not hold that a trial judge may not give a mitigating circumstances instruction if he or she is disposed to grant the defendant’s request. The purpose of a contemporaneous objection requirement is to give the trial judge the opportunity to rule on the defendant’s constitutional claim, see Engle v. Isaac, 456 U.S. 107, 128-29, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); this is what O’Bryan failed to do. Accordingly, we hold that the defendant is barred from raising his claim about the absence of a mitigating circumstances instruction in these federal habeas proceedings. See also O’Bryan v. Estelle, 691 F.2d, 706, 710 (5th Cir.1982) (Gee, J., dissenting). We note further that the Supreme Court’s recent decision in Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983) (<HOLDING>) makes the defendant’s argument on the merits
holding that when one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances that underlie the invalidated aggravating factor areviewing court need not apply harmlesserror review holding that death sentence need not be set aside where one of three statutory aggravating circumstances found by juror was subsequently held to be invalid by state supreme court but other two were specifically upheld and stating that the absence of legislature or courtimposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render capital sentencing statute invalid as applied holding that apprendi does not apply to state capital sentencing schemes where judges are required to find certain aggravating circumstances before imposing a death sentence holding that it was permissible to ask whether a juror would consider death sentence if juror determined aggravating circumstances outweighed mitigating circumstances holding that under the alabama death penalty statute because the judge did not consider the jurys recommendation the statute which forced the jury to sentence the defendant to death whenever aggravating circumstances existed was not unconstitutional