Leopoldo Narvaiz, Jr.,
Gary L. Johnson, Director, Texas Department of
Institutional Division, Respondent-Appellee.
Circuits, 5th Cir.
January 30, 1998
Appeal from the
United States District Court for the Western
District of Texas.
Before JOLLY, DUHE and BARKSDALE,
RHESA HAWKINS BARKSDALE, Circuit
Leopoldo Narvaiz, Jr., in 1988
convicted in Texas state court of capital murder and
sentenced to death, appeals the denial of federal
habeas relief, claiming two errors in sentencing:
(1) the voluntary intoxication jury instruction,
pursuant to TEX. PENAL CODE § 8.04(b), is
unconstitutional, facially and as applied, because
it prohibits the jury from considering mitigating
evidence of voluntary intoxication unless the
intoxication rises to the level of temporary
insanity; and (2) TEX.CODE CRIM.PROC. ART. 37.071(f)
is unconstitutional as applied because it prevents
the jury from weighing the mitigating evidence of
provocation by a victim other than the first person
named in the indictment. We AFFIRM and VACATE the
stay of execution.
Narvaiz was convicted by jury in
1988 of the offense of capital murder for stabbing
and bludgeoning to death Ernest Mann, Jr., age 11,
while also murdering Ernest Mann's three older
sisters, Martha, Shannon, and Jennifer Mann, ages
15, 17, and 19, respectively, in their home in Bexar
County, Texas. The horrific evidence presented in
the state criminal trial is accurately detailed in
the opinion of the Texas Court of Criminal Appeals
on direct appeal. See Narvaiz v. State, 840 S.W.2d
415, 420-23 (Tex.Crim.App.1992), cert. denied,
507 U.S. 975 , 113 S.Ct. 1422, 122 L.Ed.2d 791
Briefly restated, Narvaiz had
dated Shannon Mann for several years until she broke
off the relationship in February 1988. The next
month, Narvaiz approached Shannon Mann and her
boyfriend, Ricky Moore, with a knife and a pipe,
smashed the windows of Moore's truck, and stated to
Shannon's mother that "if he wasn't going to be able
to have [Shannon], nobody else was going to". Id. at
In the early morning hours of 15
April 1988, the police received and recorded a "911"
telephone call in which the caller, later identified
as Shannon Mann, stated: "My boyfriend just beat us
up. He's killed my little sister". Id. at 421. When
the police arrived at the Mann residence, they found
all four of the Mann siblings stabbed to death.
Ernest Mann, Jr., had been stabbed 63 times. Id. A
knife containing Narvaiz' thumbprint was found in
the yard of the residence and the police soon
arrested Narvaiz at a friend's house.
Two days after the arrest,
Narvaiz signed a written confession in which he
admitted the killings, but asserted that he was
under the control of cocaine at the time and that
Jennifer Mann first stabbed him in the leg, after
which he "just went crazy". Id. at 422-23.
The day following conviction, the
jury affirmatively answered two Texas capital
sentencing special issues as to: (1) deliberateness
and expectation of death; and (2) continuing threat
to society. As a result, Narvaiz was sentenced by
the trial court to death by lethal injection.
In 1992, the Texas Court of
Criminal Appeals affirmed the conviction and
sentence; and, in 1993, the Supreme Court of the
United States denied certiorari. Id. The trial court
scheduled execution for 23 April 1993.
Narvaiz, with the assistance of
the Texas Resource Center, filed in district court a
motion for appointment of counsel, a motion for stay
of execution, and an abbreviated habeas petition.
That court stayed execution and appointed counsel.
Narvaiz filed his amended federal habeas petition in
late 1993. The district court, in early 1994,
granted the State's motion to dismiss the petition,
without prejudice, for failure to exhaust state
remedies. Narvaiz v. Collins, No. SA-93-CA-0311 (W.D.Tex.
Feb. 8, 1994). The trial court scheduled execution
for 6 June 1994.
On 1 June 1994, Narvaiz filed a
pro se state habeas application, incorporating by
reference the grounds for relief raised in federal
court. Following appointment of counsel and a new
execution date of 12 October 1994, Narvaiz' counsel
filed an amended application, but refused to present
supporting evidence, seeking instead the appointment
of a private investigator to assist in developing
claimed newly-discovered grounds for relief. On 3
October 1994, the Texas Court of Criminal Appeals
denied Narvaiz' state habeas claim. Ex parte Narvaiz,
No. 27,215-01, at 161 et seq. (Tex.Crim.App. Oct. 3,
Three days later, the same
district court that had been presented with Narvaiz'
first federal habeas application appointed the same
counsel who had represented Narvaiz in the previous
federal habeas proceeding, granted a stay of
execution, and set a deadline for filing a federal
In January 1995 Narvaiz filed a "corrected"
petition, listing 22 grounds for relief. Two months
later, the district court denied the State's motion
to dismiss for failure to exhaust state remedies,
stating among its reasons the need to prevent
Narvaiz from manipulating the system through
intentionally filing non-exhausted claims in
district court, thus postponing in perpetuity a
determination on the merits by the district court
and, as a result, execution of sentence.
In mid-March 1997, the district
court, after considering all 22 grounds for relief
and reviewing more than 6000 pages of record, filed
an 190-page opinion, denying habeas relief and
lifting the stay of execution. Narvaiz v. Johnson,
Civil No. SA-94-CA-839, at 12-13 (W.D.Tex. Mar. 17,
1997). Narvaiz filed a notice of appeal, which was
deemed timely filed. The state court set execution
for 15 October 1997.
On 21 August 1997, our court
issued an administrative directive to the district
court to determine whether Narvaiz was entitled to a
certificate of probable cause to appeal (CPC). That
court determined that only one of Narvaiz' claims
satisfied that standard. However, it denied Narvaiz'
motion for stay of execution, in part because "there
is no reasonable likelihood that the Fifth Circuit
will rule favorably to petitioner on [the claim
which was granted CPC]". We granted a stay of
execution, denied counsel's motion to withdraw, and
set an expedited briefing schedule.
Narvaiz presents two issues. Both
issues attack the constitutionality of the jury
instructions at the sentencing phase: the first,
contends that the jury charge was unconstitutional
due to an instruction that was included; the second,
that an instruction was excluded.
The first contention is based on
the voluntary intoxication jury instruction given to
the jury, pursuant to TEX. PENAL CODE § 8.04(b),
which included the following: "Evidence of temporary
insanity caused by intoxication should be considered
in mitigation of the penalty attached to the offense".
Narvaiz contends that this instruction was
unconstitutional because it prohibited the jury from
considering mitigating evidence of voluntary
intoxication that did not rise to the level of such
The second contention is based on
the trial court's refusing an instruction on
provocation by a victim other than the first named
in the indictment. This contention involves TEX.CODE
CRIM.PROC. ART. 37.071, which provides that a
provocation instruction shall be submitted "only
with regard to the conduct of the defendant in
murdering the deceased individual first named in the
indictment". Narvaiz contends that this statute is
unconstitutional as applied because it prevents the
jury from weighing the mitigating effect of the
alleged provocation by Jennifer Mann, noted supra.
The first issue, concerning
voluntary intoxication, was the sole issue found by
the district court to satisfy the standards for CPC.
The second issue, concerning provocation, was not
mentioned as satisfying those standards. But, unlike
the certificate of appealability under the
Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. 2253(c) (as amended), a
grant of CPC on a single issue allows Narvaiz to
raise other issues on appeal. 28 U.S.C. 2253 (prior
to 1996 amendment); see Sherman v. Scott, 62 F.3d
136, 138-39 (5th Cir.1995).
During the sentencing phase, the
trial court, pursuant to TEX. PENAL CODE § 8.04(b),
directed the jury to consider evidence of Narvaiz'
voluntary intoxication as mitigating evidence only
if it determined that the intoxication amounted to
temporary insanity. That section provides: "Evidence
of temporary insanity caused by intoxication may be
introduced by the actor in mitigation of the penalty
attached to the offense for which he is being tried".
TEX. PENAL CODE § 8.04(b).
The sentencing charge contained,
in pertinent part, the following:
You are instructed that under our
law neither intoxication nor temporary insanity of
mind caused by intoxication shall constitute any
defense to the commission of crime. Evidence of
temporary insanity caused by intoxication should be
considered in mitigation of the penalty attached to
By the term "intoxication" as
used herein, is meant disturbance of mental or
physical capacity resulting from the introduction of
any substance into the body.
By the term "insanity" as used
herein, is meant that as a result of intoxication
the defendant did not know that his conduct was
Now if you find from the evidence
that the defendant, Leopoldo Narvaiz, Jr., at the
time of the commission of the offense for which he
is on trial, if you find from the evidence beyond a
reasonable doubt that he did commit such offense,
was laboring under temporary insanity as defined in
this charge, produced by voluntary intoxication,
then you may take such temporary insanity into
consideration in mitigation of the penalty which you
attach to the offense.
But, that charge also stated:
You are further instructed that
in determining each of these [two] special issues
[as to deliberateness and continuing threat to
society] you may take into consideration all of the
evidence submitted to you in the full trial of the
case, that is, all of the evidence submitted to you
in the trial of the first part of this case wherein
you were called upon to determine the guilt or
innocence of the defendant, and all of the evidence,
if any, admitted before you in the second part of
the trial wherein you are called upon to determine
the special issues hereby submitted to you. Evidence
to be considered shall include but not be limited to
aspects of the defendant's character and background
and the facts and circumstances of the offense.
At trial, Narvaiz did not object
to the § 8.04(b) instruction; nor did he raise it as
an issue in his direct appeal. On the other hand, he
did raise this issue in his state habeas proceeding.
In that regard, the state court did not apply a
procedural bar and the State does not urge that bar
here. Accordingly, because the State does not raise
the issue of a procedural bar, we address the merits,
as did the district court.
See Trest v. Cain, --- U.S. ----, ----, 118 S.Ct.
478, 480, 139 L.Ed.2d 444 (1997) ("A court of
appeals is not 'required' to raise the issue of
procedural default sua sponte.").
And, although federal courts
generally defer to state court findings in habeas
proceedings, the district court, "out of an
abundance of respect for petitioner's constitutional
rights" and as a result of cursory analysis in the
state court habeas decisions, declined to defer to
those findings and conducted a de novo review of
Narvaiz' grounds for relief. Narvaiz, Civil No.
SA-94-CA-839, at 56-57 n. 128.
"The proper standard for
reviewing a challenged jury instruction in the
capital sentencing context is 'whether there is a
reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.'
" Drinkard v. Johnson, 97 F.3d 751, 757 (5th
Cir.1996) (quoting Boyde v. California, 494 U.S.
370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316
(1990)), cert. denied, --- U.S. ----, 117 S.Ct.
1114, 137 L.Ed.2d 315 (1997). "This 'reasonable
likelihood' standard does not require the petitioner
to prove that the jury 'more likely than not'
interpreted the challenged instruction in an
impermissible way; however, the petitioner must
demonstrate more than 'only a possibility' of an
impermissible interpretation." Id.
Of course, the challenged
instructions must be analyzed within the context of
the overall jury charge. Cupp v. Naughten, 414 U.S.
141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368
(1973). "In evaluating the instructions, we do not
engage in a technical parsing of this language of
the instructions, but instead approach the
instructions in the same way that the jury would--with
a 'commonsense understanding of the instructions in
the light of all that has taken place at the trial.'
" Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct.
2658, 2669, 125 L.Ed.2d 290 (1993) (quoting Boyde,
494 U.S. at 381, 110 S.Ct. at 1198).
Narvaiz concedes that his
contentions concerning this issue are directly in
conflict with Drinkard, 97 F.3d at 751, and Lauti v.
Johnson, 102 F.3d 166, 169 (5th Cir.1996), cert.
denied, --- U.S. ----, 117 S.Ct. 2525, 138 L.Ed.2d
The pertinent facts and
sentencing-phase charge in the instant case are
essentially identical to those in Drinkard and Lauti,
in which our court held that the § 8.04(b)
instruction did not deprive the defendant of his
constitutional rights. Both Drinkard and Lauti
concluded that the general instruction, quoted above,
to consider "all of the evidence" admitted at trial
negates any inference that the § 8.04(b) instruction
precluded consideration of evidence of non-insane,
voluntary intoxication. Drinkard, 97 F.3d at 764;
Lauti, 102 F.3d at 169-70.
The State relies on Drinkard and
Lauti, contending, inter alia, that, even if the
jury inferred that the § 8.04(b) instruction
prohibited considering non-insane, voluntary
intoxication as a mitigating factor, the general
instruction provided it with an opportunity to
consider any relevant mitigating evidence; and that
the § 8.04(b) instruction is logically relevant only
to the first special issue (deliberateness), not the
second (continuing threat to society), see Drinkard,
97 F.3d at 761.
Narvaiz seeks shelter, inter alia,
under the dissent in Drinkard, which noted that a
permissible general instruction does not cure
specific language in an instruction that is
otherwise unconstitutional. 97 F.3d at 774 (Emilio
M. Garza, J. dissenting) (citing Francis v.
Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d
344 (1985)). And, he analogizes to Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982), in which the Court held that the sentencer
in a capital murder case cannot be precluded, as a
matter of law, from considering mitigating evidence.
Narvaiz distinguishes the Court's holding in Johnson
v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d
290 (1993), that the defendant's youth was
implicitly considered by the jury in the answers to
the Texas special instructions, on the basis that,
in the instant case, the jury was expressly
instructed not to consider a mitigating factor.
Drinkard and Lauti control. It is
more than well-established that, "[i]n this circuit,
one panel may not overrule the decision, right or
wrong, of a prior panel in the absence of en banc
reconsideration or superseding decision of the
Supreme Court." Batts v. Tow-Motor Forklift Co., 978
F.2d 1386, 1393 n. 15 (5th Cir.1992) (quoting
Burlington N.R.R. Co. v. Brotherhood of Maintenance
of Way Employees, 961 F.2d 86, 89 (5th Cir.1992),
506 U.S. 1071 , 113 S.Ct. 1028, 122 L.Ed.2d
173 (1993)) (citations and internal
quotations omitted). Accordingly, this claim is
foreclosed by circuit precedent.
Narvaiz maintains that TEX.CODE
CRIM.PROC. ART. 37.071(f) is unconstitutional as
applied, asserting that it prevents the jury from
weighing the mitigating evidence of provocation by a
victim other than the first person named in the
indictment. At the time of Narvaiz' trial, TEX.CODE
CRIM.PROC. ART. 37.071 provided in relevant part:
(b) On conclusion of the
presentation of the evidence, the court shall submit
the following issues to the jury:
(1) whether the conduct of the
defendant that caused the death of the deceased was
committed deliberately and with the reasonable
expectations 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.
* * *
(f) If a defendant is convicted
of an offense under section 19.03(a)(6), Penal Code,
the court shall submit the three issues under
Subsection (b) of this article only with regard to
the conduct of the defendant in murdering the
deceased individual first named in the indictment.
As noted, and pursuant to this
provision, the district court gave the following
instruction at the sentencing phase, invoking the
first two special issues:
SPECIAL ISSUE NO. I
Was the conduct of the defendant
that caused the death of the deceased committed
deliberately and with the reasonable expectation
that the death of Ernest Mann, Jr., would result?
SPECIAL ISSUE NO. II
Is there a probability that the
defendant would commit criminal acts of violence
that would constitute a continuing threat to society?
Narvaiz' written confession,
introduced at trial by the State, included the
following: "[Jennifer Mann] got a knife and stabbed
me in the leg. She tried to stab me again and I
tried to stop her when she stabbed my hand. Then I
just lost it.... I just went crazy." As arguable
support of this statement, the trousers Narvaiz was
wearing at the time of the incident were cut in a
location corresponding to a wound on his leg.
Accordingly, Narvaiz requested
that the trial court submit the third special issue,
concerning whether the defendant's conduct was in
response to provocation by the victim. The court
refused, following the State's contention that,
inter alia, the special issue was inapplicable
because it applied only with respect to the victim
first named in the indictment, Ernest Mann, Jr., and
no evidence had been produced that he had provoked
The provocation instruction, as
provided in TEX.CODE CRIM.PROC. ART. 37.071, is
invoked only "if raised by the evidence". Narvaiz
does not dispute the State's contention that there
is no evidence of provocation by Ernest Mann, Jr.
Instead, Narvaiz contends that the evidence produced
at trial, such as his written confession, provide
sufficient evidence of provocation by Jennifer Mann,
who is not first named in the indictment.
Narvaiz did not raise this issue
on direct appeal. See Narvaiz v. State, 840 S.W.2d
415 (Tex.Crim.App.1992). However, he did raise it in
his state habeas proceedings. As was the case for
the other issue in this appeal, the state court did
not apply a bar, and the State does not urge one
here. For the reason stated supra, we find no
procedural bar. Trest, --- U.S. at ----, 118 S.Ct.
Narvaiz contends that the trial
court's failure to provide the provocation
instruction constituted various constitutional
violations. Although these claims are somewhat
convoluted, they can be grouped roughly as the
following: (1) violation of the Separation-of-Powers
Clause of the Texas Constitution; (2) violation of
the Eighth and Fourteenth Amendments, because the
jury was not allowed to consider constitutionally
relevant mitigating evidence and the jury's verdict
is incomplete; (3) violation of the Eighth and
Fourteenth Amendments, because Narvaiz did not have
the benefit of the narrowing scheme created by the
Texas legislature; and (4) violation of the Ex Post
Facto Clause, because the trial court failed to
comply with a statute in effect at the time he
committed the crime.
The State maintains that all but
one of these sub-issues were not presented to the
district court. After reviewing Narvaiz' "corrected"
petition before the district court, we conclude,
although dubitante, that all of them were adequately
As for the claim that the refusal
to give the third special issue violated the Texas
Constitution, and as stated in the district court
opinion, claims that the trial court improperly
applied state law do not constitute an independent
basis for federal habeas relief. Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L.Ed.2d
385 (1991) ("We have stated many times that 'federal
habeas corpus relief does not lie for errors of
state law' ") (quoting Lewis v. Jeffers, 497 U.S.
764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606
(1990)). Needless to say, a 28 U.S.C. 2254 applicant
must claim violation of a federal constitutional
right. Id.; West v. Johnson, 92 F.3d 1385, 1404 (5th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
1847, 137 L.Ed.2d 1050 (1997).
Next, Narvaiz contends that the
refusal to submit the provocation special issue
violated his Eighth and Fourteenth Amendment rights
because it denied the jury the opportunity to
consider relevant mitigating evidence that Jennifer
Mann, who is not first named in the indictment,
provoked him. Narvaiz relies upon First v. State,
846 S.W.2d 836 (Tex.Crim.App.1992), which held ART.
37.071(f) unconstitutional as applied, because the
court failed to submit an instruction on provocation
by a victim other than the one first named in the
indictment. The State points out that the holding in
First is distinguishable from the immediate case
because First is premised upon, inter alia, an
instruction that contained "an inclusive list of
mitigating circumstances", which excluded
provocation by one of the victims. Id. at 841.
Narvaiz asserts that, per First,
the provocation special issue is "the sole vehicle
within the death-sentencing scheme for the jury's
consideration of mitigating evidence of provocation
by the decedents", and that he has "an automatic
entitlement under the Eighth Amendment" to have it
presented to the jury.
But, as stated in Narvaiz' brief,
the construction of the third special issue in First
"is a matter of state law". As such, it does not
constitute an independent basis for federal habeas
relief. Estelle, 502 U.S. at 67-68, 112 S.Ct. at
479-80; West v. Johnson, 92 F.3d at 1404.
The State asserts also that
Narvaiz' claim concerning the failure to submit the
provocation issue is foreclosed by circuit precedent.
Vuong v. Scott, 62 F.3d 673, 676 (5th Cir.), cert.
516 U.S. 1005 , 116 S.Ct. 557, 133 L.Ed.2d 458
(1995). In Vuong, our court denied relief on
a claim essentially identical to Narvaiz' because it
would have constituted a retroactive application of
a new rule of constitutional law in contravention of
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989). Vuong, 62 F.3d at 676-82.
Moreover, our court held that the first two special
issues under ART. 37.071 allowed the jury to
consider evidence of provocation by a victim other
than the first named in the indictment. Id. at 682.
We find persuasive the State's contention that Vuong
precludes this issue; but, out of an abundance of
caution, we address the merits of Narvaiz'
Obviously, the Eighth and
Fourteenth Amendments do not require that a
defendant's mitigating evidence be given effect in
the manner and extent the defendant wishes. White v.
Collins, 959 F.2d 1319, 1322 (5th Cir.), cert.
503 U.S. 1001 , 112 S.Ct. 1714, 118 L.Ed.2d
419 (1992). All that is required is that the
jury be afforded one adequate vehicle to consider
the mitigating evidence. Id. at 1322-23. The State
may "structure" the way a jury considers such
evidence. Rogers v. Scott, 70 F.3d 340, 343 (5th
Cir.1995) (citation omitted).
Under the two special issues
presented at the sentencing phase, the jury was
afforded an opportunity to consider the mitigating
evidence that Jennifer Mann's alleged attack
provoked Narvaiz. For example, it could have decided
that an attack, if any, by Jennifer Mann had caused
a violent response by Narvaiz that was not
deliberate, thus affecting the finding under the
first special sentencing issue.
Similarly, the jury, when
considering the second special sentencing issue,
could have found that Narvaiz' murders of the four
Mann children resulted because he was attacked and
stabbed by Jennifer Mann and not because he has a
propensity for violence that poses a continuing
threat to society. Accordingly, we agree with the
district court that there was no Eighth Amendment
violation because the two special issues provided an
adequate vehicle for the jury to consider the
mitigating effects of Narvaiz' evidence of the
claimed provocation by Jennifer Mann.
Narvaiz contends also that these
constitutional rights have been violated because "the
jury's sentencing verdict to date remains
incomplete" and, therefore, we must reverse his
sentence as well as his capital murder conviction.
Although Narvaiz appears to state this as a separate
argument, the analysis is essentially
indistinguishable from that in the above
In a similar vein, Narvaiz
contends that his Eighth and Fourteenth Amendment
rights were violated by the refusal to give the
provocation special issue because the jury was
precluded from determining whether Narvaiz belonged
in the class of capital murderers who were
ineligible for the death penalty under the statutory
"narrowing" scheme created by the Texas legislature.
He asserts that the trial court violated his "constitutionally-protected
'liberty interest' in the submission of the third
statutory special issue" in violation of the Due
Narvaiz bases this contention on
Hicks v. Oklahoma, 447 U.S. 343, 346-47, 100 S.Ct.
2227, 2229-30, 65 L.Ed.2d 175 (1980), which found a
due process violation when a state appellate court
re-imposed the defendant's original 40-year sentence,
even though the sentence was premised upon a state
statute that later had been declared
unconstitutional and, without which, the sentence
would have been ten years. Aside from the obvious
factual differences between Hicks and the instant
case, see Narvaiz v. State, Civil No. SA-94-CA-839,
at 109 (W.D.Tex. Mar. 17, 1997), Narvaiz' claim does
not satisfy the Hicks standard.
A defendant claiming a due
process violation under Hicks must establish: (1)
the sentencing authority either (a) did not make the
sentencing decision or (b) lacked knowledge of the
available range of sentencing discretion under state
law, and (2) a "substantial possibility" of
resulting prejudice to the defendant. Dupuy v.
Butler, 837 F.2d 699, 703 (5th Cir.1988).
The jury was instructed on the
range of sentencing under state law and Narvaiz'
sentence was properly based on its answers to the
two special issues. Narvaiz has failed to
demonstrate a violation under Hicks.
Finally, Narvaiz contends that
the refusal to submit the provocation special issue
violated the Ex Post Facto Clause of the United
States Constitution because it deprived him of a
viable defense available at the time of the crime.
A violation of that clause occurs
when a statute retroactively affects a criminal
defendant by: (1) criminalizing conduct that was not
criminal at the time of the conduct; (2) increasing
the punishment for a crime already committed; or (3)
depriving a defendant of a viable defense available
at the time that the crime was committed. Wilson v.
Lensing, 943 F.2d 9, 10-11 (5th Cir.1991).
The well-settled state law prior
to the commission of Narvaiz' crime was that the
provocation special issue should be presented only
if there is evidence of provocation by the victim
first named in the indictment. Marquez v. Collins,
11 F.3d 1241, 1248 (5th Cir.1994). As stated supra,
the two special issues permitted the jury to
consider provocation, if any, by Jennifer Mann. The
Ex Post Facto Clause was not violated.
For the foregoing reasons, we AFFIRM the denial
of habeas relief and VACATE our order staying
AFFIRMED; STAY VACATED.
[T]he dismissal of this federal
habeas corpus proceeding based on petitioner's
inclusion of unexhausted claims in this, his second,
federal habeas corpus petition not only sets a bad
precedent but also does nothing to preclude
petitioner from effectively preventing the State of
Texas from ever carrying out petitioner's sentence.
Unless and until this or some other federal court
addresses the merits of petitioner's claims for
federal habeas relief, there is absolutely nothing
to prevent petitioner from continuing to file
requests for stays of execution and for appointment
of counsel and to then file a federal habeas
petition containing unexhausted claims for relief,
waiting for the court to dismiss same without
prejudice, and then start the process all over again.
Order and Advisory, at 9-10 (filed
Mar. 10, 1995).
Of course, exhaustion is not a
jurisdictional requirement, but rather a matter of
comity. Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct.
1198, 1202, 71 L.Ed.2d 379 (1982). Therefore, the
State may waive the exhaustion issue by not
asserting it as a defense. McGee v. Estelle, 722
F.2d 1206, 1211-14 (5th Cir.1984) (en banc). In the
instant case, the State moved to dismiss for lack of
exhaustion in the district court but does not urge
here that the district court erred in denying that
motion. Accordingly, we need not address the
decision to deny that motion.