                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 98-51065
                          _____________________

JOHN T. SATTERWHITE,

                                                   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 Western District of Texas
                            (96-CA-955)
_________________________________________________________________

                             January 7, 2000

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     In   this    death   penalty    case,   the   petitioner,   John   T.

Satterwhite, seeks a certificate of appealability (“COA”) to allow

review of the district court’s judgment denying his petition for

federal habeas relief.       Satterwhite seeks certification of ten

issues relating to his second state court trial and death sentence

for the murder of Mary Frances Davis, after the United States

Supreme Court had set aside his first death sentence for this

capital murder.    These issues today raise various claims under the

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.                We


     *
      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this opinion should not be published and is not precedent except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.
conclude that Satterwhite has failed to make a substantial showing

of the denial of a constitutional right.        Thus, we deny his

application for a COA.

                                  I

                                  A

     The facts and procedural history underlying today’s appeal are

reported in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100

L.Ed.2d 284 (1988); and Satterwhite v. State, 858 S.W.2d 412 (Tex.

Crim. App. 1993)(en banc).     Although we will not render a full

recitation of the facts and procedural history of this case, a few

words may prove helpful in gaining a fuller understanding of the

case we decide today.

     On March 15, 1979, Satterwhite was charged with the capital

crime of murdering Mary Francis Davis during a robbery.      Before

Satterwhite was represented by counsel, the state requested a

psychological examination to determine if he was competent to stand

trial, was sane at the time of the offense, and whether he posed a

future danger to society.    The court granted the state’s request,

and Satterwhite was examined by Psychologist Betty Lou Schroeder.

     On April 4, Satterwhite was indicted and the court appointed

counsel to represent him.    On April 17, the state filed a second

motion with the court requesting a psychiatric evaluation of

Satterwhite’s competency to stand trial, his sanity, and his future

dangerousness. The state did not serve defense counsel with a copy

of this motion.   The next day, the court granted the state’s motion




                                  2
and ordered the sheriff to produce Satterwhite for examination by

Psychologist Betty Lou Schroeder and Psychiatrist John T. Holbrook.

     On      May   18,   a    letter   was       sent   to    the    trial   court   from

Psychiatrist James P. Grigson, stating that pursuant to court order

he had examined Satterwhite in the Bexar County jail.                        The letter

further indicated that as a result of this examination, Dr. Grigson

had concluded that Satterwhite “is extremely dangerous and will

commit future acts of violence.”

     Satterwhite was tried later that same year and convicted of

capital      murder.         In   accordance       with      Texas   law,    a   separate

sentencing hearing was conducted.                   See Tex. Code Crim. P. art.

37.071(1)(Vernon 1999).            During the sentencing hearing, the state

presented the testimony of Dr. Grigson in support of its case that

Satterwhite should be sentenced to death.                      Dr. Grigson testified

that in his opinion, Satterwhite presented a continuing threat to

society.       The jury answered yes to both of the special issues

presented after the sentencing hearing, and the court sentenced

Satterwhite to death.

     Following affirmance of the conviction and sentence by the

Texas Court of Criminal Appeals,1 the United States Supreme Court

granted certiorari and reversed Satterwhite’s sentence.2 The Court


         1
          See Satterwhite v. State, 726 S.W.2d 81 (Tex. Crim. App.
1986).
     2
      See Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100
L.Ed.2d 284 (1988).




                                             3
held that “the use of Dr. Grigson’s testimony at the capital

sentencing proceeding on the issue of future dangerousness violated

the Sixth Amendment.”              Satterwhite, 486 U.S. at 255.                After

applying the harmless error standard under Chapman to the admission

of the evidence during the sentencing phase of the trial, the Court

concluded: “[W]e find it impossible to say beyond a reasonable

doubt       that    Dr.    Grigson’s    expert   testimony     on   the   issue   of

Satterwhite’s future dangerousness did not influence the sentencing

jury.”       Id. at 260.      Thus, the Court reversed the judgment of the

Texas Court of Criminal Appeals to the extent it was inconsistent

with its opinion.           Id.

       Apparently the state of Texas decided just to try the entire

case    again       from    the   beginning.      Thus,   on    March     29,   1989,

Satterwhite was re-indicted by a Bexar County grand jury on a

single count of capital murder.             On August 3, the state trial court

held a competency hearing in accordance with Texas Code of Criminal

Procedure art. 46.02 § 43 to determine whether Satterwhite was

competent to stand trial.              The hearing resulted in a mistrial when

the     jury       could    not   return    a    unanimous     verdict    regarding


        3
      Texas Code of Criminal Procedure art. 46.02 § 4 states in
relevant part:
     If the court determines that there is evidence to support
     a finding of incompetency to stand trial, a jury shall be
     impaneled to determine the defendant’s competency to
     stand trial. This determination shall be made by a jury
     that has not been selected to determine the guilt or
     innocence of the defendant.
Tex. Code Crim. P. Ann. art. 46.02 § 4 (West 1999).




                                            4
Satterwhite’s competency. On August 8, a second competency hearing

was held.       This hearing, like the first, ended in a mistrial.              On

August 9, a third competency hearing was conducted, and the jury

returned a unanimous verdict of competency to stand trial.                      On

August 16, a different jury returned a guilty verdict on the

indictment’s single count of capital murder.                Two days later, the

same jury returned affirmative answers to both of Texas’ special

issue       capital   murder     instructions,      and    the   court   sentenced

Satterwhite to death.

     On       March   10,    1993,   the   Texas   Court   of    Criminal   Appeals

affirmed Satterwhite’s conviction and sentence,4 and on November 8,

the Supreme Court denied Satterwhite’s petition for certiorari.5

On February 22, 1994, Satterwhite filed his original application

for state habeas relief asserting some twenty clams for relief.

The petition was subsequently amended to raise an additional

eighteen issues.            On June 26, 1996, after the state trial court

conducted an evidentiary hearing, the Texas Court of Criminal

Appeals denied Satterwhite’s petition for habeas relief.

     On September 9, 1996, Satterwhite filed a motion for a stay of

execution and appointment of counsel in federal district court. On

September 25, the district court granted Satterwhite’s request for


        4
            See Satterwhite v. State, 858 S.W.2d 412 (Tex. Crim. App.
1993).
        5
      See Satterwhite v. Texas, 510 U.S. 970, 114 S.Ct. 455, 126
L.Ed.2d 387 (1993).




                                           5
a stay of execution and appointed counsel to represent him in his

federal habeas proceeding.       On December 13, Satterwhite filed his

second federal habeas petition asserting twenty-four claims for

relief.6     On   September    25,   1998,   the   district   court   denied

Satterwhite’s petition for habeas relief, vacated the stay of

execution granted on September 25, 1996, and denied his application

for a COA.

                                      B

     Satterwhite now seeks review of the final judgment of the

district court denying his petition for federal habeas relief.

Unless a certificate of appealability (“COA”) is granted, this

court lacks jurisdiction to hear Satterwhite’s appeal.                See 28

U.S.C. § 2253(c)(1)(A).       To determine if a COA should be issued we

must decide whether Satterwhite “has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

also Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996).7             The

petitioner can make such a showing of a denial of a constitutional


    6
     Satterwhite filed his first pro se federal habeas petition on
August 1, 1995. This petition was dismissed without prejudice on
October 12, 1995, because Satterwhite wished to pursue unexhausted
state court remedies.
        7
       In Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), we
determined that the standard for granting a COA under the
Anti-terrorism and Effective Death Penalty Act (“AEDPA”) is the
same as that for granting a certificate of probable cause (“CPC”).
Id. at 765. Thus, the court in Drinkard looked to the Supreme
Court’s holding in Barefoot v. Estelle, 463 U.S. 880 (1983),
establishing the standard for issuing a CPC, to determine the
standard for issuing a COA. Drinkard, 97 F.3d at 765.




                                      6
right if he “demonstrates that the issues are debatable among

jurists of reason; that a court could resolve the issues [in a

different manner]; or that the questions are adequate to deserve

encouragement to proceed further.”                 Barefoot v. Estelle, 463 U.S.

880,           893    n.4,   103   S.Ct.   3383,   3394   n.4,   77   L.Ed.2d   1090

(1983)(citations omitted); see also, Drinkard, 97 F.3d at 755; Lamb

v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999).                   In a capital case,

“the severity of the penalty does not in itself suffice to warrant

the automatic issuing of a certificate,” although the court may

consider the nature of the penalty in deciding whether to allow an

appeal.              Barefoot, 463 U.S. at 893; see also, Lamb, 179 F.3d at

356.

           Satterwhite seeks a COA on the following issues8: (1) the

appropriate standard of review under the AEDPA; (2) whether the

state trial court erred in admitting into evidence the handgun

seized in the search of the car driven by Satterwhite9; (3) whether

       8
     Satterwhite’s application for a COA, filed with our court, is
somewhat convoluted and appears to raise many of the same issues
raised in his federal habeas petition that was denied by the
district court. Consequently, when in doubt of the exact claim
raised by this petition for a COA, the court will refer to his
federal habeas petition for clarification.
           9
      Satterwhite asserts that Congress has eliminated the bar to
federal habeas review of Fourth Amendment claims, memorialized in
the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465
(1976), by passing the AEDPA. In Stone, the Court stated, “[W]here
the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at trial.”
Id. at 495. Satterwhite does not allege that he was denied a full




                                              7
the state trial court erred in denying Satterwhite’s request for a

specific jury instruction on mitigating evidence; (4) whether

Texas’ capital        sentencing     scheme      on   its   face   and   as   applied

violates the Supreme Court’s holding in Penry; (5) whether the

state        trial   court   erred    in       its    definition    of    the   term

“deliberately” contained in the sentencing phase jury instruction;10

(6) whether the state trial court and the Texas Court of Criminal

Appeals erroneously allowed the state to introduce into evidence

during the competency hearing the testimony of state expert Dr.

John C. Sparks regarding a brief encounter he had with Satterwhite

during a break in the competency hearing; (7) whether Satterwhite’s



and fair opportunity to litigate his Fourth Amendment claims.
Instead, he asserts that the AEDPA has eliminated the bar to the
federal habeas review of Fourth Amendment claims.       Satterwhite
argues that the language of the statute and its legislative history
indicate that Congress intended to supersede the Supreme Court’s
holding in Stone by passing the AEDPA. See 139 Cong. Rec. S10925,
S10923 (Aug. 6, 1993); 141 Cong. Rec. S7803, S7835 (June 7, 1995).
While the portions of the Congressional Record cited by Satterwhite
might suggest some very limited support for his argument, we are
unwilling to overrule the Supreme Court based on such thin evidence
of Congressional intent. In short, Satterwhite has failed to meet
his burden for a COA on his Fourth Amendment claim.
        10
       Satterwhite argues that the jury instructions given during
the sentencing phase of his trial erroneously defined the term
“deliberately.” We are without authority to reach the merits of
this claim. Relying on our court’s previous holding in Amos v.
Scott, 61 F.3d 333 (5th Cir. 1995), we hold that Satterwhite’s
failure to contemporaneously object to the definition of the term
“deliberately” created a procedural bar for review under Texas law,
which in turn prevents our court from review of this claim. See
also, Satterwhite, 858 S.W.2d at 430. However, we should note that
we effectively address this claim later in this opinion when we
consider Satterwhite’s ineffective counsel claim based on counsel’s
failure to object to this instruction.




                                           8
trial counsel rendered ineffective assistance of counsel by failing

to (a) request a continuance to obtain the petitioner’s medical

records from the Ellis II prison hospital, and (b) raise a Brady

claim based on the failure of the state to produce the petitioner’s

medical records regarding the treatment he received at the Ellis II

prison     hospital;          (8)    whether       Satterwhite’s    counsel    rendered

ineffective assistance during the sentencing phase of his trial by

failing to object to the definition of “deliberately” contained in

the jury charge; (9) whether Satterwhite’s counsel on direct appeal

rendered ineffective assistance by failing to raise as a point of

error the admission of Dr. Sparks’s interview of the petitioner

during a recess at the               competency hearing; and (10) whether the

state’s     failure      to    turn     over       Satterwhite’s     medical      records

regarding the treatment he received from the Ellis II prison

hospital resulted in a violation his Fifth and Fourteenth Amendment

rights.

                                            II

                                               A

     Before proceeding to Satterwhite’s substantive arguments for

a   COA,    we    will    briefly        address        his   contentions     that      our

interpretation of the AEDPA, as reflected in Drinkard v. Johnson,

97 F.3d     751 (5th Cir. 1996), and its progeny, is in error.

Assuming     we   had    the        authority      to   address    this   issue    on    an

application for a COA, our precedent is clear that “subsequent

panels cannot overrule prior panels, absent en banc review or a




                                               9
change in law by Congress or the Supreme Court.”         Marathon Oil Co.

v. Ruhrgas, 145 F.3d 211, 221 (5th Cir. 1998); see also Lowrey v.

Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); Pruitt

v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991).           Although

Satterwhite   contends   that    our    holding   in   Drinkard     “differs

radically from established Supreme Court precedent,” a feeling

shared by more than a few commentators, a review of Supreme Court

precedent on point does not support such a schism.              Thus, even

assuming we had the authority to consider Satterwhite’s claim, it

is clear that this claim lacks merit.

                                    B

     Satterwhite argues that his Eighth Amendment rights were

violated because   the   trial   court    refused   to   give   a   separate

mitigating instruction, explicitly instructing the jury to consider

all of the mitigating evidence presented during both the trial

phase and the sentencing phase of his trial.              Absent such an

explicit instruction, Satterwhite argues that the special issues

given during the sentencing phase of his trial failed to provide

the jury a vehicle by which it could properly consider and give

effect to evidence mitigating his culpability for the murder of

Davis.11   Satterwhite argues that because such an instruction was

    11
      The two Texas special issues submitted to the jury during the
sentencing phase of Satterwhite’s trial were in full accord with
the requirements of Texas Code of Criminal Procedure, art. 37.071
and read as follows:
           (1) Was the conduct of the Defendant that caused
     the death of the Deceased committed deliberately and with




                                   10
not given, mitigating evidence was placed beyond the effective

reach of the jury, contrary to the Eighth Amendment as expounded in

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

        Assuming arguendo that the mitigating evidence offered by

Satterwhite is constitutionally relevant,12 he has failed to show

that such evidence was beyond the effective reach of the jury.                    The

“gist of Penry deals with the ability of a jury to consider a

defendant’s culpability and, in determining whether death is an

appropriate punishment, to be able to exercise a ‘reasoned moral

response’         to   evidence    tending    to   mitigate   that   culpability.”

Davis, 51 F.3d at 463 (quoting, Penry, 492 U.S. at 319).                     Here, the

jury        was   instructed      that   “deliberately”   means      “with    careful

consideration or deliberation; with full intent; not hesitantly or

carelessly--as a deliberately formed purpose; with awareness of

consequences.”          Further, the jury was instructed to “consider any

evidence introduced during this trial which in you[r] opinion

mitigates against the imposition of the death penalty or indicates


        the reasonable expectation that the death of Mary Francis
        Davis would result?

             (2) Is there a probability that the Defendant would
        commit criminal acts of violence that would constitute a
        continuing threat to society?
       12
     While Satterwhite could not produce any evidence to establish
that he was mentally retarded, he did offer evidence that he
characterizes as “mitigating” regarding mental illness, a
personality disorder that he suffered from at the time of the
offense, and evidence regarding his childhood including: inadequate
parenting, the absence of a father, poverty, and a lack of
educational opportunities.




                                             11
the aggravating nature of the offense alleged,” and that “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.”13        Clearly, these

instructions gave the jury ample instruction and opportunity to

consider any mitigating evidence Satterwhite had introduced before

imposing a sentence.14 Thus, because Satterwhite has failed to show

that the mitigating evidence was placed beyond the effective reach

of the jury, he has failed to make a substantial showing of a

denial of his Eighth Amendment rights in this regard.

                                   C

       Satterwhite next argues that the trial court’s admission of

Dr.    Sparks’s   expert   opinion--that   Satterwhite   was   mentally


      13
     In Penry, the jury was not given an instruction regarding the
meaning of “deliberately,” and was not instructed to consider all
of the mitigating evidence offered by the defendant. Thus, the
circumstances in Penry are not analogous to those presented by
Satterwhite’s appeal.
           14
       Similarly, the court in Davis, when faced with an almost
identical situation stated: “[T]he definition of ‘deliberately’
provided to [the defendant’s] jury would have clearly directed
Penry’s jury to consider his mitigating evidence and how it bore on
his personal culpability.    As noted, under the special issues,
Penry’s jury was foreclosed from considering his inability ‘to
control his impulses or to evaluate the consequences of his
conduct.’ Had the Penry jury been instructed, as it was in this
case, that it could consider evidence presented in mitigation of
the penalty, as well as that ‘deliberately’ was ‘characterized by
or resulting from careful consideration,’ it would have been able
to consider the [mitigating evidence offered by the defendant].”
Davis, 51 F.3d at 463.




                                   12
competent--which was based on a brief encounter between the two men

during a break in the competency hearing, resulted in a violation

of his Fifth and Sixth Amendment rights to counsel.               Satterwhite

argues that because he was not specifically informed that the

results of    this   encounter,   which     he   terms   as   a   “psychiatric

interview,” could be used at the sentencing phase of his trial, his

Fifth and Sixth Amendment rights as defined by the Supreme Court in

Estelle v. Smith, 451 U.S. 454 (1981) and Satterwhite v. Texas, 486

U.S. 249 (1988), were violated.15

       During a break for lunch in the competency hearing, Dr. Sparks

walked over to Satterwhite, who was sitting alone, and asked him

“if this was like doing the same thing again?”           Satterwhite’s only

response to the question was a chuckle.             Dr. Sparks’s testimony

regarding the encounter does not indicate whether any other words

were spoken between the two men, but he did testify that the

encounter was “very short.”           Based on this brief encounter, Dr.

Sparks offered the following testimony:           “[H]e was aware of what

was    happening.    He   was   not    completely   dissociated      from   the

situation.    And he displayed enough feeling to make me aware that

he was not different than he had been on the second of August.”             It

is important to note that the testimony in question was not

      15
     Satterwhite does not allege that the testimony regarding this
brief encounter was admitted into evidence during the guilt or
sentencing phases of his re-trial; the record indicates that this
testimony was admitted into evidence only during the competency
trial. Furthermore, no reference to this exchange was made during
the guilt or sentencing phase of Satterwhite’s re-trial.




                                       13
introduced into evidence during the guilt or sentencing phase of

Satterwhite’s criminal trial. Rather, the testimony regarding this

brief encounter was introduced only during the competency hearing,

a civil proceeding.

     We turn first to Satterwhite’s Fifth Amendment claim.           He

argues that his rights against self-incrimination were violated

because he was not advised that his statements could be used

against him during the sentencing phase of his trial.        This claim

lacks merit.    Testimony regarding this brief encounter with Dr.

Sparks was not used for any purpose other than to determine whether

Satterwhite was competent to stand trial.       Thus, as the Supreme

Court observed in Estelle v. Smith, no Fifth Amendment violation

has occurred.   See Estelle, 451 U.S. at 465 (stating that “if the

application of [the psychiatrist’s] findings had been confined to

serving [the function of determining the defendant’s competency],

no Fifth Amendment issue would have arisen”).

     With respect to Satterwhite’s Sixth Amendment claim that he

was entitled to have counsel present during the encounter, he

acknowledges that competency proceedings under Texas law are not

criminal    proceedings   but   instead   are   civil   in    nature.16

Nevertheless, he argues because such proceedings are “part and

parcel of the State’s attempt to convict a defendant of capital


       16
        See White v. State, 591 S.W.2d 851, 853 (Tex.Crim.App.
1979)(stating that competency hearings under Texas law are civil in
nature); Lowe v. State, 999 S.W.2d 537, 538 (Tex.Crim.App. 1999).




                                 14
murder,” he is guaranteed the same protections as apply to the

guilt and sentencing phases of his trial for capital murder.

     Satterwhite fails to cite to any authority that the full

panoply of criminal rights are available to him at this civil

competency hearing.   As we have earlier noted, this testimony was

never introduced at either the guilt or sentencing phase of his

capital murder trial. Furthermore, nothing occurred here more than

a casual encounter in which Satterwhite did not incriminate himself

in anyway that an attorney might have prevented.     Consequently,

without denigrating Fifth Amendment right to counsel in these

hearings or similar situations, we see no basis under the facts of

this case to extend the Sixth Amendment right to counsel to

Satterwhite’s civil competency hearing.   See Brown v. Butler, 811

F.2d 938, 941 (5th Cir. 1997)(stating that “Estelle should be read

narrowly . . . [and restricted] to the circumstances of th[at]

case”). Thus, because Satterwhite has failed to make a substantial

showing of the denial of a constitutional right in this regard, his

claim fails.

                                 D

     Satterwhite next argues that his counsel rendered ineffective

assistance during the sentencing phase of his trial by failing to

object to the definition of “deliberately” contained in the jury

charge.   As a result of counsel’s failure to object to the

definition given to the jury, the error was procedurally defaulted




                                15
and thus could not be addressed by the Texas Court of Criminal

Appeals on direct appeal.         See Satterwhite, 856 S.W.2d at 430.

     During the sentencing phase of Satterwhite’s trial, the jury

was instructed as follows:

          As employed in the first Special Issue, the word
     “deliberately” has a meaning different and distinct from
     “intentionally” as that word was previously defined in
     the charge of guilt.
          The term “deliberately” as used in the first Special
     Issue is defined as with careful consideration or
     deliberation;   with   full  intent;   not   hastily   or
     carelessly--as a deliberately formed purpose; with
     awareness of the consequences.

     Satterwhite’s challenge to the jury instruction focuses on the

trial court’s use of the phrase “with full intent” in defining

“deliberately.”      Satterwhite argues that the term “deliberately”

and the term “intentionally” have distinct meanings, and that the

court’s use of the phrase “with full intent” in defining the term

“deliberately” negated the court’s earlier instructions that the

terms had distinct meanings.            Thus, Satterwhite argues that his

counsel’s    failure     to    object   to    the   definition        of   the   term

“deliberately” given by the court stripped him of a fertile ground

for appeal--one that would have provided him with a basis to secure

a new trial.

     In   order    for   Satterwhite     to    succeed     on   his    ineffective

assistance claim, he must first demonstrate that this instruction

was constitutionally suspect.            If he cannot make this showing,

counsel   was    neither      ineffective    nor    has   Satterwhite      suffered

prejudice.      When reviewing a jury instruction to determine if it




                                        16
comports with basic constitutional guidelines, the inquiry is

“whether there is a reasonable likelihood that the jury has applied

the challenged instruction in a way that prevents the consideration

of constitutionally relevant evidence.”          See Drinkard, 97 F.3d at

757 (citing Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190,

1198, 108 L.Ed.2d 316 (1990)).          “In evaluating the instruction, we

do not engage in a technical parsing of this language of the

instruction, but instead approach the instruction in the same way

that the jury would--with a ‘common sense understanding of the

instruction in the light of all that has taken place at the

trial.’”    Id., (quoting Johnson v. Texas, 509 U.S. at 368).

       As Satterwhite’s petition correctly notes, the members of the

jury    were   extensively     questioned     during    voir    dire   on   the

distinction    between   the   terms     “intentional”    and    “deliberate.”

Indeed, as Satterwhite’s petition further notes, during the course

of the jury charge, “great care was taken to separate the two

words.”    In fact, the jury was expressly instructed that the term

“deliberately” has a meaning different and distinct from the word

“intentionally.”     In the light of this background, there is simply

no reasonable likelihood that the state trial court’s use of the

phrase “with full intent” in defining the term “deliberately” had

the effect of causing the jury to fail to consider constitutionally

relevant evidence. Thus, because the jury instruction given during

the    sentencing   phase   did   not    transgress    basic    constitutional




                                        17
guidelines, the failure of his counsel to object did not render his

assistance constitutionally ineffective.

                                     E

     In the context of his Fifth and Sixth Amendment claims, we

have already addressed Dr. Sparks’s expert testimony based on a

casual encounter he had with Satterwhite during the competency

hearing.   Based on this same scenario, Satterwhite further argues

that his counsel on direct appeal rendered ineffective assistance

by failing to raise the admission of this testimony as a point of

error.

     Persons convicted of a crime are constitutionally entitled to

effective assistance of counsel in their first appeal of right.

Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998)(quoting

Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821

(1985)).   Counsel’s performance on direct appeal is judged under

the two-prong Strickland test. Id. (citing Goodwin v. Johnson, 132

F.3d 162, 170 (5th Cir. 1998)).          Effective assistance of counsel

does not, however, require that every nonfrivolous ground of appeal

be raised. Id. (citations omitted). Instead, effective assistance

of counsel should be judged on whether counsel’s performance is

reasonable. Id. To demonstrate prejudice, “a petitioner must show

not only that had counsel acted in a different manner a new trial

would have been granted, but also, that as a result of counsel’s

incompetence,   the   trial   was   rendered   fundamentally   unfair   or




                                    18
unreliable.”   Id. (citing Lockhart v. Fretwell, 506 U.S. 364, 369,

113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993)).

     As we have previously discussed, the state trial court’s

decision to admit the testimony at the competency hearing of Dr.

Sparks did not result in a violation of either Satterwhite’s Fifth

or Sixth Amendment right to counsel.    For this reason, appellate

counsel’s failure to raise this issue was not prejudicial to

Satterwhite’s appellate case because no new trial would have been

granted on this point.   Thus, Satterwhite’s claim that appellate

counsel’s assistance was constitutionally ineffective lacks merit.

                                 F

     Next, Satterwhite argues that the state’s failure to turn over

his medical records regarding the treatment he received from the

Ellis II prison psychiatric hospital constituted a violation of his

Fifth and Fourteenth Amendment rights as defined by the Supreme

Court in Brady v. Maryland, 373 U.S. 83 (1963).      He argues the

records would have indicated that he was prescribed the drug

Haldol–-which is only prescribed to treat persons with “serious

mental illness.” Consequently, had the records been produced, they

would have been helpful to bolster his arguments made during the

guilt and sentencing phases of his trial, that because he suffered

from serious mental illness, he could not have formed the requisite

intent to have acted deliberately.

     Under Brady, the defendant bears the initial burden of proving

that (1) evidence was suppressed by the prosecution; (2) the




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evidence was favorable to the defense; and (3) the evidence was

material either to guilt or to punishment.          Brady, 373 U.S. at 87;

United States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996).                If the

information is available to the defendant through the exercise of

reasonable diligence, the state had no obligation to deliver it to

the defendant.    See Williams v. Scott, 35 F.3d 159, 163 (5th Cir.

1994); United States v. Ellender, 947 F.2d 748, 757 (5th Cir.

1991)(stating that an inmate’s prison records do not qualify as

Brady materials because they are not suppressed by the prosecution,

and the defendant can easily gain access to them through the

exercise of reasonable diligence).

     Satterwhite’s Brady claim fails for two reasons.                 He has

failed to carry his burden of proving first that the state was in

fact in possession of these medical records, and second, that the

state was suppressing evidence favorable to him.              As the district

court noted when denying Satterwhite’s federal habeas petition,

Satterwhite has failed to offer any evidence showing that any such

medical    or   psychiatric   records     ever     existed.      Other    than

Satterwhite’s assumption that because he was under the care of the

Ellis II staff some records must exist, he does not challenge the

district    court’s   finding   in    this       respect.      Consequently,

Satterwhite has failed to meet his burden of proving that the state

was ever in possession of these medical records.              It follows that

he has not shown that the state was in fact suppressing any




                                     20
evidence favorable to him by failing to deliver the records, which

he has not shown to exist.

      We should also note that Satterwhite has failed to demonstrate

that the favorable information alleged to be contained in those

records was not readily accessible to him and his trial counsel.

In fact, Satterwhite’s petition acknowledges that the medical

records that actually were available to his trial counsel clearly

indicated that he had been prescribed Haldol while in prison.

Further, Satterwhite’s petition acknowledges that he himself was

aware that he had been prescribed the drug while under the care of

the staff at the Ellis II prison hospital. Indeed, Satterwhite has

failed to even allege, much less prove, that the prison medical

records, assuming that they existed, contained any information that

was   not    known    to   him   or   his       trial   counsel.      Consequently,

Satterwhite     has    failed    to   show       that   the   state   has   actually

suppressed any evidence favorable to him.                 For all these reasons,

Satterwhite has failed to meet his burden under Brady, and this

claim fails.

                                            G

      Finally, on the basis of the facts discussed immediately

above,      Satterwhite     argues    that       his    trial   counsel     rendered

ineffective assistance by: (1) failing to request a continuance to

obtain the medical records detailing the treatment he received at

the Ellis II prison hospital; and (2) by failing to object to the

state’s failure to turn over these records so as to preserve the




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issue for appeal. As we have previously discussed, Satterwhite has

failed to demonstrate that the state actually had the records.   We

would further note, that by failing to allege that the records he

sought contained any information that was not known to him or to

his trial counsel, he has failed to show that the state suppressed

any information favorable to him.    Thus, his claim that counsel’s

assistance was rendered constitutionally ineffective as a result of

his failure to either seek the records or to object to the state’s

failure to turn over the records fails, if for no other reason,

because he can show no prejudice from these alleged errors by his

counsel.

                               III

     In conclusion, Satterwhite has failed to make a substantial

showing of the denial of any constitutional right.       Thus, his

request for a COA is DENIED, and the appeal is DISMISSED.

                                              DENIED and DISMISSED.




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