               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 90-2124

                       _____________________

          HAROLD AMOS BARNARD, JR.,

                               Petitioner-Appellant,

          v.

          JAMES A. COLLINS, Director, Department of
          Criminal Justice, Institutional Division,

                               Respondent-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                          (April 3, 1992)

Before KING, JOLLY and SMITH, Circuit Judges.

KING, Circuit Judge:

     Harold Amos Barnard, Jr. appeals the district court's

dismissal of his petition for a writ of habeas corpus.   He argues

that the district court erred in rejecting his contention that

the Texas capital sentencing statute as applied in his case

unconstitutionally prevented the jury from fully considering and

giving effect to all of the mitigating evidence he presented

during the conviction and sentencing phases of his trial.

Finding no error, we affirm the district court's denial of habeas

relief and vacate the stay of execution.
                          I.    BACKGROUND

     On June 6, 1980, Barnard killed sixteen-year-old Tuan Nguyen

during the robbery of a convenience store in Galveston, Texas.1

A jury convicted Barnard of capital murder on April 1, 1981.

After a punishment hearing, the jury affirmatively answered the

three special issues submitted pursuant to Texas law, and on

April 6, 1981, the court imposed a death sentence.

     The Texas Court of Criminal Appeals affirmed Barnard's

conviction on April 8, 1987.     Barnard v. State, 730 S.W.2d 703

(Tex. Crim. App. 1987), cert. denied, 485 U.S. 929 (1988).

Barnard filed a petition for a writ of habeas corpus in the state

trial court on October 31, 1988.       On November 22, 1988, the trial

court entered its findings of fact and conclusions of law and

recommended denial of the writ.    The Court of Criminal Appeals

found the trial court's findings and conclusions to be supported

by the record and denied the writ on January 6, 1989.

     The trial court rescheduled Barnard's execution for March

14, 1989.   On February 21, 1989, Barnard filed a petition for

habeas corpus relief and an application for stay of execution in

United States district court.    The district court stayed the

execution pending its consideration of Barnard's petition.

     On December 12, 1989, the district court entered a final

judgment dismissing the petition for a writ of habeas corpus and

lifting the stay of execution.    Barnard timely filed a motion to

     1
       For a more detailed recitation of the facts, see Barnard
v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987), cert. denied,
485 U.S. 929 (1988).

                                   2
alter or amend the judgment pursuant to Federal Rule of Civil

Procedure 59(e), which the district court denied.   After Barnard

filed a notice of appeal, the district court granted a

certificate of probable cause and entered a stay of execution on

February 7, 1990.   This appeal followed.

           On appeal, Barnard contends that the district court

erred in rejecting his claims that (1) the Texas death sentencing

statute prevented the jury in his case from considering and

giving effect to his mitigating evidence in violation of the

Sixth and Eighth Amendments to the United States Constitution;

(2) the court's instruction on temporary insanity caused by

intoxication prevented the jury from giving any mitigating

consideration to this evidence unless Barnard proved that he was

so intoxicated that he was insane at the time of the offense; (3)

evidence of his good character, including evidence of his

carpentry skills, work history, and familial responsibility and

support, was not adequately treated within the special issues;

and (4) Barnard received ineffective assistance of counsel.    We

consider each of these claims below.

                           II.   ANALYSIS

     A.   Standard of review

     In considering a federal habeas corpus petition presented by

a petitioner in state custody, federal courts must accord a

presumption of correctness to any state court factual findings.

See 28 U.S.C. § 2254(d).   We review the district court's findings

of fact for clear error, but decide any issues of law de novo.


                                  3
Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir. 1988), cert.

denied, 490 U.S. 1024 (1989).

     B.   Penry claim

     Barnard first contends that the Texas capital sentencing

statute, as applied in his case, violated the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution by

failing to provide a vehicle by which Barnard's jury could

properly consider and give effect to the substantial mitigating

evidence he presented at trial.   Barnard argues that the Texas

capital sentencing statute2 unconstitutionally limited the jury's

consideration of two types of mitigating evidence that he

presented at trial: (1) his head injury, evidence of permanent

characteristics and disabilities stemming from his troubled

childhood, and his drug and alcohol abuse; and (2) evidence of

his good character, including evidence of his carpentry skills,

work history, and familial responsibility and support.   Barnard

maintains that, under the narrow focus of the special issues, no

     2
       Pursuant to the version of Texas Code of Criminal
Procedure Article 37.071 in effect at the time of Barnard's
sentencing, the trial court instructed the jury to consider the
following special issues:

     1.    Was the conduct of the Defendant that caused the death
           of the deceased committed deliberately and with the
           reasonable expectation that the death of the deceased
           would result?

     2.    Is there a probability that the Defendant would commit
           criminal acts of violence that would constitute a
           continuing threat to society?

     3.    Was the conduct of the Defendant in killing the
           deceased unreasonable in response to the provocation,
           if any, by the deceased?

                                  4
means existed by which the jury could give meaningful expression

to this evidence and vote for life as mandated by the Supreme

Court in Penry v. Lynaugh, 492 U.S. 302 (1989).

     The district court refused to review the merits of Barnard's

contention that the Texas death sentencing statute was

unconstitutional as applied3 in his case, concluding that Barnard

had procedurally defaulted this claim.   In making this ruling,

the district court observed that both the trial court and the

Court of Criminal Appeals found on state habeas review that

Barnard was barred under state law from complaining of the trial

court's failure to give additional jury instructions on

mitigating evidence because he failed to request such a special

instruction.   The district court determined that the state habeas

court unambiguously relied on the state procedural default

doctrine in its dismissal, and that Barnard demonstrated neither

good cause for his failure to comply with state court procedures

nor actual prejudice resulting from the alleged constitutional

violation.

     Over two years have elapsed since the district court rested

its decision on the procedural default doctrine.   Since then, the

Texas Court of Criminal Appeals has clarified the state's

position on whether a habeas petitioner has defaulted on a Penry

claim.   Selvage v. Collins, 816 S.W.2d 390 (Tex. Crim. App.

1991), explained that a Penry claim is preserved even if the


     3
       Barnard has abandoned his facial challenge to the Texas
death penalty statute brought before the district court.

                                 5
petitioner failed to request an instruction on mitigating

evidence or object to the instructions given at trial.       Id. at

392.    However, a petitioner cannot base a Penry claim on

mitigating evidence that could have been, but was not, proffered

at trial.    May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990),

cert. denied, 111 S. Ct. 770 (1991); DeLuna v. Lynaugh, 890 F.2d

720, 722 (5th Cir. 1989); see also Ex parte Goodman, 816 S.W.2d

383, 386 n.6 (Tex. Crim. App. 1991) (in dicta, refusing to

consider arguments based on tactically withheld Penry evidence,

unless the appellant makes a contemporaneous offer of proof or

bill of exception detailing what mitigating evidence is being

withheld).    With these constraints in mind, we examine whether

Barnard's challenge to the application of the Texas sentencing

statute in his case warrants relief.

       Although the Supreme Court has upheld the constitutionality

of the Texas capital sentencing scheme, see Jurek v. Texas, 428

U.S. 262, 272 (1976) (opinion of Stewart, Powell & Stevens, JJ.),

it has found that under certain circumstances, the statutory

special issues must be augmented by jury instructions to preserve

the constitutionality of the statute's application.    In Penry,

the Supreme Court held that a Texas jury could not give effect to

mitigating evidence of mental retardation and an abused childhood

through the special issues absent instructions informing the jury

that it could consider and give effect to this evidence by

refusing to impose the death penalty.    492 U.S. at 328.    The

Court ordered resentencing in Penry's case because without such


                                  6
an instruction, "the jury was not provided with a vehicle for

expressing its 'reasoned moral response'" to his mitigating

evidence in its sentencing decision.       Id.

     In Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en

banc), petition for cert. filed Mar. 9, 1992 (No. 91-7580), this

court recently construed Penry to indicate that special jury

instructions are required only when the "major mitigating thrust

of the evidence is beyond the scope of all the special issues."

Id. at 1027.   We determined that Graham's evidence of his youth

as a mitigating factor found adequate expression through the

second special issue.   Graham reasoned that because youth is a

transitory condition,

          whatever is mitigating about youth tends to
          lend support to a "no" answer to the second
          special issue, and its tendency to do so is
          essentially proportional to the degree to
          which the jury concludes such factors were
          influential in the defendant's criminal
          conduct. The greater the role such
          attributes of youth are found to have played
          in the defendant's criminal conduct, the
          stronger the inference that, as his youth
          passes, he will no longer be a danger to
          society.

Id. at 1031.   The majority distinguished evidence of transitory

conditions, such as youth, from evidence of "uniquely severe

permanent handicaps with which the defendant was burdened through

no fault of his own," such as mental retardation, organic brain

damage and an abused childhood.       Id. at 1029.   We turn now to

Barnard's contention that the mitigating evidence he presented at

trial differs materially from the type of evidence found

unproblematic in Graham and that, as a consequence, the lack of

                                  7
special jury instructions rendered his proceeding

unconstitutional.

     Barnard argues that because the evidence presented during

his trial raised an issue with regard to his head injury and its

effects, the jury could not have expressed the full mitigating

force of this evidence within the special issues.    At trial,

Barnard testified that several months before he committed the

crime, his son-in-law beat him in the head with a tire iron.

Barnard's friend, Marie Farquhar,4 and his mother, Maude Barnard,

testified to the apparent severity of the wounds resulting from

the beating.    Barnard's mother also stated that Barnard was

unable to work for four or five months and that he was less

helpful around the house after the beating.    She further stated

that since the beating, she thought he needed psychiatric help.

On cross-examination, she also told of an occasion after the

beating when she accompanied Barnard to a hospital so that he

would get a psychiatric examination, recalling that he left the

hospital the same day, apparently without receiving treatment.

     Barnard did not introduce expert testimony relating to his

psychological disorders during his capital trial.5    Nor does the

     4
         Farquhar was also a licensed vocational nurse.
     5
       Barnard first filed a psychological evaluation, prepared
by a psychologist in October 1988, with his petition for habeas
corpus relief in the district court. The report reveals that, in
addition to the attack with the tire iron, Barnard suffered a
serious head injury from a car accident when he was seventeen
years old. The report also indicates that Barnard suffers from
extreme paranoia and delusional ideation and that, since his
incarceration, he has consistently been diagnosed as having a
paranoid disorder with possible schizophrenia. The psychologist

                                  8
record contain any affirmative evidence of brain damage.    The

evidence of the beating, without more, is insufficient to support

a Penry claim.   The evidence must be able to raise an inference

"that the crime is attributable to the disability."     Graham, 950

F.2d at 1033.    Here, there is no evidence that the physical

trauma from the blows caused Barnard to suffer from mental

impairment, or that his criminal actions were attributable to

mental impairment.    Barnard cannot rely on his mother's inexpert

speculation concerning Barnard's mental condition to demonstrate

a Penry-type disability.    A juror would be compelled to share

this speculation to make such a finding.     See Wilkerson v.

Collins, 950 F.2d 1054, 1061 (5th Cir. 1992) (refusing to

consider claim based upon conjecture rather than proof).

Therefore, Barnard's claim is without merit.

     Barnard further contends that, in the absence of a special

instruction, the jury was precluded from expressing the full

mitigating potential of his evidence of a troubled childhood.

Testimony during Barnard's trial revealed that his parents

divorced when he was four years old and that he lived alone with

his mother until he was thirteen.     His father was absent from his

life during this period.    At age thirteen, Barnard was sent to

live with his father, but had difficulties with him and

eventually lived with an uncle.    Barnard's mother testified that


was unable to conclude that Barnard was afflicted with paranoid
delusions at the time he committed the capital offense. Because
Barnard did not present this evidence at trial, we cannot
consider it now. See May v. Collins, 904 F.2d 228, 232 (5th Cir.
1990), cert. denied, 111 S. Ct. 770 (1991).

                                  9
she had been in a mental hospital four times, but specified the

approximate date of her institutionalization for only one

occasion, which apparently occurred after Barnard was eighteen

years old.6   Barnard did not offer any affirmative evidence to

show that his mother received institutional care during his

childhood.    Nor did he attempt to show that his alcohol and drug

use or any mental impairment or psychological problem was

attributable to his childhood experiences.

     We reject Barnard's attempt to portray this testimony as

mitigation evidence of permanent characteristics and disabilities

stemming from his troubled childhood.    Although the Graham

majority observed that a defendant who introduced evidence of the

adverse effects of a troubled childhood might well raise a Penry

issue, in this case, as in Graham, there was no evidence that

these childhood experiences had any psychological effect on

Barnard.   Graham, 950 F.2d at 1033.    Accordingly, we find no

substantial evidence that Barnard's "criminal conduct was

'attributable to a disadvantaged background, or to emotional and

mental problems[.]'" Id. (quoting Penry, 109 S. Ct. at 2947).

     Nor are we convinced by Barnard's efforts to characterize

the record as raising the issue of an addictive disorder.      The

scattered testimony recounting Barnard's evidently frequent

episodes of heavy alcohol consumption, alcohol intoxication and

marijuana use does not demonstrate that the episodes were

     6
       Maude Barnard noted that she retired from her job when she
had a nervous breakdown in the 1960s. Barnard was eighteen years
old in 1961.

                                 10
attributable to a permanent handicap.   Although the evidence

showed that Barnard was intoxicated at the time of the offense,

"voluntary intoxication is not the kind of 'uniquely severe

permanent handicap[] with which the defendant was burdened

through no fault of his own' that requires a special instruction

to ensure that the mitigating effect of such evidence finds

expression in the jury's sentencing decision."    Cordova v.

Collins, 953 F.2d 167, 170 (5th Cir. 1992) (quoting Graham, 950

F.2d at 1029).   A juror who concluded that Barnard suffered from

alcoholism or drug addiction would have necessarily relied solely

on speculation to reach that conclusion.   Accordingly, Barnard

cannot prevail on this claim.    See Wilkerson, 950 F.2d at 1061.

     Barnard alternatively argues that the jury instruction on

his intoxication at the time of the crime prevented the jury from

giving any mitigating consideration to this evidence unless

Barnard proved that he was so intoxicated that he was insane at

the time of the offense.7   This instruction, he contends, did not

     7
       During the punishment phase of Barnard's trial, the court
gave the following instructions to the jury:

          You are instructed that under our law neither
          intoxication nor temporary insanity of mind
          caused by intoxication shall constitute any
          defense to the commission of crime. Evidence
          of temporary insanity caused by intoxication
          should be considered in mitigation of the
          penalty attached to the offense.

               By the term "intoxication" as used
          herein is meant disturbance of mental or
          physical capacity resulting from the
          introduction of any substance into the body.

                 By the term "insanity" as used herein,

                                 11
allow a juror who found that Barnard acted deliberately and was

not temporarily insane at the time of the offense to give

mitigating effect to Barnard's evidence of intoxication even

though the juror also found that the intoxication diminished

Barnard's capacity and militated in favor of a life sentence.

Therefore, he maintains that the mitigating thrust of this

evidence of intoxication extended beyond the special issues.

     In reviewing Barnard's state habeas petition, the trial

court determined that Barnard's failure to request a special

instruction or to object to this instruction at trial established

a procedural bar to consideration of this claim.   The Court of

Criminal Appeals denied Barnard state habeas relief based on this

determination.   The district court concluded that the state

habeas court's reliance on the state procedural bar was

unambiguous and thus precluded it from reaching the merits of

this claim pursuant to Harris v. Reed, 489 U.S. 255 (1989).




          is meant, that as a result of the
          intoxication the defendant either did not
          know that his conduct was wrong or he was
          incapable of conforming his conduct to the
          requirements of the law he allegedly
          violated.

               Now if you find from the evidence that
          the defendant, Harold Amos Barnard, Jr., at
          the time of the commission of the offense for
          which he is on trial, was laboring under
          temporary insanity as above defined, produced
          by voluntary intoxication, then you may take
          such temporary insanity into consideration in
          mitigation of the penalty which you attach to
          the offense, if any.


                                12
     We agree with the district court that the state procedural

bar precludes our review of this claim.    In Selvage, the Texas

Court of Criminal Appeals held that Selvage's Penry claim was not

procedurally barred under Texas law because it was "an assertion

of a right not previously recognized."    816 S.W.2d at 391.   This

rationale does not pertain here.     In contrast to Penry, Barnard

does not contend that the Texas special issues prevented the jury

from considering Barnard's evidence of voluntary intoxication; he

asserts that the court's erroneous instruction prevented the jury

from giving full mitigating effect to his evidence of voluntary

intoxication.   Since a jury can express the mitigating force of

evidence of voluntary intoxication through the Texas special

issues, Barnard's failure to object to the additional instruction

on temporary insanity resulted in the state procedural default of

this claim.8

     In his final Penry claim, Barnard argues that evidence of

his good character, including evidence of his carpentry skills,

work history, and familial responsibility and support9 fell

     8
       At the time of Barnard's trial, it was already well
established that a capital sentencing statute must allow the
sentencer to consider "as a mitigating factor any aspect of a
defendant's character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence
less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(emphasis omitted); see also Jurek, 428 U.S. at 271 (opinion of
Stewart, Powell & Stevens, JJ.).
     9
       Three former employers testified for Barnard and stated
that he was a competent worker and that they felt no fear for
themselves or their families when he was present. Barnard also
introduced evidence that he had worked to receive a General
Equivalency Diploma, and that he spent time with his children and
supported his family. Barnard's mother testified about how he

                                13
outside the scope of the second special issue.    However, this

court has concluded that evidence of good character does not

require a special instruction under Penry.     Graham, 950 F.2d at

1032.   Since the principal mitigating thrust of good character

evidence is to show that the defendant acted atypically in

committing the capital crime, this evidence can find adequate

expression under second special issue.   Id.   Specifically, the

Graham majority observed that

           [u]nlike Penry evidence, which can reduce
           culpability where it is inferred that the
           crime is attributable to the disability while
           other similar offenders have no such
           "excuse," good character evidence provides no
           variety of "excuse." Further, absent some
           unusual indication of an essentially
           permanent adverse change in character (e.g.,
           brain damage), to the extent that the
           testimony is convincing that the defendant's
           general character is indeed good it will
           also, to essentially the same extent, be
           convincing that he will not continue to be a
           threat to society.

Id. at 1033 (emphasis in original).   Barnard, however, maintains

that, unlike the good character evidence offered in Graham, the

mitigating potential of his good character evidence is not to

show that Barnard does not have the capacity for future violence.

Rather, he contends, the evidence shows that his life should be

spared despite his need to be placed in a controlled environment.

     To the extent that Barnard asserts that a capital sentencer

must be able to express the mitigating potential of evidence

unrelated to a defendant's culpability or capacity for



helped to support her financially and around the house.

                                14
rehabilitation, ample authority supports the contrary conclusion.

See, e.g., Penry, 492 U.S. at 319 ("Underlying Lockett and

Eddings is the principle that punishment should be directly

related to the personal culpability of the defendant."); Tison v.

Arizona, 481 U.S. 137, 149 (1987) ("The heart of the retribution

rationale is that a criminal sentence must be directly related to

the personal culpability of the criminal offender."); Skipper v.

South Carolina, 476 U.S. 1, 5 (1986) ("Consideration of a

defendant's past conduct as indicative of his probable future

behavior is an inevitable and not undesirable element of criminal

sentencing[.]").   Further, Barnard portrays the qualitative

effect of this mitigating evidence in a way that continues to

bear on the question of Barnard's rehabilitative potential,10

which is adequately addressed within the second special issue.

Thus, we find no merit to this contention.

     C.   Unconstitutionally vague terms

     Barnard contends that the Texas capital sentencing statute

was unconstitutionally applied to him because its operative terms

are so vague and indefinite that they deprive the jury of

meaningful guidance in its sentencing deliberations.   Without

clarifying instructions on terms such as "probability" and

"deliberateness," he argues, the statute unduly restricts the

scope of the mitigating evidence which the jury can consider.    To

support his contention, Barnard points out that in Penry, the

     10
       Barnard urges that the evidence demonstrates that he
could be safely employed within a prison setting in a manner that
benefitted society.

                                15
Supreme Court expressed doubt about whether the jury could give

effect to Penry's mitigating evidence of mental retardation and

child abuse "[i]n the absence of jury instructions defining the

term 'deliberately.'"   492 U.S. at 323.

     This claim is without merit.    Both the Texas Court of

Criminal Appeals and this court have held that the common meaning

of the term "deliberately" is sufficiently clear to allow the

jury to decide the punishment phase issues.    Ellis v. Lynaugh,

873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970 (1989).

In Penry, the Court was concerned that the trial court did not

direct the jury to consider Penry's mental retardation in a way

that bore fully on his moral culpability.    The Court observed

that "Penry's mental retardation was relevant to the question

whether he was capable of acting 'deliberately,' but it also 'had

relevance to [his] moral culpability beyond the scope of the

special verdict questio[n].'" 492 U.S. at 322 (quoting Franklin

v. Lynaugh, 108 S. Ct. at 2332) (alterations in original).

Barnard has not presented any evidence that would require

additional sentencing instructions pursuant to Penry.    Thus, the

doubt expressed in Penry does not apply to Barnard's case.     See

DeLuna, 890 F.2d at 722-23.

     Moreover, Barnard fails to demonstrate that the jurors were

confused about the meanings of the challenged terms "probability"

and "society" as used in the second special punishment issue.      In

Jurek, the Supreme Court rejected the petitioner's contention

that the second special issue was unconstitutionally vague.       See


                                16
428 U.S. at 274-75 (opinion of Stewart, Powell & Stevens, JJ.);

id. at 279 (White & Rehnquist, JJ. & Burger, C.J., concurring)

("the issues posed in the sentencing proceeding have a common-

sense core of meaning and . . . criminal juries should be capable

of understanding them").    We conclude that these terms "have a

plain meaning of sufficient content that the discretion left to

the jury was no more than that inherent in the jury system

itself."    Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir.

1984), cert. denied, 471 U.S. 1030 (1985).

     D.    Ineffective assistance of counsel

     Finally, Barnard argues that he was denied effective

assistance of counsel in violation of the Sixth Amendment.

Specifically, he points out that his trial counsel (1) failed to

have a psychiatric expert evaluate Barnard; (2) failed to conduct

an adequate examination into Barnard's family history; (3) failed

to obtain a medical examination to determine whether Barnard

suffered from brain damage; and (4) allowed Barnard to testify in

his own defense at trial.    These errors and omissions, Barnard

contends, prejudiced his right to a fair trial.

     We review an ineffective assistance of counsel claim under

the two-prong standard enunciated in Strickland v. Washington,

466 U.S. 668 (1984).    See, e.g., Wilkerson, 950 F.2d at 1063.

Under Strickland, a defendant must show

            [f]irst . . . that counsel's performance was
            deficient. This requires showing that
            counsel made errors so serious that counsel
            was not functioning as the "counsel"
            guaranteed the defendant by the Sixth
            Amendment. Second, the defendant must show

                                 17
          that the deficient performance prejudiced the
          defense. This requires showing that
          counsel's errors were so serious as to
          deprive the defendant of a fair trial, a
          trial whose result is reliable. Unless a
          defendant makes both showings, it cannot be
          said that the conviction or death sentence
          resulted from a breakdown in the adversarial
          process that renders the result unreliable.

Strickland, 466 U.S. at 687.     We determine the reasonableness of

the challenged conduct by viewing the circumstances at the time

of that conduct.   Id. at 690.    Further, "[w]e must strongly

presume that trial counsel rendered adequate assistance and that

the challenged conduct was the product of a reasoned trial

strategy."   Wilkerson, 950 F.2d at 1065 (citing Strickland).

     Barnard fails to demonstrate that his counsel would have

reason to believe that Barnard suffered from a mental defect at

the time of the offense or trial.      Thus, he cannot sustain the

argument that his counsel was ineffective for failing to employ

experts to explore the psychological, medical or physical origins

of Barnard's mental condition.    Likewise, he does not show that

counsel's investigation into Barnard's family background was

unreasonably deficient.   Counsel elicited testimony from

Barnard's mother, who favorably described some of Barnard's

personal characteristics to the jury.      Barnard also fails to

provide factual support for the allegations of childhood neglect

that he urges would have come to light had counsel conducted a

more thorough investigation.     As such, he fails to show that his

counsel performed in a constitutionally deficient manner.




                                  18
     Moreover, Barnard does not demonstrate that his trial

counsel's decision to waive Barnard's Fifth Amendment right not

to testify constitutes ineffective assistance of counsel.

Barnard argues that this waiver resulted in the extraction of

incriminating testimony, some of which was elicited by defense

counsel himself, concerning Barnard's participation in and

preparation for the crime.   However, as the district court

observed, he has not demonstrated that trial counsel neglected to

weigh the possible harm from potentially incriminating testimony

against the need for Barnard to testify in favor of the defense

theory of his case.   Nor does Barnard show that but for this

alleged error, the result of the proceeding would have been

different.   The jury already had considerable evidence before it

to find that Barnard planned to participate and acted

deliberately in committing the crime.

     Since Barnard's allegations do not satisfy the Strickland

test, we find no merit to this claim.11   In addition, we reject

Barnard's assertion that he is entitled to an evidentiary hearing

on the issue of ineffective assistance of counsel to make

findings of fact as to whether counsel's decisions were grounded

in a deliberate trial strategy.    The reliance of the trial court

and the federal district court on this rationale in denying

     11
       Barnard makes other conclusory allegations that his
counsel rendered ineffective assistance. In the absence of a
specific showing of how these alleged errors and omissions were
constitutionally deficient, and how they prejudiced his right to
a fair trial, we conclude that there is no merit to these
additional contentions. See Knighton v. Maggio, 740 F.2d 1344,
1349 (5th Cir.), cert. denied, 469 U.S. 924 (1984).

                                  19
relief derived from a legal presumption dictated by Strickland,

see 466 U.S. at 690, not from any unsubstantiated speculation on

the record.   Because Barnard fails to present allegations

sufficient to overcome this presumption, we conclude that he is

not entitled to an evidentiary hearing.      See Ellis, 873 F.2d at

840.12

                         III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the decision of the

district court and VACATE the stay of execution.




     12
       In his supplemental brief, Barnard argues for the first
time that the prosecution's closing argument violated his
constitutional rights because it erroneously permitted the jury
to presume from the mere act of shooting that Barnard intended to
kill the victim. As Barnard did not present this argument in his
opening brief, we conclude that it is waived. See United States
v. Miller, 953 F.2d 866, 874 (5th Cir. 1992); United States v.
Mejia, 844 F.2d 209, 214 n.1 (5th Cir. 1988). Moreover, because
Barnard did not raise this claim either before the trial court on
state habeas review, or before the federal district court, we
cannot consider the claim here.

                                 20
