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Charles Anthony BOYD





Classification: Murderer
Characteristics: Rape - Robberies
Number of victims: 3
Date of murders: 1986 - 1987
Date of arrest: April 15, 1987
Date of birth: August 17, 1959
Victims profile: Tippawan Naksuwan, 37; Lashun Chappell Thomas, 22, and Mary Milligan, 21
Method of murder: Strangulation - Stabbing with knife
Location: Dallas County, Texas, USA
Status: Executed by lethal injection in Texas on August 5, 1999


Date of Execution:
August 5, 1999
Charles Boyd #891
Last Statement:
I want you all to know I did not do this crime.

I wanted to wait for a thirty day stay for a DNA test so you know who did the crime.

Charles Anthony BOYD

On Monday, April 14, 1987, Mary Milligan’s naked body was found drowned and sexually assaulted in the bathtub of her North Dallas apartment.  This was the third and final event in a string of murders that led up to Boyd being arrested, charged, convicted, and finally sentenced to death.

Two other charges were filed on Tuesday against Boyd, connecting him to two previous murders.  Wednesday, Boyd was charged with his third count of capital murder.

All three of the victims had lived in the same complex as Boyd at the time of the murders and in all three cases Boyd submerged his dead victims in a bathtub full of water.  One of the victims was left in her bathtub for two weeks until a friend went to the apartment and found her.  Charles Boyd had complained to his brother about the putrid smell for 13 days.

Boyd’s motive was preying on helpless women and at the time, Milligan had a sprained ankle.  Boyd also claimed that she had insulted him, which led to his murdering her.

Russell Leachman, Milligan’s boyfriend at the time of the murder, disputes the scenario that Mary Milligan would have engaged Boyd in namecalling.  “She was a wonderful person,” he said.  “She had such a tender heart and would never call someone a name.”    

Milligan’s trial began on Oct. 27, 1987.  A week later, it took a Dallas jury 10 minutes to convict Boyd of Milligan’s murder.  In December, he was sentenced to death. 

Bill Senkel had been a Dallas Police Department (DPD) officer for 26 years. He was a close family friend of the Milligan’s and was now retired living in Mary’s hometown. He found out about Mary’s death and immediately made a call to the DPD.  He knew a lot of the investigators working on the case and pleaded with them to use extra care.  “She (Mary) was a wonderful person,” Senkel stated.  “She had a full life ahead of her.  She will always be greatly missed in my heart.  My wife and I took her in as one of our own.”

Boyd’s lawyer, Paul Brauchle, tried to get voluntary manslaughter charges instead of the death penalty  “because Milligan gave him a reason, namecalling, to do this to her.” 

Leachman disagreed, saying Boyd was a serial killer in progress.  “Boyd was the most predatory and most dangerous individual on the streets,” he said.  “He took something away from us that is irreplaceable.  He was definitely on his way to becoming a true serial killer.  I am just so glad he is off the street and can’t do this to other families.”

After the conviction, Boyd tried to claim mental retardation.  He had an IQ of 60.  “I am not for nor against the death penalty,” Leachman said.  “However, these people that are obviously beyond rehabilitation and committing heinous crimes on innocent people deserve to go to death row.  That is harsh, but society owes it to itself to exercise safety.” 

On Aug. 5, 1999, Milligan’s mother, father, and sister watched Boyd as he was put to death for the murder of their daughter, sister and friend.


Charles Anthony Boyd, 39, 99-08-05, Texas

An ex-convict who confessed to killing 3 women during a 10-month spree that became known as the North Dallas "bathroom slayings" was executed Thursday evening.

Charles Anthony Boyd, 39, became the 2nd convicted killer to die in as many days in Texas and the 2nd of 6 death row inmates the state is set to execute within a 14-day period this month.

Boyd initially declined to make a final statement. But, as the drugs began flowing into his arms, he said, "I want you all to know I did not do this crime. I asked for a 30-day stay for a DNA test so you know who did the crime."

Then he gasped and slipped into unconsciousness. He was pronounced dead at 6:16 p.m. CDT, 9 minutes after the lethal dose started.

Boyd was condemned for strangling and drowning 21-year-old Mary Milligan at her apartment April 13, 1987. A recent Texas Tech University graduate, she had moved to Dallas to take a job as a bank management trainee.

Boyd was arrested the day after Ms. Milligan's murder when jewelry and other items taken from her apartment were pawned. The former bank janitor lived across the hall from her.

He also became a suspect after detectives learned of his past. Boyd had previous convictions for burglary and sexual assault and had been released from prison in November 1985 after serving less than half of a 5-year sentence.

Ms. Milligan's parents, sister and a cousin were among the people to watch Boyd die.

"Our family has been in tremendous pain over the last 12 years since our daughter and sister was murdered," they said in a prepared statement. "This execution tonight will do nothing to restore our family as it was with her love, her laughter, her caring support for each of us and her joy in it.

"We are relieved that no one else's family will have to suffer as all of us who loved Mary have had to do at the hands of Charles Boyd who has blatantly disregarded the laws of God, the laws of man and the value of human life."

According to court records, Boyd was living with his brother from July to September 1986 at the Woodstock Apartments in northeast Dallas.

In July, Tippawan Nakusan, 37, who lived upstairs from Boyd and worked as a waitress, was found stabbed and suffocated in her bathtub.

That September, Lashun Chappell Thomas, 22, a nursing home aide, was found fatally stabbed and in a bathtub in the apartment complex.

Then Ms. Milligan was killed in similar fashion at an apartment complex where Boyd lived.

"I can't think about him without thinking about their families," Kevin Chapman, the former assistant district attorney in Dallas who prosecuted Boyd, said this week.

Chapman said he remains haunted particularly by the slaying of Ms. Nakusan, an immigrant from Thailand whose relatives authorities never were able to contact.

"I wonder if her family wonders what ever happened to their little girl," he said. "(Boyd) is the type this punishment was made for. If it's justified for anybody, Charlie deserves it. He had a 2nd chance. He had a job. He had a place to live. All he had to do is not kill people. And that's not too much to ask."

Apartment complex residents accustomed to lounging by the pool and leaving their doors unlocked were terrorized.

After his arrest, Boyd confessed and was charged with all 3 slayings but tried only for Ms. Milligan's killing. Besides tying him to items taken from the apartment and his confession, prosecutors also had forensic evidence from Ms. Milligan's apartment to link him to her death.

"It was a strong case, I thought a case with no issues," Chapman said. "The evidence was overwhelming."

In appeals following his capital murder conviction, Boyd unsuccessfully contended he was mentally retarded and his attorneys should not have allowed his confessions to be used against him. His trial attorneys, however, told the court they did not believe he was retarded and it was not an issue.

In a February ruling, the 5th U.S. Circuit Court of Appeals agreed, saying a trial jury was not likely to find him innocent because of the "cold-blooded nature of the murder and Boyd's other violent conduct."

The U.S. Supreme Court earlier Thursday refused to review Boyd's case.

Boyd becomes the 18th condemned inmate to be put to death this year in Texas, and the 182nd overall since Texas resumed capital punishment on Dec. 7, 1982.

(sources: Associated Press and Rick Halperin)



Charles A. BOYD

On 4/13/87, when he was 27 years old, Dallas janitor Charles Boyd, a previously convicted felon, raped and strangled 21-year-old Mary Mulligan in her Dallas, Texas apartment, leaving her body in the bathtub.  He then stole her car and jewelry. Boyd was sentenced to die 12 years ago for 1 of 3 North Dallas "bathroom slayings".

Now 39, Boyd, has been on death row since December 1987, 8 months after he strangled and left Mary Milligan, 21, underwater in her bathtub.  Boyd was also indicted in the 1986 slayings of Tippawan Naksuwan, 37, and Lashun Chappell Thomas, 22. Those women were found stabbed in their bathrooms, police said. 

At his trial, prosecutors said that Mr. Boyd committed burglary, robbery and sexual assault, making him eligible for the death penalty. Defense attorneys suggested that jurors should find Mr. Boyd guilty of voluntary manslaughter because he was "emotionally disturbed" and had said in a confession that Ms. Milligan called him a name and that made him angry. 

A Dallas jury took only 10 minutes to sentence Mr. Boyd to death.  The cases involving Ms. Naksuwan and Ms. Thomas, who Mr. Boyd also admitted killing, were dropped after he was sentenced to die for Ms. Milligan's murder. 

In 1991, the U.S. Supreme Court turned down Mr. Boyd's appeal, letting rulings that he received a fair sentence stand. 

Rus Leachman, Ms. Milligan's boyfriend at the time of her death, said Wednesday that he is pleased to see the execution finally scheduled.  "Society will be better off without him," said Mr. Leachman, now an attorney in El Paso. "He is a very dangerous person." 

As an attorney, Mr. Leachman said, he understands why executions sometimes aren't carried out for several years.  "But the delay is often longer than it should be," said Mr. Leachman, who had dated Ms. Milligan for more than two years. "It is disappointing that it takes this long, especially when the evidence of guilt is pretty overwhelming." 

All 3 homicides occurred within a 10-month span. Police said Mr. Boyd, a night janitor at a bank building, did not know his victims but lived near them at the time of the homicides. Ms. Milligan, who had spent the day in her apartment on crutches because of a sprained ankle, had just moved from Lubbock to work at MBank. "She was a really fine person," Mr. Leachman said. "She was always looking out for someone else instead of herself." 

Mr. Boyd, who had previous convictions for rape and robbery, has spent almost half of his life in prison.  Amnesty International, a human-rights organization opposed to the death penalty, wrote prison officials this week asking them to spare Mr. Boyd on Thursday so that his mental state can be reviewed.  ". . . we are deeply concerned that Charles Boyd, due to his severe mental retardation, was not totally responsible," the group wrote. 

They said prison reports show that Mr. Boyd has an IQ of 67.  "His defense lawyers failed to investigate and present evidence of his mental retardation because they did not recognize that he might have such a problem," they wrote.  A prison spokesman said Wednesday that he knew of no appeals that would halt Mr. Boyd's execution at 6 p.m. Thursday. 



167 F.3d 907

Charles Anthony Boyd, Petitioner-appellant,
Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division,

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1999

Appeal from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and POLITZ and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Charles Anthony Boyd was convicted of capital murder and sentenced to death.1 He requests a Certificate of Probable Cause ("CPC") to appeal the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254. He contends that the district court erred because (1) counsel was ineffective for failing to present mitigating evidence of his retardation to the jury at sentencing; (2) the jury was prevented impermissibly from giving mitigating effect to evidence of his retardation and his positive character traits; (3) the failure to instruct the jury on the parole implications of a life sentence in a capital case rendered the Texas sentencing scheme unconstitutional; and (4) the admission of extraneous offenses at the sentencing phase violated due process and the Eighth Amendment. We deny Boyd's request for a CPC.


* A Texas jury convicted Boyd of capital murder in 1987, and sentenced him to death, answering affirmatively the special sentencing issues.2 On direct appeal, the Texas Court of Criminal Appeals affirmed his conviction. See Boyd v. State, 811 S.W.2d 105 (Tex.Crim.App.) (en banc), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). Boyd filed a state habeas corpus application, and the Texas Court of Criminal Appeals denied relief.

Boyd then filed a federal habeas petition in district court pursuant to 28 U.S.C. § 2254. The district court denied habeas relief for all but two of Boyd's claims. The district court ordered an evidentiary hearing concerning the claim that trial counsel's failure to develop and to present evidence of Boyd's mental retardation constituted ineffective assistance of counsel, and the claim that the trial court erred in failing to give a jury instruction under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The Magistrate Judge conducted an evidentiary hearing, recommending that the district court deny relief. The district court adopted the findings of the Magistrate Judge and denied relief. Boyd filed a request for a CPC, which the district court also denied.3 Boyd appeals this denial. To obtain a CPC, Boyd must make a substantial showing that he has been denied a federal right. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).


Boyd argues he received ineffective assistance of counsel in violation of the Sixth Amendment. He asserts that he received ineffective assistance because his trial counsel failed to discover and to present evidence of mental retardation, which could have been used to challenge the voluntariness of his confessions and could have been relevant to the jury in determining whether to impose the death penalty.

In order to prove ineffective assistance of counsel, Boyd must show (1) deficient performance, meaning that the attorney's representation "fell below an objective standard of reasonableness," and (2) that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 2064, 2067, 80 L.Ed.2d 674 (1984). As the Court stated in Strickland, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065.

According to Boyd, his trial counsel performed deficiently in failing to discover mitigating evidence of his mental retardation. At trial, his attorneys introduced two prison packets that were created during Boyd's prior incarceration. One prison packet indicated Boyd has an I.Q. of 67, and the other stated his I.Q. is 80. At the evidentiary hearing, Boyd presented testimony from Dr. James Shadduck that an I.Q. below 70 indicates retardation, and that Boyd received an I.Q. score of 64 on a test administered by him.

Shadduck testified he had reviewed school records showing an I.Q. of 71. Shadduck concluded that Boyd was retarded and that his retardation should have been apparent to any observer. Dr. Alan Hopewell also testified that he had examined Boyd and found him to be retarded. Other witnesses testified to Boyd's mental state, including family members and attorneys who had worked with Boyd. Citing the I.Q. tests introduced at trial, along with the post-trial I.Q. tests, Boyd alleges that his counsel's failure to investigate his mental capacity constituted ineffective assistance.

The district court found that the evidence of Boyd's retardation is conflicting. The district court stated that the credibility of Drs. Shadduck and Hopewell suffered on cross-examination. The credibility of Boyd's mother and sister, who testified to Boyd's retardation, was undermined by their earlier contradictory testimony at the sentencing phase of the trial. The district court did not credit the testimony of two of Boyd's other witnesses who were either employees or associates of Boyd's present counsel.

Other evidence cast doubt on the obviousness of Boyd's retardation. Boyd's attorney Paul Brauchle testified that he did not believe that Boyd was retarded, based on his observations of Boyd and from information from Boyd's family. He stated that Boyd assisted him in the jury selection process and that he was unable to remember having had information that Boyd scored low on an I.Q. test. The district court found Brauchle's testimony credible.

The district court additionally found the testimony of Michael Byck, who also served as trial counsel, to be highly credible. Byck testified he saw no "red flags" that would indicate Boyd's retardation. Conversations with Boyd's family, and the school records, did not suggest to Byck that Boyd was retarded. The district court concluded that the isolated I.Q. score of 67 in the prison packet was not enough to compel the attorneys to investigate, when the other evidence available at trial contradicted a suggestion of retardation.

Under Strickland, we consider whether the failure of Boyd's counsel to develop and to present the evidence of retardation constituted deficient performance. Boyd's lowest I.Q. score of 64 is on the upper borderline of mental retardation. See Penry, 492 U.S. at 308 n. 1, 109 S.Ct. at 2941 n. 1. In other cases, we have found that counsel did not perform deficiently in failing to develop similar evidence of retardation. In Andrews v. Collins, 21 F.3d 612, 624 (5th Cir.1994), the defendant presented an I.Q. score of 68, which conflicted with testimony presented by the state that Andrews's I.Q. was between 70 and 80.

We found that Andrews's counsel did not perform deficiently in failing to present the evidence of his low intelligence. See also Smith v. Black, 904 F.2d 950, 977 (5th Cir.1990)(finding that counsel was not deficient for failing to present mitigating evidence of I.Q. of 70), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992), aff'd in relevant part, 970 F.2d 1383 (5th Cir.1992); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir.1986)(finding counsel ineffective for failing to present evidence of I.Q. score below 41).

The evidence of Boyd's retardation must be considered in tandem with the impressions that he gave the attorneys. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... In particular, what investigation decisions are reasonable depends critically on such information." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Boyd's attorneys testified that they did not believe Boyd was retarded, based on their observations and interactions with him, and the district court found this testimony to be credible. The attorneys decided not to investigate Boyd's mental state because they did not believe retardation was an issue. In light of both Boyd's own actions and the conflicting evidence of retardation, the failure of Boyd's counsel to present evidence of Boyd's borderline retardation cannot be considered to have fallen "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

Even had counsel been aware of Boyd's retardation, it was not ineffective assistance to abstain from further investigation. The Court determined in Penry that mitigating evidence of mental retardation has relevance to moral culpability beyond the special issues. See Penry, 492 U.S. at 322, 109 S.Ct. at 2948. Prior to Penry, however, evidence of mental retardation had a greater potential for negatively impacting the defense, because the jury might use such evidence to support a "yes" answer to the second special issue, the defendant's future dangerousness. See Lackey v. Scott, 28 F.3d 486, 490 (5th Cir.1994), vacated on other grounds, 52 F.3d 98, 99 (5th Cir.1995).

In cases tried before Penry, it was not ineffective assistance to fail to seek or to develop evidence regarding a defendant's mental retardation. See Washington v. Johnson, 90 F.3d 945, 953 (5th Cir.1996)("This case was tried before the Supreme Court's Penry decision, and we have not previously held counsel incompetent for failing to anticipate Penry."), cert. denied, 520 U.S. 1122, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997).

Because the evidence of retardation may have influenced the jury negatively, Boyd's counsel did not perform deficiently in failing to investigate the issue further. The potential negative impact of the retardation evidence, in addition to the cold-blooded nature of the murder and Boyd's other violent conduct, persuades us that the outcome of the sentencing would not have been different if counsel would have investigated further. See Andrews, 21 F.3d at 624 (concluding that the failure to introduce mitigating evidence, which included evidence of mental retardation, did not prejudice defendant because of the cold-blooded nature of the crime); King v. Puckett, 1 F.3d 280, 285 (5th Cir.1993) (concluding "that the failure to offer mitigating evidence in the form of King's diminished mental capacity" did not affect "the outcome of his sentencing."); Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th Cir.1986)(finding no prejudice from counsel's failure to introduce mitigating evidence because the murder was calculated and cold-blooded). Boyd's claim of ineffective assistance is meritless because the failure to develop the evidence of Boyd's retardation was not deficient performance, nor was it prejudicial to the defense.

Additionally, Boyd contends that counsel rendered ineffective assistance because, apart from the sentencing phase, evidence of mental retardation could have been used to challenge the voluntariness of his confession. The trial judge admitted Boyd's confession after a hearing to determine the voluntariness of his confession. Boyd has not shown that the conflicting evidence of borderline retardation would have had any impact on the resolution of this issue. We conclude therefore that Boyd's counsel did not prejudice him by failing to develop retardation evidence to challenge his confession. Boyd has not substantially shown the denial of his right to effective assistance of counsel.


According to Boyd, the Texas capital sentencing scheme in effect at the time of his sentencing, Art. 37.071 of the Texas Code of Criminal Procedure, impermissibly limited the jury's ability to give effect to mitigating evidence that he presented at trial. The Supreme Court held in Penry that if a jury cannot give effect to mitigating evidence about a defendant's background, character, or other circumstances that reflect a reduced moral culpability, then the trial court must provide instructions that allow the jury to consider such evidence. See Penry, 492 U.S. at 319-28, 109 S.Ct. at 2947-52. The Court found in Penry that the special issues failed to give the jurors a vehicle to consider evidence of Penry's childhood abuse and severe mental retardation that left him unable to learn from his mistakes. See id. Boyd contends that the special issues did not permit the jurors to consider evidence of his mental retardation or of his positive character traits.

In considering a Penry claim, we determine (1) whether the evidence was constitutionally relevant mitigating evidence, and if so, (2) whether the evidence was beyond the effective reach of the jurors. See Davis v. Scott, 51 F.3d 457, 460 (5th Cir.1995). Relevant mitigating evidence, which is evidence that one is less culpable for his crime, must show "(1) a 'uniquely severe permanent handicap[ ] with which the defendant was burdened through no fault of his own,' and (2) that the criminal act was attributable to this severe permanent condition." Id. at 461 (citations omitted).


* Boyd contends that the evidence of his retardation entitled him to a special jury instruction under Penry.4 A petitioner cannot base a Penry claim on evidence that could have been but was not proffered at trial. See West v. Johnson, 92 F.3d 1385, 1405 (5th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997); Crank v. Collins, 19 F.3d 172, 176 (5th Cir.1994). The only evidence of Boyd's retardation presented at trial was the I.Q. score of 67 in the prison packet. Accordingly, Boyd argues that this I.Q. score entitled him to a special instruction.

In order to be entitled to a special instruction, however, Boyd must show how the evidence of retardation is constitutionally relevant mitigating evidence. Even assuming the I.Q. score establishes a "uniquely severe permanent handicap," it does not establish "that the criminal act was attributable to this severe permanent condition." Davis, 51 F.3d at 461. See Harris v. Johnson, 81 F.3d 535, 539 n. 11 (5th Cir.) (rejecting that a nexus is inherent between any evidence of mental retardation and a crime), cert. denied, 517 U.S. 1227, 116 S.Ct. 1863, 134 L.Ed.2d 961 (1996); Davis, 51 F.3d at 462 (stating that Penry claim fails despite evidence of mental problems, due to failure to demonstrate how crime was attributable to mental problems). We conclude that Boyd has not substantially shown that the failure to issue a special instruction based on the I.Q. score of 67 deprived him of a constitutional right.


Boyd contends that the special issues prevented the jury from fully considering testimony from his employer, family members, and friends regarding his positive character traits. He believes that this testimony entitled him to a general mitigation instruction under Penry, because the evidence was beyond the scope of the special issues. The failure to provide such an instruction thus violated his right to due process under the Fifth and Fourteenth Amendments, and his right to be free from cruel and unusual punishment under the Eighth Amendment.

We have rejected this argument on the merits. Evidence of good character tends to show that the crime was an aberration, which may support a negative answer to the special issue regarding the future dangerousness of the defendant. See id; Barnard v. Collins, 958 F.2d 634, 640 (5th Cir.1992)("[Good character] evidence can find adequate expression under [the] second special issue."). The jury could have considered the evidence of Boyd's positive character traits in the special issues, and thus Boyd was not entitled to a general mitigation instruction under Penry. Boyd has failed to show that the denial of such an instruction violated his constitutional rights.


Boyd argues that the Texas sentencing scheme is unconstitutional because the trial court did not instruct the jury concerning the parole implications of a life sentence in a capital case. In Simmons v. South Carolina, 512 U.S. 154, 169, 114 S.Ct. 2187, 2196, 129 L.Ed.2d 133 (1994), the Supreme Court held that due process requires a trial court to instruct the jury in a prosecution for capital murder that the defendant would be statutorily ineligible for release on parole if the jury imposed a life sentence. Relief based on Simmons is foreclosed by Teague. See O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 1978, 138 L.Ed.2d 351 (1997)(declaring Simmons a "new rule" under Teague ).

Additionally, in Allridge v. Scott, 41 F.3d 213, 222 (5th Cir.1994), we interpreted Simmons to mean that "due process requires the state to inform a sentencing jury about a defendant's parole ineligibility when, and only when, (1) the state argues that a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole." Although the State argued that Boyd would represent a danger in the future, Boyd would have been eligible for release on parole had he received a life sentence. See Tex.Code Crim. Proc. Ann. § 42.18(8)(b)(2). Boyd's eligibility for parole renders Simmons inapplicable to his case. See Allridge, 41 F.3d at 222 (concluding Simmons unavailing in similar case). Hence, Boyd has not shown that the trial court violated his constitutional rights by failing to instruct the jury concerning his parole ineligibility.


Boyd asserts that the admission of similar unadjudicated offenses during the punishment phase, without a limiting instruction, violated his right to due process under the Fifth and Fourteenth Amendments and constituted cruel and unusual punishment in violation of the Eighth Amendment. Boyd previously conceded the probative value of evidence of two earlier killings, which were committed under identical factual circumstances, as to the issue of his future dangerousness. He maintains that the court should have provided an instruction limiting the jury's consideration of the extraneous evidence to that issue alone.

The evidence of the extraneous offenses was, as the Magistrate Judge found, relevant to the first and third special issues. The similarity of the other offenses was probative as to the first issue, whether Boyd acted deliberately. The other offenses also were relevant to the third issue, whether he acted in response to provocation by his victim. Even if the evidence was not relevant directly to the first or third special issues, the Constitution does not require a limiting instruction. We have acknowledged that:

[T]he Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating circumstances or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime ... What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.1987)(quoting Barclay v. Florida, 463 U.S. 939, 967, 103 S.Ct. 3418, 3433, 77 L.Ed.2d 1134 (1983)(Stevens, J., concurring) (citations and quotation omitted)). Boyd does not suggest that a limiting instruction is necessary to ensure an individualized determination at the sentencing phase. Boyd has failed to show that the trial court denied him a constitutional right when it refused to give a limiting instruction as to the evidence of extraneous offenses.


For the forgoing reasons, we conclude that Boyd has failed to make a substantial showing of the denial of a federal right. Therefore, we DENY his request for a CPC.



For a fuller exposition of the facts of the case, see Boyd v. State, 811 S.W.2d 105, 107-08 (Tex.Crim.App.) (en banc), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991)


At the time, Article 37.071 of the Texas Code of Criminal Procedure provided that, after finding a defendant guilty, a jury must decide (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death would occur; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury found the state proved beyond a reasonable doubt that the answer to all three is yes, then the death sentence was imposed. Otherwise, life imprisonment resulted. See Tex.Code Crim. Pro. Ann. art. 37.071


Boyd filed his federal habeas petition on March 5, 1992, and thus the 1996 amendments to the Antiterrorism and Effective Death Penalty Act ("AEDPA") are inapplicable to this suit. See Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997)(holding the AEDPA applicable to petitions filed after the effective date of April 24, 1996). We construe his request for a Certificate of Appealability ("COA"), filed on August 26, 1997, as a request for a CPC. See Barber v. Johnson, 145 F.3d 234 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 518, 142 L.Ed.2d 430 (1998)


Boyd did not request a special jury instruction at trial. We have stated that "in a case such as this, which was tried before Penry was decided, the petitioner need not have requested an instruction on mitigating evidence, nor must he have objected to the lack of such an instruction." Motley v. Collins, 18 F.3d 1223, 1229 (5th Cir.1994)



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