                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                    _____________________________

                             No. 92-8575

                    _____________________________

ROBERT MADDEN
                                             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 Western District of Texas

         _________________________________________________
                          (March 29, 1994)



BEFORE JONES, DUHÉ, and WIENER, Circuit Judges.

Wiener, Circuit Judge:

     In this petition for writ of habeas corpus, Petitioner-

Appellant Robert Madden challenges the constitutionality of the

Texas special issues as applied to him, as well as comments made by

the state in closing arguments. We conclude that Madden's evidence

does not fall within the ambit of Penry and thus he was not

entitled to additional jury instructions.        Similarly, we find no

merit   in   Madden's   contentions   that   various   comments   by   the

prosecutor deprived him of a fair trial.        Accordingly, we affirm

the denial of his habeas petition.
                                       I

                          FACTS AND PROCEEDINGS

     Madden was charged with the capital murder of Herbert Megason,

whose body, found some four to five days after his death, was

hidden in a creek on his weekend place in the country.               Megason had

been shot with a .22 caliber pistol.             Also found in the creek was

the body of Megason's son, Gary, who apparently had been shot in

the back with a shotgun and whose throat had been slashed.                    Gary

also had defense wounds from a knife on his hands and forearm.

Each man's feet were bound, as were Gary's hands.

     Madden    was    apprehended   when     he    signed   his    own     name   to

Megason's Texaco credit card.       In addition, he admitted to Donald

Jeffries, a new acquaintance, that he had stolen the Megasons'

truck.     He also had in his possession various items belonging to

Megason.   Most damaging, however, was his possession of the murder

weaponsSQthe    .22    pistol,   the       .22    Winchester      rifle,    and   a

bloodstained knifeSQwhich he attempted to sell to Jeffries.

     Based on this evidence, Madden was convicted of the murder of

Herbert Megason.      The judge then submitted to the jury the first

two special issues:

     (1) was the conduct of the defendant that caused the
     death of the deceased committed deliberately and with the
     reasonable expectation that the death of the deceased
     would result? and

     (2) is there a probability that the defendant would
     commit criminal acts of violence that would constitute a
     continuing threat to society?

The jury answered these questions in the affirmative; accordingly,

the judge sentenced Madden to death.

                                       2
      Madden's conviction was appealed automatically to the Texas

Court of Criminal Appeals, which affirmed both the verdict and the

sentence.1     Following this affirmance and denial of certiorari by

the U.S. Supreme Court,2 Madden sought a writ of habeas corpus in

state court, which transmitted the case to the Texas Court of

Criminal Appeals without findings of fact or conclusions of law.

That court denied relief, and Madden pursued his habeas petition in

federal court.

      The district court likewise denied all habeas relief, although

it granted Madden's request for a certificate of probable cause.

The court reasoned that, "[a]lthough Mr. Madden presents evidence

that is more analogous to Penry than other cases before the Fifth

Circuit, there is not substantial evidence that the criminal

conduct was attributable to the learning disorder, mental illness,

or substance abuse."

                                    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

presumption of correctness to any state court factual findings. .

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




      1
          Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990).
      2
          Madden v. Texas, 111 S.Ct. 1096, 1433 (1991).

                                     3
error, but decide any issues of law de novo."3                      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

       Madden first challenges the constitutionality of the special

issues as applied to him, insisting that these questions failed to

give effect to his mitigating evidence of mental illness, dyslexia,

and substance abuse.         In support of his argument, he relies on the

Supreme Court's decision in Penry v. Lynaugh,4 in which the Court

held       that    the   special   issues       did   not    give   effect   to   the

petitioner's evidence of mental retardation and abused childhood to

the extent these facts mitigated his culpability for the crime. We

review Madden's claim under Penry and the subsequent cases that

have clarified its holding.5

       In    Penry, the Court reiterated that the Eight Amendment

requires      an    "individualized    sentencing           determination"   by   the

sentencer;6 one that ensures that "the sentence imposed at the

penalty stage . . . reflect[s] a reasoned moral response to the

defendant;s         background,    character,         and   crime."7     Thus,    the

       3
       Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992)(citations omitted); see 28 U.S.C. § 2254(d).
       4
           492 U.S. 302 (1989).
       5
       See, e.g., Johnson v. Texas, 113 S.Ct. 2568 (1993); Graham
v. Collins, 506 U.S. ___, 113 S.Ct. ___, 122 L.Ed.2d 260 (1993),
Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992)(en banc).
       6
           Penry, 492 U.S. at 316.
       7
       Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545
(1987)).

                                            4
constitutionality of the Texas scheme, which considers mitigating

evidence solely through the special issues, "turns on whether the

enumerated    questions   allow   consideration   of   particularized

mitigating factors."8

     Ultimately, the Court in Penry concluded that the special

issues failed to give full effect to Penry's mitigating evidence of

mental retardation and abused childhood.      Specifically, although

Penry's mitigating evidence reduced his culpability for the crime,

the jury could not express its reasoned moral response through the

special issues as submitted.         Penry's mitigating evidence was

relevant on the first issueSQdeliberatenessSQbut had only a marginal

mitigating effect.    In addition, the Court emphasized that Penry's

evidence on the second issue was a "double edged sword": it

mitigated his responsibility because he was generally less able to

control his behavior than an average person; at the same time,

because he could never learn from his mistakes, he posed a future

danger to the community.    Moreover, as we explained subsequent to

Penry, this evidence rendered Penry less culpable "because these

characteristics were due to uniquely severe permanent handicaps

with which the defendant was burdened through no fault of his

own."9

1. Personality Disorder

     At the punishment phase of the trial, clinical psychologist

Dr. Jim Whitley, who had examined Madden twice, testified that

     8
         Jurek v. Texas, 428 U.S. 262, 272 (1976).
     9
         Graham, 950 F.2d at 1029.

                                     5
Madden suffers from a personality avoidance disorder, which Dr.

Whitley characterized as a        "clinical mental illness" that impairs

Madden's ability "to think and react in a logical manner."

Madden's particular personality disorder impairs his ability to

interact with others and form relationships, causing him to run

from conflict.    Thus, the testimony established that a person with

a personality avoidance disorder was generally not violent.                The

disorder does not, however, prevent Madden from understanding the

wrongfulness of his actions.

     According to Dr. Whitley, the disorder also makes Madden more

susceptible to substance abuse.            In Madden's case, Dr. Whitley

concluded that the combined effects of the personality disorder and

the long term drug abuse had caused Madden to suffer diminished

capacity.    Diminished capacity, in psychological terms, refers to

a deterioration or distortion of one's ability to make logical and

rational decisions.

     The first inquiry in a Penry claim is whether the mitigating

evidence is relevant.           Phrased differently, does the evidence

implicate the basic concern of Penry "that defendants who commit

criminal acts that are attributable to a disadvantaged background,

or to emotional and mental problems, may be less culpable than

defendants who have no such excuse."10           In Penry, the defendant's

mental retardation rendered him "less able than a normal adult to

control his     impulses   or    to   evaluate   the   consequences   of   his



     10
          Penry, 492 U.S. at 319.

                                       6
conduct."11   Thus, there was a clear nexus between Penry's handicap

and his criminal act; the criminal act was attributable to his

severe     permanent    handicap.         The      testimony     of    Dr.    Whitley

established that Madden has an emotional disorder specifically, an

anti-social    personality.         The   relevance       of    this   disorder       to

Madden's crime, however, is less than clear.

     Certainly, the evidence establishes generally that persons

with such personality disorders are more likely to use drugs, and

that drug users are more likely than non-users to engage in violent

behavior.      There    is     no   evidence,      however,     that    Madden       was

intoxicated at the time of the murders.                To the contrary, there is

evidence    that   he   had    finally        gained   some    control       over   his

addiction.    Thus, it cannot be said that Madden's tendency towards

substance abuse is directly responsible for the instant crime,

i.e., that the crime is attributable to such abuse in the Graham

sense.

     Conspicuously absent from the testimony of Dr. Whitley is any

general statement that a person with a personality avoidance

disorder is more aggressive or violent than an unafflicted person,

or any specific statement that Madden is.                  To the contrary, Dr.

Whitley    testified    that    victims       of   such   a    disorder      are    less

aggressiveSQexcept when they are intoxicated.                     Also noticeably

absent in this testimony was evidence that Madden was incapable of

controlling his impulses or unable to distinguish right from wrong.

Rather, Dr. Whitley specifically stated that a personality disorder

     11
          Id. at 322.

                                          7
does not impair one's ability to understand the wrongfulness of his

actions.

     Based       on    this      evidence,      we    conclude    that     there    is

insubstantial         evidence      that    Madden's        criminal    actions    are

attributable to his anti-social personality. Thus, the state court

did not err by refusing to give additional instructions.

2. Learning Disability

     Madden's learning disability does not fall within the ambit of

Penry.      In   Graham,      we   emphasized        that   Penry's    evidence    "was

strongly mitigating because these characteristics were due to the

uniquely severe permanent handicaps with which the defendant was

burdened through no fault of his own, mental retardation, organic

brain     damage,     and   an     abused    childhood."12       By    imposing    the

requirement that a handicap be "uniquely severe," we acknowledged

that not all organic brain damage will establish a Penry claim;

rather, organic brain damage is an example of the type of evidence

that we require as a minimum for a challenge under Penry.

Although dyslexia may be defined as an organic brain impairment, it

is not so "uniquely severe" that it rises to the level of a Penry

claim.

3. Troubled Childhood

     Madden presented evidence of a troubled childhood, including

abuse while an infant.           His father left his mother when Madden was

two and subsequently remarried.              Madden's step-father adopted him

when the boy was five years old, and there is no allegation that

     12
          Graham, 950 F.2d at 1029.

                                            8
the adoptive father abused Madden.     There is, in fact, evidence

that Madden's adoptive father was a very concerned parent.

       In Barnard v. Collins, we recognized that an abused childhood

could rise to the level of a Penry claim if the traumatic events

caused psychological effects to which the criminal conduct was

attributable.    Although Dr. Whitley's testimony linked Madden's

personality disorder to his childhood, we have concluded above that

his personality disorder is not linked causally to the criminal

act.    As there is no other evidence regarding the effect of this

short-lived abuse on Madden, he fails to produce substantial

evidence that his childhood abuse (if "abuse" it truly was) had

such a psychological effect on him that it led to the criminal act.

       We conclude, then, that Madden's reliance on his personality

disorder, his learning disability, and his troubled childhood as

mitigation in support of his Penry claim, is misplaced.    To grant

relief on a Penry claim, we must determine (1) that the proffered

evidence was constitutionally relevant mitigating evidence, and, if

so, (2) that the proffered evidence was beyond the "effective

reach" of the jurors.13   Thus rejection of a Penry claim does not

necessarily mean in every case that the jury was able to evaluate

the proffered evidence fully and fairly.    A Penry claim rejection

may also be based on the failure of the evidence relied upon by the

petitioner to be constitutionally relevant mitigating evidence. As

we find such failure here, we need not and therefore do not

       13
        See Johnson, 113 S.Ct. at 2268-69 (employing two-part
analysis and rejecting Petitioner's Penry claim predicated on
youth).

                                  9
consider the ability of the jury to consider under the Texas

special issues the evidence pointed to by Madden.14

4. Prosecutor's Statements

     Madden also insists that the jury could not consider the

mitigating evidence because (1) the court failed to define the word

"deliberately" in the first special issue and (2) the prosecutor

suggested that the jurors were not to consider the evidence and

that they were not there to determine whether Madden lived or died.

As we have held that Madden's evidence was irrelevant, these

arguments are moot.    In any event, we have held consistently that

the word deliberately is clear to the average juror and needs no

additional definition. Concerns as to any possible ambiguity arise

only when the special issues have not given full effect to the

mitigating evidence.     Moreover, as Madden failed to raise the

second argument before the district court, he cannot raise it for




     14
        Nonetheless, if we assume arguendo (without granting)
that some of the evidence pointed out by Madden is
constitutionally relevant mitigating evidence, we still reach two
alternative conclusions, either of which would suffice as a
reason to reject his Penry claims. First, we conclude that in
this case the evidence of Madden's personality disorder, learning
disability, and troubled childhood were within the "effective
reach" of the jury, as such evidence could be considered by the
jury to some extent under one of the special issuesSQparticularly
the issue of "future dangerousness." Second, we conclude that
Madden's claims in that regard are barred by Teague v. Lane, 489
U.S. 288, 109 S.Ct. 1060 (1989), as interpreted by the Supreme
Court in Graham v. Collins, 113 S.Ct. 892 (1993). As none of
Madden's mitigating evidence was truly doubled-edged in a way
that Penry's evidence was, and as Madden's evidence could be
considered by the jury under the first or second special issue,
the relief Madden seeks was not "dictated" by precedent and thus
constitutes a "new rule" under Teague.

                                 10
the first time on appeal.15

C. Madden's Failure to Testify

      Madden also challenges the propriety of the prosecutor's

statements regarding his failure to testify.             The statement at

issue, made during the guilt-innocence phase, is as follows:

      Then, also, the defense will argue that why in the world
      would someone who killed, murdered two people and stole
      this credit card sign their own name to the Texaco card?
      I don't know that; you don't know why. There's only one
      person here that knows why, and there's only one person
      here that knows the answer to all of these questions.

The   Texas    Court   of   Criminal   Appeals   held   that   this   passage

represented an impermissible reference to Madden's failure to

testify, but concluded that the reference was harmless beyond a

reasonable doubt.16         The district court, relying on Milton v.

Procunier,17 held that the statement, taken in context, was not a

comment on defendant's failure to testify.              Alternatively, the

district court concluded that, if there was error, it was harmless.

      When reviewing a claim that the prosecutor impermissibly

commented on the defendant's failure to testify, we ask "whether or

not the [prosecutor's] statement was manifestly intended or was of

such character that a jury would naturally and necessarily take it




      15
       Alexander v. McCotter, 775 F.2d 595, 603 (5th Cir.
1985)(citations omitted).
      16
           Madden, 799 S.W.2d at 699-700.
      17
       744 F.2d 1091, 1094-95 (5th Cir. 1984), cert. denied, 471
U.S. 1030 (1985)(prosecutor stated there was only one person who
could tell the jury about the crime, referring to an eye-
witness).

                                       11
to be a comment on the failure of the accused to testify."18                  We

cannot     agree    with   the   district   court    that   the   prosecutor's

statement was not a comment on Madden's failure to testify.                    A

review of Milton convinces us that it is not dispositive, as the

prosecutor there was clearly referring to the existence of an eye-

witness.     In contrast, the prosecutor's statement in the instant

case could apply only to Madden, and it undeniably directs the

jury's attention to Madden's silence.         Consequently, we agree with

the Texas Court of Criminal Appeals that the statement was an

impermissible comment on Madden's failure to testify.

      We also agree with the state and district courts that such

error is harmless under Chapman v. California,19 as it would be

under Brecht v. Abrahamson20 and Kotteakos v. United States.21               The

statement was made in connection with Madden's signature of his own

name on Megason's Texaco cardSQa mistake which led to his capture.

Admittedly, the card also suggested Madden's guilt as it tended to

place him at the scene of the crime and implicate him in the

robbery of the victim.           There was, however, other evidence of a

similar nature (Madden's possession of Megason's tool box and

watch; his admission that he stole Megason's truck) and evidence of

a   far    more    damaging   nature   (possession    of    all   three   murder

      18
       United States v. Wilson, 500 F.2d 715, 721 (5th Cir.
1974), cert. denied, 420 U.S. 977 (1975); see Milton, 744 F.2d at
1095.
      19
           386 U.S. 18, 21-26 (1967).
      20
           113 S.Ct. 1710 (1993).
      21
           328 U.S. 750 (1946).

                                       12
weapons).

     In     addition,   the     prosecutor's             statement    was     made   in

anticipation of the defense's argument that a guilty man would not

sign his own name, thereby leading police to him.                    The defense did

indeed make this argument, asking rhetorically in closing why the

defendant would use his own name.                Accordingly, we hold that the

error was harmless beyond a reasonable doubt and does not require

reversal.

D. Jury Instructions

     Finally, Madden insists that the court's failure to instruct

the jury as to the parole consequences of a life sentence, after

the possibility of parole was raised by the prosecutor in closing

arguments,    biased    the     jury     in      favor    of   a    death     sentence.

Specifically, Madden refers to the prosecutor's statement that:

     [The second special issue] talks of acts of violence, not
     murder. They can be assaults; they can be anything, but
     he is a ticking timebomb. And if we don't take him off
     the streets permanently by answering these questions yes,
     who will be next in that path? . . . And what we must do
     here is protect ourselves and our families from people
     like Robert Madden.

In addition, Madden insists that the court compounded this error by

instructing the jury that it was not to consider or discuss the

possibility of parole or the length of time required to satisfy a

sentence of life imprisonment.

     Madden    concedes       that     an     instruction      on    parole     is   not

constitutionally mandated in capital cases.22                  He insists, however,


     22
       Andrade v. McCotter, 805 F.2d 1190 (5th Cir.), cert.
denied, 475 U.S. 1112 (1986).

                                            13
that such an instruction is necessary in the instant case because

of the "facts which created a special hazard in relation to the

question of parole." We cannot agree, however, that the statements

of the prosecutor or the court created a special hazard.                      The only

potential reference to parole is the plea to take Madden "off the

streets permanently."             We decline to interpret this statement

relating to Madden's future dangerousness as a veiled reference to

release on parole.         Doing so would require a strained manipulation

of one euphemistic phrase that never even mentions the word parole

or any synonym for it.        Neither will we interpret the trial court's

instruction    not    to    consider   the       possibility     of   parole    as   an

improper reference.

      Madden   also    challenges          the    failure   to    give    a    parole

instruction on equal protection grounds.                    He insists that the

failure to give such an instruction in a capital case, compared to

the requirement of a parole instruction for non-capital cases,

violates the Equal Protection Clause.                 He admits that normally

there is a rational basis for the distinction, but contends that

this basis was destroyed by the prosecutor's statements and the

court's instructions.         As we have rejected Madden's argument that

the   prosecutor     and    the    trial    court    impermissibly       implicated

consideration of parole, his equal protection argument is moot.

                                        III

                                    CONCLUSION

      Despite a valiant attempt by Madden's counsel to elevate

evidence of the defendant's personality disorder, cum dyslexia, cum


                                           14
drug addiction to the level of a Penry violation, we conclude that

there is no constitutionally relevant mitigating evidence that

Madden's criminal actions are attributable to these problems.

Accordingly, there was no need for additional instructions. Having

concluded that the evidence was not relevant to Madden's moral

culpability, his related arguments that the jury could not consider

this evidence must fail.       Likewise, Madden's challenge to the

prosecutor's impermissible reference to the defendant's failure to

testify fails, as we conclude that the error was harmless in light

of the other evidence.     Finally, we reject Madden's claim that the

prosecutor and trial court impermissibly interjected the issue of

parole   into   the   sentencing   phase.   We   decline   the   tortuous

interpretation necessary to reach that conclusion.

     For the foregoing reasons, the district court's denial of the

petition for writ of habeas corpus is

AFFIRMED.




                                    15
