               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 00-50027
                        _____________________


OLIVER DAVID CRUZ

                Petitioner - Appellant

   v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

                Respondent - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                           (5:98-CV-132)
_________________________________________________________________

                            July 21, 2000

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

     Texas death row inmate Oliver David Cruz applies to this

court for a certificate of appealability to enable him to obtain

review of the district court’s denial of his federal habeas

petition.   For the reasons that follow, we deny his application.



               I.   FACTUAL AND PROCEDURAL BACKGROUND

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     In 1989, a Texas jury convicted Petitioner-Appellant Oliver

David Cruz of the brutal 1988 rape and murder of Kelly Donovan.

The disposition of Cruz’s application for a certificate of

appealability (“COA”) does not require that we describe the

details of the crime.

     During the guilt/innocence phase of Cruz’s trial, Dr. Wayne

Gill, a clinical psychologist, testified that he tested Cruz’s IQ

using both the verbal Wechsler Adult Intelligence Scale and the

Slosson Intelligence Test.   He further testified that Cruz scored

a 76 on the verbal Wechsler and 64 on the Slosson Test.    He

described a score of 76 as “[b]orderline IQ” and a score of 64 as

“within the retarded range.”   State Record at 3791.   This

evidence was offered, along with other evidence, to establish

that Cruz was functionally illiterate in English and could not

have understood two typed confessions he signed.   Dr. Gill was

recalled during the penalty phase of the trial and testified

that, in his opinion, Cruz was a follower and not a leader.

     Diana Rangel, who was a case worker for the City of San

Antonio Youth Services at the time she met Cruz, also testified

during the penalty phase of the trial.   She testified that she

met with Cruz several times between 1981 and about 1983 or 1984,

when Cruz was between 14 and about 18 years old.   She had not

seen Cruz since that time.   Like Dr. Gill, she testified that

Cruz was “[d]efinitely a follower.”   State record at 4077.



                                 2
     Several months before Cruz’s trial, the United States

Supreme Court announced its decision in Penry v. Lynaugh, 492

U.S. 302 (1989).   In Penry, the Supreme Court held that, under

the facts of that case, the Texas capital sentencing structure1

ran afoul of the Eighth Amendment.   The Supreme Court concluded

that, “in the absence of instructions informing the jury that it

could consider and give effect to the mitigating evidence of

Penry’s mental retardation2 and abused background by declining to

impose the death penalty, . . . the jury was not provided with a

vehicle for expressing its ‘reasoned moral response’ to that

     1
       Under the capital sentencing structure in place at the
time of both Penry’s and Cruz’s trials, the jury was presented
with two or three special issues. The jury’s answers to the
special issues were determinative of whether the defendant
received a penalty of life in prison or death. The special
issues in Cruz’s case were, in all relevant respects, identical
to the first two special issues in Penry. They read:

          Do you find from the evidence beyond a reasonable doubt
     that the conduct of the defendant, Oliver Cruz, that caused
     the death of the deceased was committed deliberately and
     with a reasonable expectation that the death of Kelly
     Donovan would result?

          . . . Do you find from the evidence beyond a reasonable
     doubt that there is a probability that the defendant, Oliver
     Cruz, would commit criminal acts of violence that would
     constitute a continuing threat to society?

State Record at 4096-97.
     2
       As compared to Cruz’s case, the evidence of mental
deficiency was more pronounced in Penry. IQ tests administered
over the years indicated Penry had an IQ between 50 and 63. See
Penry, 492 U.S. at 307-08. There was also evidence that Penry
suffered from organic brain damage as well as retardation, the
combination of which “resulted in poor impulse control and an
inability to learn from experience.” Id. at 308.

                                 3
evidence in rendering its sentencing decision.”     Id. at 328

(footnote added).

     Considering the holding in Penry and the evidence presented

in Cruz’s case, the state trial court determined that it should

provide an instruction on mitigation.    It drafted an instruction

and gave defense counsel an opportunity to suggest changes to the

instruction.    Defense counsel took the position that the state of

the law in Texas made it impossible to draft a Penry instruction

that would pass constitutional muster.    The court therefore gave

the instruction it prepared.3    The jury returned positive

     3
         The instruction read, in pertinent part:

          You are instructed that the State must prove each issue
     beyond a reasonable doubt. You are instructed that you
     shall consider any evidence introduced during this trial,
     which in your opinion either mitigates against the
     imposition of the death penalty or indicates the aggravating
     nature of the offense alleged.

          It is for the jury to consider and give effect to
     mitigation or aggravating evidence. Such evidence may
     include but is not limited to facts surrounding the
     defendant’s background, reputation, character or record, and
     the circumstances of the commission of the offense.
     Evidence of this nature may or may not form the basis for a
     sentence less than death.

           In this connection, if such evidence causes you to have
     a reasonable doubt as to whether or not a true answer to any
     of the special issues should be yes, then under such
     circumstances, such doubt should be resolved in favor of the
     defendant, and the answer to such special issue should be
     no. Therefore, you should consider when weighing answering
     the special issue yes or no, all mitigating as well as
     aggravating circumstances represented by the evidence in the
     case.

            In connection with the above and foregoing paragraph,

                                  4
responses to both of the special issues and Cruz was sentenced to

death.

     On direct appeal, Cruz argued that the trial court erred in

failing to instruct the jury properly on, among other things,

Cruz’s mental retardation; he asserted that the trial court erred

in failing “to provide a jury instruction allowing the jury to

express a reasoned moral response to potentially mitigating

evidence.”   Cruz v. State, No 71,004, slip op. at 29 (Tex. Ct.

Crim. App. Jun 23, 1993) (en banc).    The Texas Court of Criminal

Appeals decided, first, that Cruz had preserved these points of

error.   The court then cited numerous cases, including one

standing for the proposition that “[e]vidence of reduced mental

capacity/low level of intelligence is . . . able to be considered

within the special issues and do [sic] not require any such

[Penry] additional instructions.”     Id. at 32.   The court

concluded that “in light of the above-noted cases, and the . . .

additional instruction on mitigation, there was no failure to

properly instruct the jury with regard to appellant’s proffered

mitigating evidence.”4   Id.   Ultimately, the Texas Court of


     evidence may be considered by you to be mitigating if it is
     such as does not constitute an excuse or justification for
     the crime, but which in fairness and mercy may be considered
     as extenuating or reducing the degree of moral culpability
     for the crime.

State Record at 4092-93.
     4
       In its order denying Cruz’s federal habeas petition,
however, the district court stated that “the Texas Court of

                                  5
Criminal Appeals affirmed Cruz’s conviction and sentence, see id.

at 33, and the United States denied Cruz’s petition for a writ of

certiorari.    See Cruz v. Texas, 513 U.S. 965 (1994).

     Cruz then filed a petition for habeas relief in the Texas

state court system, raising, among others, the Penry-based claims

raised on direct appeal.    In its findings of facts and

conclusions of law, the state trial court declined to address

these federal constitutional claims because they had been

addressed by the Texas Court of Criminal Appeals on direct

review.    See Ex parte Cruz, No. 89-CR-1732A-W1 (Tex. Dist. Ct.

Sept. 11, 1997) (order on writ of habeas corpus).    The Texas

Court of Criminal Appeals determined that the trial court’s

findings of facts and conclusions of law were supported by the

record and denied relief.    See Ex parte Cruz, No. 29,545-05 (Tex

Ct. Crim. App. Oct. 15, 1997).

     Cruz then sought habeas relief in the federal district

court.    In an unpublished opinion, the district court denied


Criminal Appeals expressly rejected petitioner’s Penry claims,
holding that petitioner’s evidence of his low intelligence,
deprived childhood, and good character traits could all be
adequately considered within the scope of the Texas capital
sentencing Special Issues without the necessity of a Penry
instruction.” Cruz v. Johnson, No. SA-98-132-FB, slip op. at 61-
62 (W.D. Tex. Nov. 9, 1999) (memorandum opinion and order denying
habeas corpus relief). Before this court, Cruz does not dispute
the district court’s characterization of the decision of the
Texas Court of Criminal Appeals. We agree with the district
court. It appears that the Texas Court of Criminal Appeals
concluded that Cruz was not entitled to a Penry instruction and
that, alternatively, the instruction given was adequate under
Penry.

                                  6
relief and sua sponte denied Cruz a COA.   See Cruz v. Johnson,

No. SA-98-132-FB (W.D. Tex. Nov. 9, 1999) (memorandum opinion and

order denying habeas corpus relief) [hereinafter District Court

Opinion].   Cruz filed a Motion for a Certificate of Appealability

and Stay of the Proceedings in this court on March 16, 2000.

Cruz moved this court to stay its resolution of the issues he

presented in his COA application pending the Supreme Court’s

resolution of Williams v. Taylor, 119 S. Ct. 1355 (1999)

(granting certiorari).   He concurrently filed a brief in support

of his COA application, in which he raised issues concerning his

Penry claim, argued that we should grant a COA to review the

district court’s decision to deny a COA sua sponte, and briefly

asserted that the Williams decision might impact the district

court’s denial of a COA on all claims.

     On April 18, 2000, the Supreme Court announced its decision

in Williams, thereby mooting Cruz’s motion to stay our

proceedings.   On April 20, 2000, we requested that each side file

a letter brief addressing the impact of Williams on this case.

In his letter brief, Cruz suggested in conclusory fashion that

each of his claims should be re-reviewed in light of the Supreme

Court’s decision in Williams.   We now proceed to address Cruz’s

arguments surrounding his Penry claim, his argument that the

district court erred in sua sponte denying him a COA, and his

suggestion that all of his claims be re-reviewed in light of

Williams.

                                 7
                        II.   STANDARD OF REVIEW

     Cruz wishes to appeal a claim that was denied by the

district court.    Because his petition was filed after the

effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), his petition is subject to that law’s

provisions.     See Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.

2000).    Because he seeks to initiate an appeal after the

effective date of AEDPA, “the right to appeal is governed by the

certificate of appealability (COA) requirements now found at 28

U.S.C. § 2253(c).”     Slack v. McDaniel, 120 S. Ct. 1595, 1600

(2000).    To obtain a COA, a prisoner must make “a substantial

showing of the denial of a constitutional right.”     28 U.S.C.

§ 2253(c)(2).    In order to make such a showing, a prisoner must

demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.”       Slack,

120 S. Ct. 1603-1604 (internal quotation marks omitted).

     The determination of whether a COA should issue must be made

by viewing the petitioner’s arguments through the lense of the

deferential scheme laid out in 28 U.S.C. § 2254(d).     See Hill v.

Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000).     Under § 2254(d),

when reviewing a claim adjudicated by a state court on the

merits, we pay deference to the state court’s decision regarding



                                    8
that claim, unless the decision “[is] contrary to, or involve[s]

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or . . .

[is] based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.”    28

U.S.C. § 2254(d)(1) & (2).   A decision is “contrary to . . .

clearly established Federal law, as determined by the Supreme

Court of the United States” “if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently

than [the Supreme Court] has on a set of materially

indistinguishable facts.”    Williams v. Taylor, 120 S. Ct. 1495,

1523 (2000).   A decision “involve[s] an unreasonable application

of[] clearly established Federal law, as determined by the

Supreme Court of the United States” “if the state court

identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.”    Id.   Factual

findings of the state court have a presumption of correctness,

which presumption the petitioner can only rebut by “clear and

convincing evidence.”   28 U.S.C. § 2254(e)(1).



                         III.   PENRY CLAIM




                                  9
      In addressing Cruz’s Penry claim, the district court

examined evidence of Cruz’s mental capacity, illiteracy, deprived

childhood, and alcohol and drug abuse.     See District Court

Opinion at 26-27.    Before this court, Cruz limits his arguments

to evidence of his mental capacity.    We limit our discussion

accordingly.

      The district court began by setting forth what it considered

the appropriate legal framework through which to review a Penry

claim.    The district court determined that a defendant is only

entitled to a Penry instruction if relevant mitigating evidence

is beyond the effective reach of the jury in light of the state’s

capital sentencing structure.     See District Court Opinion at 44-

45.   The district court stated that in order for evidence to be

relevant mitigating evidence, it “must show (1) a uniquely

severe, permanent handicap with which the defendant is burdened

through no fault of his own, and (2) that the criminal act was

attributable to this severe, permanent condition.”5    Id.

      The district court first concluded that the instruction

provided by the state trial court did not meet the requirements

of Penry.    See id. at 49-50.   It then concluded that the evidence

of Penry’s mental deficiency was not constitutionally relevant

mitigating evidence because Cruz neither established through the

evidence that he suffered from a uniquely severe permanent

      5
       We refer to the second prong of this inquiry, as do the
parties, as the “nexus requirement.”

                                  10
handicap nor that his criminal act was attributable to his mental

deficiency.   See id. at 55; 58-59.   Ultimately, the district

court concluded that “the Texas Court of Criminal Appeals’

rejection of petitioner’s Penry claims was [not] the product of

. . . an unreasonable application of clearly established Federal

law, as determined by the Supreme Court of the United States” and

denied relief on Cruz’s Penry claim.    Id. at 62.

     In his brief before us, Cruz makes the following arguments:

that the evidence in his case satisfies the nexus requirement;

that the state trial court implicitly found that the nexus

requirement had been met, and the federal courts should not

disturb that conclusion; that the State waived the right to argue

that the nexus requirement had not been met because it failed to

object at trial or raise the issue on appeal in state court; and,

finally, Cruz argues that the nexus requirement does not pose a

adequate bar to relief.   Cruz presupposes that the granting of a

COA in his case turns on our review of the district court’s

discussion and conclusion regarding the nexus requirement.    He

consequently fails, at any point in either of his briefs before

this court, to develop any argument regarding the state court

disposition of this claim.6

     6
       We note that Cruz’s application would fare no better even
were we simply to review the district court’s discussion of this
claim. In addition to concluding that the nexus requirement had
not been met, the district court determined that the evidence did
not establish that Cruz suffered from a uniquely severe permanent
handicap. See District Court Opinion at 55; 58-59. Apart from

                                11
     A COA can only be granted if “reasonable jurists could

debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to

deserve encouragement to proceed further.”     Slack, 120 S. Ct. at

1604 (internal quotation marks omitted).    Here, the Texas Court

of Criminal Appeals explicitly addressed Cruz’s Penry claim on

direct appeal.   This treatment by the Texas Court of Criminal

Appeals constituted an adjudication on the merits for purposes of

§ 2254(d).   See Hill, 201 F.3d at 485.    Consequently, the

district court was bound to deny the claim, as it did, unless the

state court disposition was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”    28 U.S.C.

§ 2254(d)(1).    By failing to develop any argument that the state

court disposition was infirm under the “contrary” or

“unreasonable application” standard, as laid out in § 2254(d) and

further defined in Williams, Cruz has not met his burden of

demonstrating that reasonable jurists could debate whether the

district court should have granted his petition on this claim or

that the issue is adequate to deserve encouragement to proceed

further.   See Slack, 120 S. Ct. at 1604.    He has therefore failed

to make a substantial showing of the denial of a constitutional

right.


flat assertions that he is retarded, Cruz fails to develop any
argument that the latter determination was erroneous.

                                 12
      Although Cruz’s brief incorrectly focuses on the district

court’s discussion of the nexus requirement rather than on the

disposition of this claim by the Texas Court of Criminal Appeals,

he does briefly state that his evidence of mental retardation

entitled him to a Penry instruction.   See Petitioner’s Brief at

10.   Even giving Cruz and his habeas counsel the benefit of the

doubt by construing this statement as an argument that the

decision of the Texas Court of Criminal Appeals was an

unreasonable application of Supreme Court precedent, Cruz has

failed to make a substantial showing of the denial of a

constitutional right.   Considering the evidentiary differences

between Cruz’s case and Penry’s case, particularly the evidence

relating to the extent of Penry’s retardation and the evidence

that he was unable to learn from his mistakes, see Penry, 492

U.S. at 308, we conclude that reasonable jurists could not debate

whether the decision by the Texas Court of Criminal Appeals that

Cruz was not entitled to a Penry instruction, see supra note 4,

was an unreasonable application of Supreme Court precedent as

defined in Williams.



         IV.   SUA SPONTE DENIAL OF A COA AND REQUEST FOR

                   RE-REVIEW IN LIGHT OF WILLIAMS

      In his final argument for a COA, Cruz asserts that by sua

sponte denying him a COA, the district court denied him


                                 13
“meaningful access to the courts and the representation of

counsel.”   Petitioner’s Brief at 32.   We have previously

addressed this same claim in Alexander v. Johnson, 211 F.3d 895

(5th Cir. 2000), and found it to be without merit.    See id. at

898 (“It is perfectly lawful for district court's [sic] to deny

COA sua sponte.”).

      Cruz also states in that same section of his brief that:

      the court below applied an inappropriate legal standard for
      a certificate of appealability under the law as it currently
      stands. Even more importantly, in light of the district
      court’s standards and the pending Williams case, . . . this
      Court can not at all be confident that a certificate of
      appealability should be denied on any issue, let alone on
      all issues.

Id.   Cruz’s first unsubstantiated averment, that the district

court applied the inappropriate legal standard for a COA, is

without merit.   The district court applied the correct standard

for granting a COA.   In the process of applying that standard,

however, it concluded that “the vast majority of petitioner’s

claims for relief herein are not only foreclosed under the highly

deferential standard of review mandated by the AEDPA but wholly

frivolous when examined de novo.”    District Court Opinion at 175.

Earlier in its opinion, it relied on the standard we announced in

Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), in

determining whether, under AEDPA, a state court’s decision

involved an unreasonable application of clearly established

federal law, as determined by the Supreme Court.    The Drinkard

standard was abrogated by the Supreme Court in Williams.     See 120

                                14
S. Ct. at 1522.    Of course, the Williams opinion had not been

announced at the time Cruz filed his brief.

     Considering the Supreme Court’s abrogation of the Drinkard

standard, and considering Cruz’s additional averment that

Williams might impact his case, we requested that Cruz file a

letter brief discussing the impact of Williams on his case.       His

letter brief was devoted almost exclusively to discussing the

Williams opinion and arguing its purported impact on the nexus

requirement.    His only reference to any other claims was an

assertion, raised for the first time at the end of his letter

brief, that, “in light of the Williams case discussed above, this

Court should also consider the necessarily [sic] application by

the Court below of the wrong standard for granting a [COA] to all

claims.   Because the standard for appealability was judged on the

now-discredited Drinkard standard, the entire review of the court

below must be subject to re-review.”    Petitioner’s Letter Brief

at 8-9.   Whether Cruz is suggesting that we re-review every claim

or remand the case to the district court to re-review every claim

is unclear.    In either case, he never develops any argument that

re-review would result in a different outcome on any specific

claim.    His conclusory assertions regarding the impact of

Williams on his entire case are not adequately briefed, and we

therefore consider his request for re-review in light of Williams

waived.   See Rutherford v. Harris County, 197 F.3d 173, 193 (5th

Cir. 1999) (“[W]e will not consider an issue that is inadequately

                                 15
briefed . . . .”); Justiss Oil Co., Inc. v. Kerr-McGee Refining

Corp., 75 F.3d 1057, 1067 (5th Cir. 1996) (same).



                           VI.   CONCLUSION

       For the foregoing reasons, we DENY Cruz’s application for a

COA.    His motion to stay proceedings to await the Williams case

is DISMISSED as moot.    His motion filed July 18, 2000 to stay his

execution is DENIED.




                                  16
