that Allridge would shoot him as well. Once
Jacobs had relinquished his valuables, Allridge left the
restaurant. Jacobs' testimony regarding Allridge's demeanor does
not describe someone who has just "accidentally" shot another
person.
13

the Court reasoned, a jury's capital murder verdict is
presumptively unreliable because "`[t]he absence of a lesser
included offense instruction increases the risk that the jury will
convict . . . simply to avoid setting the defendant free.'" Id. at
2505 (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)). But
if the jury is given a third instruction, particularly one that is
supported by the evidence, then due process is no longer
implicated.
The defendant in Schad countered that, while a third
instruction may satisfy due process, any third instruction will not
suffice because, if the jury agrees with the defendant's theory of
the case, it will be unable to register its view. The Court
disagreed, pointing out that the key consideration in a Beck claim
is not the form of the jury's instructions but the reliability of
a jury's capital murder verdict. The Court further reasoned:
To accept the contention advanced by petitioner and the
dissent, we would have to assume that a jury unconvinced that
petitioner was guilty of either capital or second-degree
murder, but loath to acquit him completely (because it was
convinced he was guilty of robbery), might choose capital
murder rather than second-degree murder as its means of
keeping him off the streets. Because we can see no basis to
assume such irrationality, we are satisfied that the second-
degree murder instruction in this case sufficed to ensure the
verdict's reliability.
Schad, 111 S. Ct. at 2505; see also Montoya v. Collins, 955 F.2d
279, 285-86 (5th Cir. 1992) (a lesser included offense instruction
satisfies due process, even though the instruction did not conform
with the defendant's theory of the case).
We find that Schad controls our disposition of this issue.
While the trial court's third instruction did not conform to
14

Allridge's defense strategy, sufficient evidence existed from which
the jury could reasonably have concluded that Allridge was guilty
of murder. We recognize that had the jury returned a verdict of
murder only, such a verdict would effectively acquit Allridge of
robbery, a charge which he does not challenge. As illogical as
this hypothetical verdict may be, it does not render the trial
court's jury instructions unconstitutional because, in the final
analysis, sufficient evidence existed for the jury to convict
Allridge of murder. Our reading of Beck and Schad instructs us
that the trial court was not constitutionally bound to provide a
wider menu of jury instructions. Instead, because the jury had the
viable option to choose murder over capital murder, we are
satisfied that that option ensured the reliability of the jury's
capital murder verdict.
IV.
Under Texas law, a defendant may not be sentenced to death
without a prior determination by the sentencing jury that, inter
alia, the defendant represents a future danger to society. TEX.
CODE CRIM. PROC. ANN. art. 37.071(b)(2). At the sentencing hearing,
Allridge proffered expert testimony outside the presence of the
jury that indicated Allridge almost certainly would be ineligible
for parole and, therefore, did not pose a future danger. The trial
court, however, refused to permit Allridge to introduce the
evidence. Allridge now contends that the trial court's evidentiary
ruling, and the court's subsequent refusal to instruct the
sentencing jury that Allridge almost certainly would serve the
15

remainder of his life in prison, violated his Fourteenth Amendment
right to due process.
In particular, Allridge maintains that the trial court denied
his due process right to rebut the state's case against him as a
future danger. Allridge principally relies on Gardner v. Florida,
430 U.S. 349 (1977), wherein the Supreme Court vacated a death
sentence because the trial court relied in part on confidential
portions of a presentence investigation report that were not
available to the parties. The Court reasoned that the defendant's
right to due process was violated "when the death sentence was
imposed, at least in part, on the basis of information which he had
no opportunity to deny or explain." Id. at 362 (plurality
opinion). Allridge maintains his opportunity to deny or explain
his future dangerousness was similarly denied when the trial court
refused to allow him to introduce evidence of his parole
ineligibility. The Court, according to Allridge, has traditionally
regarded evidence of parole ineligibility as constitutionally
relevant. In California v. Ramos, 463 U.S. 992 (1983), for
example, the Court ruled that a state statute requiring trial
courts to instruct capital juries that a sentence of life
imprisonment without the possibility of parole could be commuted by
the governor was not unconstitutional. Allridge essentially argues
that, when considered together, Gardner and Ramos stand for the
following proposition: when the state argues that a capital
defendant represents a future danger to society and therefore
should be sentenced to death, then that defendant is
16

constitutionally entitled to introduce evidence regarding his
parole ineligibility.
Allridge insists that this proposition was recently endorsed
by the Supreme Court in Simmons v. South Carolina, 114 S. Ct. 2187
(1994). In Simmons, the defendant was charged with murdering an
elderly woman. Immediately prior to trial, the defendant pled
guilty to two separate assaults on elderly woman. Thus, once the
defendant was convicted in Simmons of his third and most recent
criminal offense, he was rendered ineligible for parole under the
state's "two-strikes-and-you're-out" statute.10 At sentencing, the
state argued that the defendant represented a future danger to
society and, therefore, should receive the death sentence. The
defendant, in response, proffered evidence outside the presence of
the jury that demonstrated that, as a matter of state law, he was
ineligible for parole. The trial court rejected the defendant's
proffer, noting that South Carolina juries may not consider the
issue of parole when sentencing a defendant convicted of capital
murder. The jury later sentenced the defendant to death.
On direct appeal, the Supreme Court reversed the defendant's
sentence. The Court began its analysis in Simmons by revisiting a
variety of its due process cases, wherein the Court established
that the due process clause entitles a criminal defendant to a
10See S.C. CODE ANN. � 24-21-640 (Supp. 1993). The statute
provides:
The board must not grant parole nor is parole authorized to
any prisoner serving a sentence for a second or subsequent
conviction, following a separate sentencing from a prior
conviction, for violent crimes as defined in Section 16-1-60.
17

complete defense. Id. at 2193-95. According to the Court, the
trial court's refusal to admit the defendant's evidence regarding
parole ineligibility ran afoul of those cases because the state
"raised the specter" of future dangerousness without affording the
defendant the chance to demonstrate that "he was legally ineligible
for parole and thus would remain in prison if afforded a life
sentence." Id. at 2194-95. The Court recognized that, as a
general rule, the decision about whether to inform a jury about
parole eligibility is left to the states. Id. at 2196 (citing
Ramos, 463 U.S. at 1014). But the Court qualified that rule when
future dangerousness is at issue. Specifically, "where the
defendant's future dangerousness is at issue, and state law
prohibits the defendant's release on parole, due process requires
that the sentencing jury be informed that the defendant is parole
ineligible." Id. at 2190.
Allridge reads Simmons to mean that he was constitutionally
entitled to introduce evidence of his parole ineligibility. He
recognizes that Texas, unlike South Carolina, did not statutorily
provide for parole ineligibility at the time of his conviction.
But he characterizes that distinction as irrelevant because,
regardless of whether a capital defendant is ineligible for parole
as a matter of law or a matter of fact, the defendant should not be
denied the opportunity to rebut the state's case for future
dangerousness with evidence of parole ineligibility.
We disagree. As the Court made clear in Simmons, the "logic
and effectiveness of petitioner's argument naturally depended on
18

the fact that he was legally ineligible for parole." Id. at 2194-
95 (emphasis added). A capital defendant's parole ineligibility,
in other words, must be a matter of law because evidence of such
ineligibility is inherently "truthful" and allows the defendant to
deny or explain the state's case for future dangerousness. Id. at
2196. But if a defendant's ineligibility is a matter of fact,
i.e., the defendant probably will not be eligible for parole, then
the evidence is purely speculative (maybe even inherently
"untruthful") and therefore cannot positively deny future
dangerousness. The jury is left only to speculate about what a
parole board may, or may not, do twenty or thirty years hence.
Relying on Ramos, the Court in Simmons reaffirmed that states can
properly choose to prevent a jury from engaging in such speculation
as a means of providing greater protections in their criminal
justice systems than constitutionally required. Id. (citing Ramos,
463 U.S. at 1014). Texas accordingly has chosen to keep from juries
evidence or instructions of parole eligibility, see Rose v. State,
752 S.W.2d 529, 534-35 (Tex. Crim. App. 1987), and on two separate
occasions, we have chosen not to meddle with the state's chosen
policy. See King v. Lynaugh, 850 F.2d 1055, 1060-61 (5th Cir.
1988) (en banc); O'Bryan v. Estelle, 714 F.2d 365, 388-389 (5th
Cir. 1983). But Texas, unlike South Carolina, did not statutorily
provide for parole ineligibility at the time of Allridge's
conviction.
19

Thus, Simmons is inapplicable to this case.11 The Court, in
fact, suggested as much when it pointed out that, while Texas and
South Carolina refuse to inform juries about parole eligibility,
Texas does not provide "a life-without-parole sentencing
alternative to capital punishment." Simmons, 114 S. Ct. at 2196
n.8. We therefore read Simmons to mean that due process requires
the state to inform a sentencing jury about a defendant's parole
ineligibility when, and only when, (1) the state argues that a
defendant represents a future danger to society,12 and (2) the
defendant is legally ineligible for parole. Because Texas did not
statutorily provide for parole ineligibility at the time of
11In addition to failing on the merits, Allridge's Simmons
claim would be barred under the non-retroactivity limitation the
Supreme Court announced in Teague v. Lane, 489 U.S. 288, 301
(1989). Specifically, if we were to conclude, as Allridge urges us
to do, that due process entitles a capital defendant to introduce
evidence of parole ineligibility whenever the state argues the
defendant is a future danger, regardless of whether the state
statutorily provides for parole ineligibility, such a conclusion
certainly would constitute a "new rule" and therefore would be
barred under Teague.
12We note that Simmons particularly applies to those cases in
which the state argues that the defendant is a future danger to
free society. But when the state argues that the defendant poses
a future danger to everybody, fellow inmates included, then Simmons
is inapplicable because whether the defendant is eligible for
parole is irrelevant. Simmons, 114 S. Ct. at 2194 n.5. For
example, given his proclivity for assaulting only elderly women,
the defendant in Simmons argued that he did not pose a future
danger to anyone in prison. Id. at 2191. In this case, however,
the state pointed out that Allridge had committed acts of violence
against other prisoners during a previous incarceration and,
therefore, posed a future danger wherever he may be.
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Allridge's conviction, we find Allridge's reliance on Simmons to be
unavailing.13
V.
Finally, Allridge argues that, in three separate ways, the
second special issue submitted to the sentencing jury prevented the
jury from giving effect to certain mitigating evidence. Therefore,
Allridge argues, the jury's ultimate death sentence violated
Allridge's Eight Amendment right against cruel and unusual
punishment as defined in Penry v. Lynaugh, 492 U.S. 302 (1989).
Allridge first contends that his alleged parole ineligibility
constitutes mitigating evidence and that, because the trial court
refused to allow him to introduce this evidence, the second special
issue prevented the jury from giving the evidence proper mitigating
effect. In the preceding section, we concluded that, as a matter
of due process, Allridge was not constitutionally entitled to
submit evidence or an instruction regarding the likelihood, or not,
of his being paroled. The fact that Allridge now presents it as a
Penry cruel and unusual punishment claim, rather than as a Simmons
13In connection with his Simmons claim, Allridge attacked the
wording of the second special issue of Texas' death penalty statute
as unconstitutionally vague. The issue asks "whether there is a
probability that the defendant would constitute a continuing threat
to society?" TEX. CODE CRIM. PROC. ANN. art. 37.071(b)(2). Allridge
maintains that the use of the word "would" is not premised on any
specific condition, such as: would he pose a future danger if
imprisoned for life? Allridge's vagueness claim is essentially
another way of making the same point, i.e., that the state
constitutionally deprived him of informing the jury of his parole
ineligibility. For reasons already provided in our discussion of
Simmons and Ramos, we find Allridge's vagueness claim unavailing.
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due process claim, does not require us to reach a different
conclusion. We reject Allridge's first Penry claim.
Allridge's next Penry claim is much more typical of the
numerous Penry claims we have considered in the last five years.
At sentencing, Allridge's father -- a non-expert as to medical
diagnoses -- testified that Allridge allegedly suffered mental
illness and abuse during a previous incarceration. At sentencing,
Allridge requested an instruction permitting the jury to give
mitigating effect to his father's testimony. The trial court
refused, and Allridge now claims that the trial court's refusal
deprived him of his right under Penry to an instruction beyond the
two statutory special issues. We disagree. We have stated that,
while Penry appears to be worded broadly, the case has been
interpreted narrowly. Andrews v. Collins, 21 F.3d 612, 629 (5th
Cir. 1994). We, for example, have construed Penry to mean that the
capital defendant must be able to demonstrate that his crime is
attributable to a uniquely severe disability. Madden v. Collins,
18 F.3d 304, 306-09 (5th Cir. 1994); Barnard v. Collins, 958 F.2d
634, 636-38 (5th Cir. 1992). Allridge, to say the least, has
failed to show any such linkage based solely on the non-expert,
hearsay testimony of his father. His second Penry claim therefore
fails.
In his last Penry claim, Allridge argues that the second
special issue creates a disincentive for introducing medical
evidence of mental disabilities because, if introduced, the
evidence may encourage, rather than discourage, the jury to
22

affirmatively conclude that Allridge represents a future danger to
society. As we have stated before, capital defendants cannot base
a Penry claim on evidence that could have been, but was not,
proffered at trial. Crank v. Collins, 19 F.3d 172, 175-76 (5th
Cir. 1994); Barnard v. Collins, 958 F.2d 634, 637 (5th Cir. 1992);
May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990). As the Supreme
Court has stated, "[n]othing in the Constitution obligates state
courts to give mitigating circumstance instructions when no
evidence is offered to support them." Delo v. Lashley, 113 S. Ct.
1222, 1225 (1993). We therefore reject Allridge's last Penry
claim.
VI.
For the foregoing reasons, we AFFIRM the decision of the
district court to deny the writ.
wjl\opin\93-9137.opn
jwl
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