REVISED
                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 96-31167
                         _____________________


DOBIE GILLIS WILLIAMS,

                              Petitioner - Appellee-Cross-Appellant,

                                versus

BURL CAIN, Acting Warden,
Louisiana State Penitentiary,
Angola, Louisiana,

                              Respondent - Appellant-Cross-Appellee.

__________________________________________________________________

      Appeals from the United States District Court for the
                  Western District of Louisiana
__________________________________________________________________
                         October 3, 1997

Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Dobie Gillis Williams has been sentenced to death by the state
of Louisiana.   In this federal petition for a writ of habeas corpus

he challenges both his conviction and death sentence on multiple

grounds.   The district court granted the petition on the ground

that Williams had received ineffective assistance of counsel, but

only at his sentencing hearing, and thus set aside the death

sentence unless Louisiana conducted a new sentencing hearing.    The

district court rejected Williams’s other claims. Louisiana appeals

the grant of habeas relief on the ineffective assistance of counsel
claim, and Williams cross-appeals the denial of two of his other

claims. We   conclude that the district court erred in finding that

Williams’s   counsel    provided   ineffective   assistance   during   the

sentencing hearing.      We also reject Williams’s claim concerning

discrimination in the selection of the grand jury foreman as

procedurally barred, and conclude that the jury’s consideration of

an invalid aggravating factor at sentencing does not require that

Williams’s death sentence be vacated.       In short, we reinstate the

death sentence.

                                     I

     On the evening of July 6, 1984, Mrs. Sonja Knippers fell

asleep on her living room sofa while watching television.              She

awoke just past midnight and stopped in the bathroom before going

to bed. When she closed the bathroom door, she discovered Williams

hiding behind it, pantless and brandishing a knife.       Mrs. Knippers

began to scream.       Williams locked the bathroom door and stabbed

Mrs. Knippers repeatedly with the knife before fleeing out the

bathroom window.   Although fatally injured, Mrs. Knippers was able

to unlock the bathroom door after Williams fled.              Her husband

carried her to the living room, where she bled to death in his

arms.

     Mr. Knippers informed police that his wife had screamed that

a black man was trying to kill her.       At the time, Williams, who is

black, was staying at the home of his grandfather on a five-day

furlough while serving a prison sentence for a prior burglary




                                    -2-
conviction.       Police suspected Williams because his grandfather’s

home was nearby.             Williams was taken in for questioning, and

ultimately confessed to the crime after investigators observed

fresh    scratches         and    other    abrasions          on    his     arms    and   legs.

Williams’s statement led the investigators to the murder weapon,

found in the grass outside the Knipperses’ home, and to the shirt

that he was wearing at the time of the crime, which he had hidden

underneath the porch at his grandfather’s house.

                                                II

       Williams was indicted for first degree murder by a grand jury

in    Sabine    Parish,      Louisiana.              Because       of    extensive    pretrial

publicity, the trial was moved to Grant Parish, where Williams was

convicted by a jury after a five-day trial.                         During the guilt phase

of the trial, Williams’s attorney, Mr. Michael Bonnette, attempted

to prevent a capital conviction by challenging the existence of the

aggravating factors that the jury must find to convict for first

degree murder rather than second-degree murder. Bonnette’s efforts

were unsuccessful, and Williams was convicted of first degree

murder.

       During the sentencing hearing that followed the guilt phase of

the    trial,    Bonnette         made    statements        referring         to    mitigating

evidence,       but   did        not    call        any   witnesses.          Bonnette      did

cross-examine one of the state’s witnesses.                             The jury recommended

that    Williams      be    sentenced          to    death,     finding       two    statutory

aggravating      factors:         (1)     that       Williams       was     engaged    in   the




                                               -3-
perpetration of an aggravated burglary or an attempted aggravated

rape, and (2) that the offense was committed in an especially

heinous, atrocious, or cruel manner.

      Williams’s      conviction    and    sentence      were   affirmed    by    the

Louisiana Supreme Court.           State v. Williams, 

(La.

1986).     His petition for a writ of certiorari was denied by the

Supreme Court, and his conviction became final on June 26, 1987.

Williams v. Louisiana, 

(1987).

      Williams thereafter filed several state court petitions for

post-conviction relief.           Judge Hiram Wright of the Thirty-Fifth

Judicial      District    Court     of    Louisiana,      Grant    Parish,       held

evidentiary     hearings    in     1988    to     address   Williams’s       claims

concerning ineffective assistance of counsel during the penalty

phase and the admissibility of his confession, ultimately rejecting

both claims.          Numerous additional claims were considered and

rejected by Judge Wright in 1992.                The Louisiana Supreme Court

denied supervisory writs with respect to these claims.                     In 1993,

the Louisiana Supreme Court granted a supervisory writ with respect

to Williams’s claim concerning discrimination in the selection of

the   grand    jury    foreman.      Judge      Wright   subsequently      held    an

evidentiary hearing on that claim, and rejected the claim.                        The

Louisiana Supreme Court later denied Williams’s further request for

a supervisory writ, ending the state post-conviction proceedings.

      Williams filed a petition for a writ of habeas corpus in

federal district court on April 25, 1996, raising some twenty




                                         -4-
grounds of      relief.           The     district        court   found   that       Bonnette,

Williams’s counsel, failed to adequately investigate Williams’s

background and to present available mitigating evidence during the

penalty      phase    of    the        trial.       The    district    court    found      that

Bonnette’s failure to prepare for the penalty phase of the trial

was unreasonable, such that Williams was effectively “without

counsel during the penalty phase of his trial.”                           The court found

that   “[t]he    absence          created       a     constitutionally       impermissible

condition,” and ruled that Williams’s death sentence therefore

violated the Eighth and Fourteenth Amendments of the federal

Constitution. The court rejected Williams’s nineteen other claims,

including the claims concerning discrimination in the selection of

the grand jury foreman and constitutional defects in the jury

instructions during the penalty phase.

       The    state    timely          appealed     the     district   court’s       judgment

granting a writ of habeas corpus on the grounds of ineffective

assistance of counsel during the sentencing phase of the trial.

Williams cross-appealed, and filed a request for a certificate of

appealability in accordance with the new requirements imposed by

the    Anti-Terrorism            and    Effective         Death   Penalty    Act      of   1996

(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (1996).                               We granted

Williams a certificate of appealability limited to two of his

claims: (1) whether racial discrimination in the selection of the

grand jury foreman requires that his indictment be set aside and

his    conviction          and    sentence          be    vacated,     and     (2)    whether




                                                -5-
constitutional defects in the jury instructions during the penalty

phase of his trial require that his sentence be vacated.

                                           III

                                             A

     We must first consider the applicability of the AEDPA to

Williams’s      appeal.         At   the     time       that   Williams    requested     a

certificate of appealability, the Fifth Circuit had held that the

deferential standard for federal habeas review of state court

decisions imposed by 28 U.S.C. § 2254(d), as amended by the AEDPA,

applied to cases pending at the time of the AEDPA’s enactment.

Drinkard v. Johnson, 

, 766 (5th Cir. 1996), cert.

denied,         U.S.      , 

(1997).              However, the Supreme

Court’s recent decision in Lindh v. Murphy,                        U.S.     , 

(1997), overrules Drinkard’s conclusion that the amended

§ 2254 may be applied retroactively.                    We must therefore determine

whether,    for   AEDPA     purposes,        Williams’s        petition    was    already

pending on April 24, 1996, the effective date of the AEDPA.

     Williams      argues       that   his       case    was   “pending”    as    of   the

effective date of the AEDPA because he had filed motions for a stay

of execution, to proceed in forma pauperis and for appointment of

counsel    on   April     23,    1996,     one     day    before   the    AEDPA    became

effective.      In support of his position, Williams cites the Supreme

Court’s decision in McFarland v. Scott, 

, 

(1994).      In that case, the Court held that the filing of a

motion for a stay of execution and for appointment of counsel




                                           -6-
establishes a “post-conviction proceeding” within the meaning of

21 U.S.C. 848(q)(4)(B), which establishes a right to appointed

counsel for indigent habeas applicants, such that a federal court

had jurisdiction to appoint counsel even without the filing of a

valid habeas corpus petition. 

114 S.Ct. at 2572-73.

The court further observed that the appointment of counsel would be

“meaningless” in McFarland’s case unless the court also enjoyed the

authority to stay McFarland’s execution so that counsel could have

time to prepare a habeas petition.    The Court therefore held that

where a motion for stay has been filed, “a district court has

jurisdiction to enter a stay of execution where necessary to give

effect” to the right to appointed counsel.    

114 S.Ct.

at 2574.

     The Court in McFarland did not decide whether the filing of a

motion to stay and to appoint counsel “initiated a habeas corpus

proceeding.”1   Instead, the court found that the relevant statutes

used the terms “post-conviction proceeding” and “habeas corpus

proceeding” interchangeably, and that entering a stay of execution

even without a formal habeas petition would, in some cases, be

necessary to effectuate the statutory rights.    

114

S.Ct. at 2573-74.




    1
     28 U.S.C. § 2251 grants a federal court “before whom a habeas
corpus proceeding is pending” the power to stay state court action
related to the subject of the habeas corpus proceeding.




                                -7-
     McFarland does not answer the question of what date a habeas

petition becomes “pending” for determining the applicability of

substantive statutes.       The obvious approach, of course, is that a

habeas petition is “pending” only after a petition for a writ of

habeas corpus itself is filed.       Although McFarland might be argued

to raise a question in this regard, we believe that McFarland was

intended to resolve practical procedural problems in such a way

that unrepresented, indigent defendants could effectively enjoy the

right to counsel established by 21 U.S.C. § 848(q).               As such,

McFarland does not resolve the question before us, and we conclude

that the relevant date for determining the applicability of the

AEDPA to habeas corpus petitions is the date that the actual habeas

corpus petition is filed.           We therefore hold that the AEDPA

amendments to chapter 153 of Title 28 apply to cases where a

petition for habeas corpus is filed on or after April 24, 1996.

Because Williams’s actual petition was filed on April 25, 1996, the

AEDPA’s revised standard of review applies to his petition.

                                      B

     We   turn   now   to   the   question   of   whether   alleged   racial

discrimination in the selection of the foreman of the grand jury

that indicted Williams requires that his indictment, conviction and

sentence be vacated. Williams cites the fact that no black foremen

had been selected in Sabine Parish in the fifteen years prior to

his indictment, combined with evidence concerning the percentage of

blacks who were registered to vote and evidence concerning the




                                     -8-
selection of foremen by individual state court judges.   The state

responds first that Williams’s claim on this issue is procedurally

barred because he failed to file a pretrial motion to quash his

indictment.   The state also argues that even if the claim is not

procedurally barred, Williams’s statistical evidence is inadequate

to meet his burden of proof.    We agree with the state that the

claim is procedurally barred, and therefore do not reach the merits

of the underlying claim.

     It is undisputable that under Louisiana law, a challenge to

the legality of the grand jury venire must be made by a pretrial

motion to quash.2   The Louisiana Code of Criminal Procedure also

      2
       The following articles of the Louisiana Code of Criminal
Procedure indicate that a motion challenging the composition of the
grand jury must be made by a pretrial motion to quash.

La. Code Crim. Proc. art. 533 (in relevant part):

     A motion to quash an indictment by a grand jury may also
     be based on one or more of the following grounds: (1) The
     manner of selection of the general venire, the grand jury
     venire, or the grand jury was illegal.

La. Code Crim. Proc. art. 521 (in relevant part):

     Pretrial motions shall be made or filed within fifteen
     days after arraignment [unless other provisions of law or
     the court allows otherwise for good cause].

La. Code Crim. Proc. art. 535 (in relevant part):

          C. A motion to quash on grounds other than those
     stated in Paragraphs A and B of this Article [which do
     not include challenges to the grand jury] shall be filed
     in accordance with Article 521.
          D. The grounds for a motion to quash under
     Paragraphs B and C are waived unless a motion to quash is
     filed in conformity with those provisions.




                               -9-
specifically states that “[t]he grounds for a motion to quash []

are waived unless a motion to quash is filed . . .”                 La. Code Crim.

Proc. art. 535(D)(emphasis added).           It is undisputed that Williams

never filed a pretrial motion to quash, let alone a timely motion.

Williams raised his claim based on the selection of the grand jury

foreman   for   the   first    time   during    his    state       post-conviction

proceedings.      Therefore,      under      Louisiana    law       his   claim   is

procedurally barred.         Deloch v. Whitley, 

, 350 (La.

1996) (holding equal protection claim based upon discriminatory

selection of grand jury foreman procedurally barred by defendant’s

failure to file a pretrial motion to quash).

     Williams argues, however, that this court must reject the

state’s argument that the claim is procedurally barred because the

Louisiana   Supreme     Court    implicitly      overruled         the    procedural

objection by issuing a supervisory writ that directed the state

trial court to hold an evidentiary hearing concerning the grand

jury foreman selection process.         State ex rel Williams v. Whitley,

No. 93-KD-2709 (La. Nov. 2, 1993) (unpublished).

     In   particular,    Williams     argues    that     the    Supreme     Court’s

decision to     order   an    evidentiary     hearing    is    a    reflection    of

Louisiana’s “death case exception.”            Williams cites a variety of

Louisiana death penalty cases in which reviewing courts considered

errors that were not objected to at trial, on the ground that a

special exception applied to death penalty cases.                  The majority of

these cases concern alleged errors during the sentencing phase of




                                      -10-
the trial.      Although Williams does cite cases applying the “death

case    exception”      to    guilt-phase       errors,     this     practice      was

unambiguously rejected by the Louisiana Supreme Court in State v.

Taylor, 

, 369 (La.), cert. denied,                      U.S.       , 

(1996):

       . . . we abandon the expanded scope of review in capital
       cases established in Smith and its progeny, overrule them
       and return to previously existing law.      This Court’s
       scope of review in capital cases will be limited to
       alleged errors occurring during the guilt phase that are
       contemporaneously objected to, and alleged errors
       occurring during the sentencing phase, whether objected
       to or not.

Although Williams attempts to escape Taylor by arguing that Taylor

only altered the death case exception by eliminating it for the

guilt   phase    of   capital       trials,    we   find   Taylor    quite    clear:

Louisiana’s      “death      case    exception”     only    permits       review    of

unobjected-to errors that occur during the sentencing phase of

capital trials. There is simply no support for Williams’s position

that the “death case exception” somehow extends to a failure to

file a pretrial motion to quash an indictment.

       A federal court reviewing a state prisoner’s habeas claim must

respect    a    state     court’s     determination        that     the   claim     is

procedurally barred under state law. Wainwright v. Sykes, 

, 90-91, 

, 2508-09 (1977).                    The rule is quite

simple:    “a procedural default does not bar consideration of a

federal claim on either direct or habeas review unless the last

state court rendering a judgment in the case clearly and expressly




                                        -11-
states that its judgment rests on a state procedural bar.”   Harris

v. Reed, 

, 263, 

, 1043 (1989) (internal

quotation marks and citation omitted).3

     In the case before us, the Louisiana Supreme Court’s order

granting the supervisory writ cannot be considered a decision on

the merits.4   Additionally, it was not the last court to address

the state’s procedural objection.     The last state court to reach

the merits of Williams’s claim was the district court that held the

evidentiary hearing concerning the grand jury selection process.

That court was quite clear in its decision that it reviewed

Williams’s evidence on the underlying claim only because the writ

had been granted:

     The State contends that the defendant is banned from
     proceeding further by the provisions of C.Cr.P. Articles
     521, 522 and 525 because defendant failed to file a
     motion to quash prior to trial.       According to the
     articles cited and the case law, the State appears to be
     correct. However, this Court was expressly ordered to
     consider the issue of selection of the grand jury and
     that is what this Court will do.

Williams v. Whitley, No. 33,481 (La. Dist. Ct., Grant Parish,

May 25, 1995) (unpublished).   The court proceeded to consider the

     3
      In Coleman v. Thompson, 

, 739, 

,
2559 (1991), the Court explained that the “clear and express”
statement requirement applies to cases where the state court’s
judgment fairly appears to rest primarily upon federal law, or to
be interwoven with federal law, and not to cases where there is no
reason to question whether the decision was based upon independent
and adequate state law grounds.
     4
      The state, in fact, asserts that the supreme court’s order
granting the writ was issued before the court even received the
state’s response raising the procedural bar.




                               -12-
question whether there was unconstitutional discrimination in the

selection of the grand jury foreman, and specifically found that

there was not.      However, the court then noted that the matter was

heard “subject to the district attorney’s procedural objections,”

and then specifically ruled that because Williams had failed to

file a pretrial motion to quash, “defendant has waived all rights

to file this motion.”        

Supreme Court thereafter

denied Williams’s subsequent application for a supervisory writ

without comment.      Williams v. Whitley, No. 95-KD-2401 (La. Dec. 8,

1995) (unpublished).

       Our obligation under Harris v. Reed and subsequent cases is

clear.    Because Williams failed to file a pretrial motion to quash

his indictment, his claim of discrimination in the selection of the

grand jury foreman is procedurally barred under Louisiana law.

This     procedural    bar     therefore     provides    an   “adequate    and

independent” state law ground upon which the claim was rejected,

and federal review of Williams’s claim is barred unless Williams

demonstrates both cause for the procedural default and actual

prejudice resulting from the violation of federal law.                 

, 111 S.Ct. at 2565.           Williams has not, and indeed

cannot, demonstrate cause and prejudice, and we therefore have no

warrant to reach the merits.

                                       C

       Williams also claims that his death sentence must be vacated

and    his   case   remanded    for   resentencing      because   he   received




                                      -13-
ineffective assistance of counsel during the sentencing phase of

his trial.         The district court granted Williams’s petition for

habeas relief on this claim, finding that Bonnette’s performance at

the sentencing phase of Williams’s trial was so inadequate as to

leave Williams effectively unrepresented at this phase.

       To    show    that      he     received    constitutionally        ineffective

assistance of counsel during the penalty phase, Williams must show

both   that       Bonnette’s    performance       was    deficient   and    that    his

deficient performance prejudiced Williams’s defense. Strickland v.

Washington, 

, 687, 

, 2064 (1984); Faulder

v. Johnson, 

, 519 (5th Cir.), cert. denied,                             U.S.

       ,    

      (1996).      Our   examination   of    Bonnette’s

performance must be “highly deferential,” and must consider the

facts and resources available to Bonnette at the time of trial.

Motley v. Collins, 

, 1226 (5th Cir.), cert. denied, 

, 

(1994).                Williams must also overcome the

“strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.”                  

      AEDPA’s   deferential    standard      of   review

applies to this case.               Under the AEDPA, a federal court may not

grant a writ of habeas corpus with respect to any claim that was

rejected on the merits by a state court unless the state court’s

adjudication:

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly




                                          -14-
     established Federal law, as determined by the Supreme
     Court of the United States; or

     (2) resulted in a decision that was based on an
     unreasonable determination of the facts in light of the
     evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (as amended) (emphasis added).         Furthermore,

state court factual determinations shall be presumed correct unless

rebutted   by   “clear   and   convincing     evidence.”      28   U.S.C.

§ 2254(e)(1) (as amended).       In 

, we

concluded that the second clause of the amended § 2254(d)(1),

italicized above, applied to challenged applications of law to

fact.   For such claims, we found, the amended provision permits

federal court relief “only when it can be said that reasonable

jurists considering the question would be of one view that the

state court ruling was incorrect.”      See also Carter v. Johnson,

, 1108 (5th Cir. 1997) (“If reasonable jurists could

disagree, the state court decision on a mixed question of law and

fact is not ‘an unreasonable application of federal law,’ and thus

the decision is immune from federal habeas attack.”)

     Williams’s   ineffective    assistance    of   counsel    claim   was

rejected on the merits by the Thirty-Fifth Judicial District Court,

Grant Parish, after an evidentiary hearing was held to permit

Williams to present evidence concerning his claim.            Williams v.

Butler, Warden, No.             , (La. Dist. Ct., Sept. 7, 1988)

(unpublished). That court found that Bonnette’s failure to present

evidence concerning Williams’s alleged borderline retardation was




                                 -15-
not deficient because Bonnette was aware that the state could

produce evidence from three experts to rebut any such testimony.

The court further concluded that testimony concerning Williams’s

“chaotic, violence-filled childhood” from family, friends or other

lay witnesses “would not have changed the outcome of the sentencing

phase,”    especially   considering   the   state’s   detailed   evidence

concerning the brutal way in which Mrs. Knippers had been murdered.

     Bearing in mind the deferential standard of review required by

the amended § 2254(d), we turn now to the merits of Williams’s

claim.    Williams argues that he received ineffective assistance of

counsel because Bonnette failed to adequately investigate his

background. Had Bonnette thoroughly investigated, Williams argues,

he would have been able to introduce evidence that Williams was

verbally or physically abused by his parents and other relatives

with whom he lived during his childhood, that Williams was shuffled

between his mother, father, and other relatives, and that despite

this abuse Williams was “well-behaved in school” and took care of

his younger siblings.    Williams also argues that Bonnette provided

constitutionally deficient assistance because he failed to present

evidence that Williams had a “long history” of mental problems and

that he was “borderline” retarded.

     It is well established that “[t]he failure to present a case

in mitigation during the sentencing phase of a capital trial is

not, per se, ineffective assistance of counsel.”            Stringer v.

Jackson, 

, 1116 (5th Cir. 1988), vacated and remanded




                                 -16-
on other grounds, 

, 

(1992); West v.

Johnson, 

, 1408 (5th Cir. 1996), cert. denied,       U.S.

  , 

(1997) (citing cases).      Counsel does, however,

have a duty to make “reasonable investigations or to make a

reasonable   decision   that   makes   particular     investigations

unnecessary.”   

.

     The parties dispute the extent of Bonnette’s efforts to

interview Williams’s family members, an issue that cannot readily

be resolved as Bonnette did not testify at the evidentiary hearing;

Williams submitted only a brief affidavit from Bonnette.       It is

clear, however, that Bonnette did obtain information concerning

Williams’s mental status and family history.      In preparation for

the trial, Bonnette arranged for Williams to be evaluated by Dr.

Strother Dixon, a clinical psychiatrist.         Dr. Dixon’s report

chronologues much of Williams’s difficult family history.        The

report also notes that Williams was “most cooperative” in answering

questions, and was “alert” and “thoughtful in deliberation.”     Dr.

Dixon concluded that:

     Although Mr. Williams has a positive family history for
     schizophrenia, he shows no indication of that thought
     disorder; nor does he have indications of Major Affective
     Disorder. He denies that he has trouble with his temper
     and this does not get him into trouble as far as he is
     concerned. Patient does appear to have difficulty with
     authority figures.     He does not have a very good
     relationship with his biological father and feels
     abandoned by him.      There has not been a lasting
     relationship with a male role model in his developmental
     years. He relates strongly to his mother and depends
     upon her seemingly for his primary emotional support. I
     would judge his intelligence as low-average. He is vague




                               -17-
     regarding his educational accomplishments. He probably
     had academic problems during his matriculation.     His
     history depicts one who is impulsive and has a tendency
     to blame others for his situation.

Dr. Dixon’s report also details the family, educational, and

employment difficulties that Williams related to him.

     Considering Dr. Dixon’s report, we find Williams’s arguments

concerning his mental problems and alleged “borderline” retardation

to be entirely unavailing.          We have previously observed that

counsel is not ineffective for failing to introduce evidence of a

defendant’s low intelligence.        Andrews v. Collins, 

,

624-25 (5th Cir. 1994), cert. denied, 

, 

(1995).     Bonnette’s    own   expert    concluded   that      Williams’s

intelligence fell within the “normal” range, and concluded that

Williams had no significant psychiatric disorders.             The state’s

experts who had examined Williams also found no indication of

mental illness, and did not indicate that Williams was mentally

retarded.    Although    Williams    produced   experts   at    his   post-

conviction evidentiary hearing who testified to his “borderline”

retardation, at the time of trial Bonnette had no such information.

Bonnette’s assistance was not deficient for failing to locate an

expert who would conclude that Williams was retarded or suffered

from mental illness--especially in view of Bonnette’s knowledge of

the state’s ability to rebut any such evidence with its own

experts.




                                 -18-
     Williams offers a stronger argument that Bonnette provided

constitutionally ineffective assistance for failing to present

mitigating lay testimony from family or friends.               It is true, as

Williams’s expert testified at the state court evidentiary hearing,

that such testimony is typically offered at the sentencing phase in

order   to   “humanize”     the    defendant.      Still,      evidence    of     a

defendant’s abuse-filled, violent upbringing and abuse of drugs and

alcohol    frequently   can   be    “double-edged.”         Contrary      to   the

conclusion of the district court, it is apparent, as the state

court found, that Bonnette was aware of the facts concerning

Williams’s difficult childhood.

     The failure to present this evidence would not constitute

“deficient”    performance    within     the    meaning   of    Strickland       if

Bonnette     could   have   concluded,      for   tactical     reasons,        that

attempting to present such evidence would be unwise.              In Williams

v. Collins, 

, 632 (5th Cir.), cert. denied, 

, 

(1994), we rejected an ineffective assistance of

counsel claim, concluding that the defendant’s trial attorneys were

“legitimately concerned that any mitigating testimony would have

been presented by witnesses whose knowledge would have opened the

door to more damaging evidence under cross-examination.”

     Considering the general circumstances of the penalty phase

hearing, Bonnette’s decision not to present evidence of Williams’s

troubled upbringing appears well considered.              Although Williams

complains at length that Bonnette’s presentation “consisted of only




                                     -19-
11    questions      asked    during    cross-examination            of   a   prosecution

witness,”       we    note    that    the     evidentiary      presentation       at   the

sentencing hearing was not nearly so lopsided as Williams suggests.

       The state presented only two witnesses at the sentencing

hearing.       The first witness, a Many, Louisiana police officer, was

called     for       the    sole     purpose       of    identifying      Williams     and

introducing, through public documents, the fact of Williams’s prior

conviction for attempted “simple burglary.” The second witness was

the warden of the facility where Williams was incarcerated on the

burglary charge.             The state’s questioning did no more than to

establish that Williams had been released on a five-day furlough at

the    time     of    the     murder,       and     to    suggest,    during     redirect

examination, that the Legislature could change the law to permit

individuals serving life sentences to be released on furloughs.

       There would have been little or no point to cross-examining

the    first     witness.          Bonnette       did    cross-examine    Warden     Gene,

establishing that no more than a quarter of the prison’s inmate

population would ever receive a furlough, and that furloughs were

granted only to the “least violent and the best behaved” prisoners.

Bonnette also established that under current law, prisoners serving

sentences of life without parole--the alternate sentence to death

in Williams’s case--were not eligible for furloughs.

       Bonnette next requested and received a brief recess to confer

with Dr. Dixon, his psychiatric expert. After the recess, Bonnette

indicated that the defense would present no additional evidence,




                                             -20-
stating that “[a]ll the evidence has been presented at trial.”

Bonnette’s decision not to offer testimony concerning Williams’s

troubled upbringing and problems with drugs and alcohol, while

noteworthy in the abstract, appears less troubling in the context

of such a brief sentencing hearing, which did not at all delve into

issues of Williams’s character.

     Bonnette’s decision not to put on any witnesses prevented the

state from offering any rebuttal evidence. This decision was quite

arguably a wise choice.       The record shows that, at the beginning of

the sentencing hearing, Bonnette successfully prevented the state

from introducing the testimony of the victim of Williams’s prior

“simple burglary,” who was expected to testify that Williams

“continued to try to get in her house, and break in on her and her

children while she knew he was there and he knew that she was aware

he   was   trying    to     get   in”    (emphasis    added).      Under      the

circumstances, it is quite likely that Bonnette consciously chose

to take his chances with a jury that had been told nothing of

Williams’s character beyond the fact that he had previously been

regarded   as   a   model    prisoner     who   had   been   convicted   of    an

innocuous-sounding “simple burglary.”

     We need not determine, however, whether the district court

erred in rejecting the state’s argument that Bonnette’s actions

represented a tactical choice--an issue that the state court did

not address--because we find that under the AEDPA’s deferential

standard of review, we must sustain the state court’s conclusion




                                        -21-
that    the   failure    to   present     mitigating       evidence     concerning

Williams’s difficult childhood did not prejudice his defense within

the    meaning   of     Strickland.        “If     we    can    ‘dispose      of     an

ineffectiveness       claim   on   the    ground    of     lack   of    sufficient

prejudice . . . that course should be followed.’”                 

(quoting 

, 104 S.Ct. at 2069).

       To   establish    prejudice,      Williams       must   show    that   it    is

“reasonably likely that the jury would have reached a different

decision absent counsel’s unprofessional errors.” 

(citing 

, 104 S.Ct. at 2069).                      A

“reasonable probability” need not be proof by a preponderance that

the result would have been different, but it must be a showing

“sufficient to undermine confidence in the outcome.”                   

, 104 S.Ct. at 2068.

       Bonnette could have presented evidence concerning Williams’s

troubled family history and the fact that he was verbally and

physically abused as a child.         These efforts, however, would have

“opened the door” for cross-examination concerning Williams’s use

of drugs and alcohol, his purported expulsion from school for

“causing trouble,” and his discharge from at least one job.                        This

evidence likely would have had little mitigating effect against the

aggravating evidence concerning the brutal, premeditated murder of

Mrs. Knippers, Williams’s prior criminal history, and the fact that

Williams hid the shirt he had been wearing during the crime and

initially lied to police about his actions.




                                      -22-
     The state court specifically found that Williams was not

prejudiced by Bonnette’s failure to present the testimony of family

members or friends.   We cannot say, under the AEDPA’s deferential

standard of review, that the state court’s conclusion “involved an

unreasonable   application   of”   clearly   established   federal   law.

Reasonable jurists considering Williams’s ineffectiveness claim

would not be of “one view” that the state court’s judgment was

wrong. Accordingly, the district court’s decision to grant federal

habeas relief on this ground must be reversed.

                                    D

     Finally, we address Williams’s argument that constitutional

defects in the jury instructions during the sentencing phase of his

trial require that his death sentence be vacated.

     During the sentencing phase of Williams’s trial, the jury

found that two statutory aggravating factors existed:        (1) at the

time of the murder, Williams was engaged in the perpetration of an

aggravated burglary or the attempted perpetration of an aggravated

rape,5 and (2) the offense was committed in an especially heinous,

atrocious or cruel manner.    Having found the existence of at least

one statutory aggravating factor, as required by Louisiana law, the

      5
       The jury had, in fact, already found this factor to be
established as a part of its determination that Williams was guilty
of capital murder rather than second degree murder, for which the
death penalty is unavailable.     Under Louisiana law, during the
sentencing phase the prosecution may argue the existence of as many
statutory aggravating factors as the evidence supports, including
any factor that may already have been established during the guilt
phase of the trial.




                                   -23-
jury    then   determined,       based     upon    its   consideration      of   the

aggravating factors and any mitigating evidence, that Williams

should be sentenced to death.

       The second of the two aggravating factors found by the jury,

the “especially heinous, atrocious or cruel” factor, has been

declared unconstitutionally vague by the United States Supreme

Court. Maynard v. Cartwright, 

, 

(1988).

The first factor, however, is valid, and amply supported by the

evidence, as the Louisiana Supreme Court specifically found during

Williams’s final appeal on direct review.                State v. 

(finding fact that Williams was hiding in Mrs.

Knippers’s bathroom, pantless and brandishing a knife, sufficient

evidence from which jury could conclude that Williams had committed

aggravated burglary or attempted aggravated rape).

       Louisiana law requires only that at least one statutory

aggravating factor be found by the jury before a defendant may be

considered “eligible” for the death penalty.               La. Code Crim. Proc.

art. 905.3.     This requirement was therefore adequately met by the

first   factor,   without        regard    to    the   second,    invalid   factor.

Williams was therefore statutorily eligible to receive the death

penalty if the jury so chose.             Williams argues, however, that his

death sentence must still be vacated because the jury, once it had

determined     that   he   was    “death-eligible,”        also    considered    the

invalid factor in reaching its ultimate decision as to whether he

should receive the death penalty.               He argues that consideration of




                                          -24-
this   invalid    aggravating    factor      at    the   final   stage   of   his

sentencing hearing unconstitutionally tipped the scale in favor of

the death penalty.

       We should observe first that the Eighth Amendment concerns

found in Godfrey v. Georgia, 

, 

(1980)

(invalidating “outrageously or wantonly vile, horrible or inhuman”

aggravating factor), and 

, 108 S.Ct. at

1859 (similarly invalidating the “especially heinous, atrocious or

cruel” aggravating factor), do not control Williams’s case.                   The

Eighth Amendment requirement under which these factors were held to

be unconstitutionally vague is a requirement that the jury’s

discretion in capital cases be appropriately narrowed and channeled

to inhibit the arbitrary imposition of the death penalty.                “Since

[Furman v. Georgia, 

, 

(1972)], our cases

have insisted that the channeling and limiting of the sentencer’s

discretion   in    imposing     the   death       penalty   is   a   fundamental

constitutional requirement for sufficiently minimizing the risk of

wholly arbitrary and capricious action.” 

,

108 S.Ct. at 1858 (citing cases).

       In cases where the death penalty is supported by multiple

aggravating factors, this “channeling and limiting” function is

satisfied by the presence of at least one valid aggravating factor.

This requirement was met in Williams’s case by the jury’s finding,

during the guilt phase and again during the sentencing phase, that

Williams had been engaged in the perpetration of an aggravated




                                      -25-
burglary or the attempted perpetration of an aggravated rape. See,

e.g., Lowenfield v. Phelps, 

, 244-46, 

,

554-55    (1988)     (explaining        that   Eighth    Amendment      narrowing

requirement was satisfied by Louisiana scheme wherein state law

narrows class of murders eligible for the death penalty in its

definition of capital murder, and jury finding of guilt therefore

necessarily satisfies Eighth Amendment concern).

       The conclusion that the presence of another valid aggravating

factor satisfies the requirements of the Eighth Amendment, however,

does not end our constitutional inquiry, because the invalidation

of one of the two statutory aggravating factors considered by the

jury   also   raises    due    process     concerns     under   the    Fourteenth

Amendment.       State capital sentencing procedures must, of course,

satisfy    the    requirements     of    the   Due   Process    Clause    of   the

Fourteenth Amendment.         Clemons v. Mississippi, 

, 746,

, 1447 (1990).            In Hicks v. Oklahoma, 

,

(1980), the Court explained:

       Where, however, a State has provided for the imposition
       of criminal punishment in the discretion of the trial
       jury, it is not correct to say that the defendant’s
       interest in the exercise of that discretion is merely a
       matter of state procedural law. The defendant in such a
       case has a substantial and legitimate expectation that he
       will be deprived of his liberty only to the extent
       determined by the jury in the exercise of its statutory
       discretion, and that liberty interest is one that the
       Fourteenth   Amendment   preserves    against  arbitrary
       deprivations by the State.

100 S.Ct. at 2229 (citations omitted).                    The capital

defendant therefore has a constitutional liberty interest in having




                                        -26-
his sentence imposed by a jury instructed to act within the bounds

of its statutory discretion, and that interest is protected by the

Due Process Clause of the Fourteenth Amendment.

      It is for this reason--the defendant’s interest in the state’s

adherence to the procedures established by state law--that the

presence of one or more additional, valid aggravating factors may

serve to sustain the death penalty under some state systems, but

not under others.       In this vein, the United States Supreme Court

has described one difference between capital sentencing systems as

a distinction between “weighing” and “non-weighing” systems.                 In a

“weighing state” the jury’s consideration of an unconstitutionally

vague factor at the final stage of death penalty proceedings

violates the defendant’s constitutional rights under the Fourteenth

Amendment and requires that a resulting death sentence be vacated,

unless a state appellate court has cured the defect by reweighing

the   valid   factors    or     conducting     a   harmless   error   analysis.

Richmond   v.   Lewis,    

,   46-47,   

,   534

(1992)(citing 

, 110 S.Ct. at 1448).                In

a “non-weighing state,” however, a defendant’s death sentence is

not invalidated by the presence of an unconstitutional factor so

long as another valid aggravating factor is found by the jury.

Zant v. Stephens, 

, 880-90, 

, 2744-49

(1983).

      The Louisiana Supreme Court has held that Louisiana is a

“non-weighing” state, and that the subsequent invalidation of a




                                        -27-
statutory aggravating factor found by the sentencing jury does not

require that a resulting death penalty be vacated if another valid

aggravating factor is also found.            State v. Hamilton, 

, 1227 (La. 1996), cert. denied,              U.S.        , 

(1997). Indeed, in Stringer v. Black, 

, 

(1992), the United States Supreme Court held that Mississippi was

a “weighing” state, and by way of contrasting Mississippi’s system

to those of other states, appears to have placed Louisiana in the

“non-weighing” category:          “[U]nlike the Mississippi process, in

Louisiana the jury is not required to weigh aggravating against

mitigating      factors.”    Because      the   parties      have    not   argued

otherwise, we will proceed upon the assumption that Louisiana is,

in fact, a non-weighing state with regard to its capital sentencing

procedures.

     Yet an understanding of the distinction between “weighing” and

“non-weighing”     systems   is    necessary    in   order      to   analyze   the

constitutional effect of the instruction given in Williams’s case--

that is to say, the effect of a “weighing” instruction given to a

jury in a non-weighing state. We therefore will assess the Supreme

Court’s various explanations of the critical differences between

“weighing” and “non-weighing” systems.

                                      (1)

     The United States Supreme Court has been less than perfectly

clear   about    the   definitions   of     “weighing”    and    “non-weighing”

capital sentencing schemes.          The most detailed statement of the




                                     -28-
distinction is found in Stringer v. Black.       In Stringer, the Court

compared Mississippi’s capital sentencing scheme to the Georgia

system at issue in Godfrey and Zant:

      The principal difference between the sentencing schemes
      in Georgia and Mississippi is that Mississippi is what we
      have termed a “weighing” State, while Georgia is not.
      Under Mississippi law, after a jury has found a defendant
      guilty of capital murder and found the existence of at
      least one statutory aggravating factor, it must weigh the
      aggravating factor or factors against the mitigating
      evidence. By contrast, in Georgia the jury must find the
      existence of one aggravating factor before imposing the
      death penalty, but aggravating factors as such have no
      specific function in the jury’s decision whether a
      defendant who has been found to be eligible for the death
      penalty should receive it under all the circumstances of
      the case.

112 S.Ct. at 1136 (internal citations omitted).

Thus, in a system that requires the jury to place the statutory

aggravating factors on one side of the scale and all of the

mitigating evidence on the other, and to balance one side against

the other before imposing the death penalty, statutory aggravating

factors become critically important in guiding the jury’s decision

whether death is an appropriate sentence.        “[W]hen the sentencing

body is told to weigh an invalid factor in its decision, a

reviewing court may not assume it would have made no difference if

the thumb had been removed from death’s side of the scale.”          

112 S.Ct. at 1137.      The Court reiterated the constitutional

harm caused by the use of a vague aggravating factor in performing

the   initial   narrowing   and   channeling   required   by   the   Eighth

Amendment, but then noted that “[a] vague aggravating factor used




                                   -29-
in the weighing process is in a sense worse, for it creates the

risk that the jury will treat the defendant as more deserving of

the death penalty than he might otherwise be by relying upon the

existence of an illusory circumstance.”   

112 S.Ct. at

1139.

     To contrast the “weighing” system at issue in Stringer with a

“non-weighing” system, we turn to the Court’s decision in Zant,

which discussed Georgia’s “non-weighing” system in some detail:

     In Georgia, unlike some other states, the jury is not
     instructed to give any special weight to any aggravating
     circumstance,    to   consider   multiple    aggravating
     circumstances any more significant than a single such
     circumstance,   or   to  balance   aggravating   against
     mitigating circumstances pursuant to any special
     standard.   In Georgia, the finding of an aggravating
     circumstance does not play any role in guiding the
     sentencing body in the exercise of its discretion, apart
     from its function of narrowing the class of persons
     convicted of murder who are eligible for the death
     

, 103 S.Ct. at 2741.    In Zant, the Court found

that the habeas petitioner’s death sentence did not need to be

vacated because one of the two aggravating factors found by the

jury was unconstitutionally vague.   Under the Georgia system, the

sentencing jury could not consider imposing the death penalty

unless it found that at least one statutory aggravating factor had

been established beyond a reasonable doubt.   The purpose of this

finding was to serve the constitutional requirement of narrowing

the range of murders for which a defendant became eligible for the

death penalty. Once the jury found the defendant “death-eligible,”




                              -30-
the aggravating factor or factors had served their statutory

purpose.     The jury then moved to the final stage of determining

whether death was the appropriate sentence for the death-eligible

defendant.     At this point, the aggravating factor was simply part

of the mix of aggravating and mitigating evidence that the jury

could consider as a whole in determining whether the death sentence

was to be imposed.        The Court in Zant therefore agreed with the

Georgia     Supreme    Court’s    conclusion       that   the   jury’s      ultimate

decision to impose death was not materially impacted by the fact

that certain evidence--which was otherwise properly before the

sentencing      jury--was        labeled       a    “statutory”        aggravating

circumstance.       

definition is not precise in every detail, from

these cases we derive an understanding of the distinction between

“weighing” and “non-weighing” systems sufficient to resolve this

case.

      In a non-weighing state, statutory aggravating factors serve

principally to address the concerns of the Eighth Amendment--that

is, the role of the statutory aggravators is to narrow and channel

the jury’s discretion by separating the class of murders eligible

for   the   death     penalty    from   those      that   are   not.        Also,   in

non-weighing     systems    the     jury    is     not    required     to    balance

established     aggravating       factors      against     mitigating       factors.

Although the jury is permitted to consider both aggravating and

mitigating evidence in reaching its ultimate determination whether




                                        -31-
the    death    penalty    should     be    imposed,    “statutory       aggravating

factors” play no guiding role as such at this final stage of the

sentencing proceeding.

       In a weighing state, statutory aggravating factors also serve

to narrow and channel the jury’s discretion by identifying those

murders       eligible    for   the    death      penalty;    as    in     Georgia’s

non-weighing system, the jury in a weighing state must find at

least one statutory aggravating factor before the death penalty may

even be considered. After one such factor has been found, however,

the two systems differ substantially.                   Unlike the jury in a

non-weighing state, which at this final stage is largely free to

exercise its discretion as it chooses based upon all of the facts

and circumstances, the jury in a weighing state is not permitted to

impose the death penalty unless it concludes that the specific

statutory      aggravating      factors      it   has   found      “outweigh”    all

mitigating evidence.        The weighing system jury is effectively told

to    weigh    the   specific   aggravating       factors    against      mitigating

factors as if on an imaginary scale, and to issue its sentencing

decision based upon the outcome of that weighing process.

       In sum, a jury in a weighing state has been directed by state

law in the method it must follow in order to impose the death

penalty in ways that a jury in a non-weighing state has not.                     The

weighing state requires the jury to focus only on the statutory

aggravating factors that it finds, and place only those statutory

aggravators on the scale. The weighing state jury is then required




                                           -32-
to   balance   these   aggravating      factors    against    all   mitigating

evidence, and it can only impose the death penalty if it determines

that the established aggravating factors “outweigh” the mitigating

evidence. In contrast, a non-weighing state only requires the jury

to find a statutory aggravating factor for the purpose of initially

determining whether the defendant is “death-eligible.” Thereafter,

statutory aggravating factors play no role in the sentencing

process above the role of all other evidence, which is the primary

feature that     distinguishes   non-weighing       systems    from   weighing

systems.

                                     (2)

      Williams argues, however, that Louisiana’s status as a non-

weighing state has “little relevance” because the jury in his case

was given a “weighing” instruction.         Williams asserts that because

his jury was instructed to “weigh,” rather than merely “consider,”

an invalid aggravating factor, his death sentence was rendered in

violation of the Eighth and Fourteenth Amendments.                  Williams’s

argument,      however,   misunderstands          the   nature      of   these

constitutional requirements.

      As discussed above, the Eighth Amendment concerns expressed in

Godfrey and Maynard are satisfied in cases where there are other

valid   aggravating    factors   that    serve    the   required    channeling

function. Williams’s Fourteenth Amendment argument also fails. As

we have explained, the capital defendant has a constitutionally

protected liberty interest in having his sentence imposed by a jury




                                     -33-
instructed to act within the bounds of its statutory discretion.

But that liberty interest is derived from the requirements of state

law, and not from the individual jury instructions given in any one

case.

       Williams complains that his jury was improperly instructed to

“weigh” an invalid aggravating factor in determining whether he

should be sentenced to death.6            In a weighing state such as

Mississippi, this instruction would reflect state law, and would

indeed require that Williams’ death sentence be vacated and his

case    remanded   for   resentencing,    reweighing   or   harmless   error

analysis by a state court.      

, 110 S.Ct. at

        6
      The court’s charge to the jury during the sentencing phase
instructed the jury (in relevant part):

            In deciding whether the defendant, Dobie Gillis
       Williams, should be sentenced to death by electrocution
       or to life imprisonment, you must weigh the mitigating
       circumstances against the aggravating circumstances that
       you find to be established by the evidence.
            This weighing process is a qualitative not a
       quantitative one . . . you are to consider each of the
       facts individually and weigh them in your mind and
       determine what weight to give each . . . you are to weigh
       the factors, not count them.
            I have previously read to you a list of the
       aggravating circumstances which the law permits you to
       consider if you find any of them established by the
       evidence. . . . These are the only aggravating
       circumstances that you may consider. You are not allowed
       to take account of other facts or circumstances as the
       basis for deciding that the death penalty would be
       appropriate punishment in this case.
            The mitigating circumstances which I have read for
       your consideration are given to you as merely examples of
       some of the factors that you may take into account as
       reasons for deciding not to impose the death sentence
       upon Mr. Williams. . . .




                                   -34-
1451.       Had Williams been convicted and sentenced to death in

Mississippi, the jury’s weighing of an invalid aggravating factor

would have violated Williams’s legitimate expectation that he would

not    be   sentenced   to   death   unless   the    jury   found   that    the

established statutory aggravating factors outweighed any mitigating

circumstances.

       Williams, however, has not suffered any such violation of his

legitimate expectations under state law.            The process that is due

Williams, and in which he has a liberty interest protected by the

Due Process Clause, is defined by Louisiana law and not by the

instructions issued to his particular jury.                 Weighing systems

provide capital defendants with certain benefits not guaranteed

defendants in non-weighing states: the assurance that death cannot

be imposed unless the aggravating factors outweigh the mitigating

circumstances, and the assurance that the jury will only place upon

the scale that aggravating evidence that supports a statutory

aggravating factor.      A capital defendant in a weighing state has a

protectable liberty interest in those benefits, but Williams does

not.    At the final stage of the sentencing hearing, after the

defendant has been found “death-eligible,” Louisiana law permits

the capital sentencing jury to consider all of the aggravating (and

mitigating) evidence from both the guilt-innocence and sentencing

phases in reaching its final determination, and does not require

that    this   determination    be   controlled     by   the   “weighing”   of

specified “statutory aggravating factors” against any mitigating




                                     -35-
evidence.       As in Zant, Williams’s jury was actually free, under

state law, to consider the heinous nature of the murder in its

final consideration of the mix of both aggravating and mitigating

evidence.

       Williams’s argument amounts to a complaint that his jury was

instructed erroneously, under Louisiana law, as to the appropriate

sentencing procedure, but that he did not receive the full benefit

of that error.           This is not a benefit to which Williams was

entitled.       Thus, the Due Process Clause is not offended;                  the

jury’s consideration of the invalid factor did not deny Williams

the benefit of any liberty interest that he enjoys under Louisiana

law.

                                            IV

       In conclusion, we REVERSE the decision of the district court

granting the writ of habeas corpus on the ground that Williams

received ineffective assistance of counsel during the penalty phase

of his trial.        As to Williams’s claims concerning alleged racial

discrimination in the selection of the grand jury foreman, and

constitutional defects in the jury instructions during the penalty

phase, we AFFIRM the judgment of the district court denying relief

on these claims.

                                                              REVERSED in part, and
                                                                  AFFIRMED in part.




BENAVIDES, Circuit Judge, concurring in the judgment of the court:




                                           -36-
        Although I concur in the judgment of the court, I write separately to emphasize what we do

not decide today -- i.e., whether a federal habeas court can conduct harmless error analysis when

reviewing a death sentence from a weighing state. Although I recognize that this court has implicitly

held that a federal habeas court cannot conduct such an analysis, see Wiley v. Puckett, 

,

94 (5th Cir. 1992), this court has not revisited the issue since the Supreme Court’s decision in Brecht

v. Abrahamson, 

, 637, 

, 1722 (1993). In Brecht, the Supreme Court

held that a federal court can grant a writ of habeas corpus only if it finds that the alleged

constitutional error “‘had a substantial and injurious effect or influence in determining the jury’s

, 113 S. Ct. at 1722 (quoting Kotteakos v. United States, 

,

776, 

, 1253 (1946)). Although this court has not revisited the issue, at least three

courts of appeals have interpreted Brecht as authorizing federal habeas courts to conduct harmless

error analysis when reviewing a death sentence from a weighing state. See, e.g., Davis v. Executive

Director of Dep’t of Correction, 

, 768 n.18 (10th Cir. 1996), cert. denied, 

(1997); Williams v. Clarke, 

, 1539-40 (8th Cir. 1994); Smith v. Dixon, 

(4th Cir. 1994) (en banc). The facts of this case, however, do not require that we revisit Wiley

either explicitly or implicitly. Accordingly, I note that the majority’s statement that “[i]n a ‘weighing

state’ the jury’s consideration of an unconstitutionally vague factor at the final stage of death penalty

proceedings violates the defendant’s constitutional rights under the Fourteenth Amendment and

requires that a resulting death penalty be vacated, unless a state appellate court has cured the defect

by reweighing the valid factors or conducting a harmless error analysis,” Maj. Op. at 27 (emphasis

added), is not necessary to the decision before the court.




                                                 -37-
                                                  37
-38-
 38