                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 99-60511
                         _____________________



HOWARD MONTEVILLE NEAL,

                                                    Petitioner-Appellant,

                                  versus

STEVE W. PUCKETT, Commissioner,
Mississippi Department of Corrections;
JAMES ANDERSON, Superintendent,
Mississippi State Penitentiary,

                                           Respondents-Appellees.
_________________________________________________________________

      Appeal from the United States District Court for the
                 Southern District of Mississippi
                        USDC No. 2:97-CV-90
_________________________________________________________________
                            May 2, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     After a thorough examination of the briefs and the record, we

reach the following disposition.

     First, we grant a Certificate of Appealability (“COA”) with

respect   to   Howard   Neal’s   charge    that   his   trial   counsel   was

ineffective for failing to investigate and present evidence of

mitigating circumstances. See Miller v. Johnson, 200 F.3d 274, 280

(5th Cir. 2000)(setting out the standard for the grant of a COA).


     *
      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this opinion should not be published and is not precedent except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.
We will evaluate the issue under 28 U.S.C. § 2254(d) because there

has been a hearing on the merits on this issue in state court.             See

Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)(explaining

that a ruling on substantive as opposed to procedural grounds

constitutes a hearing “on the merits”).1          The time and place for

oral argument will be set by the clerk.

     Second, we deny a COA on Neal’s ineffective assistance claim

concerning    his   counsel’s   failure   to   pursue   a   hearing   on   his

competency to stand trial.      He failed to raise this issue in state

court.2     It is therefore unexhausted, and Neal has not asserted



        1
      We decline Neal’s request that we remand for a hearing on
this and other issues, because one is neither required nor
necessary.   See West v. Johnson, 92 F.3d 1385, 1410 (5th Cir.
1996)(holding that hearings not required when the existing record
is adequate to evaluate the claims).
    2
     Though the district court concluded that Neal had raised this
issue, we disagree. Neal’s Motion to Vacate or Set Aside Judgment
and Sentence does mention in its review of the pretrial proceedings
that his trial counsel failed to pursue a pretrial competency
hearing. But the portion of that motion actually setting out his
ineffective assistance claims does not raise this as an example of
ineffective assistance.    The fact that the state court did not
acknowledge this argument in its ruling on the motion is a good
indication that Neal did not raise it before that court. See Neal,
525 So.2d at 1281-83.
     It is true, as Neal contends, that an investigation of Neal’s
personal history and a neurological examination would have
increased his chances of being found incompetent to stand trial.
And Neal did raise a failure to investigate argument in his state
court motion.    But that argument concerned sentencing and the
voluntariness of his confession only. Neal’s claim here is that
his lawyer failed to seek a competency hearing, during which such
evidence would have been used.      This is therefore a different
habeas corpus claim from those raised in state court, and not one
that the state court has addressed.




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cause and prejudice for this failure.               Jones v. Johnson, 171 F.3d

270, 277 (5th Cir. 1999).

     Third, we deny Neal a COA on his ineffective assistance claim

that investigation and presentation of additional evidence could

have led to the suppression of his confession.                      The additional

evidence Neal points to would have been somewhat unreliable as well

as merely cumulative.

     Fourth, we deny a COA on Neal’s claim that counsel was

ineffective for failing to present additional evidence that would

have reduced the weight given to his confession.                    This claim is

also unexhausted and lacks any assertion of cause and prejudice.

     Fifth,    we   deny    a     COA   on    Neal’s    challenge    to   the   jury

instruction.        In     this     case,      though    the    instruction      was

unconstitutionally vague, any error was harmless.                   See Billiot v.

Puckett, 135 F.3d 311, 315 (5th Cir. 1998)(holding that harmless

error   standard     is    appropriate        for   reviewing    erroneous      jury

instructions).      If the court had given a proper instruction, such

as the one suggested in Clemons v. Mississippi, 494 U.S. 738, 750,

110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), we are convinced that the

result would have been the same.               See Billiot, 135 F.3d at 319

(applying     the   harmless        error     standard     to   erroneous       jury

instructions).

                                COA GRANTED in part; and DENIED in part.




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