explaining that "evidence of a disadvantaged background, or emotional and mental problems, does not raise, ipso facto, a Penry claim"
How later courts described this case
- explaining that "evidence of a disadvantaged background, or emotional and mental problems, does not raise, ipso facto, a Penry claim"
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-20915
__________________
ROBERT JAMES TENNARD,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
March 1, 2002
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Robert James Tennard (Tennard), convicted of
capital murder in Texas and sentenced to death, requests from this
Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). Tennard’s sole argument is that the jury was unable to
give effect to the mitigating evidence of his mental retardation
when answering the special issue with respect to future
dangerousness at the punishment phase. Finding that Tennard has
not made a substantial showing of the denial of a constitutional
right, we DENY the COA.
I. FACTUAL AND PROCEDURAL HISTORY
On October 17, 1985, Tennard was indicted for the capital
murder of Larry Neblett (Neblett) committed during the course of a
robbery. The following evidence introduced at trial established
that Tennard and two others murdered two men during a robbery.1
Tennard lived behind the home of the two victims, and he knew
them. The victims had invited Tennard and his two friends into
their home approximately fifteen to thirty minutes before they were
attacked. Tennard stabbed one of the victims fifteen times with a
knife while one of Tennard’s friends killed the other victim with
a hatchet. Tennard played a dominant role in disposing of the
victims’ stolen property. Tennard presented an alibi defense, and
he presented other evidence from which the jury might have
concluded that another person possibly could have committed the
murders. Based on the above evidence, the jury found him guilty of
capital murder.
The evidence from the punishment hearing shows Tennard had
been on parole from a felony rape conviction for less than four
months when he committed the instant offense. The rape victim
testified Tennard and two others forced her into a car while she
1
The facts are taken directly from the opinion of the Texas Court
of Criminal Appeals. Ex parte Tennard, 960 S.W.2d 57, 58-59
(Tex.Crim.App. 1997).
2
was at a bus stop. Just after she was forced into the car,
Tennard, who was displaying about a foot-and-a-half-long pipe-
wrench, threatened to kill her if she moved.
The victim testified Tennard and his friends took her to an
abandoned apartment at a government project where Tennard forced
her to engage in oral, vaginal and anal sex with him. After that,
Tennard’s two friends took turns sexually assaulting her.
Tennard and his friends then took the victim to another house
where he began using drugs and discussing "pimping out" the victim.
She asked Tennard if she could go to the restroom to take a bath,
which he allowed her to do. She escaped through a window, and
Tennard was arrested later that day. The victim testified Tennard
appeared to be the leader during her ordeal. Defense counsel
impeached the victim's testimony with a prior statement she made
from which the jury could have inferred one of Tennard’s
accomplices was the leader.
Tennard's parole officer testified that a Texas Department of
Correction's (TDC) record from his prior incarceration indicated
he had an intelligence quotient (I.Q.) of 67. During
cross-examination of this witness, the State introduced the TDC
record into evidence. This document appears to have been
prepared approximately five years before Tennard committed the
capital murder offense, and there is a notation providing Tennard
had an I.Q. of 67. However, the parole officer could not say who
prepared the report or conducted the I.Q. test. This is all the
3
evidence presented at Tennard's trial with respect to his "mental
retardation."2 The term "mental retardation" is not mentioned
anywhere in this record.
Tennard also introduced evidence that he was twenty-two years
of age when he committed this offense and that he had spent most of
his formative years incarcerated.
At the conclusion of the punishment phase, the jury
affirmatively answered the special issues. Pursuant to Texas law,
the trial court sentenced him to death. On direct appeal, the
Texas Court of Criminal Appeals affirmed the conviction and
sentence. Tennard v. State, 802 S.W.2d 678 (Tex.Crim.App. 1990),
cert. denied, 501 U.S. 1259 (1991). Tennard filed an application
for state habeas relief that ultimately was denied by the Texas Court
of Criminal Appeals. Ex parte Tennard, 960 S.W.2d 57 (Tex.Crim.App.
1997).
2
During cross-examination, Tennard’s parole officer testified as
follows:
Q. [T]his doesn't purport to be any report
by any particular psychologist or anything,
does it?
A. No, sir.
Q. It's basically just sort of, as its says,
social and criminal history of [Tennard]?
A. Right, sir.
Q. And it says, there's basically a line for
IQ, and it says 67?
A. That's correct.
Q. And it has no indication of who may have
given those tests or under what conditions?
A. No sir, it doesn't.
4
Subsequently, Tennard filed the instant federal habeas petition in
district court. The district court denied Tennard’s petition and his
request for a COA. Tennard now requests a COA from this Court.
II. ANALYSIS
A. STANDARDS OF REVIEW
Tennard filed his section 2254 application for habeas relief
on December 18, 1998, which was after the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
His application is therefore subject to the AEDPA. Lindh v.
Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481
(1997). Under the AEDPA, a petitioner must obtain a COA. 28
U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner
makes “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a
petitioner “must demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve
encouragement to proceed further.” Barefoot v. Estelle, 463 U.S.
880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983) (citation and
internal quotation marks omitted). Any doubt regarding whether to
grant a COA is resolved in favor of the petitioner, and the
severity of the penalty may be considered in making this
determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.
1997).
5
To determine whether a COA should be granted, we must be
mindful of the deferential scheme set forth in the AEDPA. Hill v.
Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Pursuant to 28
U.S.C. § 2254(d), we defer to a state court’s adjudication of
petitioner’s claims on the merits unless the state court’s decision
was: (1) “contrary to, or involved an unreasonable application of,
clearly 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.” A state court’s
decision is deemed contrary to clearly established federal law if
it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or if it reaches a different
conclusion than the Supreme Court based on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 1519-20 (2000). A state court’s decision constitutes
an unreasonable application of clearly established federal law if
it is objectively unreasonable. Id. at 1521.
Further, state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
Section 2254(e)(1).
B. JURY INSTRUCTIONS
6
Relying on Penry v.Lynaugh,3 Tennard argues that the special issues
submitted at the punishment phase did not provide the jury with a
vehicle for giving mitigating effect to his evidence of mental
retardation. Specifically, Tennard contends that a juror answering the
two special issues affirmatively but nevertheless believing a life
sentence appropriate (based on the evidence of his mental retardation)
had no vehicle to express this belief.
In reviewing a Penry claim, we must determine whether the
mitigating evidence introduced at trial was constitutionally relevant
and beyond the effective reach of the jury. Davis v. Scott, 51 F.3d
457, 460 (5th Cir. 1995). To be constitutionally relevant, “the
evidence 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 460-61 (internal quotation marks and citation
omitted).
As previously set forth, during the punishment phase, Tennard
called his parole officer, William Kinard (Kinard), as a witness.
Kinard testified that an I.Q. test was administered to inmates at TDC
as a matter of course. Kinard also testified that a document from TDC
provided Tennard’s I.Q. was 67. Kinard was the only defense witness
3
492 U.S. 302, 109 S.Ct. 2934 (1989).
7
who testified before the jury during the punishment phase.4
During defense counsel’s closing argument, he referred to Tennard’s
“low” I.Q. several times:
Then I called a witness who testified he’s Tennard’s parole
officer. Uncontroverted evidence that when Robert Tennard
was examined, when he got out of the penitentiary, by the
officials who determined how to classify him, how to treat
him, the same information that was communicated to his parole
officer, what to do for him, how to help him when he’s out
on parole. Information that the prison psychiatrist had, the
information that they gave is that Tennard has got a 67 IQ.
The same guy that told this poor unfortunate woman [the rape
victim] that was trying to work that day, “Well, if I let you
in there, will you leave?” And he believed her. This guy
with the 67 IQ, and she goes in and, sure enough, she
escapes, just like she should have. That is uncontroverted
testimony before you, that we have got a man before us that
has got an intelligence quotient . . . that is that low.
* * *
Now you’re charged with acting as Robert Tennard’s peers.
You have to judge him as his peers. That’s going to be hard
for you to do. None of you grew up where he grew up. Only
one of you is black and none of you are suffering from a 67
IQ. So you’re going to have to try to judge this man and
decide what his punishment would be as his peers. And I
would ask you as you do that, as is your responsibility, you
take into consideration the things that you have been
informed of by me and by things the prosecutor has told you
in judging Robert Tennard . . . .
* * *
And don’t let [the prosecutor] get up here and tell you to
put blinders on and just answer the questions in a vacuum.
The law allows you to take all the things into consideration
that I talked to you about –- attitude toward the death
penalty, take all these things into consideration, the 67 IQ
–- in deciding how you answer the those questions. You have
a right to do that under Texas law. Don’t let [the
4
The record shows that the trial court did not allow defense
counsel to call a witness who would have testified that one of Tennard’s
accomplices received a life sentence for the instant offense.
8
prosecutor] tell you you can’t just look at the evidence and
just answer the questions. You are allowed more latitude
than that. Remember, what you do here will be forever
lasting one way or the other. . . .
(emphasis added).
As the record reveals, although defense counsel presented
evidence of Tennard’s low I.Q., he did not argue that Tennard was
mentally retarded. The Court of Criminal Appeals recognized that the
term "mental retardation" was never mentioned in the trial record.
Ex parte Tennard, 960 S.W.2d at 59. Indeed, a majority of the Court of
Criminal Appeals found “no evidence in this record that [Tennard] is
mentally retarded.” Id. at 61.5 Under the AEDPA, we are required to
afford a presumption of correctness to this factual finding. 28 U.S.C.
§ 2254(e)(1); see Davis, 51 F.3d at 461 n.4 (affording a presumption of
correctness to state court’s finding of no evidence that petitioner was
mentally retarded).
This Court has explained that evidence of a low I.Q. does not
constitute a uniquely severe condition or is within the jury’s effective
reach pursuant to the teachings of Penry. Andrews v. Collins, 21 F.3d
612, 629-30 (5th Cir. 1994); Lackey v. Scott, 28 F.3d 486, 489-90 (5th
Cir. 1994).
Nevertheless, Tennard contends that an individual with an I.Q. of
5
Additionally, in a concurring opinion, Judges Meyers and Price
concluded that there was not enough evidence of mental retardation in
the record to support Tennard’s claim. 960 S.W.2d at 67 n.9. Judge
Baird dissented, opining that Tennard’s I.Q. of 67 was “presumptive of
his mental retardation.” Id. at 71.
9
67 has significantly below normal functioning and is presumptively
mentally retarded. Thus, he argues, such an individual is less able
than a normal adult to control his conduct, evaluate the consequences
of his conduct, and learn from his mistakes. To support this
proposition, Tennard points out that the American Association of Mental
Retardation (AAMR) classified individuals with an I.Q. score of 75 and
below as presumptively retarded. See AAMR Mental Retardation:
Definition, Classification, and Systems of Supports 14 (9th ed. 1992).
The flaw in Tennard’s argument is that he did not establish or
argue to the jury that he was mentally retarded. A prison document
provided that Tennard had an I.Q. score of 67. There was no evidence
introduced with respect to the meaning of the score, nor its relation
to Tennard’s moral culpability. As stated, the term “mental
retardation” was never articulated before the jury. This dearth of
evidence is in stark contrast to the “substantial mitigating evidence
that Penry was mentally retarded.” Penry v. Johnson, 261 F.3d 541 (5th
Cir. 2001). Under these circumstances, we are constrained to hold that
Tennard has not rebutted the presumption of correctness afforded the
state court’s finding that there was “no evidence” of Tennard’s mental
retardation.
Even assuming arguendo for purposes of this appeal that Tennard has
rebutted with clear and convincing evidence the state court’s finding
of no evidence of mental retardation, his claim must fail because he
10
made no showing at trial that the criminal act was attributable to this
severe permanent condition.
We have recognized it is not simply the fact that one is labeled
mentally retarded that establishes a Penry claim. See Robison v.
Johnson, 151 F.3d 256, 264 (5th Cir. 1998) (citing Robison v. Texas,
888 S.W.2d 473 (Tex.Crim.App. 1994)).6 A petitioner must show there is
a nexus between the severe permanent condition (here, alleged mental
retardation) and the capital murder. As in Tennard’s case, in Boyd v.
Johnson, the only evidence of mental retardation introduced at trial was
the petitioner’s I.Q. score of 67 contained in his prison packet. 167
F.3d 907, 912 (5th Cir. 1999). We stated that even assuming that the
I.Q. score of 67 demonstrates a “`uniquely severe permanent handicap,’
it does not establish `that the criminal act was attributable to this
severe permanent condition.’” Id. (quoting Davis, 51 F.3d at 461).
Moreover, we expressly have rejected the notion that “a nexus is
inherent between any evidence of mental retardation and a crime.”
Harris v. Johnson, 81 F.3d 535, 539 n.11 (5th Cir. 1996).
Tennard is precluded from establishing a Penry claim because he
failed to introduce at trial any evidence indicating that the capital
murder was in any way attributable to his I.Q. of 67. See Crank v.
Collins, 19 F.3d 172, 175-76 (5th Cir. 1994) (stating that it is well
6
See also Davis, 51 F.3d at 460 (explaining that “evidence of a
disadvantaged background, or emotional and mental problems, does not
raise, ipso facto, a Penry claim”).
11
established capital defendants cannot base a Penry claim upon evidence
that could have been, but was not, proffered at trial).
For the above reasons, we conclude that Tennard has not made a
substantial showing of the denial of a constitutional right and DENY
his request for a COA.
DENIED.
ENDRECORD
12
DENNIS, Circuit Judge, Dissenting:
I respectfully dissent.
The threshold question under AEDPA is whether Tennard seeks to
apply a rule of law that was clearly established at the time his state-
court conviction became final. Williams v. Taylor, 529 U.S. 362, 390
(2000). That question is easily answered because the merits of his
claim are squarely governed by Penry v. Lynaugh, 492 U.S. 302
(1989)(Penry I).7 Because Penry I qualifies as “clearly established
Federal law, as determined by the Supreme Court,” that precedent
“dictated” that the Texas Court of Criminal Appeals apply that decision
in entertaining Tennard’s Penry claim. See Williams, 529 U.S. at 390
(citing Teague v. Lane, 489 U.S. 288, 301 (1984)).
Tennard is entitled to relief because the Texas Court of Criminal
Appeals’s adjudication rejecting his Penry I claim resulted in a
decision that was (1) “contrary to . . . clearly established Federal
law, as determined by the Supreme Court of the United States,” and (2)
“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)(1) & (2) (West Supp. 2001).
At the penalty phase of the trial, Tennard introduced evidence “on
his ‘mental retardation.’” Ex parte Tennard, 960 S.W.2d 57, 59 (Tex.
Crim. App. 1997)) (en banc). The evidence of Tennard’s mental
retardation consisted of evidence that he had an I.Q. of 67, that he was
a “follower” of others, and that he was easily duped.8 Id. at 58-59.
Nevertheless, the state court of criminal appeals rejected Tennard’s
Penry I claim on two grounds. First, that court found that there was
7
Tennard’s direct state appeal was decided November 28, 1990, and
his motion for rehearing was overruled January 30, 1991. Tennard v.
State, 802 S.W.2d 678 (Tex. Crim. App. 1991).
8
In a previous offense, Tennard was easily fooled into allowing
a victim to go to the restroom and escape because he believed her
promise not to run away. Ex parte Tennard, 960 S.W.2d at 58-59.
13
“no evidence in the record that applicant is mentally retarded.” Id.
at 61. Second, even assuming that the evidence of Tennard’s I.Q. of 67
and other evidence was evidence of mental retardation, the court of
criminal appeals rejected his Penry I claim because (1) there was no
evidence Tennard’s low I.Q. rendered him unable to appreciate the
wrongfulness of his conduct or to learn from his mistakes or diminished
his ability to control his impulses or evaluate the consequences of his
conduct; (2) therefore, there was no danger that the jury would have
given any mitigating qualities of the evidence of Tennard’s low I.Q.
only aggravating effect in answering special issue two (whether there
was a probability that he would be a continuing threat to society); and
(3) the special issues did not place mitigating qualities of the
evidence of applicant’s low I.Q. beyond the effective reach of the jury:
“[t]he jury could have used this evidence for a ‘no’ answer to the first
special issue on ‘deliberateness,’” and “the jury could have used the
low I.Q. evidence to conclude [that Tennard] was a ‘follower’ instead
of a ‘leader.’” Id. at 62-63. Thus, “[t]here was ample room within
special issue two for the jury to give effect to any mitigating
qualities of applicant’s low I.Q. evidence.” Id.
1.
The finding of fact of the Texas Court of Criminal Appeals that
there was no evidence in the record that Tennard is mentally retarded
was patently an “unreasonable [factual] determination.” “‘Relevant
evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable than it would be without the evidence.” Fed. R. Evid. 401. The
evidence in the record of Tennard’s child-like credulity and I.Q. of 67
had a tendency to make the existence of his mental retardation more
probable that it would be without that evidence.9 In a capital murder
9
Findings of fact by panels of this court in other cases are not
binding upon this panel under the doctrine of stare decisis. See,
e.g., 18 James Wm. Moore et al., Moore’s Federal Practice § 134.05[3]
14
case the fact that mental retardation is part of the defendant’s
character and background is relevant mitigating evidence that the jury
must be allowed to consider and to give effect to in deciding whether
to inflict the death penalty. Penry I, 492 U.S. at 316-22, 327-28
(citing Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio,
438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); McCleskey
v. Kemp, 481 U.S. 279, 304 (1987)). Therefore, the defendant’s mental
retardation is a fact of consequence to the determination of the death
penalty action and any evidence that makes its existence more probable
is relevant mitigating evidence of that mental condition. Because there
plainly is evidence in the record of mental retardation in Tennard’s
character and background, the court of criminal appeals’s unreasonable
finding to the contrary in adjudication of Tennard’s claim “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)(2). Consequently, under § 2254(d)(2), Tennard’s
application for a COA to pursue a writ of habeas corpus should be
granted.
2.
In Penry I, the Supreme Court held that (1) “at the time Penry’s
conviction became final, it was clear from Lockett and Eddings that a
State could not, consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to evidence
relevant to the defendant’s background or character or to the
circumstances of the offense that mitigate against imposing the death
penalty[,]” 492 U.S. at 318; (2) “[t]he rule Penry [sought]--that when
such mitigating evidence [of his mental retardation and abused
childhood] is presented, Texas juries must . . . be given jury
instructions that make it possible for them to give effect to that
(3d ed. 1999) (“The doctrine of stare decisis does not apply to the
determination of the facts of a case.”).
15
mitigating evidence in determining whether the death penalty should be
imposed--is not a ‘new rule’ under Teague because it is dictated by
Eddings and Lockett[,]” id. at 318-19; (3) “it is not enough simply to
allow the defendant to present mitigating evidence to the
sentencer[-][t]he sentencer must also be able to consider and give
effect to that evidence in imposing sentence[,]” id.; (4) “[i]n order
to ensure reliability in the determination that death is the appropriate
punishment in a specific case, the jury must be able to consider and
give effect to any mitigating evidence relevant to a defendant’s
background and character or the circumstances of the crime[,]” id. at
328; and (5) therefore, “in the absence of instructions informing the
jury that it could consider and give effect to the mitigating evidence
of Penry’s mental retardation and abused [childhood] background by
declining to impose the death penalty, . . . the jury was not provided
with a vehicle for expressing its reasoned moral response to that
evidence in rendering its sentencing decision.” Id. at 328 (internal
quotations and citations omitted).
Thus, the Supreme Court in Penry I agreed with Penry’s argument
“that his mitigating evidence of mental retardation and childhood abuse
has relevance to his moral culpability beyond the scope of the special
issues, and that the jury was unable to express its reasoned moral
response to that evidence in determining whether death was the
appropriate punishment.” Id. at 322. The Court explained in detail why
it rejected the State’s contrary argument that the jury was able to
consider and give effect to all of Penry’s mitigating evidence in
answering the three special issues. Id.
The first special issue, which asked whether the defendant acted
“deliberately and with the reasonable expectation that the death of the
deceased . . . would result,” impermissibly limited the jury’s function
because the term “deliberately” had not been defined by the Texas
Legislature, the Texas Court of Criminal Appeals, or the trial court’s
instructions. Id. at 322. Assuming that the jurors “understood
16
‘deliberately’ to mean something more than . . . ‘intentionally’
committing murder, those jurors may still have been unable to give
effect to Penry’s mitigating evidence in answering the first special
issue.” Id. The Court concluded that the jury could not give full
effect to Penry’s evidence under the first special issue because
“deliberately” was not defined “in a way that would clearly direct the
jury to consider fully Penry’s mitigating evidence as it bears on his
personal culpability.” Id. at 323. Thus, Penry’s “mitigating evidence
of mental retardation and childhood abuse ha[d] relevance to his moral
culpability beyond the scope of the special issues. . . .” Id. at 322.
Consequently, the Court concluded, unless there are “jury instructions
defining ‘deliberately’ in a way that would clearly direct the jury to
consider fully Penry’s mitigating evidence as it bears on his personal
culpability, we cannot be sure that the jury was able to give effect to
the mitigating evidence of Penry’s mental retardation and history of
abuse in answering the first special issue.” Id. at 323. “Thus, we
cannot be sure that the jury’s answer to the first special issue
reflected a reasoned moral response to Penry’s mitigating evidence.”
Id. (internal quotation omitted).
The second special issue, which asked “whether there is a
probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society,” permitted the
jury to consider and give effect to Penry’s mental retardation and
childhood abuse as “relevant only as an aggravating factor. . . .” Id.
But the second special issue was not inadequate simply because it only
gave effect to Penry’s evidence as an aggravating factor; it was
dysfunctional for the independent reason that it did not allow the jury
to give “full consideration [to the] evidence that mitigates against the
death penalty.” Id. at 328. “The second special issue, therefore, did
not provide a vehicle for the jury to give mitigative effect to Penry’s
evidence of mental retardation and childhood abuse.” Id. at 324.
As the justices who dissented in part in Penry acknowledged, the
17
Penry majority held “that the constitutionality [of a death sentence
under the Texas special issues] turns on whether the questions allow
mitigating factors not only to be considered (and, of course, given
effect in answering the questions), but also to be given effect in all
possible ways, including ways that the questions do not permit.” Id.
at 355 (Scalia, J., dissenting in part and concurring in part). Or, as
the majority concluded, “in the absence of instructions informing the
jury that it could consider and give effect to the mitigating evidence
of Penry’s mental retardation and abused background by declining to
impose the death penalty, . . . the jury was not provided with a vehicle
for expressing its ‘reasoned moral response’ to that evidence in
rendering its sentence.” Id. at 328.
The Court in Penry I expressly rejected the State’s argument that
any defect in the jury instructions should be disregarded because
Penry’s defense counsel was able to argue that jurors who believed that
Penry, because of his mitigating evidence of mental retardation and
childhood abuse, did not deserve a death sentence should vote “no” on
one of the special issues regardless of the State’s proof on that the
answer. Id. at 325. The Court pointed out that “the prosecution
countered by stressing that the jurors had taken an oath to follow the
law, and that they must follow the instruction they were given in
answering the special issues.” Id. “In light of the prosecutor’s
argument, and in the absence of appropriate jury instructions,” the
Court concluded, “a reasonable juror could well have believed that there
was no vehicle for expressing the view that Penry did not deserve to be
sentenced to death based upon his mitigating evidence.” Id. at 326.
Further, the Court reaffirmed and quoted its opinion in McCleskey
v. Kemp: “‘In contrast to the carefully defined standards that must
narrow a sentencer’s discretion to impose the death sentence, the
Constitution limits a State’s ability to narrow a sentencer’s discretion
to consider relevant evidence that might cause it to decline to impose
the death sentence.’” Id. at 327 (quoting 481 U.S. 279, 304 (1987)).
18
Consequently, the Court concluded:
Indeed, it is precisely because the punishment should be
directly related to the personal culpability of the defendant
that the jury must be allowed to consider and give effect to
mitigating evidence relevant to a defendant’s character or
record or the circumstances of the offense. . . . In order
to ensure reliability in the determination that death is the
appropriate punishment in a specific case, the jury must be
able to consider and give effect to any mitigating evidence
relevant to a defendant’s background and character or the
circumstances of the crime.
Id. at 327-28 (internal citations and quotations omitted).
Tennard is entitled to relief under 28 U.S.C. § 2254(d)(1) because
the decision of the Texas Court of Criminal Appeals rejecting his Penry
I claim is based on rationales that were rejected generally and
specifically by Penry I. In general, the Supreme Court in Penry I
agreed with Penry’s argument “that his mitigating evidence of mental
retardation and childhood abuse has relevance to his moral culpability
beyond the scope of the special issues, and that the jury was unable to
express its ‘reasoned moral response’ to that evidence in determining
whether death was the appropriate punishment [and] reject[ed] the
State’s contrary argument that the jury was able to consider and give
effect to all of Penry’s mitigating evidence in answering the special
issues without any jury instructions on mitigating evidence.” Penry I,
492 U.S. at 322. The decision of the Texas Court of Criminal Appeals
contradicted that basic Penry I holding by deciding that the special
issues allowed the jury to consider and give effect to Tennard’s
mitigating evidence of mental retardation.
Moreover, the decision of the Texas Court of Criminal Appeals was
contrary to Penry I in at least three specific ways. First, in
contradiction of Penry I, the Texas Court of Criminal Appeals held that,
in order have his mitigating evidence of mental retardation considered
19
and given effect by the jury, Tennard must introduce additional evidence
that his low I.Q. rendered him unable to appreciate the wrongfulness of
his conduct or to learn from his mistakes or diminished his ability to
control his impulses or evaluate the consequences of his conduct. The
state-court’s reading of that additional requirement into Penry I is
based on a misinterpretation of dicta10 in Penry I and is contrary to
Penry I’s holding.11 As Penry I repeatedly made clear, when a state’s
capital punishment scheme assigns a jury the role of sentencer, any and
all mitigating evidence, including evidence of the defendant’s mental
retardation, must be presented to the jury, id. at 328; and it is
exclusively the prerogative of the jury to consider, weigh, and decide
what effect should be given to that evidence in its determination of
whether to inflict the death penalty. See id. at 323, 328.
Second, the Texas Court of Criminal Appeals also held, contrary to
Penry I, that the Supreme Court’s decision does not apply under special
issue two in the absence of evidence tending to cause the jury to give
10
The statutory phrase “clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. §
2254(d)(1), “refers to the holdings, as opposed to the dicta, of this
Court’s decisions as of the time of the relevant state-court decision.”
Williams, 529 U.S. at 412. See also infra note 7 and accompanying text.
11
In Penry I, the Court observed in passing that “[i]f the
sentencer is to make an individualized assessment of the appropriateness
of the death penalty, ‘evidence about the defendant’s background and
character is relevant because of the belief, long held by this society,
that defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional or mental problems, may be
less culpable than defendants who have no such excuse.’” Penry I, 492
U.S. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring)). This is merely a statement of the
underlying moral and social principles requiring that a potential death
sentencer must consider and give effect to evidence of the defendant’s
mitigating evidence. This passage cannot be read with any intellectual
honesty as being part of or essential to the Penry I holding or a
finding or judicial notice of an adjudicative fact in Penry I. See Fed.
R. Evid. 201.
20
only aggravating effect to the evidence of defendant’s low I.Q.,
Tennard, 960 S.W.2d at 62; and that “[t]here was ample room within
special issue two for the jury to give effect to any mitigating
qualities of applicant’s low IQ evidence,” such as the evidence in the
present case and in defendant’s prior felony rape conviction that he was
a “follower” instead of a “leader” in the commission of both crimes with
others. Id. at 62-63. However, the Supreme Court in Penry I plainly
held that the second special issue was not inadequate simply because it
only gave effect to Penry’s evidence as an aggravating factor; it was
dysfunctional independently because it did not allow the jury to give
full effect to Penry’s mitigating evidence. Penry I, 429 U.S. at 323.
Third, the state court of criminal appeals held, contrary to Penry
I, that the special issues did not place mitigating qualities of the
evidence of Tennard’s low I.Q. beyond the effective reach of the jury
because “[t]he jury could have used this evidence for a ‘no’ answer to
the first special issue on ‘deliberateness.’” Tennard, 960 S.W.2d at 62.
The Supreme Court in Penry I specifically rejected the very same
rationale or argument: “Penry’s mental retardation was relevant to the
question whether he was capable of acting ‘deliberately,’ but it also
had relevance to [his] moral culpability beyond the scope of the special
verdict questio[n].” Penry I, 529 U.S. at 322 (citing Franklin v.
Lynaugh, 487 U.S. 164, 185 (1988)) (alteration in original).
Finally, in the concluding paragraph of Section III of Penry I, the
Supreme Court again expressly rejected all three of the rationales set
forth by the Texas Court of Criminal Appeals in the present case for
denying Tennard a writ of habeas corpus:
In this case, in the absence of instructions informing the
jury that it could consider and give effect to the mitigating
evidence of Penry’s mental retardation and abused background
by declining to impose the death penalty, we conclude that
the jury was not provided with a vehicle for expressing its
reasoned moral response to that evidence in rendering its
sentencing decision. Our reasoning in Lockett and Eddings
thus compels a remand for resentencing so that we do not risk
that the death penalty will be imposed in spite of factors
21
which may call for a less severe penalty. When the choice is
between life and death, that risk is unacceptable and
incompatible with the commands of the Eighth and Fourteenth
Amendments.
Id. at 328 (internal quotations and citations omitted). In short, the
state-court decision in the present case contradicts the holding set
forth in Penry I because each ruling or rationale set forth in Tennard
was rejected repeatedly by Penry I as not being a constitutionally sound
basis for upholding a death penalty under the Texas special issues
scheme because that scheme inherently prevents the sentencing jury from
fully considering and giving effect to mitigating evidence of mental
retardation in determining whether to inflict the death penalty.
3.
The flawed majority opinion reaches an incorrect result because it
ignores the authoritative interpretation of 28 U.S.C. § 2254(d) set
forth by the Supreme Court in Williams for deciding whether the
adjudication of Tennard’s Penry I claim by the Texas Court of Criminal
Appeals resulted in a decision that was contrary to clearly established
Federal law, as determined by the Supreme Court.
Instead of following the teachings of Williams, as set forth and
applied in the foregoing sections of this dissent, the majority relies
upon and applies prior decisions of this circuit which were based on the
dicta, as opposed to the holding, of Penry I. The majority concludes
that a petitioner, such as Tennard, who makes a Penry I claim, “must
show there is a nexus between the severe permanent condition (here,
alleged mental retardation) and the capital murder.” Maj. Op. at 10-11
(citing Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999); Harris v.
Johnson, 81 F.3d 535, 539, n.11 (5th Cir. 1996); Davis v. Scott, 51 F.3d
457, 461 (5th Cir. 1995)). The cases upon which the majority relies for
this nexus rule, and their source, Madden v. Collins, 18 F.3d 304, 307
(5th Cir. 1994), are based upon the dicta, rather than the holding, of
22
Penry I.12
The Supreme Court in Penry I concluded that the rule sought by
Penry – “that when mitigating evidence of mental retardation or abused
childhood is presented, Texas juries must, upon request, be given jury
instructions that make it possible for them to give effect to that
mitigating evidence in determining whether the death penalty should be
imposed” -- was not a “new rule” under Teague because it was dictated
by Eddings and Lockett. Penry I, 492 U.S. at 318-19. The Court went
on to explain the moral and social principles underlying those decisions
as follows:
Underlying Lockett and Eddings is the principle that
punishment should be directly related to the personal
culpability of the criminal defendant. If the sentencer is
to make an individualized assessment of the appropriateness
of the death penalty, evidence about the defendant’s
background and character is relevant because of the belief,
long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse. Moreover,
Eddings, makes clear that it is not enough simply to allow
the defendant to present mitigating evidence to the
sentencer. The sentencer must also be able to consider and
give effect to that evidence in imposing sentence. Only then
can we be sure that the sentencer has treated the defendant
as a uniquely individual human bein[g] and has made a
reliable determination that death is the appropriate
sentence. Thus, the sentence imposed at the penalty stage
would reflect a reasoned moral response to the defendant’s
background, character, and crime.’
Penry I, 492 U.S. at 319 (internal quotations and citations omitted)
(alterations and emphasis in original). Although this passage is
enlightening and invaluable to a deeper understanding of the
jurisprudence, it is clearly dicta and not part of the holding of Penry
I, which consisted principally of the rule sought by Penry that the
12
The Texas Court of Criminal Appeals relied upon the same dicta
for a somewhat similar nexus rule. See discussion supra p.2.
23
Court found had already been announced by Eddings and Lockett. The
Court’s explanation of the underlying ethos of prior decisions was dicta
and not the holding of Penry I.
Assuming that the nexus rule was a proper circuit court embroidery
based upon the dicta of Penry I and therefore was at one time a binding
rule in this circuit, it cannot serve as a precedent in the present
case. The Supreme Court made it clear in Williams that the statutory
phrase, “clearly established Federal law, as determined by the Supreme
Court of the United States,” in 28 U.S.C. § 2254(1), “refers to the
holdings, as opposed to the dicta, of this Court’s decisions as of the
time of the relevant state-court decision.” Williams, 529 U.S. at 412
(“[A]s the statutory language makes clear . . . §2254(d)(1) restricts
the source of clearly established law to this Court’s jurisprudence.”).13
Consequently, Williams dictates that we determine whether a state-court
habeas corpus adjudication resulted in a decision that was contrary to
clearly established Federal law by applying the holdings of the Supreme
Court decisions, rather than Supreme Court dicta or our own decisions
based on such dicta. Because the nexus rule applied by the majority is
based on the dicta of Penry I, rather than its holding or the holdings
of Eddings and Lockett, which Penry I applied, it should not be applied
in the present case.
13
See also Williams, 529 U.S. at 389-90 & n.15 (Stevens, J.,
concurring, joined by Justices Souter, Ginsburg, and Breyer)(“Otherwise
the federal law determined by the Supreme Court of the United States
might be applied by the federal courts one way in Virginia and another
way in California. In light of the well-recognized interest in ensuring
that federal courts interpret federal law in a uniform way, we are
convinced that Congress did not intend the statute to produce such a
result. . . . Indeed, a contrary rule would be in substantial tension
with the interest in uniformity served by Congress’ modification in
AEDPA of our previous Teague jurisprudence –- now the law on habeas
review must be ‘clearly established’ by this Court alone. . . . It
would thus seem somewhat perverse to ascribe to Congress the entirely
inconsistent policy of perpetuating disparate readings of our decisions
under the guise of deference to anything within a conceivable spectrum
of reasonableness.”)(citations omitted).
24
For the foregoing reasons the decision of the Texas Court of
Criminal Appeals was contrary to the clearly established holding of
Penry I, and Tennard should be granted a COA to pursue habeas relief.
25