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Benjamin A. BERRY





Classification: Murderer
Characteristics: Bank robbery
Number of victims: 1
Date of murder: January 30, 1978
Date of birth:: 1956
Victim profile: Robert Cochran, an off-duty sheriff's deputy working as a bank guard
Method of murder: Shooting
Location: Jefferson Parish, Louisiana, USA
Status: Executed by electrocution in Louisiana on June 7, 1987

Benjamin Berry was executed on June 7, 1987.  Berry was convicted in the fatal shooting of Robert Cochran, an off-duty Jefferson Parish sheriff's deputy working as a bank guard, during a bank robbery attempt on January 30, 1978. 

Berry made no final statement. 


Murderer executed in Louisiana

The New York Times

June 8, 1987

A high school dropout condemned for murdering a guard in a bank robbery was put to death early today in the Louisiana electric chair.

Benjamin Berry, 31 years old, was executed shortly after midnight, said C. Paul Phelps, secretary of the State Department of Corrections in Baton Rouge. He was the 76th prisoner executed in the United States and the eighth in Louisiana since the United States Supreme Court allowed states to restore the death penalty in 1976.

Mr. Berry's appeals ran out late Friday when the Supreme Court refused to stop the execution and Gov. Edwin W. Edwards said he would not step in.

Apparently, Mr. Berry had already accepted that his sentence would not be stayed. On Thursday, he asked the warden at the state prison in Angola to move him off death row to the isolation cell down the hall from the electric chair so he could be alone.

Mr. Berry was convicted in 1978 of killing Robert Cochran, a bank guard, in a bank robbery in Metairie on Jan. 30, 1978. This was his eight execution date; the others had been canceled by appeals.

He spent Saturday visiting members of his family, the prison warden, Hilton Butler, said.

About 30 people held a candlelight vigil in front of the Governor's Mansion in Baton Rouge to protest the execution. Roughly a dozen people gathered for a similar protest in New Orleans.

Several death penalty supporters gathered outside the prison's front gate. They wore shirts lettered with the message ''Justice for All - Even the Victims.''

The execution was the first of five scheduled in Louisiana in the next two weeks and the first in the state since Jan. 4, 1985.


765 F.2d 451

Benjamin A. BERRY, Petitioner-Appellant,
John T. KING, Secretary of Department of Corrections, Etc.,
et al., Respondents-Appellees.

No. 85-3043.

United States Court of Appeals,
Fifth Circuit.

July 1, 1985.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This appeal from a denial of a petition for habeas corpus raises two issues: (1) whether Benjamin Berry was denied effective assistance of counsel in his state capital murder trial; and (2) whether this circuit should reconsider its position that excluding from the guilt phase of a capital case jurors who are absolutely opposed to the death penalty does not violate the constitutional rights of the defendant in light of the Eighth Circuit's decision in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), petition for cert. filed sub nom Lockhart v. McCree, 53 U.S.L.W. 3870 (U.S. May 29, 1985) (No. 84-1865). We affirm the denial of the petition, but leave in effect the stay of execution for fifteen days in order to permit Berry to apply for certiorari.


On January 30, 1978, Benjamin Berry and David Pennington drove from Baton Rouge to Metairie with the intention of robbing the Metairie Bank and Trust Company. Berry entered the bank and drew a nine millimeter automatic pistol. There was an exchange of gunfire between Berry and Cochran, a Jefferson Parish deputy sheriff working as a guard in the bank, in which Berry fired three shots and Cochran fired one shot. Cochran's shot struck Berry in the lower left chest; two of Berry's shots struck Cochran in the shoulder and the neck, resulting in Cochran's death. Berry and Pennington fled the scene and returned to Baton Rouge, where both were arrested.

Berry was indicted for first-degree murder, and retained Frederick A. Blanche, III as counsel for his trial. The state's evidence identifying Berry as the individual who committed the attempted armed robbery and shooting was overwhelming. At trial, Blanche conceded in his opening statement that Berry intended to rob the bank in Metairie.

In addition, Blanche stipulated to the following facts: (1) that Berry went to the bank intending to commit an armed robbery; (2) after entering the bank Berry fired three shots, two of which struck and killed Cochran; (3) Cochran fired a single shot which struck Berry; and (4) the bullets which were found in Cochran and Berry each came from the other's gun.

The guilt phase of the trial proceeded with the state calling various witnesses to the crime, attempting to establish that Berry fired the first shot in the bank. Berry's defense in the guilt phase was that he did not possess the specific intent necessary for a first degree murder conviction under the Louisiana statute. Berry was the only witness in his behalf, and his testimony essentially corroborated the facts in the stipulation. He denied that he fired the first shot, contending that he did not intend to shoot Cochran, but did so only as a self-defense reflex.

The jury found Berry guilty, and the sentencing phase proceeded. During this phase, Blanche introduced no witnesses or evidence on Berry's behalf. Berry's mother was called to testify, but was apparently overcome by emotion and ultimately was not placed on the stand. Berry was sentenced to death.

Berry's conviction was affirmed on appeal, and the United States Supreme Court denied certiorari. Berry then filed a state habeas corpus petition, which was denied after an evidentiary hearing. The primary charge made in the state habeas petition is the same as that made in this federal petition--that Berry was denied effective assistance of counsel because Blanche was addicted to illegal drugs at the time of the trial. A number of witnesses testified in the state evidentiary hearing, including Blanche himself, the state judge who presided over Berry's trial, David Pennington's attorney, and various associates of Blanche.

The testimony of Blanche's associates was that he had, at times in the past, had problems with drugs. The state judge and others who were present at Berry's trial testified that he did a good job in a difficult case. The denial of the state habeas petition was affirmed by the Louisiana Supreme Court. State v. Berry, 430 So.2d 1005 (La.1983).

Berry then filed this federal habeas corpus petition under 28 U.S.C. Sec. 2254 in the district court for the Eastern District of Louisiana. The district court dismissed all of Berry's claims save that of ineffective assistance of counsel, and granted a stay of execution pending the outcome of Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), which were then pending before the Supreme Court. Berry appealed this ruling and this court remanded after the decisions in Strickland and Pulley v. Harris were issued, 736 F.2d 1524.

In August 1984 an evidentiary hearing was held before a magistrate. At this hearing, the testimony again was largely directed to Blanche's involvement with drugs. The magistrate recommended that Berry's petition be dismissed, and his findings and recommendations were adopted by the district court.

Berry noticed eight separate grounds for appeal from the district court's dismissal; of these only his claims concerning ineffective assistance of counsel and a claim based on the Eighth Circuit's decision in Grigsby v. Mabry have been pressed in this appeal.


In evaluating whether a conviction must be reversed for ineffective assistance of counsel, we utilize the two-part test set forth by the Supreme Court in Strickland v. Washington:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

--- U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In evaluating the first prong of the Strickland test, whether counsel's professional conduct falls short of the standard, Strickland teaches us that:

Judicial scrutiny of counsel's performance must be highly differential ... Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at ---- - ----, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95.

The prejudice required by the second prong of the Strickland test is something considerably more than the possibility that an unreasonable error by counsel might have had some effect on the trial. As the Supreme Court stated in Strickland: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A "reasonable probability" is defined as a probability sufficient to undermine confidence in the outcome of the case. Id.

Berry's contentions of ineffective assistance essentially fall into two closely related categories. First, Berry contends that as a result of his alleged drug addiction Blanche failed to adequately investigate and prepare for the defense of his case. This lack of investigation and preparation allegedly caused Blanche to fail to locate witnesses who could have supplied exculpatory information in the guilt phase and mitigating testimony in the penalty phase. Second, Berry contends that Blanche's drug use, plus his failure to investigate, prevented him making any sort of organized presentation during the guilt and sentencing phases of the trial. Berry contends that in the guilt phase this caused Blanche to stipulate to the "functional equivalent of a plea of guilty" without Berry's consent. He further contends that during the sentencing phase Blanche was unable to make more than a "tepid" plea for his client's life.

We first note that the question whether Blanche in fact used drugs during Berry's trial was far from settled in either the state or the federal evidentiary hearings. In any case, under Strickland the fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel's performance was deficient and whether that deficiency prejudiced the defendant. We therefore concentrate on Berry's specific allegations of deficient performance and prejudice.

In Strickland, the Supreme Court noted that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. The majority of Berry's ineffective assistance claims are best disposed of in this fashion. Although Berry contends that Blanche's failure to investigate led him to miss medical and ballistic evidence which would have raised a reasonable doubt concerning who fired the first shot in the bank, and thus a reasonable doubt as to Berry's intent, the only evidence Berry has specifically identified is the testimony of Dr. Monroe Samuels.

Dr. Samuels is a forensic pathologist who testified at the state evidentiary hearing. Having examined Dr. Samuels' testimony, we find it to be at best equivocal, and certainly not sufficient to undermine confidence in the outcome of the trial. Since Berry has not pointed to any other evidence which would have been produced by more thorough investigation, we conclude that even if his counsel failed to investigate and that failure was unreasonable, no prejudice has been demonstrated.

Berry's contention that Blanche stipulated to the functional equivalent of a plea of guilty without his consent has more substance. If Berry's characterization of this stipulation were accurate, this allegation would require more analysis. It is clear, however, that the stipulation did not admit every element of guilt. The stipulation did not admit specific intent; the lack of specific intent, a necessary element under La.Rev.Stat. 14:30, was the defense which Blanche presented in the guilt phase.

Thus, this stipulation was a concession of facts which Blanche apparently concluded the state could easily establish and that no advantage would inure to Berry if live witnesses recounted these unfavorable facts for the jury. Berry has also failed to identify any prejudice which resulted from the stipulation. His sole contention is that Blanche failed to subject the prosecution's case to meaningful adversarial testing, and "effectively relieved the state of its burden of proving each and every essential element of first degree murder beyond a reasonable doubt and further deprived petitioner of the opportunity to reap the benefits of any trial error which otherwise [would have] developed as a result of the state being forced to present its evidence."

This argument is not convincing. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification' and the like. A defendant has no entitlement to the luck of a lawless decision maker, even if a lawless decision cannot be reviewed." Strickland, at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. It is also true that a defendant is not entitled to the luck of an inept adversary. We therefore conclude that Berry has not identified any prejudice resulting from the stipulation.

For the reasons outlined above, we also find that Berry has demonstrated no prejudice in the sentencing phase from any failure to investigate by Blanche. The only specific mitigating evidence Berry cites which might have been uncovered by a more thorough investigation is the testimony of Dr. Samuels, which Berry again argues might have swayed the jury in his favor.

Berry's assertion that Blanche first called his mother as a witness, but then decided not to place her on the stand, thus giving the jury the impression that his own mother would not testify in his behalf, is unconvincing. It appears from the record that Mrs. Berry was overcome with emotion and thus unable to testify. Blanche then placed her on the front row of the courtroom, in full view of the jury. This was a reasonable and strategic response to this situation. Finally, we have examined Blanche's closing argument and find it to be within the range of professional competence which is required.


The Supreme Court decided in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), that those individuals in the jury venire who indicate "that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them," 391 U.S. at 514, 88 S.Ct. at 1772, may be excluded from juries in the trial of the penalty phase in capital cases. Witherspoon left open the question whether the exclusion of so-called "Witherspoon excludables" from the guilt phase of the trial of a capital case might violate the rights of the defendant. 391 U.S. at 517-18, 520 n. 18, 88 S.Ct. at 1774-75, 1776 n. 18.

Since Witherspoon, however, decisions of this circuit have established as a matter of law that exclusion of jurors authorized by Witherspoon from the guilt phase of the trial does not violate the sixth amendment right to have a jury selected from a representative cross section of the community or the fourteenth amendment due process right to an impartial jury.1 The Eighth Circuit recently reached a different conclusion in Grigsby v. Mabry and found that the exclusion of Witherspoon excludables from the guilt phase of the trial violates the sixth amendment. From an examination of the jury voir dire, it appears that one juror was challenged on Witherspoon grounds at Berry's trial.2 Berry therefore asks that we take judicial notice of the underlying factual findings in Grigsby v. Mabry, and hold that this exclusion violated his Sixth Amendment rights.

We are informed that a petition for certiorari has been filed in the Grigsby case. The Eighth Circuit's decision in Grigsby may not be ignored. We therefore, although affirming the denial of Berry's habeas petition, leave in effect the stay of execution for fifteen days in order to permit Berry to apply for certiorari and a further stay.




See Mattheson v. King, 751 F.2d 1432, 1442 (5th Cir.1985); Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir.) cert. denied, --- U.S. ----, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984); Moore v. Maggio, 740 F.2d 308, 321 (5th Cir.1984); Sonnier v. Maggio, 720 F.2d 401, 407-08 (5th Cir.1983) cert. denied, --- U.S. ----, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984); Smith v. Balkcom, 660 F.2d 573, 575-84 (5th Cir.1981), modified on other grounds, 671 F.2d 858 (5th Cir.) cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Spinkellink v. Wainwright, 578 F.2d 582, 583-96 (5th Cir.1978) cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)


We reject the State's suggestion that the juror challenged for cause was within reach of a peremptory challenge, and therefore Berry may not complain of his exclusion. Contrary to the State's representation in its brief, the Louisiana Supreme Court found that the State had used its quota of peremptory challenges at Berry's trial, and found "therefore ... defendant would have cause for complaint if the state had been erroneously allowed a challenge for cause." State v. Berry, 391 So.2d 406 at 410


819 F.2d 511

Benjamin A. BERRY, Petitioner-Appellant,
C. Paul PHELPS, Secretary of Department of Corrections and
Hilton Butler, Warden of Louisiana State Prison,
Angola, Louisiana, Respondents-Appellees.

No. 87-3408.

United States Court of Appeals,
Fifth Circuit.

June 5, 1987.

Appeal from the United States District Court for the Eastern District of Louisiana

Before GARWOOD, JOLLY and DAVIS, Circuit Judges.


Benjamin A. Berry applies for a certificate of probable cause to authorize appeal to this court from a judgment of the district court denying his third federal petition for a writ of habeas corpus. Berry also seeks a stay of execution.

Berry raises two issues on appeal: (1) whether the prosecutor's reference during closing argument to the availability of appellate review violated federal due process, see Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (Caldwell claim); and (2) whether the Louisiana capital sentencing statute is unconstitutional because it allows the jury to base its sentence on aggravating factors that duplicate the elements of the underlying offense, see Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985) (Collins claim). We agree with the district court that Berry has not made a substantial showing of the denial of a federal right; accordingly we deny a stay of execution and deny the application for certificate of probable cause.


Berry was sentenced to death by electrocution after his conviction for the first degree murder of Robert Cochran, a Jefferson Parish Deputy Sheriff. Berry shot Cochran while Berry and others were attempting to commit an armed bank robbery. A more detailed account of the facts surrounding Berry's crime is provided in State v. Berry, 391 So.2d 406, 409 (La.1980), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). Berry is now scheduled to be executed on June 7, 1987.

The Louisiana Supreme Court affirmed Berry's conviction and sentence on direct appeal. State v. Berry, 391 So.2d 406 (La.1980). The Louisiana Supreme Court also denied Berry's first state petition for habeas corpus. State v. Berry, 430 So.2d 1005 (La.1983).

Following the denial of habeas relief in the state court, Berry filed his first petition for federal habeas relief and raised eight claims; he included a Caldwell claim but did not include a Collins claim. The district court denied relief on all claims and Berry appealed that denial to this court. On appeal, Berry complained of the district court's denial of only two of the claims presented in his petition: ineffective assistance of counsel and exclusion of prospective jurors opposed to the death penalty. We rejected Berry's arguments on the two claims he presented to us and affirmed the district court's denial of habeas relief. Berry v. King, 765 F.2d 451 (5th Cir.1985).

In Berry's second federal habeas round, he raised a single issue: whether the State of Louisiana discriminatorily administered its death penalty against defendants accused of killing Caucasians. See McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Berry failed to raise either of the two claims he presents to us today. Berry's second petition for federal habeas relief was denied by the district court, Berry v. Phelps, 639 F.Supp. 1515 (E.D.La.1986), and we affirmed, Berry v. Phelps, 795 F.2d 504 (5th Cir.1986).

Berry's instant federal habeas petition--his third--was denied by the district court in an oral opinion on June 3, 1987. The district court dismissed the petition based on the abuse of the writ doctrine. Rule 9(b), 28 U.S.C. foll. Sec. 2254. This appeal followed.


Berry now argues that the prosecutor's closing statement during the sentencing phase of his trial violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639. In Caldwell, the prosecutor told the jury that "your decision is not the final decision.... Your job is reviewable." Id. at 325, 105 S.Ct. at 2637.

We need not reach the merits of this argument, however, because Berry failed to raise these claims in his second federal writ application. We agree with the district court that the present assertion of this claim constitutes an abuse of the writ. Rule 9(b), 28 U.S.C. foll. Sec. 2254. We further agree that it is appropriate to bar the claim on that ground.

It is well settled that "the piecemeal presentation of post-conviction attacks on confinement cannot be tolerated." Daniels v. Blackburn, 763 F.2d 705, 706 (5th Cir.1985). Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). Berry's attempt to raise in this habeas petition the Caldwell claim is a clear attempt to present piecemeal his post-conviction attack; it therefore is an abuse of the writ.

Berry has been represented by counsel at every step of this litigation. Counsel argued on direct appeal to the Louisiana Supreme Court that the trial court erred in allowing the prosecutor to suggest that the jury's imposition of the death penalty was subject to appellate review. Counsel raised the same issue in his first state habeas petition and again in his first federal habeas petition.1

Thus, Berry and his counsel were well aware of this claimed error. In June 1985, the Supreme Court announced its decision in Caldwell and explicitly held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that a responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 2639. Thus, in the unlikely event that counsel was entitled to harbor any reservations about the legitimacy of such an argument, see Maggio v. Williams, 464 U.S. 46, 54-56, 104 S.Ct. 311, 315-17, 78 L.Ed.2d 43 (1983) (Stevens, J., concurring); Moore v. Blackburn, 774 F.2d 97 (5th Cir.1985), such reservations were laid to rest by Caldwell.

Notwithstanding the unambiguous teaching of Caldwell, when Berry filed his second writ application in July 1986, more than one year from the date Caldwell was announced, Berry did not present the Caldwell claim.

Competent counsel would have been aware of Caldwell in July of 1986; we therefore agree with the district court that Berry cannot excuse his failure to include a Caldwell claim predicated on the argument that he was unaware of the Caldwell decision. As we recently stated in Daniels v. Blackburn, 763 F.2d 705 (5th Cir.1985): "Even if [Berry] could prove at an evidentiary hearing, the personal ignorance that he has asserted, 'that [proof] would not be enough because [Berry] is chargeable with that awareness that a competent lawyer would have possessed.' " Id. at 710 (quoting Jones v. Estelle, 722 F.2d 159, 169 (5th Cir.1983)).

We were presented with virtually the identical issue the instant case presents in Moore v. Blackburn, 774 F.2d 97 (5th Cir.1985). In Moore, the petitioner, in his first habeas petition, filed before Caldwell was announced, asserted that the Louisiana Supreme Court failed to adequately consider that the death penalty was imposed as a result of "arbitrary factors including ... the injection of appellate review." 774 F.2d 98.

In resolving the claim in the first habeas petition, we held that: "Moreover, we do not believe that the prosecutor's brief reference to appellate review diminished the jury's sense of responsibility for its sentence." Moore v. Maggio, 740 F.2d 308, 320 (5th Cir.1984) (citing Corn v. Zant, 708 F.2d 549, 556-58 (11th Cir.1983); McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983)).

After Caldwell was decided, Moore filed a second writ application and again asserted a claim predicated on the prosecutor's reference to appellate review. We rejected the claim for the following reasons:

Raised here for the second time, the issue is barred by Rule 9(b) and the principles enunciated in Sanders [v. U.S., 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148]. We ruled in the previous petition that "the prosecutor's brief reference to appellate review [did not] diminish [ ...] the jury's sense of responsibility for its sentence." 740 F.2d at 320. This pronouncement is consistent with the rule set forth in Caldwell. Alternatively, even if we were to conclude that this issue is being raised in this petition for the first time, we must deny it as an abuse of the writ, Rule 9(b).

In Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc), we ruled that new claims in a successive petition must be dismissed if the failure to include them in a prior petition is an abuse of the writ. Claims must be included in the prior petition if a competent attorney should have been aware of the claims at the time of the prior petition. Id. at 169. That a competent attorney should have been aware of this claim is apparent from the Supreme Court's Caldwell opinion. See 105 S.Ct. at 2642.

Moore, 774 F.2d at 98.

Even if Berry had an acceptable excuse for his delay in asserting this claim, the claim has no merit. We read Caldwell as standing for the proposition that a prosecutor's remark would be unconstitutional only if it diminished the jury's sense of responsibility for its sentence.

In the instant case, the prosecutor stated in closing argument of the sentencing phase of Berry's trial that:

There is another provision of the act which says that the Supreme Court of Louisiana shall review every sentencing of death to determine if it is excessive. Every possible safeguard where a defendant for whom the jury is decided, who the D.A. has decided, who the judge has decided, who shall be sentenced to death shall go to the ultimate court of this state, and they will also determine is that sentence excessive, was the jury [erroneous] when they reached their verdict.

We agree with the district court that the prosecutor's brief remark did not deny Berry a fundamentally fair sentencing determination. First, the prosecution in the instant case made a brief, almost passing reference to appellate review. In contrast, the prosecutor in Caldwell made a direct attack on the defendant's case for mitigation. The prosecution's attack was in response to defense counsel's attempt to confront the jury with the gravity of its responsibility in determining whether it should impose the death sentence.2

Second, the prejudicial effect of the prosecutor's remarks in Caldwell was then magnified when the trial court put its stamp of approval on the prosecutor's statement. In the instant case no objection was made to the prosecutor's reference to appellate review, and the trial court had no occasion to comment on its propriety.

Finally, the trial court in the instant case, instead of reinforcing the improper argument, instructed the jury that they must decide whether Berry should receive the death sentence.

In summary, the brief remarks of the prosecutor in this case, like those in Moore v. Blackburn, 774 F.2d 97 (5th Cir.1985), did not diminish the jury's sense of responsibility for its sentence.


Berry argues next that the Louisiana capital sentencing scheme is unconstitutional because it allows a defendant to be sentenced to death based upon aggravating circumstances that may duplicate the essential elements of the underlying offense.3 Collins v. Lockhart, 754 F.2d 258 (8th Cir.1985); Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986). The Supreme Court has held that statutory aggravating circumstances must "genuinely narrow the class of persons eligible for the death penalty" in order to comply with the eighth amendment. Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). In Collins, the Eighth Circuit held that "[w]e see no escape from the conclusion that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform this narrowing function." Collins, 754 F.2d at 264.

Even though Collins was decided on January 31, 1985, Berry failed to raise the issue in his second petition for federal habeas corpus which he filed in July of 1986. Berry's counsel seeks to excuse this failure on grounds that Collins did not come to his attention until Justice White commented in March of 1987 that the Fifth and Eighth Circuits had conflicting rules on this question. See Williams v. Ohio, --- U.S. ----, 107 S.Ct. 1385, 1387, 94 L.Ed.2d 699 (1987) (Brennan, Marshall, White, J.J., dissenting).

We agree with the district court that this "can hardly be used as counsel's excuse now for suddenly perceiving that there was some conflict among the circuits when counsel had the benefit of both decisions and the ability to compare them himself at least five months prior to the time he filed the second writ seeking only a resolution of and raising only the so-called McCleskey issue." We conclude therefore that Berry has failed to justify his failure to include this claim in his July 1986 habeas petition, and his assertion of that claim in the instant petition is an abuse of the writ. Jones v. Estelle, 722 F.2d 159 (5th Cir.1983); Maggio v. Williams, 464 U.S. 46, 55, 104 S.Ct. 311, 316, 78 L.Ed.2d 43 (1983) (Stevens, J. concurring). We agree that it is appropriate to bar the claim on this ground.

Even if Berry's excuse justifies his abuse of the writ, we find no merit to the claim. No circuit court has followed the Eighth Circuit decision in Collins, and we have expressly rejected it on several occasions. Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987); Wingo v. Blackburn, 783 F.2d 1046 (5th Cir.1986); Lowenfield v. Phelps, 817 F.2d 285 (5th Cir. 1987). This claim for relief is meritless.


Berry's final contention is that we should grant him a stay of execution because of the Supreme Court's recent decision to stay the execution in Welcome v. Blackburn, --- U.S. ----, 107 S.Ct. 1985, 95 L.Ed.2d 825 (1987). We disagree. In the absence of a declaration by the Supreme Court that executions should be stayed in cases presenting this issue, we must follow our circuit's precedents and deny both a certificate of probable cause and a stay of execution. Wicker v. McCotter, 798 F.2d 155 (5th Cir.1986); Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987). We therefore reject Berry's request for a stay of execution.


For all of the reasons stated above, we conclude that Berry has not made a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 883, 103 S.Ct. 3383, 3389, 77 L.Ed.2d 1090 (1983). The application for a certificate of probable cause is DENIED; and the request for a stay of execution is DENIED.



Berry did not complain on appeal of the federal district court's denial of this claim. Because of the clear abuse of the writ, we do not consider the additional argument that Berry abandoned this claim when he did not argue on appeal that the district court erred in denying this claim. We also do not consider whether this represents an unjustified successive writ application in view of Berry's assertion of this claim in his first federal writ application filed in the district court


Defense counsel in Caldwell made the following remarks in closing argument during the sentencing stage of the trial:

[E]very life is precious and as long as there's life in the soul of a person, there is hope. There is hope, but life is one thing and death is final. So I implore you to think deeply about this matter. It is his life or death--the decision you're going to have to make, and I implore you to exercise your prerogative to spare the life of Bobby Caldwell.... I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you but we live in a society where we are taught that an eye for an eye is not the solution.... You are the judges and you will have to decide his fate. It is an awesome responsibility, I know--an awesome responsibility.

Caldwell, 472 U.S. at 324, 105 S.Ct. at 2637 (emphasis added). The prosecution responded by stating:

ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief. I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know-- they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they ...

COUNSEL FOR DEFENDANT: Your Honor, I'm going to object to this statement. It's out of order.

ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that's terribly unfair.

THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.

ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said "Thou shalt not kill." If that applies to him, it applies to you, insinuating that your decision is the final decision and that they're gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it's unfair and I don't mind telling them so.

Id. at 325-26, 105 S.Ct. at 2637-2638 (emphasis added).


Berry's first degree murder conviction was based on the following three elements:

(1) The offender had "specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... armed robbery"; and,

(2) The offender had "specific intent to kill or to inflict great bodily harm upon a ... peace officer engaged in the performance of his lawful duties"; and,

(3) The offender had "specific intent to kill or to inflict great bodily harm upon more than one person."

The jury based its sentence of death upon the following three aggravating circumstances:

(1) "The offender was engaged in the perpetration or attempted perpetration of ... armed robbery"; and,

(2) "The victim was a ... peace officer engaged in his lawful duties", and

(3) "The offender knowingly created a risk of death or great bodily harm to more than one person."



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