              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                  _____________________________

                           No. 91-1354
                  _____________________________

CLIFTON CHARLES RUSSELL,
                                           Petitioner-Appellant,

                                versus

JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                        Respondent-Appellee.
        _________________________________________________

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

                           (August 13, 1993)


BEFORE KING, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

     In this petition for writ of habeas corpus pursuant to 28

U.S.C. §§ 2241, 2245, Petitioner-Appellant Clifton Charles Russell

appeals the district court's denial of his habeas petition.        On

appeal, Russell challenges the constitutionality of his sentencing

proceeding which culminated in imposition of the death penalty.

After careful consideration of the issues raised by Russell, we

discern no reversible error and affirm.

                                   I

                         FACTS AND PROCEEDINGS

     Russell was convicted of the capital murder of Hubert Otha

Tobey, killed in the course of a robbery.        After Russell and a
companion robbed Tobey of his money and his automobile, Russell

struck him over the head with a large piece of concrete and

inflicted numerous knife wounds as well, including one to the

jugular vein.     Russell and two other men, Michael Wicker and

William Battee, Jr. subsequently were arrested outside a mall for

public intoxication.     Police traced the car and connected it to

Tobey, whose body had been discovered by then.              The police then

seized Battee's tennis shoes and Russell's pants, underwear, shirt,

and shoes, all of which had blood on them.           The car's interior also

contained blood stains.

     Russell was tried and convicted for capital murder.              During

the sentencing phase of the trial, the state introduced evidence

regarding Russell's poor reputation in the community, his tendency

towards violence making him dangerous to society, and opinion

testimony   suggesting   that   he   was   not   a    likely   candidate    for

rehabilitation.

     In response, Russell presented five witnesses, four of whom

were members of various church organizations that opposed the death

penalty per se.      In addition, Russell's mother, Jo Ann Lacy,

testified to Russell's troubled childhood and incidents of violence

against him.    Specifically, she recounted an incident during which

Russell's stepfather beat him severely with a baseball bat in

response to Russell's allegations that the shooting of his mother

nine months earlier by his stepfather had not been accidental.

Russell required surgery to mend his broken facial bones.                  Mrs.

Lacy also testified that Russell did not meet his biological father


                                     2
until he was seven and never had a real father figure.                      Finally,

she stated that Russell had suffered as a child because of his

mixed racial parentage.

      Despite the testimony of Mrs. Lacy, the jury affirmatively

answered the first two special issues submitted pursuant to Texas

law: whether the defendant acted deliberately, and whether he posed

a future danger to the community. Accordingly, the judge sentenced

Russell     to    death.          Russell's       conviction   and   sentence      were

automatically appealed to the Texas Court of Criminal Appeals,

which affirmed the conviction and sentence. Russell next pursued

his state habeas remedy, which was denied.                  Finally, Russell filed

a petition for writ of habeas corpus in the United States District

Court     for    the     Northern     District       of   Texas   and   received     an

evidentiary hearing.          Russell's proceedings were stayed, however,

pending the Supreme Court's consideration of Penry v. Lynaugh.1

This stay was eventually lifted and the magistrate judge entered

his     findings,        conclusions,     and      recommendation,      followed     by

supplemental findings.              The district court adopted the report,

dismissing the petition and withdrawing the stay of execution.

Russell timely appealed.

                                           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

      1
          492 U.S. 302 (1989).

                                              3
presumption of correctness to any state court factual findings. .

. . We review the district court's findings of fact for clear

error, but decide any issues of law de novo."2                   Evaluation of a

petitioner's constitutional challenge to the Texas special issues

as applied to him is, of course, an issue of law.

B. Penry Claim

      In his first challenge to the sentencing proceedings, Russell

relies on the Supreme Court's decision in Penry.                In that case, the

Court ruled that the Texas special interrogatories did not allow

the   jury   to    consider    relevant       mitigating   evidence    of    mental

retardation and childhood abuse and therefore failed to give an

"individual       assessment    of    the     appropriateness     of   the    death

penalty."3    Penry, Russell claims, dictates that the district court

erred in not granting a special instruction for his mitigating

evidence of his youth and troubled childhood.

      The state insists, to the contrary, that Russell's claim must

fail because Penry clearly states that a special instruction is

required "upon request."             Yet, the state urges, Russell never

sought a special instruction, and therefore he cannot now complain

of the district court's error.            This argument ignores our holding

in Mayo v. Lynaugh,4 in which we explained that Penry provides

little     support    for     the    proposition    that    a    defendant    must


      2
       Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992)(citations omitted); see 28 U.S.C. § 2254(d).
      3
          Penry, 492 U.S. at 319.
      4
          893 F.2d 683 (5th Cir. 1990).

                                          4
contemporaneously            object      to        or   request      additional        jury

instructions.5          "Although the Court's description of the rule

sought    by   Penry        involved    the     request    for      jury   instructions,

discussion       of   the    important        limitations      to    the   holding     left

unmentioned       the       role   of     the       objections       or    requests     for

instructions,         and    several    statements        of   the   holding     likewise

omitted any such qualification."6

     The opinion in Mayo also noted, however, that this did not

preclude the failure to object or request additional instructions

from operating as a procedural bar under state law.7                           Since the

decision in Mayo, however, we have certified to the Texas Court of

Criminal Appeals the question "whether [a] petitioner['s] . . .

claim under Penry v. Lynaugh . . . is presently procedurally barred

under    Texas    law."8        The     court      answered    the    question    in    the

negative, holding that failure to object contemporaneously in pre-

Penry cases does not create a state procedural bar as the decision

in Penry "`constituted a substantial change in the law . . . and

there being abundant Texas precedent demonstrating that the holding

amounts to a right not previously recognized.'"9


     5
         Id. at 689.
     6
         Id. (citations omitted).
     7
       Id. at 690 (citing Fierro v. Lynaugh, 879 F.2d 1276, 1281-
82 (5th Cir. 1989)).
     8
         Selvage v. Collins, 897 F.2d 745, 745 (5th Cir. 1990).
     9
       Selvage v. Collins, 816 S.W.2d 390, 392 (Tex. Crim. App.
1991)(quoting Black v. State, 816 S.W.2d 350, 374 (Tex. Crim.
App. 1991)).

                                               5
      In any event, the state does not argue that Russell's claim is

procedurally barred under state law, but insists that it is barred

under Penry, which the state           interprets erroneously as requiring

a   request      for   instructions.      Based   on    Mayo,   we   reject   the

government's claim that Penry imposes a procedural bar when a pre-

Penry defendant fails to request a specialized instruction.

      As Russell is not procedurally barred from asserting the

alleged error, we proceed to the merits of his Penry claim. In that

case, the Supreme Court reiterated its holding in Jurek v. Texas10

that the constitutionality of the Texas statute "turns on whether

the enumerated questions allow consideration of particularized

mitigating       factors."11     Consideration     of    relevant    mitigating

evidence is required because "`the sentence imposed at the penalty

stage should reflect a reasoned moral response to the defendant's

background, character, and crime.'"12 Therefore, the sentencer must

"make an individualized assessment of the appropriateness of the

death penalty" and treat the defendant as a "`uniquely individual

human bein[g].'"13        In making this individualized assessment, the

sentencer must consider evidence about the defendant's background

and character "`because of the belief, long held by this society,

that defendants who commit criminal acts that are attributable to


      10
           428 U.S. 262 (1976).
      11
           Id. at 272.
      12
       Penry, 492 U.S. at 319 (quoting California v. Brown, 479
U.S. 538, 545 (1987)(emphasis in the original)).
      13
           Id.

                                         6
a disadvantaged background, or to emotional and mental problems,

may be less culpable than defendants who have no such excuse.'"14



     Penry stands apart from the cases that preceded15 and followed

it16 because of its ultimate conclusion: the Texas special issues

did not give effect to petitioner's compelling evidence of mental

retardation     and   abused   childhood   that   mitigated   his   moral

culpability for his crime.        Penry did not invalidate the Texas

sentencing scheme, and subsequent Supreme Court cases have refused

to extend Penry to cover less serious mitigating evidence.17

          Russell points to three types of mitigating evidence in

support of his Penry claim:       (1) his youth (he was age 18 at the

time of the homicide); (2) his troubled childhood; and (3) a

beating he suffered in his late teens at the hands of his step-

father.     We address each type of evidence in turn.

     1.     In Johnson v. Texas,18 the Supreme Court made clear that

the mitigating factor of a defendant's age is within the "effective

reach" of the second special issue.        Thus, such evidence is not



     14
          Id.
     15
        Franklin v. Lynaugh, 487 U.S. 164 (1988)(plurality
opinion); Jurek, 428 U.S. at 262.
     16
       Graham v. Collins, 506 U.S. ___, 113 S.Ct. 892, 122 L.
Ed. 2d 260 (1993); Johnson v. Texas, 61 U.S.L.W. 4738 (U.S. June
24, 1993)(No. 92-5653); Graham v. Collins, 950 F.2d 1009 (5th
Cir. 1992)(en banc).
     17
          See, e.g., Johnson, 61 U.S.L.W. 4738.
     18
          61 U.S.L.W. 4738.

                                    7
problematic under Penry.19

     2. Russell's argument that his jury was unable to give proper

mitigating weight to evidence of his troubled childhood is barred

under the non-retroactivity doctrine announced by the Supreme Court

in Teague v. Lane.20   In Graham v. Collins,21 the Supreme Court was

presented with an essentially identical claim raised by a habeas

petitioner--a Penry-type claim based on evidence of a non-abusive

but turbulent childhood--and held that the petitioner's claim

proposed a "new rule" under Teague.22     Russell has presented no

evidence that his troubled childhood rose to the required level of

abusiveness.

     3. The final type of evidence that Russell offered during the

punishment phase described a single episode of violenceSQa severe

beating in the face with a baseball bat by a stepfather who then

attempted unsuccessfully to shoot Russell. Both incidents occurred

on the same day when Russell was in his late teens.23       Russell

     19
       Although in Graham, 113 S. Ct. at 892, the Supreme Court
held that a habeas petitioner's Penry-type claim based on his
youth was barred under the non-retroactivity doctrine announced
by the Court in Teague v. Lane, 489 U.S. 288 (1989), the Court
has subsequently held, in a direct appeal case, in which Teague
was not applicable, that such a claim has no merit. See Johnson,
61 U.S.L.W. 4738. Thus, we see little need to invoke the Teague
doctrine when the merits of a "new rule" have been reached and
squarely rejected by the Court.
     20
          489 U.S. at 288.
     21
          113 S. Ct. at 892.
     22
       See Graham, 113 S. Ct. at 902; but see id. at 917, 920
n.2 (Souter, J., joined by Blackmun, Stevens & O'Connor,
dissenting).
     23
          The record is not clear whether Russell was 17 or 18.

                                  8
attempts to characterize this occurrence as "child abuse" similar

to the type introduced by the capital defendant in Penry.                             We

disagree.       Russell's beating occurred when he was in his late

teens, possibly when he was legally an adult.                     But child-abuse, as

it is generally understood, occurs when a juvenile is of such

tender years that a violent beatingSQor, more commonly, repeated

beatingsSQby an adult would have the tendency to affect the child's

moral      capacity       by   predisposing      him   or   her    toward   committing

violence.      As the evidence here is significantly distinguishable

from that offered in Penry, the Supreme Court's holding in Penry

regarding mitigating evidence of child abuse is not implicated.

      More to the point, whether evidence of the violence inflicted

on Russell by his stepfather was in the "effective reach" of jurors

under the special issues is not relevant;24 the Eighth Amendment is

not   implicated          in   the   first   place.         The   Supreme   Court    has

repeatedly         held    that      there   are   three      basic   categories     of

constitutionally           relevant     mitigating      evidence--that       which    is

relevant      to    a     defendant's    "background,"        "character,"     or    the

"circumstances of the crime."25              Russell's evidence of the violence

inflicted by his father does not fall under any one of these three

rubrics.      Russell necessarily argues that his evidence falls under

the "background" rubric.              We disagree.

        Under precedent in this circuit, evidence of a defendant's

background is constitutionally relevant mitigating evidence only if

      24
           See Graham, 113 S. Ct. at 902.
      25
           Penry, 492 U.S. at 328.

                                             9
the   crime     committed   by   the        defendant   is   in   some   sense

"attributable" to that background.26           While "attribution" does not

require a precise nexus between such background evidence and the

crime, at a minimum the evidence must permit a rational jury to

"infer that the crime is attributable," at least in part, to the

defendant's background.27    Albeit a close call, the evidence of the

isolated episode of violence inflicted by Russell's stepfather does

not permit such an inference.           As noted, that incident did not

occur during Russell's youth and was not indicative of a pattern or

history of child abuse--at least according to the evidence offered

during the punishment phase of Russell's trial.28                 Neither did

Russell offer any evidence that the act of violence left him

mentally or emotionally impaired in a manner that would permit a

rational jury to infer that this single incident somehow made

Russell more predisposed to commit a murder.29           While, as a general

proposition, a rational jury may infer that child abuse renders one

less morally culpable for a violent crime,30 the same cannot be said

      26
           Graham, 950 F.2d at 1033 (citing Penry, 492 U.S. at 319).
      27
           Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at
1033).
      28
       As noted, Russell's evidence of a troubled childhood did
not include any evidence that he was physically abused. Rather,
according to the evidence offered during the punishment phase,
Russell never suffered any abuse until his late teens.
      29
       Cf. Barnard, 958 F.2d at 638 (holding that a single head-
beating suffered by an adult capital defendant, with no other
evidence of any adverse effects, was not constitutionally
sufficient to support a Penry claim).
      30
       See Penry, 492 U.S. at 322; see also Santosky v. Kramer,
455 U.S. 745, 789 (1982) (Rehnquist, J., dissenting) ("It

                                       10
for a single episode of physical abuse inflicted upon an adult.

Thus, we reject Russell's Penry claim predicated on this evidence.

          In sum, we conclude that there was no Eighth Amendment

violation in this case.         First, Russell's age at the time of the

crime was cognizable under the second special issue.          Second, his

Penry-type claim based on mitigating evidence troubled childhood is

barred under the Teague doctrine.          Finally, evidence of a single

episode of severe violence inflicted by an adult on an adult,

without    more,   does   not    qualify   as   constitutionally   relevant

mitigating evidence.

B. Undefined use of "deliberately"

     Russell again relies on Penry to make his argument that the

state court erred by not defining the word "deliberately" in the

first special issue, which asks whether the defendant so acted.

Russell recites the Court's reasoning that,

     [a]ssuming . . . that the jurors in this case understood
     "deliberately" to mean something more than that Penry was
     guilty of "intentionally" committing murder, those jurors
     may still have been unable to give effect to Penry's
     mitigating evidence in answering the first special
     issue.31

This quotation from Penry, however, rests on the understanding that

the defendant had introduced mitigating evidence beyond the scope

of the special issues. In the instant case, however, we have

concluded that Russell did not present any mitigating evidence that



requires no citation of authority to assert that children who are
abused in their youth generally face extraordinary problems
developing into responsible, productive citizens.")
     31
          Penry, 492 U.S. at 322.

                                      11
was outside of the scope of the first special issue.                    Thus, the

quoted language from Penry does not advance his claim.32

C. Exclusion of Juror

     Russell next asserts that the district court erred in applying

a presumption of correctness to the state court's finding that

prospective juror Norman B. Scott was properly excluded from the

jury.         The transcript of the voir dire examination of Scott,

reproduced in its entirety in Ex Parte Russell,33 demonstrates that

Scott strongly opposed the death penalty, that he "did not believe

in" the death penalty, and that he "could take the law and the

evidence, but when it come to imposing the death penalty, I don't

think     I    could   do   it."34    When    asked   whether   there   were   any

circumstances under which he could assign the death penalty, he

replied possibly so if the murder victim was a small child, but he

was not certain.35

     Applying the test set forth in Witherspoon v. Illinois,36 as

clarified in Adams v. Texas37 and Wainwright v. Witt,38 the Texas

Court of        Criminal    Appeals   held    that    Scott   had   properly   been

discharged for cause as his testimony indicated that "his views on

     32
          Barnard, 958 F.2d at 641.
     33
          720 S.W.2d 477, 477-81 (Tex. Crim. App. 1986).
     34
          Id. at 479.
     35
          Id. at 480-81.
     36
          391 U.S. 510 (1968).
     37
          448 U.S. 38 (1980).
     38
          469 U.S. 412 (1985).

                                         12
the death penalty would have prevented or substantially impaired

[his]     performance     as   [a]    juror[]    in    accordance   with   [the]

instructions."39        The Court of Criminal Appeals' factual finding

of juror bias is entitled to a presumption of correctness under 28

U.S.C. § 2254(d), and we find no reason why this presumption should

not apply.40

D. Eighth Amendment

     Russell's       final     assertion      attacks     the    constitutional

sufficiency of the evidence at the guilt-innocence stage of trial.

He insists that there was no evidence to prove whether the murder

was committed by him or by his co-defendant Battee (who received a

sixty year sentence following a guilty plea), or by both of them

acting together.        Absent this evidence, he insists, imposition of

the death penalty violates his due process rights and the Eighth

Amendment's proscription against cruel and unusual punishment.                In

addition, he argues that the disparity between his death sentence

and Battee's sentence of sixty years for the same offense is "an

invidious discrimination" in violation of the Equal Protection

Clause and violates the Eighth Amendment as a disproportionate

sentence.

     Enmund     v.   Florida41       construed   the    Eighth   Amendment   as


     39
          Ex Parte Russell, 720 S.W.2d at 484.
     40
       In fact, the standard expressed in Wainwright "does not
require that a juror's bias be proved with `unmistakable
clarity.'" Wainwright, 469 U.S. at 426. Rather, the
determination is one best left to the trial judge. Id. at 426.
     41
          458 U.S. 782 (1982).

                                         13
prohibiting the imposition of the death penalty against "one who

neither took life, attempted to take life, nor intended to take

life."42    Thus, it is impermissible to sentence a person to death

solely on the basis of the acts of an accomplice; there must be

evidence    from   which   a   jury    could   determine   the   petitioner's

individual culpability.        The state insists that the first special

instruction, which asks "whether the conduct of the defendant that

caused the death of the deceased was committed deliberately and

with the reasonable expectation that the death of the deceased or

another would result" allowed the jury to judge the evidence

submitted against Russell.            The evidence submitted to the jury

included Russell's possession of the car and the presence of a

large amount of blood (compatible with the victim's) on Russell's

clothing, consistent with someone who had brutally stabbed and

beaten another. In contrast, the state notes that Battee had blood

only on his shoes.         Moreover, the state emphasizes that, in

Russell's trial, it did not focus on Battee's intent to commit the

crime, but on Russell's.        Thus, the state concludes, a reasonable

jury could have inferred Russell's individual culpability for the

murder; and the jury here had the opportunity to consider that

question under the first special issue.           We agree.

     In Jones v. Thigpen,43 we remanded for resentencing a case in

which the only evidence was involvement in the robbery and blood

splattered shoes.       In the instant case, however, there are two

     42
          Id. at 786.
     43
          741 F.2d 805 (5th Cir. 1984)

                                        14
important distinctions. First, the jury was properly instructed to

consider the individual culpability of the defendant sentenced to

death.44 Second, the evidenceSQparticularly the fact that Russell's

clothes (including his underwear) were soaked with bloodSQis very

probative, as it is consistent with his inflicting the knife wounds

himself. Consequently, we agree with the state's argument that the

jury     had    the    opportunity       to      consider    Russell's        individual

involvement in the crime and, based on the evidence, reasonably

could have determined his guilt.

       Finally, we address Russell's claims involving the disparity

of sentences, which are especially common when one defendant pleads

guilty pursuant to a plea bargain and another defendant is tried by

jury.       It is well established that a prosecutor has discretion to

enter into plea bargains with some defendants and not with others.

Absent      a   showing    of    vindictiveness       or    use     of   an   arbitrary

standardSQneither of which Russell demonstratesSQthe prosecutor's

decision is not subject to constitutional scrutiny.45




                                            III

                                       CONCLUSION

       In    this     petition   for    a     writ   of    habeas    corpus,    Russell

challenges the imposition of the death penalty without a Penry-type


       44
       See Skillern v. Estelle, 720 F.2d 839, 847-48 (5th Cir.
1983)(finding the same jury instruction cured an Enmund defect.).
       45
            Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

                                            15
instruction.   As he fails to demonstrate mitigating evidence

outside the scope of the special issues, he does not qualify for

the additional instruction.   Consequently, his second claimSQthat

the absence of a jury instruction defining the word "deliberately"

in the first special issue precluded the jury from considering his

mitigating evidenceSQmust also fail. We reject Russell's challenge

to the exclusion of a potential juror on voir dire for his views on

the death penalty.   Affording a presumption of correctness to the

state court's finding that this exclusion was correct, we discern

no reason why this presumption should not preclude Russell's claim.

Finally, we hold that the jury properly considered Russell's own

individual culpability for the murder, permissibly inferring his

guilt from the evidence presented, and we reject his claim that the

disparity in the sentences imposed on him and on his accomplice

violated the Due Process Clause, the Equal Protection Clause, or

the Eighth Amendment.

     For the foregoing reasons, the decision of the district court

in refusing to grant the writ of habeas corpus is

AFFIRMED.




                                16
