IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-1995

SAMUEL CHRISTOPHER HAWKINS, 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 Northern District of Texas

( December 23, 1992 )

Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

I

Samuel Christopher Hawkins was convicted of capital murder by

a jury in the 99th Judicial District Court of Lubbock County, Texas

on March 15, 1978, and after a sentencing hearing was sentenced to

death. The Texas jury convicted Hawkins, a black man, for the rape

and murder of Abbe Rodgers Hamilton, a pregnant white woman. He

brings in this third federal habeas petition related claims.

First, he urges that the jury could not give expression to his

mitigating evidence under the interrogatories then submitted in

capital cases. Second, he urges that his opportunity to offer mitigating evidence was frustrated by the jury's inability under

its instructions to separate the negative from the positive in

viewing his evidence. We find that Hawkins' claims should have

been included in at least his second federal petition and are now

barred.

II

Five years after trial, the Texas Court of Criminal Appeals

rejected fifteen assigned errors and affirmed the conviction and

sentence. Hawkins v. State,

(Tex. Crim. App. 1983)

(en banc).1 Hawkins filed his first federal habeas petition while

his direct appeal was pending, and it was dismissed for failure to

exhaust state remedies. Without filing a state habeas petition,

Hawkins filed his second federal petition on November 4, 1983.

After extensive proceedings, the federal district court determined

Hawkins to be competent and granted his request to proceed pro se.

The magistrate-judge warned Hawkins of the hazards of representing

himself, but when he persisted granted Hawkins' counsel leave to

withdraw. The magistrate-judge then gave Hawkins leave to add any

claims but when he added none, denied Hawkins' federal petition.

The dismissed petition contained neither of the two claims now

asserted. We affirmed. Hawkins v. Lynaugh,

(5th

Cir. 1988). The Supreme Court denied certiorari,

(1988).

1 The court initially remanded for a competency hearing, but Hawkins expressly waived the issue and the Texas Court of Criminal Appeals accepted the waiver.

2 After some confusion over who represented Hawkins, two lawyers

filed another state petition with the state trial court on December

5, 1988, and four days later the Texas Court of Criminal Appeals

denied relief. The present petition was then filed in federal

court on December 9, 1988. The district court, after some initial

confusion, denied a stay of the then scheduled execution and denied

a certificate of probable cause. We in turn refused a certificate

of probable cause and denied a stay. We did not rest on writ

abuse, finding instead that the Penry claim lacked sufficient merit

under circuit law to warrant a certificate of probable cause. We

declined to foot our ruling on abuse of the writ, because we were

then unsure of the legal effect of Hawkins' sometimes pro se status

in pursuit of collateral review. Hawkins v. Lynaugh,

(5th Cir. 1988). The Supreme Court vacated and remanded for

reconsideration in light of Selvage v. Collins,

,

(1990) and Penry v. Lynaugh,

,

(1989). On April 2, 1990, we stayed proceedings pending

answer to the question we certified to the Texas Court of Criminal

Appeals in Selvage. We then ordered further briefing on April 29,

1992 and have received those briefs.

At trial, the jury heard evidence regarding Hawkins'

psychological and emotional difficulties. Dr Hugh Pennal, a

psychiatrist, related Hawkins' social history. Pennal related that

Hawkins' father was a minister who beat him and taught him to hate

white people and to strike at them through their "women". A

clinical psychologist testified that Hawkins suffered a severe

3 mental disorder, including delusions about oppressed blacks and

that at times in his life Hawkins had been insane. There was

additional evidence of Hawkins' sexual urges, his anger and

feelings of inferiority. Hawkins also contends that there was

additional evidence that might have been offered at trial if there

were a means for the jury to give it expression without condemning

Hawkins with the same evidence in answering the questions of future

dangerousness and deliberateness.

III

Any promise of the Supreme Court's remand in Selvage, and the

later answer by the Texas Court of Criminal Appeals that Texas

would not insist on a contemporaneous objection, has proved empty

to petitioners such as Hawkins who fail to assert any Penry claim

in their first federal petition. As we explained in Selvage v.

Collins,

(5th Cir. 1992), "We recognize that in

practical terms this means that federal courts will not entertain

"Penry" error in a successive federal writ. This is the direct sum

of McCleskey and Sawyer." Finally, we have since answered the

question of the knowledge chargeable to an unrepresented habeas

petitioner in favor of the state. Saahir v. Collins,

(5th Cir. 1992) ("McCleskey `knew or reasonably should have

known' standard for cause applies irrespective of whether he was

represented by counsel when he filed any previous petitions.")

We are offered no sufficient legal cause for Hawkins' failure

to assert his present claims in his earlier petitions; controlling

precedent requires that we affirm the district court's denial of

4 relief. Our stay is vacated and a certificate of probable cause is

DENIED.

5