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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-10976

EARL RUSSELL BEHRINGER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of
Criminal Justice,
Institutional Division,
Respondent-Appellee.

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

February 5, 1996
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
Earl Russell Behringer seeks a stay of his execution scheduled
for February 15, 1996, and a certificate of probable cause to allow
his appeal from a denial of his application for a writ of habeas
corpus by the United States District Court for the Northern
District of Texas. We deny the request for stay of execution and
certificate of probable cause.
This is Behringer's first federal habeas petition. He
asserted five claims in his petition to the United States District
Court. Our question is whether Behringer has made a substantial

showing of the denial of a federal right in any of these five
claims:
(a)
Whether Behringer was denied effective assistance
of counsel, his right to a trial by jury, and due
process by the trial court's sua sponte excusal of
veniremembers David Wayne Wright, Doris Odle
Simmons, and Irma K. Warters in the absence of
Behringer and his counsel.
(b)
Whether Behringer was denied due process of law and
subjected to cruel and unusual punishment by the
jury's affirmative answer to special issue two
based on insufficient evidence.
(c)
Whether Texas' statutory scheme requiring direct
appeal of death penalty cases to the Texas Court of
Criminal Appeals denied Behringer due process of
law and equal protection under the law.
(d)
Whether the Texas death penalty scheme denied
Behringer due process of law and imposed cruel and
unusual punishment by preventing Behringer from
informing the jury of the parole implications of a
life sentence while authorizing a jury instruction
not to consider parole eligibility in deciding the
answer to special issue two.
(e)
Whether the Texas death penalty scheme denied
Behringer due process of law and imposed cruel and
unusual punishment by simultaneously restricting
the jury's discretion to impose the death penalty
while allowing the jury unlimited discretion to
consider mitigating evidence.
The United States District Court, Judge John McBryde, filed a
detailed Memorandum and Order on October 2, 1995, denying the
petition for writ of habeas corpus and vacating a stay of
execution. The district court granted leave to appeal in forma
pauperis, but denied petitioner's application for certificate of
probable cause. The district court rejected each of these claims.
We have reviewed the district court's detailed Order and considered
the briefs and record before us. We reach the same conclusion as
2

the district court for essentially the reasons stated in its order
of October 2. The details of the crime and the treatment of the
claims are set out in the Order, and we will not restate them.
The application for Stay of Execution and Certificate of
Probable Cause are DENIED.
3