                    UNITED STATES COURT OF APPEALS
                         for the Fifth Circuit

                 _____________________________________

                              No. 93-2455
                 _____________________________________


                            DENTON ALAN CRANK,

                                                   Petitioner-Appellant,

                                   VERSUS


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

                                                       Respondent-Appellee.

     ______________________________________________________

       On Application for a Certificate of Probable Cause
     to Appeal an Order of the United States District Court
               for the Southern District of Texas
     ______________________________________________________
                         (April 5, 1994)

Before KING, DAVIS, and WIENER, Circuit Judges.

DAVIS, Circuit Judge:

     Denton Alan Crank was convicted of capital murder for which

the death penalty was imposed.            The district court denied his

application for a Certificate of Probable Cause ("CPC"), and we

likewise deny his application for a CPC to appeal the district

court's order.

                                     I.

     On January 16, 1984, Crank and another masked gunman abducted

Terry Oringderff from his apartment and took him to the Rice Cash

Saver's Store, where Oringderff was one of the managers.                After

robbing   a   number   of   the   store   employees,    the   gunmen   forced
Oringderff and the courtesy booth operator to open the store's

safes. The gunmen then left with the money and Oringderff, who was

found later that day on a remote road in Houston, shot to death

near his car.1

       Crank was convicted of capital murder and sentenced to death.

The Texas Court of Criminal Appeals affirmed his conviction and

sentence.      On October 2, 1989, the United States Supreme Court

denied certiorari, and Crank's conviction became final.

       Crank then applied for state habeas relief, which the state

trial court recommended be denied.     The Court of Criminal Appeals

initially accepted the trial court's recommendation, but later

granted rehearing to reconsider Crank's claim under Penry v.

Lynaugh, 492 U.S. 302 (1989), only to deny him habeas relief on

this claim in April 1992.    Crank then filed a second state habeas

petition alleging that his trial counsel had labored under a

conflict of interest.    In June 1993, the Court of Criminal Appeals

accepted the state trial court's recommendation that habeas relief

be denied on that ground as well.

       On June 14, 1993, less than fifteen hours before his scheduled

execution, Crank filed a petition for habeas relief in federal

district court.     His petition presented eighteen separate claims,

along with a motion for a stay of execution and a request for a

CPC.       Later that day, the district court issued a memorandum

opinion and order denying Crank's habeas petition, his motion for

       1
          The details of the crime are more fully set forth in
Crank v. State, 761 S.W.2d 328 (Tex. Crim. App. 1988), cert.
denied, 493 U.S. 874 (1989).

                                   2
a stay of execution, and his request for a CPC.              We granted a stay

of execution to allow us sufficient time to consider Crank's

appeal.       His application to this court for a CPC has been carried

with the case.

                                       II.

       We have no jurisdiction to hear an appeal in this case unless

we first grant a CPC.       Fed. R. App. P. 22(b); see Black v. Collins,

962 F.2d 394, 398 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992).

To obtain a CPC, Crank must make a substantial showing that he has

been denied a federal right.           See Barefoot v. Estelle, 463 U.S.

880,    893    (1983).    He    must   "demonstrate   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."                   Id. at 893 n.4

(internal      quotations   and    citations    omitted).        Applying      this

standard, we conclude that Crank is not entitled to a CPC to appeal

the district court's order.

                                       III.

                                        A.

       Crank contends first that Texas's capital sentencing scheme in

effect at the time of his sentencing, Art. 37.071 of the Texas Code

of     Criminal    Procedure,     deprived     him   of   the    right    to     an

individualized sentencing determination under Penry v. Lynaugh, 492

U.S. 302 (1989).         He makes two arguments:          (1) the jury could

neither consider nor give mitigating effect to evidence of his

background and character under the state's capital sentencing


                                        3
statute; and (2) the statute precluded his counsel from developing

and presenting mitigating evidence.

     Crank's first point involves testimony from a former employer,

a long-time friend, and family members regarding his positive

character traits, including his trustworthiness, well-disciplined

nature,     caring   and    loving      character,     calm    and    non-violent

personality, and family values. Crank argues that the jury was not

able to give mitigating effect to this evidence because it was

beyond the scope of, or not relevant to, the two special issues

presented to the jury.2           Crank contends that the state trial

court's failure to provide the jury with an additional instruction

authorizing    the   jury    to   give    mitigating    effect   to    this    good

character    evidence      violated     his   rights   under   the    Eighth   and

Fourteenth Amendments as articulated in Penry.

     Even if we were to accept Crank's argument, it would require

us to announce a "new rule" under Teague v. Lane, 489 U.S. 288, 301

(1989), because the outcome requested by Crank was not dictated by

precedent in existence at the time his conviction became final on

October 2, 1989.           Stated differently, if "reasonable jurists

reading the case law in [October 1989] could have concluded that

[Crank's]    sentencing     was   not    constitutionally      infirm,"    Teague


     2
        The jury was asked to determine: (1) whether the conduct
of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that
death would result; and (2) whether there was a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society. See Vernon's Ann. Texas
C.C.P. art. 37.071(b)(1). The jury had to answer both questions in
the affirmative for Crank to be sentenced to death.

                                         4
precludes us from granting relief.      See Graham v. Collins, 113

S.Ct. 892, 903 (1993).     Thus, relief on Crank's Penry claim is

barred by Teague's non-retroactivity limitation.

     Crank's claim fares no better on the merits.    So long as the

proffered mitigating evidence is within "the effective reach of the

sentencer," the Eighth Amendment is satisfied and supplemental

mitigation instructions are not constitutionally required.      See

Johnson v. Texas, 113 S.Ct. 2658, 2669 (1993).      The evidence of

Crank's good character tended to show that his crime was an

aberration, which would have supported a negative answer to the

second special issue.    See Graham, 113 S.Ct. at 902.   Indeed, at

the punishment hearing, Crank's counsel argued that the evidence of

Crank's good character reflected that he would not commit future

violent criminal acts:

          What I brought you by way of evidence at this hearing is
     the testimony of . . . a number of good people who have known
     Denton Crank in many instances all of his life, all of whom
     have known him for years. . . . And those people are telling
     the truth when they say that he's not a violent man, that he's
     good to his family, that he's good to his wife, that he loves
     them and that they love him back. And that's not the kind of
     man who probably would continue to commit criminal acts of
     violence that would constitute a threat to society.

Because the jury was able to give mitigating effect to this

evidence, Crank's Penry claim also fails on the merits.

     Crank argues next that his rights under the Sixth, Eighth, and

Fourteenth Amendments were infringed because the Texas capital

sentencing statute precluded counsel from developing and presenting

mitigating evidence.     According to Crank, evidence pertaining to

his background, including child abuse and neurological damage


                                  5
stemming from a brain aneurysm, either would have been irrelevant

to the special issues or would have been considered only as

aggravating evidence.          He contends that, as a result, he was

effectively precluded from presenting this evidence.                   We find this

argument meritless.

     We must also reject Crank's second Penry argument - that the

Texas   statute   precluded      him    from   developing        and    presenting

mitigating evidence. We have held that a federal habeas petitioner

cannot base a Penry claim on evidence that could have been, but was

not, proffered at trial.       See Barnard v. Collins, 958 F.2d 634, 637

(5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993).                      As Crank

admits in his brief, and as the state trial court found in

reviewing Crank's habeas petition, Crank's trial counsel made a

tactical decision not to offer evidence that Crank was abused as a

child and that he suffered a leaking brain aneurysm which caused

neurological damage.

     The addition of a Sixth Amendment gloss to this contention

does not help.     Even if Texas's sentencing scheme caused Crank's

trial counsel     to   make    tactical     decisions    which    he     might    not

otherwise have made, this does not amount to unconstitutional

government interference with counsel's ability to conduct the

defense of a case.      See May v. Collins, 948 F.2d 162, 167-68 (5th

Cir. 1991) (If every substantive criminal statute and death penalty

statute triggered the rule against government interference with

counsel's   ability    to     conduct   a   defect,     "that    rule     would   be

virtually unlimited and would convert every criminal statute and


                                        6
capital sentencing scheme into a predicate for a Sixth Amendment

claim for ineffective assistance of counsel."), cert. denied, 112

S.Ct. 907 (1992).          For the reasons stated above, Crank's Penry

claim lacks arguable merit.

                                       B.

        Finally,   Crank    argues    that   he   did   not   knowingly   and

intelligently waive his Sixth Amendment right to conflict-free

counsel.     In United States v. Garcia, 517 F.2d 272, 278 (5th Cir.

1975), we established that a valid waiver of a defendant's Sixth

Amendment right to conflict-free counsel requires:               (l) that the

defendant be aware that a possible conflict of interest exists; (2)

that the defendant realize the consequences to his defense that

continuing with conflicted counsel would have; and (3) that the

defendant be aware of his right to obtain other counsel.

        The facts underlying Crank's claim are undisputed.            Crank's

original trial      counsel,    Bob   Tarrant,    concurrently    represented

another suspect in the murder for which Crank was ultimately

convicted.3    After Crank appeared in state court with Tarrant and

pled not guilty, the court identified the conflict of interest and

explained to Crank that he could waive the conflict.               When Crank

indicated that he was not sure that he understood the situation, he

conferred with Tarrant.        The court then recessed to allow Crank to



    3
          Tarrant represented Bobby Bartoo on an unrelated robbery
charge. Bartoo also was a suspect in the January 16, 1984 robbery;
a witness had identified Bartoo as the masked gunman.      Tarrant
therefore would have had to defend one client (Crank) by
implicating another (Bartoo) in the capital murder of Oringderff.

                                       7
confer with his family and his family's civil attorney before

making any decision.

     More than a week later, at a pretrial hearing, Crank appeared

with Don Ervin, his newly-retained counsel, and the court resumed

its discussion with Crank concerning counsel's potential conflict

of interest.     The court asked Crank whether he wanted Ervin to

replace Tarrant as his attorney and whether he understood that

Ervin and Tarrant were law partners. Crank responded affirmatively.

The court also asked whether Crank understood that a possible

conflict   of   interest   existed   because   of   Ervin   and   Tarrant's

relationship.    After conferring with Ervin off the record, Crank

again responded affirmatively.        The court then explained what it

meant to waive the right to conflict-free counsel, and Crank agreed

to the waiver.

     The state court reviewing Crank's habeas petition found that

he understood his rights and the potential conflict, and that he

made a knowing and intelligent decision to be represented by Mr.

Ervin.   The record amply supports these findings, and the district

court properly accorded them a presumption of correctness.           See 28

U.S.C. § 2234(d).     We therefore conclude that Crank's right-to-

conflict-free-counsel claim lacks arguable merit.

                                     IV.

     Because Crank has failed to demonstrate that the issues he

presents are debatable among jurists of reason, his application for

a CPC is DENIED, and the stay of execution previously entered is

VACATED.


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