Tennard v. Dretke

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT March 1, 2006

Charles R. Fulbruge III

Clerk

No. 00-20915

ROBERT JAMES TENNARD,

Petitioner-Appellant,

versus

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas, Houston

--------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Petitioner Robert James Tennard appeals the district court’s

denial of his habeas corpus petition. Because the Texas courts

were objectively unreasonable under applicable Supreme Court Eighth

and Fourteenth Amendment jurisprudence in concluding that Tennard’s

jury had an adequate vehicle during the capital sentencing phase to

give mitigating effect to relevant evidence of a low intelligence

quotient (“IQ”), we reverse the district court’s decision and

remand with instructions to grant habeas relief.

I.

1

A.

The facts of Tennard’s heinous crime and the subsequent state

criminal trial are set forth in the prior opinions this court, the

Supreme Court, and the Texas Court of Criminal Appeals. See

Tennard v. Cockrell, 524 U.S. 274 (2004); Tennard v. Cockrell, 284

F.3d 591 (5th Cir. 2002), vacated by 537 U.S. 802 (2002); Ex parte

Tennard, 960 S.W.2d 57, 58 (Tex. Crim. App. 1997), cert. denied,

Tennard v. Texas, 524 U.S. 956 (1998); Tennard v. Texas, 802 S.W.2d

678, 679 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259

(1991). Tennard met his accomplices Paul Anthony Bogany and Daniel

Groom at the Groovey Shack Lounge in Harris County, Texas, on

August 15, 1985. At approximately 8:00 p.m., the three men walked

to the house of Tennard’s neighbors, Larry Neblett and Chester

Smith. The five men drank alcoholic beverages and smoked marijuana

together for approximately thirty minutes.

Neblett exited the room in which the five were socializing.

Tennard followed him; the other three stayed behind. Shortly

thereafter, Groom struck Smith several times with a hatchet, as

Smith tried to change the record on the turntable. Smith fell to

the ground and Groom ran to the house’s bedroom where Tennard and

Neblett were. Groom opened the door and Neblett, drenched in

blood, fell through the doorway. Tennard stood in the bedroom,

clutching a bloody knife. Smith and Neblett died of their

injuries; Neblett suffered fifteen stab wounds. Tennard, Groom,

2

and Bogany proceeded to plunder the house, collecting items of

value and departing in one of the victim’s cars. The three

traveled to the home of Fred Stewart and Ruby Montgomery and

enlisted Stewart’s help in disposing of the stolen items. Tennard

himself played a dominant role in the process. He gave Stewart

several gasoline credit cards. And it was Stewart’s unauthorized

use of these credit cards that ultimately led to Tennard’s arrest.

B.

On October 17, 1985, Tennard was indicted for Neblett’s

murder. Following the presentation of evidence, the Texas state

jury convicted Tennard of capital murder.

During the penalty phase of the trial, the government

introduced evidence of Tennard’s prior felony rape conviction, for

which he had been on parole for only three and one-half months when

he murdered Neblett. Tennard was 16 years old at the time of the

rape. His victim testified that she was waiting at a bus stop,

when Tennard and two of his friends forced her into a car. Once

she was secured in the vehicle, Tennard brandished a foot-and-a-

half-long pipe-wrench and warned her, “Move, white bitch, and

you’re dead.” She testified that Tennard and his two friends drove

her to an abandoned apartment in a government housing project.

Tennard sexually abused, raped, and forcibly sodomized her. After

he finished, his friends took turns sexually assaulting her.

The three then transported the victim to another dwelling

where Tennard and his friends engaged in recreational drug use and

3

discussed the possibility of using their victim as a prostitute.

She asked Tennard if he would allow her to go to the bathroom to

take a bath. Tennard asked her if she would run away. She

responded, “No, baby. I like you. I wouldn’t do that.” So he

allowed her to go to the bathroom unaccompanied. She promptly

escaped through a window. Police arrested Tennard later that day.

During the penalty phase of the instant case, Tennard impeached his

rape victim’s testimony by introducing a prior statement she made

from which one could infer that one of Tennard’s friends--not

Tennard--was in fact the ringleader.

Tennard’s counsel called only one witness during the penalty

phase in the instant case–-Tennard’s parole officer. He testified

to the existence of a Texas Department of Correction’s record from

the felony rape conviction indicating that Tennard had an IQ of 67.

The IQ test was administered five years before Tennard, at the age

of 22, murdered Neblett. No evidence was presented regarding who

prepared the report or who administered the exam.

The trial court charged the jury with answering the two Texas

“special issues”: (1) “Was the conduct of the defendant, Robert

James Tennard, that caused the death of the deceased committed

deliberately and with the reasonable expectation that the death of

the deceased or another would result?” (the “deliberateness special

issue”); (2) “Is there a probability that the defendant, Robert

James Tennard, would commit criminal acts of violence that would

constitute a continuing threat to society?” (the “future

4

dangerousness special issue”).1 If the jury provided an answer of

“no” with regard to either question, the trial court would sentence

Tennard to life in prison rather than death. See Tex. Crim. Proc.

Code Ann. § 37.071(e) (Vernon 1981).

Defense counsel argued to the jury that it should spare

Tennard’s life, because, inter alia, Tennard’s limited cognitive

abilities made him less morally culpable:

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

1

At the time of the trial, the Texas Code of Criminal

Procedure provided for a third special issue to be answered by

the jury, if applicable: “whether the conduct of the defendant in

killing the deceased was unreasonable in response to the

provocation, if any, by the deceased.” Tex. Crim. Proc. Code

Ann. § 37.071(b)(3) (Vernon 1981). This inquiry was not germane

to Tennard’s case. See Tennard, 543 U.S. at 278.

5

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 [sic] questions. You have a right to do that under

Texas law. Don’t let [the 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.

. . .

During rebuttal, the government argued that evidence showing

Tennard has a low IQ is irrelevant for determining death-worthiness

under the Texas special issues:

But whether he has a low IQ or not is not really the

issue. Because the legislature, in asking you to address

that question [the future dangerousness special issue],

the reasons why he became a danger are not really

relevant. The fact that he is a danger, that the evidence

shows he’s a danger, is the criteria to use in answering

that question.

The jury answered both special issues in the affirmative, and

the court sentenced Tennard to death.2

C.

Tennard filed a direct appeal of his conviction with the Texas

2

The trial court instructed the jury that all jurors must be

convinced beyond a reasonable doubt that the proper answer to

each question is “yes.”

6

Court of Criminal Appeals, asserting constitutional and evidentiary

errors during the trial. See Tennard, 802 S.W.2d 678. In 1990,

the Court of Criminal Appeals denied the appeal. See id. at 686.

Tennard subsequently sought a state writ of habeas corpus, on the

ground that the capital sentencing procedures violated the Eighth

and Fourteenth Amendments of the U.S. Constitution. See Ex parte

Tennard, 960 S.W.2d 57. In 1997, the Texas Court of Criminal

Appeals again denied relief. See id. at 63. Tennard then sought

a federal writ of habeas corpus. Tennard, 284 F.3d at 594. He

filed a petition in the District Court for the Southern District of

Texas. Id. The district court denied Tennard’s petition and his

request for a Certificate of Appealability (“COA”). Id. In 2002,

we refused to grant Tennard a COA as well. See id. at 597. The

U.S. Supreme Court granted Tennard’s writ of certiorari, vacated

our ruling, and remanded the case for reconsideration in light of

its recent opinion in Atkins v. Virginia, 536 U.S. 304 (2002),

which prohibits application of the death penalty to the mentally

retarded. See Tennard v. Cockrell, 537 U.S. 802 (2002); Tennard v.

Cockrell, 317 F.3d 476, 477 (5th Cir. 2003). Because Tennard never

argued that the Eighth Amendment prohibited his execution due to

his low IQ (but rather objected to the sentencing procedures), we

reinstated our prior opinion denying the COA. See Tennard, 317

F.3d at 477. The Supreme Court once again granted certiorari and,

in 2004, reversed our decision, thereby requiring the issuance of

7

a COA. See Tennard, 524 U.S. at 289. Thus, we now determine

whether the district court erred in not granting Tennard’s petition

for a writ of habeas corpus.

II.

To obtain habeas relief upon the grant of a COA, the

petitioner must demonstrate that the state court proceeding

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see also Martinez v. Dretke, 404 F.3d 878, 884 (5th

Cir.), cert. denied, 126 S. Ct. 550 (2005). “A state-court

decision [is] contrary to [the Supreme] Court’s clearly established

precedent if the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a [different] result . . . .” Williams

v. Taylor, 529 U.S. 362, 406 (2000). “A state court decision

constitutes an unreasonable application of clearly established law

if the ‘state court identifies the correct governing legal rule

from [the Supreme] Court’s cases but unreasonably applies it to the

facts of the particular state prisoner’s case.’” McCall v. Dretke,

390 F.3d 358, 363 (5th Cir. 2004) (quoting Williams, 529 U.S. at

407). “[F]ederal habeas courts must deny relief that is contingent

upon a rule of law not clearly established at the time the state

conviction becomes final.” Peterson v. Cain, 302 F.3d 508, 511

8

(5th Cir. 2002).

The habeas petitioner may also receive relief if the state

court’s “decision . . . 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). However, “a determination of

a factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1); see also Patterson v. Dretke, 370 F.3d 480,

484 (5th Cir.), cert. denied, 541 U.S. 1058 (2004).

III.

A.

The legal issues in this matter arise from changes made to the

Texas capital sentencing procedures in the wake of the Supreme

Court’s declaration in Branch v. Texas, decided with Furman v.

Georgia, 408 U.S. 238 (1972), that the state system was

unconstitutional. Texas responded by limiting the scope of crimes

eligible for the death penalty under Texas law and adopting a

uniform sentencing procedure, the special issues, to guide the jury

in determining whether the death penalty is warranted.3 See Jurek

3

The special issues in effect at the time of Tennard’s

conviction were:

(1)whether the conduct of the defendant that caused the

death of the deceased was committed deliberately and with

the reasonable expectation that the death of the deceased

or another would result;

(2) whether there is a probability that the defendant

9

v. Texas, 428 U.S. 262, 268-69 (1976).

The Supreme Court first addressed the special issues’

constitutionality in Jurek v. Texas. 428 U.S. 262. The three-

justice Jurek plurality held that, “in order to meet the

requirement of the Eighth and Fourteenth Amendments, a capital-

sentencing system must allow the sentencing authority to consider

mitigating circumstances.” Id. at 271. The Court acknowledged

that the special issues do not explicitly address the admissibility

of mitigating evidence. See id. at 272. However, it noted that

the Texas Court of Criminal Appeals said, in handling Jurek, that

it would interpret the future dangerous special issue “so as to

allow a defendant to bring to the jury’s attention whatever

mitigating circumstances he may be able to show.” Id.

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.

Tex. Crim. Proc. Code Ann. § 37.071(b) (Vernon 1981).

This procedure has since been altered. Significantly, for

present purposes, the Texas legislature reacted to Penry v.

Lynaugh, 492 U.S. 302 (1989) (Penry I), discussed infra, by

amending the code so that the capital jury must answer a final

special issue that will override affirmative answers on the

others, if the jurors answer the supplemental question “yes”:

“Whether, taking into consideration all of the evidence,

including the circumstances of the offense, the defendant’s

character and background, and the personal moral culpability of

the defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment

rather than a death sentence be imposed.” Id. at § 37.071(e)

(amended 1991); see also Janet Morrow & Robert Morrow, In a

Narrow Grave: Texas Punishment Law in Capital Murder Cases, 43 S.

Tex. L. Rev. 979, 998-99 (2002).

10

Specifically, it said that the jury could consider “‘prior criminal

conduct,’” the defendant’s age, whether the defendant committed the

present offense “‘under duress or under domination of another,’”

and “‘whether the defendant was under an extreme form of mental or

emotional pressure.’” Id. at 273 (quoting Jurek v. Texas, 522

S.W.2d 934, 940 (Tex. Crim. App. 1975)). All of these mitigating

factors are transitory. Once the youthfulness, duress, or pressure

pass, as all tend to do, the defendant may be less prone to

violence. Thus, weighing these factors’ impermanence and their

role in influencing the defendant to commit murder, a jury could

spare the defendant’s life with a “no” response to the future

dangerousness special issue.4 The Jurek Court also opined that the

Court of Criminal Appeals could construe the third special issue to

allow for mitigating evidence consideration as well. See id. at

273 n.7.

4

The Jurek plurality did not delineate whether Texas

procedure merely allowed the jury to simply consider the evidence

or if it also permitted the jury to give effect to its

consideration. Clearly, such a distinction does exist,

linguistically and practically. In Jurek, the Court conflated

the two. The plurality opinion only speaks to “bring[ing] to the

jury’s attention” the mitigating evidence and allowing the jury

to “consider whatever evidence of mitigating circumstances the

defense can bring before it.” Jurek, 428 U.S. at 272, 273. In

subsequent opinions, the Court’s language did acknowledge this

distinction. See, e.g., Penry I, 492 U.S. at 319; (“The

sentencer must also be able to consider and give effect to that

evidence in imposing sentence.”); Franklin v. Lynaugh, 487 U.S.

164, 177-78 (1988) (“[P]etitioner was accorded a full opportunity

to have his sentencing jury consider and give effect to any

mitigating impulse that petitioner’s prison record might have

suggested to the jury as they proceeded with their task.”).

11

In Franklin v. Lynaugh, 487 U.S. 164, the Supreme Court again

entertained a challenge to Texas’ capital punishment sentencing

procedure. The petitioner contended that the special issues did

not permit the jury to give sufficient mitigating effect to

“evidence of [his] good behavior while in prison” during two

separate terms. Id. at 168, 172. A plurality of the Court found

this argument unpersuasive, noting that “Jurek v. Texas, 428 U.S.

262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), expressly upheld the

constitutionality of the manner in which mitigating evidence is

considered under the ‘Special Issues’ submitted to Texas capital

juries.” Id. at 171. It rejected the “petitioner’s contention

that relevant aspects of his ‘character,’ as far as they were

illuminated by the presentation of evidence concerning petitioner’s

disciplinary record, encompassed anything more than those matters

fully considered by the jury when it was asked to answer the second

Special Issue.” Id. at 178. The Franklin plurality also

acknowledged the appropriateness of cabining and guiding the jury’s

consideration of mitigating evidence: “If, as Jurek held, it is

constitutional for Texas to impose a death sentence on a person

whenever a jury answers both Special Issues in the affirmative--

without any other inquiry--then surely Texas must be permitted to

direct the jury’s consideration of mitigating evidence to those

items relevant to this undertaking.” Id. at 180 n.10.

The Supreme Court in Penry I, 492 U.S. 302, pulled back from

12

the Franklin plurality’s stance that the special issues are

facially valid. Several opinions, issued after Jurek, heavily

influenced the High Court’s approach. First, in Teague v. Lane,

489 U.S. 288 (1989), a plurality of the Court held “that a new rule

will not be applied retroactively to defendants on collateral

review unless it falls within one of two exceptions.”5 Penry I,

492 U.S. at 329. Since Penry was a habeas petitioner, the Court

was limited to rules dictated by precedent.

The other two cases dealt directly with the constitutionality

of capital sentencing procedures. “In Lockett v. Ohio, 438 U.S.

586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), a plurality of th[e]

Court held that the Eighth and Fourteenth Amendments require that

the sentencer ‘not be precluded from considering, as a mitigating

factor, any aspect of a defendant’s character or record and any of

the circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.’”6 Id. at 317 (quoting

5

One exception is a new rule that places some sort of

private conduct beyond the state’s proscriptive powers; the other

is a new procedure that is “implicit in the concept of ordered

liberty.” Teague, 489 U.S. at 307 (quoting Palko v. Conn., 302

U.S. 319, 325 (1937)) (internal quotation marks omitted).

6

The Lockett plurality stated that the Texas special issues

passed constitutional muster in Jurek “because three Justices

concluded that the Texas Court of Criminal Appeals had broadly

interpreted the second question--despite its facial narrowness--

so as to permit the sentencer to consider ‘whatever mitigating

circumstances’ the defendant might be able to show.” Lockett,

438 U.S. at 607 (quoting Jurek, 428 U.S. at 272).

13

Lockett, 438 U.S. at 604) (emphasis in original). And, “[i]n

Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1

(1982), a majority of the Court reaffirmed that a sentencer may not

be precluded from considering, and may not refuse to consider, any

relevant mitigating evidence offered by the defendant as the basis

for a sentence less than death.” Id. at 318. These cases, rather

than Jurek, provided the guiding precedent in Penry I.7 “Thus, at

the time Penry’s conviction became final, . . . 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.”

Id.

7

The Court also recharacterized Jurek. As noted supra,

Franklin described Jurek as recognizing the special issues’

facial constitutionality. See Franklin, 487 U.S. at 180 n.10.

In Penry I, the Court argued that the Jurek ruling was based “on

the assurance that the Texas Court of Criminal Appeals would

interpret the question concerning future dangerousness so as to

allow the jury to consider whatever mitigating circumstances a

defendant may be able to show, including a defendant’s prior

criminal record, age, and mental or emotional state.” 492 U.S.

at 316. Thus, if the Penry I jurors were unable to give effect

to the mitigating evidence through the deliberateness special

issue, the Texas courts were not holding up their end of the

bargain. The Penry I majority pointed out that, in Franklin, the

five Justices who dissented or concurred agreed with this narrow

reading of Jurek. See id. at 320. And, additionally, all five

understood Jurek to permit “a claim that, in a particular case,

the jury was unable to fully consider the mitigating evidence

introduced by a defendant in answering the special issues.” Id.

at 321.

14

Based on this rule, dictated by Eddings and Lockett, Justice

O’Connor, writing for the majority, found the three special issues

insufficient to give effect to Penry’s mitigating evidence of low

IQ (between 50 and 63, indicating mild to moderate retardation) and

childhood abuse (inter alia, being beaten over the head with a

belt). See id. at 307-08, 309, 328. She found that the trial

court did not construe the deliberateness special issue broadly

enough to ensure 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.

Furthermore, Penry’s mitigating evidence would only have

aggravating effect under the future dangerousness special issue, as

it showed he was likely to commit a violent offense again.8 See

id. The Court thus concluded that, “in the absence of instructions

informing the jury that it could consider and give effect to the

8

The Penry I Court described Penry’s mitigating evidence of

mental deficiency and childhood abuse as a “two-edged sword,” in

that “it may diminish his blameworthiness for his crime even as

it indicates that there is a probability that he will be

dangerous in the future.” Penry I, 492 U.S. at 324. We are not

certain what the practical effect of this metaphor is for courts

applying Penry I. While the evidence undoubtedly decreased

Penry’s “blameworthiness” in an abstract sense, under the special

issues as administered in Penry I, it is unclear whether it had

any actual mitigating effect. If it did not, it seems that the

sword in Penry I, for practical purposes, only had one edge. If

it did have mitigating effect, the Court may have been indicating

that it was troubled by the prospect of a defendant who by

arguing for a “no” vote on one special issue increased the

chances of a “yes” vote on another. Fortunately, the disposition

of the instant case does not demand resolution of this issue.

15

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 sentencing decision.”9

Id. at 328. “[T]he 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.

Penry I could certainly be read broadly to eviscerate Jurek

and Franklin, but the Court signaled in Saffle v. Parks, 494 U.S.

484 (1990), that its ruling did not supplant Jurek:

The Penry Court’s conclusion that Lockett and Eddings

dictated the rule sought by Penry must be understood in

terms of the Court’s ruling in Jurek, and its application

in later cases. We did not view Lockett and Eddings as

creating a rule different from that relied upon in Jurek;

rather, we indicated that Lockett and Eddings reaffirmed

the reasoning in Jurek and confirmed the necessity of its

application to Penry’s claim.

Saffle, 494 U.S. at 492 (citations omitted). This influenced our

treatment of Penry I in subsequent opinions.

Our general approach to these cases has been to discern

whether the capital defendant was able to put forth evidence that

was qualitatively like Penry’s, and thus outside of the special

issues’ effective scope:

9

The Court also examined whether the jury could give

mitigating effect to Penry’s evidence under the third special

issue, and found it to be insufficient. See Penry I, 492 U.S. at

324-25. Tennard’s jury did not receive this instruction as it

was inapplicable.

16

For ten years, this court has [asked] . . . : Was the

criminal act “due to the uniquely severe permanent

handicaps with which the defendant was burdened through

no fault of his own”? Graham v. Collins, 950 F.2d 1009,

1029 (5th Cir. 1992) (en banc), aff’d, 506 U.S 461, 113

S. Ct. 892, 122 L. Ed. 2d 260, (1993). This formulation

encompasses four principles found in Penry I:

voluntariness, permanence, severity, and attribution.

Did the defendant acquire his disability voluntarily or

involuntarily? Is the disability transient or permanent?

Is the disability trivial or severe? Were the criminal

acts a consequence of this disability?

Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir. 2003). This

“constitutional relevance” test flows from the Graham opinion.10

Judge Garwood, writing for the en banc court in Graham, addressed

whether the special issues were constitutionally adequate for the

jury to consider and give effect to federal habeas petitioner

Graham’s mitigating evidence of youth, good behavior, and a

troubled childhood.

The opinion marches through the relevant precedents, discussed

supra. See Graham, 950 F.2d at 1017-1027. It then questions the

constitutional status of the special issues in the wake of Penry I:

“The . . . difficult question is whether the Texas statute can

operate as written in any case where the mitigating evidence,

10

The use of the description “constitutionally relevant” in

the Eighth Amendment context originated in the Supreme Court’s

opinion in Boyde v. California. See 494 U.S. 370, 380 (1990)

(“The claim is that the [jury] instruction is ambiguous and

therefore subject to an erroneous interpretation. We think the

proper inquiry in such a case is whether there is a reasonable

likelihood that the jury has applied the challenged instruction

in a way that prevents the consideration of constitutionally

relevant evidence.”).

17

though all clearly relevant to support a negative answer to one or

more of the issues, nevertheless also has any mitigating relevance

whatever beyond the scope of the special issues.” Id. at 1026-27

(emphasis in original). One reasonable understanding of Penry I is

that, in such situations, it renders the special issues

constitutionally infirm. However, Penry I can also be interpreted

as handling a relatively unique situation: “Penry can also fairly

be read as addressing only a situation where some major mitigating

thrust of the evidence is substantially beyond the scope of any of

the issues.” Id. at 1027 (emphasis in original). After quoting

the language in Saffle and cataloguing the many cases in which the

Court cited Jurek approvingly,11 see id. at 1028, Judge Garwood

concluded that “Penry represents . . . a set of atypical

circumstances of a kind that, quite understandably, neither the

Texas Court of Criminal Appeals nor the Supreme Court in Jurek had

in mind, namely circumstances where the defense’s mitigating

evidence would have either no substantial relevance or only adverse

relevance to the second special issue.” Id. at 1029.

Judge Garwood’s opinion goes on to describe the difference

11

E.g., Lowenfield v. Phelps, 484 U.S. 231, 245-46 (1988);

Sumner v. Shuman, 483 U.S. 66, 74 (1987); Lockhart v. McCree, 476

U.S. 162, 183 (1986); Skipper v. South Carolina, 476 U.S. 1, 5

(1986); Pulley v. Harris, 465 U.S. 37, 48-51 (1984); California

v. Ramos, 463 U.S. 992, 1000-03 (1983); Barefoot v. Estelle, 463

U.S. 880, 896-98 (1983); Zant v. Stephens, 462 U.S. 862, 875 n.13

(1983).

18

between common mitigating evidence (the kind that Jurek handled)

and this atypical, Penry-type evidence:

Typically, evidence of good character, or of transitory

conditions such as youth or being under some particular

emotional burden at the time, will tend to indicate that

the crime in question is not truly representative of what

the defendant’s normal behavior is or may become over

time, and that the defendant may be rehabilitable so as

not to be a continuing threat to society. The core of

Jurek--which we cannot conclude has been abandoned--is

that the mitigating force of this kind of evidence is

adequately accounted for by the second special issue.

But in Penry the Court was faced for the first time with

a wholly different type of mitigating evidence. Not

evidence of good character, but of bad character; not

evidence of potential for rehabilitation, but of its

absence; not evidence of a transitory condition, but of

a permanent one; but nonetheless evidence which was

strongly mitigating because these characteristics were

due to the uniquely severe permanent handicaps with which

the defendant was burdened through no fault of his own,

mental retardation, organic brain damage and an abused

childhood. There was no way this type of evidence could

be given any mitigating force under the second special

issue. To recognize that, as Penry did, is not

necessarily to deny the validity of Jurek as it applies

to the more typical case.

Id. at 1029-30 (emphasis in original). It also noted that Penry’s

crime was attributable to this mitigating evidence. Id. at 1031.

From this language, we developed the requirements that, to qualify

as Penry evidence, the condition under which the defendant was

laboring must be a uniquely severe, permanent handicap, acquired

through no fault of the defendant, and that the defendant’s

murderous actions must be causally related to the mitigating

19

condition.12 This understanding dictated our decision in Tennard

v. Cockrell. See 284 F.3d 591, 595 (5th Cir. 2002).

The Supreme Court in Graham v. Collins, 506 U.S. 461 (1993),

affirmed our holding and seemed to endorse the en banc majority’s

understanding of Penry I. The Graham majority characterized the

Texas procedure as satisfying the Eighth Amendment’s requirements,

because it permits the defendant “to place before the jury whatever

mitigating evidence he could show, including his age, while

focusing the jury’s attention upon what that evidence revealed

about the defendant’s capacity for deliberation and prospects for

rehabilitation.” 506 U.S. at 472. Penry I did not disturb the

special issues’ general constitutionality: “We do not read Penry as

effecting a sea change in this Court’s view of the

constitutionality of the former Texas death penalty statute; it

does not broadly suggest the invalidity of the special issues

12

For instance, this analysis, distinguishing Penry I from

Jurek, allowed this court in Cordova v. Collins to conclude that,

as a matter of law, “voluntary intoxication is not the kind of

‘uniquely severe permanent handicap[] with which the defendant

was burdened through no fault of his own’ that requires a special

instruction to ensure that the mitigating effect of such evidence

finds expression in the jury’s sentencing decision.” 953 F.2d

167, 170 (5th Cir. 1992) (quoting Graham, 950 F.2d at 1029). In

Davis v. Scott, we ruled, based on Judge Garwood’s language, that

“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.” 51 F.3d 457, 460-61 (5th Cir.

1995) (citations omitted) (quoting Graham, 950 F.2d at 1029).

20

framework.”13 Id. at 474 (emphasis in original). The Court

concurred with our opinion because, if Penry I were extended to

evidence like Graham’s, which resembles Jurek’s, “a wholesale

abandonment of Jurek and perhaps also of Franklin v. Lynaugh” would

result. Id. at 476.

The Court also noted that Graham’s evidence is not the type of

evidence that Penry I discussed. It stated that “Graham’s evidence

of transient upbringing and otherwise nonviolent character more

closely resembles Jurek’s evidence of age, employment history, and

familial ties than it does Penry’s evidence of mental retardation

and harsh physical abuse.” Id. Furthermore, since any mitigating

evidence could hold significance beyond the cramped confines of the

three special issues, a broad interpretation of Penry I, requiring

all evidence be given full mitigating effect, would eviscerate

Jurek--something Penry I said it was not doing.14 See id. This

echoes Judge Garwood’s reasoning.

The Court largely reiterated the logic of its Graham ruling in

13

Panels of this circuit have interpreted this “sea change”

language as endorsing a narrow reading of Penry I. See, e.g.,

Vuong v. Scott, 62 F.3d 673, 679 (5th Cir. 1995); James v.

Collins, 987 F.2d 1116, 1121 (5th Cir. 1993).

14

Such a move might also run afoul of Justice Stewart’s

admonition in Furman that “States must limit and channel the

discretion of judges and juries to ensure that death sentences

are not meted out ‘wantonly’ or ‘freakishly.’” Graham, 506 U.S.

at 468 (quoting Furman, 408 U.S. at 310 (Stewart, J.,

concurring)).

21

Johnson v. Texas, 509 U.S. 350 (1993), which, unlike Penry I and

Graham, was heard on direct appeal. Johnson’s relevant mitigating

evidence consisted entirely of his father’s testimony about his

son’s drug use, youthful immaturity, the effect that the recent

deaths of Johnson’s mother and sister had on Johnson’s psyche and

religious practices, and Johnson’s remorse for the murder. See

Johnson, 509 U.S. at 356-57. The Johnson majority read Lockett and

Eddings narrowly:

“Lockett and its progeny stand only for the proposition

that a State may not cut off in an absolute manner the

presentation of mitigating evidence, either by statute or

judicial instruction, or by limiting the inquiries to

which it is relevant so severely that the evidence could

never be part of the sentencing decision at all.”

Although Lockett and Eddings prevent a State from placing

relevant mitigating evidence “beyond the effective reach

of the sentencer,” those cases and others in that

decisional line do not bar a State from guiding the

sentencer’s consideration of mitigating evidence.

Id. at 361-62 (citations omitted). After reviewing Jurek and its

decisional line, the Court found that the jury was not foreclosed

by the special issues from giving effect to Johnson’s mitigating

evidence. See id. at 368. His evidence, with its transitory

qualities, could be addressed through the second special issue.

See id.

B.

In Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), we

applied the “constitutional relevance” screening test, derived from

Judge Garwood’s Graham opinion, to Tennard’s evidence of low IQ.

22

Under our jurisprudence, Tennard failed to present to the jury

adequate evidence to qualify his alleged handicap as “uniquely

severe.” See Tennard, 284 F.3d at 596. We also found no nexus

between Tennard’s low IQ and his crime: “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.” Id. at 597. Thus, even if

Tennard’s evidence was beyond the effective reach of the jury, he

did not establish that it was Penry-type evidence. We held that

reasonable jurists could not debate this issue and so Tennard

failed to make a substantial showing of the denial of a

constitutional right.15 See id.

The Supreme Court in Tennard v. Dretke, 542 U.S. at 274,

reversed our ruling. In doing so, it addressed our erroneous

understanding and application of Penry I and the other relevant,

controlling High Court opinions. Justice O’Connor, writing for the

majority, stated: “The Fifth Circuit’s test has no foundation in

the decisions of this Court. Neither Penry I nor its progeny

screened mitigating evidence for ‘constitutional relevance’ before

15

Courts may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). The Supreme Court has taught that, under

this standard, “a petitioner must ‘sho[w] that reasonable jurists

could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were “adequate to deserve encouragement to

proceed further.”’” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

23

considering whether the jury instructions comported with the Eighth

Amendment.”16 Tennard, 542 U.S. at 284.

The majority expressed concern that our screening test

operatively precluded effective Penry challenges from defendants

arguing that the future dangerousness special issue proved an

insufficient vehicle for giving mitigating effect to their evidence

of good character.17 See id. at 285-86. It also

16

While undoubtedly derived from Supreme Court opinions, our

jurisprudence was not logically dictated by Penry I or the other

cases in its decisional line.

17

Of course, the Court in Franklin found that the habeas

petitioner’s evidence of good character could be given full

consideration under the future dangerousness special issue. See

487 U.S. at 178. It is unclear to us what the correct ruling

would be in situations generally like Franklin’s, but where the

character evidence could have some mitigating effect beyond the

special issues. In Smith v. Texas, 543 U.S. 37 (2004) (per

curiam), the Court indicated that capital sentencing procedures

are constitutionally infirm whenever they do “not allow the jury

to give ‘“full consideration and full effect to mitigating

circumstances”’ in choosing the defendant’s appropriate

sentence.” Id. at 38 (quoting Penry v. Johnson, 532 U.S. 782,

797 (2001)(Penry II)) (emphasis in original); see also Roper v.

Simmons, 543 U.S. 551, __, 125 S. Ct. 1183, 1214 (2005)

(O’Connor, J., dissenting) (citing Tennard and Lockett for the

proposition that “the sentencer in a capital case must be

permitted to give full effect to all constitutionally relevant

mitigating evidence”). This language, which originated in

Justice O’Connor’s Johnson v. Texas dissent, see 509 U.S. at 381,

may be in tension with Jurek and its progeny, particularly Graham

and Johnson. See Callins v. Collins, 510 U.S. 1141, 1156 n.6

(1994) (denying cert.) (Blackmun, J., dissenting) (characterizing

the Court’s opinion in Johnson as “affirming [a] death sentence

even though the jurors were not allowed to give full mitigating

effect to the defendant’s youth under the Texas death penalty

statute”); Graham, 506 U.S. at 474 (indicating that jurors must

be able to give merely “meaningful mitigating effect” to relevant

mitigating evidence).

We are unsure whether the Court intended to establish a new

24

discussed in further detail the two prongs of the test at issue in

Tennard. It stated that the “uniquely severe” test is unwarranted:

“[T]o say that only those features and circumstances that a panel

of federal appellate judges deems to be ‘severe’ (let alone

‘uniquely severe’) could have such a tendency is incorrect.” Id.

at 286. The Court rejected the nexus test, as well: “Nothing in

[Atkins v. Virginia, 536 U.S. 304 (2002),] suggested that a

mentally retarded individual must establish a nexus between her

mental capacity and her crime before the Eighth Amendment

prohibition on executing her is triggered.” Id. at 287.

The Tennard Court stated that, rather than a test for

“constitutional relevance,” the Court’s ruling in McKoy v. North

expansive rule with Smith. We note that the Chief Justice, a

dissenter in Tennard and Penry I, did not file a dissent in

Smith, even though this language clearly fails to comport with

his understanding of Graham and Johnson. See Tennard,542 U.S. at

291–92 (Rehnquist, C.J., dissenting) (“[A]fter Johnson and

Graham, it is clear that the question is simply whether the jury

could give some effect to the mitigating evidence through the

special issues.”). And the Smith Court never indicated it was

overruling any precedent or establishing a new rule. See In re

Kunkle, 398 F.3d 683, 685 (5th Cir. 2005) (per curiam) (“The

express language of the Supreme Court in both Tennard and Smith

makes it clear that neither of these cases announce[s] a new rule

. . . .”). However, other panels of this circuit have used the

expansive language from Smith. See Cole v. Dretke, 418 F.3d 494,

511 (5th Cir. 2005); Coble v. Dretke, 417 F.3d 508, 527 (5th Cir.

2005). Fortunately, we may dispose of the instant case without

determining the precise operative effect, if any, of the “full

effect” language. We, thus, leave it to other panels to tidy the

High Court’s Augean stables. When, and if, a case arises

featuring mitigating evidence, similar in thrust to Graham’s and

Johnson’s, but with potential effect beyond the scope of the

special issues, another panel might have such an opportunity.

25

Carolina, 494 U.S. 433 (1990), taught that juries must be permitted

to give effect to any mitigating evidence that holds general

relevance:

[T]he meaning of relevance is no different in the context

of mitigating evidence introduced in a capital sentencing

proceeding than in any other context, and thus the

general evidentiary standard--any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence--applies.

Id. at 2570 (citations and internal quotations omitted). To that

end, the Court concluded that “[i]mpaired intellectual functioning

has mitigating dimension beyond the impact it has on the

individual’s ability to act deliberately.” Id. at 284. It found

that “[r]easonable jurists could conclude that the low IQ evidence

Tennard presented was relevant mitigating evidence,” and that

“[r]easonable jurists also could conclude the Texas Court of

Criminal Appeals’ application of Penry to the facts of Tennard’s

case was unreasonable.” Id. at 288.

IV.

To resolve Tennard’s habeas petition, we must determine

whether the Texas courts were objectively unreasonable with regard

to Tennard’s constitutional claims. The Texas Court of Criminal

Appeals first encountered Tennard’s Penry claim when it entertained

his state habeas corpus petition. See Ex parte Tennard, 960 S.W.2d

57 (Tex. Crim. App. 1997). It denied Tennard’s claim on a number

of grounds. First, it distinguished his evidence from Penry’s.

26

Specifically, it noted that, unlike Penry’s, Tennard’s evidence

does not prove that Tennard meets the American Association of

Mental Retardation’s (“AAMR”) definition of mental retardation.

See id. at 61. Second, the Court of Criminal Appeals argued that

the special issues did not prevent the jury from giving proper

mitigating effect to the low IQ evidence. It pointed out that,

unlike Penry, Tennard did not present evidence showing that his

“low IQ rendered him unable to appreciate the wrongfulness of his

conduct,” and, therefore, the future dangerousness special issue

would not have only aggravating effect. Id. at 62. Additionally,

both special issues could have been used to give mitigating effect

to Tennard’s evidence. “The jury could have used [the low IQ]

evidence for a ‘no’ answer to the first special issue on

‘deliberateness.’” Id. “Moreover, in considering the

circumstances of this offense and applicant’s prior felony rape

conviction in connection with special issue two [future

dangerousness], the jury could have used the low IQ evidence to

conclude applicant was a ‘follower’ instead of a ‘leader’ since he

participated in the commission of both crimes with others.” Id.

Thus, the Court of Criminal Appeals denied Tennard’s petition.

We have little difficulty concluding that the Texas court was

objectively unreasonable in its application of Penry I and the

other relevant Supreme Court precedents.

First, the Supreme Court has never held that, in order to be

27

relevant within the context of capital sentencing, evidence of

diminished cognitive functioning must permit a finding that the

defendant is mentally retarded. Indeed, the Texas Court of

Criminal Appeals appears to have committed two errors in its

approach to Tennard’s IQ evidence. At the outset of the

discussion, it declined to find “that evidence of an IQ of 70 or

less is sufficient evidence to support a finding of mental

retardation.” Id. at 60. However, the Supreme Court has never

indicated that only full-blown mental retardation properly

mitigates. See Tennard, 542 U.S. at 288 (“Evidence of

significantly impaired intellectual functioning is obviously

evidence that ‘might serve “as a basis for a sentence less than

death.”’”); see also Smith v. Texas, 543 U.S. at 44 (2004) (per

curiam) (“[W]e have held that a defendant’s IQ score of 79 . . .

constitutes relevant mitigation evidence.”). Thus, the Court of

Criminal Appeals applied an incorrect legal standard by requiring

that Tennard show evidence of mental retardation according to the

AAMR’s standard.

The state court’s second error is that it insisted the

evidence must be sufficient to reach a finding that Tennard was

mentally retarded under the AAMR’s definition. The Texas Court of

Criminal Appeals had the benefit of the High Court’s teachings in

McKoy v. North Carolina, 494 U.S. 433, issued prior to Tennard’s

conviction becoming final. The Court stated that “[t]he meaning of

28

relevance is no different in the context of mitigating evidence

introduced in a capital sentencing proceeding” from what it is in

the context of any other phase of a trial. McKoy, 494 U.S. at 440.

“‘[T]o be relevant to an inquiry, [evidence] need not conclusively

prove the ultimate fact in issue, but only have “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.”’” Id. (quoting New Jersey v.

T.L.O., 469 U.S. 325, 345 (1985)), cited with approval in

Tennard,543 U.S. at 284; see also Bigby v. Dretke, 402 F.3d 551,

567 (5th Cir.), cert. denied, 126 S. Ct. 239 (2005).

Penry submitted IQ tests indicating that he is mildly

retarded. See Penry I, 492 at 307, 308 n.1. Tennard’s exam found

an IQ of 67--also increasing the likelihood of a finding of mental

retardation according to the Supreme Court’s and the Court of

Criminal Appeals’ interpretation of the AAMR’s standards. See id.

at 308 n.1 (“Under the AAMR classification system, individuals with

IQ scores between 50-55 and 70 have ‘mild’ retardation.”); Tennard,

960 S.W.2d at 61 (“The first part of the AAMR test is measured by

IQ, and an individual must have an IQ test score of 70 or less to

meet the first part of the AAMR definition of mental

retardation.”). It is unclear to us why the Court of Criminal

Appeals agreed that Penry’s IQ tests were relevant evidence but

argued that Tennard’s exam was not. A test showing low IQ, even if

29

it does not establish mental retardation, unquestionably has the

tendency to make more likely such a finding. It is thus relevant

for this purpose. A conclusion to the contrary is objectively

unreasonable.

Along these lines, we think it is prudent to note that, in

general, the Supreme Court has not stated that evidence like

Penry’s must be as strong as his was. Indeed, when Penry I is read

in conjunction with McKoy’s expansive relevance standard, it

becomes clear that any evidence similar in mitigating thrust to

Penry’s, yet less conclusive, would still be relevant. Thus, it is

beyond peradventure that a defendant’s diminished intellectual

capacity constitutes a relevant consideration when determining

whether he has the sufficient moral culpability to warrant the

death penalty; and it is likewise patent that low IQ scores are

relevant to that inquiry.

Second, the Texas Court of Criminal Appeals’ discussion of

whether the jury could have given Tennard’s mitigating evidence

aggravating effect under the special issues was unnecessary. The

key inquiry, as discussed supra, is whether the jury could give

sufficient mitigating effect to Tennard’s evidence. The court must

determine whether the special issues were sufficient for mitigating

purposes. Unless they were sufficient, there is no reason to

investigate whether they also had some aggravating effect. And, as

noted in footnote 8 supra, we will not engage in a hypothetical

30

discussion regarding the proper disposition of a case in which the

special issues could give sufficient mitigating effect but also

could give aggravating effect.

Third, the deliberateness special issue is clearly

insufficient. The Penry I Court held that “evidence of mental

retardation and childhood abuse has relevance to . . . moral

culpability beyond the scope of the special issues.” 492 U.S. at

322. However, as noted in § III(A) supra, it left open the

possibility that evidence of diminished mental capacity could be

given sufficient mitigating effect through the deliberateness

special issue, if the “jury instructions defin[ed] ‘deliberately’

in a way that . . . clearly direct[ed] the jury to consider fully

[the defendant’s] mitigating evidence as it bears on his personal

culpability.” Id. at 323. We find no evidence in the record, nor

has the State brought to our attention any evidence, that the trial

court ensured the jury had such an expansive understanding of

“deliberately.”

Finally, as in Penry I, the future dangerousness special issue

could only be used to give aggravating effect, if any. See id. at

323-24. Mental capacity, generally a static trait, usually does

not indicate that a defendant is less likely to perform a

particular act in the future. Like nearly all permanent

physiological features existing at the time of the crime, it cannot

be given mitigating effect through the future dangerousness special

31

issue.

Furthermore, we remain unpersuaded by the argument that the

jury could have viewed Tennard as a follower rather than a leader

because of his 67 IQ, and, through that inference, have given

mitigating effect to Tennard’s IQ by determining that there was

reasonable doubt whether he would be a future danger once

incarcerated. Any convicted murderer’s future dangerousness can be

limited by the terms of his confinement. Yet, neither the Court of

Criminal Appeals nor the State has identified evidence in the

record showing that Tennard’s terms of incarceration constituted a

central inquiry of the punishment phase. Indeed, it strains

credulity to argue that a “reasoned moral response” to Tennard’s

mitigating evidence, or any other defendant’s for that matter,

could turn on the nature of the particular Texas prison designated

to hold him. (Theoretically, as the State would have it, it could

improve its chances on the future dangerousness special issue by

putting capital convicts in lower security prisons.) In any event,

a normal prison setting would have Tennard mingling with dangerous

characters.

In sum, we note that the proper legal analysis in such a case

is for the court to answer two questions: (1) whether the

defendant’s evidence held relevance to the jury’s capital

deliberations; and if so, (2) whether, the jury was able to give

constitutionally-sufficient mitigating effect to that evidence. As

the foregoing discussion makes abundantly clear, both special

32

issues constituted insufficient vehicles for the jury to give

mitigating effect to Tennard’s relevant evidence of low IQ. The

Texas courts were objectively unreasonable in concluding otherwise.

V.

We find that the state court failed to ensure that the jury

was able to give sufficient mitigating effect to Tennard’s evidence

of diminished cognitive capacity, in violation of the Eighth and

Fourteenth Amendments. We REVERSE the district court’s denial of

Tennard’s petition for a writ of habeas corpus and REMAND with

instructions to grant relief consistent with this opinion.

33

DENNIS, CIRCUIT JUDGE, CONCURRING IN THE JUDGMENT.

I respectfully concur in the judgment only.

Although I agree with the result reached by the majority,

I do not think that the majority opinion follows completely the

clearly established Federal law, as determined by the Supreme

Court’s decisions.

First, I agree with substantially all of the analysis in Part

IV of the majority opinion and its conclusion that the Texas

courts were objectively unreasonable in denying Tennard habeas

relief for the reasons they assigned.

Second, my major disagreement with the majority opinion is

that it does not engage in further analysis to determine whether,

under the Boyde test, the special issue instruction actually

caused an Eighth Amendment violation and, if so, whether the error

was harmless under the Brecht test. See Penry v. Johnson, 532 U.S.

782, 800 (2001)(applying the Boyde test); Johnson v. Texas, 509

U.S. 350, (1993)(adopting and applying the Boyde test); Calderon

v. Coleman, 525 U.S. 141 (1998)(holding that a federal court must

apply both the Boyde test and the Brecht harmless error test

before granting habeas corpus relief in death penalty case based

on state trial court’s erroneous sentencing jury instruction). See

also Brecht v. Abrahamson, 507 U.S. 619 (1993); O’Neal v.

34

McAnnich, 513 U.S. 432 (1995); Nelson v. Dretke, No. 02-11096 (5th

Cir. 2006)(Dennis, J., concurring in the judgment.)

Third, it might have been consistent with the Supreme Court’s

cases for the majority to remand with instructions to apply the

Boyde and Brecht tests before granting habeas relief, but that

does not appear to be the majority’s intention. Applying those

tests would appear to be our job in any event.

Finally, based on my understanding of the record gained

within the time allotted to me, I believe that the majority has

reached the same result that a proper application of those tests

would reach.

35