                      REVISED, June 30, 1999

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit

                   ___________________________

                           No. 98-40166
                   ___________________________


                        ALVIN WAYNE CRANE,

                                               Petitioner-Appellant,

                              VERSUS


  GARY JOHNSON, Director, Texas Department of Criminal Justice,
                     Institutional Division,

                                                Respondent-Appellee.

       ___________________________________________________

           Appeal from the United States District Court
                 For the Eastern District of Texas
        ___________________________________________________
                            June 8, 1999

Before KING, DAVIS, and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Alvin Wayne Crane, convicted of murder and sentenced to death

by a Texas state court, appeals from the district court’s denial of

his petition for a writ of habeas corpus.    Because we conclude that

Crane has failed to make a substantial showing of the denial of a

federal right, we deny him a certificate of probable cause (“CPC”)

and vacate the stay of execution.

                                  I.

     Crane was convicted of killing Melvin Drum, the Chief Deputy

Sheriff of Ochiltree County, Texas.    On March 28, 1987, Crane was

involved in a domestic dispute with his wife, Linda Crane, at his

wife’s place of employment, the Spicer residence in Perryton,
Texas. Drum was called to investigate the dispute and drove to the

Spicer residence.          Although Drum was driving an unmarked vehicle

and was out of uniform, witnesses testified at trial that a red

police light was flashing on the dashboard of his vehicle.              After

Drum parked his vehicle but before he was able to exit from it,

Crane approached him with a shotgun and shot him.           Crane then fled

but was captured several hours later in Beaver County, Oklahoma.

       Crane was tried and convicted of capital murder in Texas state

court on November 13, 1987.             During the punishment phase of his

trial,       the   State   introduced    evidence   concerning   Crane’s    two

convictions for delivery and possesion of marijuana.               The State

also       introduced   evidence   concerning    Crane’s   conviction      on   a

misdemeanor assault charge.         Crane introduced no evidence during

the punishment phase of his trial.

       The jury affirmatively answered the required special issues

set out in Tex. Code Crim. P. Ann. art. 37.071,1 and Crane was

sentenced to death.         The Texas Court of Criminal Appeals affirmed

the conviction and sentence.         Crane v. State, 786 S.W.2d 338 (Tex.

Crim. App. 1990).

       On November 28, 1990, Crane filed his first petition for writ



       1
          Article 37.071 then provided:
       (1) [W]hether 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;
       (2) whether there is a probability that the defendant
       would commit criminal acts of violence that would
       constitute a continuing threat to society; and
       (3) if raised by the evidence, whether the conduct of the
       defendant in killing the deceased was unreasonable in
       response to the provocation, if any, by the deceased.


                                         2
of habeas corpus in state court.          The trial court recommended that

Crane’s petition be denied, and the Texas Court of Criminal Appeals

denied habeas relief on March 11, 1992.         Ex Parte Crane, No. 71,250

(Tex.Crim.App. March 11, 1992) (en banc) (per curiam).                Crane’s

petition for a writ of certiorari was denied by the United States

Supreme Court on January 11, 1993.          Crane v. Texas, 506 U.S. 1055,

113 S.Ct. 983, 122 L.Ed.2d 136 (1993).          Crane then filed a second

petition for writ of habeas corpus in state court.             The trial court

entered findings of fact and conclusions of law, recommending that

the petition be denied.       The Court of Criminal Appeals adopted the

trial court’s findings of facts and conclusions of law with three

exceptions and denied relief.             Ex Parte Crane, No. 21,704-04

(Tex.Crim.App. April 19, 1994) (en banc) (per curiam).             The United

States Supreme Court again denied Crane’s petition for a writ of

certiorari on October 31, 1994.       Crane v. Texas, 513 U.S. 966, 115

S.Ct. 432, 130 L.Ed.2d 344 (1994).

     Crane filed the present petition for writ of habeas corpus in

federal district court in February 1995.                The district court

referred   the    case   to   a   magistrate    judge    who    conducted    an

evidentiary hearing and recommended that relief be denied.                  The

district court adopted the recommendation of the magistrate judge

and denied Crane’s claims.         Crane filed a notice of appeal and

applied for a CPC with the district court.              The district court

denied the CPC.

                                     II.

     Because Crane filed his federal habeas petition prior to the

passage of the 1996 Antiterrorism and Effective Death Penalty Act


                                      3
(“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214 (1996), the regime set

forth in the AEDPA does not apply to the instant appeal.                      See Lindh

v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Therefore, we apply pre-AEDPA habeas law to Crane’s claims.

     Before the enactment of the AEDPA, a petitioner could not

appeal   a   district   court’s    denial    of     a    habeas    petition       that

concerned detention arising from state court proceedings unless a

district or circuit judge granted the petitioner a CPC.                       Green v.

Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997).              To obtain a CPC, the

petitioner must make a “substantial showing of a denial of [a]

federal right.”    Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct.

3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation

omitted).     This showing requires the petitioner to 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, 103 S.Ct. at 3394 n.4.

     In reviewing a federal habeas corpus petition presented by a

petitioner    in   state   custody,       federal       courts    must     accord    a

presumption of correctness to state court factual findings. See 28

U.S.C. § 2254(d).       We review a district court’s findings of fact

for clear error and issues of law de novo.                Moody v. Johnson, 139

F.3d 477, 480 (5th Cir.), cert. denied, _ U.S. _, 119 S.Ct. 359,

142 L.Ed.2d 297 (1998) (citing Barnard v. Collins, 958 F.2d 634,

636 (5th Cir. 1992), cert. denied, 506 U.S. 1057, 113 S.Ct. 990,

122 L.Ed.2d 142 (1993)).

                                    III.


                                      4
     Crane’s principal claim is that he was denied his Sixth

Amendment right to effective counsel.    He argues that he received

ineffective assistance of counsel because (1) trial counsel failed

to investigate and to present readily available evidence of Crane’s

insanity at the time of the offense, and (2) trial counsel failed

to present mitigating evidence at the punishment phase. Neither of

these claims has merit.

     An ineffective assistance of counsel claim is evaluated under

the standard announced in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Crane must demonstrate both

that counsel’s performance was deficient and that the deficiency

prejudiced the defense such that the result of the trial would have

been different.     Id. at 687, 104 S.Ct. at 2064.   Both prongs must

be shown by a preponderance of the evidence.      Rector v. Johnson,

120 F.3d 551 (5th Cir. 1997). Because an ineffective assistance of

counsel claim is a mixed question of law and fact, we review the

district court’s decision de novo.        Green, 116 F.3d at 1122.

However, as noted above, the historical findings of fact are

entitled to a presumption of correctness.   Id.   See also Westley v.

Johnson, 83 F.3d 714, 720 (5th Cir. 1996), cert. denied, 519 U.S.

1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997).

     To establish the first prong of deficient performance, Crane

must show that his trial counsel “made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed ... by the

Sixth Amendment.”    Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

However, this Court must be “highly deferential” of counsel’s

performance and must make every effort to “eliminate the distorting


                                   5
effects of hindsight.”    Id. at 689, 104 S.Ct. at 2065.    Therefore,

we must “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”        Id.

We will not find ineffective assistance of counsel merely because

we disagree with counsel’s trial strategy.     See Green, 116 F.3d at

1122.

     For the second prong, Crane must show a reasonable probability

that the result of the proceedings would have been different but

for counsel’s unprofessional errors.    “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.       However, the mere

possibility of a different outcome is not sufficient to prevail on

the prejudice prong.     Ransom v. Johnson, 126 F.3d 716, 721 (5th

Cir.), cert. denied, _ U.S. _, 118 S.Ct. 361, 139 L.Ed.2d 281

(1997).   Rather, the defendant must demonstrate that the prejudice

rendered sentencing “fundamentally unfair or unreliable.”            Id.

(quoting Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838,

843, 122 L.Ed.2d 180 (1993)).   With this legal background, we turn

to a consideration of Crane’s specific claims of ineffective

assistance of counsel.

                                 A.

     Crane first contends that his trial counsel’s conduct was

professionally unreasonable because they failed to investigate and

present evidence of Crane’s insanity at the time of the offense.

This claim was presented to the state courts in Crane’s second

state   habeas   application.   The   trial   court   entered   detailed

findings of fact and conclusions of law and recommended that relief


                                  6
be denied.       The Texas Court of Criminal Appeals adopted the trial

court’s finding number nine,2 which provides in part:

       [T]he Court finds that [Crane’s] contention that his trial
       attorneys did not investigate a possible insanity defense for
       him is not true.      The insanity defense was considered,
       investigated, and rejected by [Crane’s] trial attorneys. It
       was rejected for a good reason -- it was not a viable defense.
       The State has obtained numerous affidavits demonstrating that
       the insanity defense was investigated by defense counsel, and
       that any such insanity defense would have been spurious.

The    district    court   correctly    noted    that   these   findings   were

entitled to a presumption of correctness under 28 U.S.C. § 2254(d)

because they are fairly supported by the record.

       Our review of the record shows that Crane’s trial counsel,

Gene    Storrs    and   Stephen   Cross,     investigated   whether   Crane’s

injuries from a motorcycle accident in 1981 could have resulted in

some mental impairment that interfered with Crane’s abilities to

act intentionally and deliberately.             Trial counsel had the report

of Dr. Michael Buben, who examined Crane while he was incarcerated

in    Ochiltree    County,   which     stated    that   Crane   suffered   from

persistent, recurrent headaches over the right frontal region.

Trial counsel then consulted Dr. Joseph Batson, a neurologist, who

examined Crane in September 1987.           Dr. Batson ordered a CT scan and

an EEG, both of which failed to show any abnormality.

       In light of this information, trial counsel decided that

although they would introduce these medical records before the



        2
         Although Crane argues that the Texas Court of Criminal
Appeals declined to adopt the trial court findings on the claims of
ineffective assistance of counsel for failure to investigate an
insanity defense and for failure to present mitigating evidence at
the punishment phase, the Texas Court of Criminal Appeals only
rejected the trial court findings that these claims were
procedurally barred.

                                        7
jury, they would not further develop the insanity issue.                In

affidavits attached to the State’s answer to Crane’s second state

habeas petition, Gene Storrs and Stephen Cross stated that they had

investigated the merits of raising an insanity defense but were not

confident that the evidence was adequate to raise the issue.           The

examinations conducted by Dr. Buben and Dr. Batson suggested that

even if Crane had some dysfunction due to his motorcycle accident,

this dysfunction did not rise to the level of interfering with his

abilities to act intentionally and deliberately.           Trial counsel

also stated that they were concerned about opening the door to

damaging testimony concerning Crane’s violent tendencies if the

issue of insanity were raised.

     Thus, Crane’s trial counsel did investigate the possibility of

an insanity defense, but, relying on the reports of Drs. Buben and

Batson, as well as their own observations of Crane, they made a

tactical decision not to raise this defense due to the lack of

sufficient   evidence   and   their   concern   about   drawing   damaging

rebuttal psychiatric testimony from the State.          “A conscious and

informed decision on trial tactics and strategy cannot be the basis

for constitutionally ineffective assistance of counsel unless it is

so ill chosen that it permeates the entire trial with obvious

unfairness.”    Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)

(on rehearing).    The evidence shows that trial counsel’s decision

not to present an insanity defense was a “conscious and informed”

tactical one.     Therefore, we conclude that Crane has not made a

substantial showing of the denial of a constitutional right on this

claim of ineffective assistance of counsel.


                                      8
                                     B.

      Crane next contends that his trial counsel were ineffective

for failing to present at the punishment phase of his trial

mitigating evidence that was either known or should have been known

to   them.     Crane   maintains   that   his   counsel   did   not   present

mitigating evidence of his family background or his possible mental

impairment.    The magistrate judge conducted a two-day evidentiary

hearing on the issue of counsel’s performance at the punishment

phase and found that trial counsel made a strategic decision not to

introduce available mitigating evidence for the following reasons.

Counsel believed that Crane’s best chance of prevailing at the

penalty phase was to obtain a favorable jury response on the future

dangerousness issue. Alternatively, counsel wanted to preserve the

objection on appeal that an affirmative answer to the future

dangerousness issue was not supported by sufficient evidence.

Because counsel believed that the available mitigating evidence

would likely have drawn rebuttal evidence from the State that would

have bolstered the State’s argument on future dangerousness, they

did not introduce this evidence so as not to defeat their strategy.

      We have made it clear that the failure to present mitigating

evidence does not per se demonstrate ineffective assistance of

counsel.     Rector, 120 F.3d at 564.     “If such an omission is based

on well informed, strategic decisions, it is ‘well within the range

of practical choices not to be second-guessed.’” Id. (quoting

Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992), cert.

denied, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)).

After carefully reviewing the record, we conclude that Crane has


                                     9
failed to establish that his counsel were deficient in declining to

present the mitigating evidence concerning Crane’s alleged mental

impairment and his family background.

     As    to     the   evidence     concerning    Crane’s    possible   mental

impairment, trial counsel testified that after investigating a

possible mental impairment,3 they were concerned that the evidence

would have been aggravating because it would have necessarily

revealed Crane’s “rages” and “blackouts” that accompanied the

alleged mental impairment. Furthermore, they had reason to believe

that if they put on such psychiatric evidence, the State would have

called a psychiatrist to testify about Crane’s violent tendencies.

Bruce Roberson, the Ochiltree County Attorney who prosecuted Crane,

confirmed that counsel’s concerns were well founded.              He testified

at the evidentiary hearing that the State would have presented its

own psychiatric evidence, specifically the testimony of Dr. James

Grigson,     to    rebut   any     evidence   of   Crane’s    possible   mental

impairment presented by the defense. Given the equivocal nature of

the expected testimony of Drs. Buben and Batson, counsel concluded

that the risk of drawing damaging psychiatric testimony from the

State outweighed the benefits of this evidence.              Additionally, the

district court, after hearing the testimony of several doctors at

the evidentiary hearing, found that Crane failed to show any

reliable evidence of mental impairment.

     Trial      counsel    believed    that   evidence   of    Crane’s   family

background also would have been more harmful than helpful on the




     3
          See discussion in section II.A., supra.

                                        10
future dangerousness issue.4 Gene Storrs testified that he thought

that the danger of family members testifying on cross examination

about Crane’s fits of rages and blackouts far outweighed any

benefit that Crane might have received from family members saying

that they felt like Alvin Crane was a “nice man.”

     All of the evidence that Crane contends should have been

presented at the punishment phase of his trial had a double-edged

quality.     Trial counsel decided the evidence was potentially more

harmful than helpful. Such strategic decisions are given a “‘heavy

measure of deference.’”        Mann v. Scott, 41 F.3d 968, 984 (5th Cir.

1994), cert. denied, 514 U.S. 1117, 115 S.Ct. 1977, 131 L.Ed.2d 865

(1995) (quoting Wilkerson, 950 F.2d at 1054).             Crane has failed to

overcome     the   strong    presumption   that   these   informed   tactical

decisions were reasonable under the circumstances.                   Boyle v.

Johnson, 93 F.3d 180, 188 (5th Cir. 1996).              Therefore, Crane has

also failed to show that counsel’s performance was deficient in

declining to produce the mitigating evidence discussed above.

     Relatedly,      Crane    contends     that   his   trial   counsel   were

ineffective for failing to have a confidential mental health expert

appointed under Ake v. Oklahoma.5             With a confidential mental

health expert, Crane argues, his trial counsel could have further

investigated a possible mental impairment without the fear that any

harmful opinion the expert reached would be divulged to the State.



         4
           Although Crane contends that trial counsel did not
investigate his family background, billing records show that trial
counsel spent approximately five hours talking with Crane’s wife
and his mother.
     5
         470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

                                      11
Crane’s argument fails to take into account his trial counsel’s

primary reason for declining to pursue this line of defense - a

belief that the State would have learned that a psychiatrist had

been appointed and that the State would have produced damaging

evidence of future dangerousness in rebuttal.                        However, even

assuming    that    trial      counsel       erred    in   failing    to   seek   the

appointment of a confidential mental health expert, Crane has not

shown how he suffered prejudice from this failure.                   Crane produced

no persuasive psychiatric evidence in the district court that if

produced   at   trial,    would       have    undermined     confidence     in    the

resulting verdict.       Therefore, this claim is also without merit.

                                        IV.

     Crane has also made claims that he was improperly denied a

mental health expert to determine his competency at the time of the

offense; that the State failed to disclose or turn over exculpatory

evidence; that the Texas special issues are unconstitutionally

vague; that the trial court erred in excusing for cause prospective

juror Rita Solomon; that the trial court erred in excluding certain

evidence; that the prosecutor made improper comments on Linda

Crane’s failure to testify; and that Stephen Cross had a conflict

of interest.     Based upon our review of the record and the briefs

and for reasons stated by the magistrate judge in his report and

recommendation     of   June    24,    1997,    and    the   additional     reasons

assigned by the district court on August 20, 1997, we agree that

the district court correctly denied habeas relief.

     Because Crane has failed to make a substantial showing of a

denial of a constitutional right, he is not entitled to a CPC.


                                         12
Therefore, we DENY a CPC and VACATE the stay of execution.




                               13
