Nelson v. Quarterman

United States Court of Appeals

Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FILED

FOR THE FIFTH CIRCUIT December 11, 2006

Charles R. Fulbruge III

No. 02-11096 Clerk

BILLY RAY NELSON,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVIS, SMITH,

WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS,

CLEMENT, PRADO, and OWEN, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A panel of this court previously affirmed the district court’s

denial of Billy Ray Nelson’s habeas corpus petition challenging his

sentence on the ground that the Texas capital-sentencing procedure

failed to give constitutionally sufficient effect to his mitigating

evidence, in violation of Penry v. Lynaugh (Penry I), 492 U.S. 302

(1989). See Nelson v. Cockrell, 77 F. App’x 209 (5th Cir. Aug. 12,

2003) (unpublished). Nelson petitioned the Supreme Court for writ

of certiorari. The Supreme Court granted the petition, vacated our

judgment, and remanded the case to this court for reconsideration

in light of the Supreme Court’s decision in Tennard v. Dretke, 542

U.S. 274 (2004). Nelson v. Dretke, 542 U.S. 934 (2004). On remand,

a panel of this court once again affirmed the district court’s

denial of Nelson’s habeas corpus petition. See Nelson v. Dretke,

442 F.3d 282 (5th Cir. 2006). Having ordered rehearing en banc,

Nelson v. Dretke, 442 F.3d 912 (5th Cir. 2006), we again reconsider

the application of Penry I and its progeny to Nelson’s case. We

conclude that, on the facts presented here, there is a reasonable

likelihood that the Texas capital-sentencing scheme precluded the

jury from giving full effect to Nelson’s mitigating evidence as

required by the Supreme Court; accordingly, we REVERSE the district

court’s denial of habeas relief and REMAND with instructions to

grant the writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 1991, a Texas jury found Nelson guilty of

capital murder for the February 23, 1991, slaying and brutal sexual

assault of his neighbor, Charla Wheat. Evidence presented during

the guilt/innocence phase of trial revealed the following: Nelson

gained entrance to Wheat’s apartment by asking if he could use her

phone. Once inside, he cut the telephone cord to prevent her from

calling for help and then proceeded to stab her. He then found

Wheat’s roommate, Carol Maynard, who was five months pregnant at

the time, and forced her to get out of bed and enter the living

2

room, where Wheat was on her knees bleeding from her stab wounds.

Nelson told the women to remove their clothing and threatened to

kill them if they refused. He then forced the women to perform

sexual acts on him and each other. Thereafter, he stabbed Maynard

in the neck and proceeded to strike Wheat. Nelson left briefly but

Wheat began screaming and he returned. While Maynard pretended to

be dead, Nelson struck and stabbed Wheat until she died. He then

left the women’s apartment.

At the sentencing phase of the trial, Nelson presented the

following mitigating evidence, which we will discuss more fully

infra: (1) he was rejected by his mother, who had completely

abandoned him by age 14 (“abusive childhood” evidence); (2) he

abused drugs and alcohol (“substance abuse” evidence); (3) he has

troubled relationships with his brother and with women; (4) he had

a child out of wedlock, with whom he was not permitted to have a

relationship; and (5) a psychiatrist testified he was suffering

from borderline personality disorder (“mental disorder” evidence).

For a jury to impose the death penalty at the time of Nelson’s

trial, Article 37.071(b) of the Texas Code of Criminal Procedure

required the jury to answer two special issue questions concerning

evidence presented in mitigation: “(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” (“the deliberateness special

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issue”); and “(2) whether there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing threat to society” (“the future-dangerousness special

issue”).1 The jury answered both special-issue questions in the

affirmative, sentencing Nelson to death. Nelson appealed his

sentence and conviction to the Texas Court of Criminal Appeals;

that court affirmed, Nelson v. Texas, 864 S.W.2d 496 (Tex. Crim.

App. 1993), and Nelson’s conviction became final when the Supreme

Court denied certiorari review, Nelson v. Texas, 510 U.S. 1215

(1994).

Nelson filed a state petition for writ of habeas corpus in

September 1997, arguing that the Texas capital sentencing scheme,

i.e., the two special-issue questions, failed to ensure that the

jury could give the constitutionally required consideration of and

effect to his mitigating evidence of his mental disorder, abusive

childhood, and substance abuse under Penry I, 492 U.S. 302. He also

filed a second petition in February 1998, alleging additional

claims. The Texas Court of Criminal Appeals denied the writ based

on the findings and recommendations of the trial court. Ex parte

Nelson, No. 49,886-01 (Tex. Crim. App. Oct. 10, 2001).

1

Although the Texas legislature amended the special issues

sentencing scheme in 1991, Nelson was sentenced under the pre-

amendment version of the special issues. In some cases, the jury

was also given a third special issue addressing provocation.

Nelson’s jury did not receive a provocation instruction, and

therefore we do not address that aspect of the pre-amendment

special issues sentencing scheme here.

4

Specifically, with regard to Nelson’s Penry claims, the Texas Court

of Criminal Appeals recognized that, to be constitutional, “a death

penalty procedure must allow the jury to consider all relevant

mitigating evidence.” Ex parte Nelson, No. 8,214 at 88 (118th

Judicial District Howard County, Tex. July 10, 2001) (findings of

fact and conclusions of law). The court also recognized that where

the defendant’s mitigating evidence is beyond the scope of the

special issues, and the jury is unable to give effect to its

reasoned moral response to the mitigating evidence, the procedure

is unconstitutional as applied to the defendant. Id. In applying

the law to the facts of Nelson’s case, the court noted that

Nelson’s evidence of drug and alcohol abuse had no mitigating

relevance beyond the scope of the special issues. Id. at 89.

Moreover, with regard to the other mitigating evidence presented,

[t]he Court instructed the jury on the charge on

punishment, “You should consider and give effect in

answering each issue to your evaluation of all of the

evidence before you, including all aspects of the

background and character of the defendant and the

circumstances of the crime.” . . . The jury charges and

special issues allowed the jurors to give effect to all

presented mitigating evidence in their answers to the

special issues including the intoxication of [Nelson] at

the time of the offense.

Id. at 90. Therefore, the court concluded that the procedure was

constitutional as applied. The court dismissed Nelson’s subsequent

habeas petition as an abuse of the writ. Ex parte Nelson, No.

49,886-02 (Tex. Crim. App. Oct. 10, 2001).

5

Nelson filed a petition for writ of habeas corpus in the

federal district court in August 2002. The district court rejected

Nelson’s Penry claim for failing to meet the requirements of our

now-defunct “constitutional-relevance” test.2 A panel of this court

granted Nelson a certificate of appealability (“COA”) on this

issue; however, the panel ultimately affirmed the district court’s

denial of habeas relief. Nelson petitioned the Supreme Court for

writ of certiorari, and the Supreme Court granted the petition,

vacated the panel’s judgment, and remanded the case to this court

for reconsideration in light of the Supreme Court’s decision in

Tennard, 542 U.S. 274. On remand, a panel of this court once again

affirmed the district court’s denial of habeas relief. All three

panel members concurred in the judgment; however, there was no

consensus on the correct methodology for analyzing Nelson’s claim.3

Accordingly, this court ordered rehearing en banc, and we once

2

The “constitutional-relevance” test required that

petitioner’s evidence 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.” Davis v. Scott, 51 F.3d 457, 460-61

(5th Cir. 1995) (citations omitted) (alteration in original). As

discussed below, in Tennard v. Dretke, 542 U.S. at 275, the Supreme

Court rejected the constitutional relevance test and reaffirmed

that the standard for relevance is “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. (internal quotations omitted).

3

Chief Judge Jones authored an opinion; Judge Stewart

concurred in the judgment only; and Judge Dennis filed a concurring

opinion. Nelson v. Dretke, 442 F.3d 282.

6

again reconsider the application of Penry in light of Tennard to

the facts of Nelson’s case.4

II. DISCUSSION

A. Standard of Review

Because Nelson filed his § 2254 habeas petition after April

24, 1996, this habeas proceeding is governed by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). See Fisher v. Johnson,

174 F.3d 710, 711 (5th Cir. 1999). We have jurisdiction to resolve

the merits of Nelson’s habeas petition because, as stated above, we

granted him a COA on his Penry claim. See Nelson v. Dretke, 442

F.3d at 284; see also 28 U.S.C. § 2253(c)(1).

Under AEDPA, a federal court may not grant a writ of habeas

corpus “with respect to any claim that was adjudicated on the

merits in State court proceedings” unless the petitioner shows that

the state court’s adjudication “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,” or that the state court’s adjudication of a claim

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

4

We note that the Supreme Court granted certiorari in Brewer

v. Dretke, 442 F.3d 273 (5th Cir.), cert. granted, 127 S. Ct. 433

(2006), Cole v. Dretke, 418 F.3d 494 (5th Cir. 2005), cert. granted

sub nom. Abdul-Kabir v. Quarterman, 127 S. Ct. 432 (2006), and Ex

Parte Smith, 185 S.W.3d 455 (Tex. Crim. App.) cert. granted sub

nom. Smith v. Texas, 127 S. Ct. 377 (2006).

7

the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is

“contrary to” clearly established federal law if (1) the state

court “applies a rule that contradicts the governing law” announced

in Supreme Court cases, or (2) the state court decides a case

differently than the Supreme Court did on a set of materially

indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16

(2003) (internal quotation marks omitted). A state court’s

application of clearly established federal law is “unreasonable”

within the meaning of AEDPA when the state court identifies the

correct governing legal principle from Supreme Court precedent, but

applies that principle to the case in an objectively unreasonable

manner. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

A writ of habeas corpus may also issue if the state court’s

adjudication of a 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).

Under AEDPA, a state court’s factual findings are “presumed to be

correct” unless the habeas petitioner rebuts the presumption

through “clear and convincing evidence.” Id. § 2254(e)(1); Miller

v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

We review the district court’s conclusions of law regarding

the state court’s application of federal law de novo, and we review

8

the district court’s findings of fact, if any, for clear error.

Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).

B. Clearly Established Federal Law

Under AEDPA, our duty is to determine whether the state

court’s determination was contrary to or an unreasonable

application of clearly established federal law as determined by the

Supreme Court at the time that Nelson’s conviction became final in

1994. See Williams, 529 U.S. at 405. In Tennard and Smith v. Texas,

two recent cases involving Penry claims, the Supreme Court

unequivocally stated that the relevant inquiry under its precedent

was whether there was a reasonable likelihood that the jury would

interpret the Texas special issues in a manner that precluded it

from fully considering and giving full effect to all of the

defendant’s mitigating evidence. See Tennard, 542 U.S. at 288-89;

see also Smith v. Texas, 543 U.S. 37, 38 (2004) (per curiam). This

“full-effect” standard requires that a juror be able to express his

reasoned moral response to evidence that has mitigating relevance

beyond the scope of the special issues; i.e., a juror cannot be

precluded from electing a sentence less than death if he believes

that the mitigating evidence offered makes the defendant less

morally culpable for the crime, even if he nonetheless feels

compelled to answer the two special issues in the affirmative. See

Penry v. Johnson (Penry II), 532 U.S. 782, 797 (2001); Penry I, 492

U.S. at 320. A review of the Supreme Court’s decisions in this area

9

demonstrates that this “full-effect” standard was clearly

established by the time that Nelson’s conviction became final.

1. Jurek v. Texas and the Immediate Post-Furman Cases

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court

held that state capital-sentencing schemes allowing the death

penalty to be “wantonly and . . . freakishly imposed” by permitting

unbridled discretion in sentencing violated the Eighth and

Fourteenth Amendments. Id. at 310 (Stewart, J., concurring). After

Furman, states began to rewrite their death penalty statutes,

restricting the classes of death-penalty eligible offenders and

channeling jurors’ discretion in sentencing in an attempt to comply

with the Supreme Court’s directive. Specifically, Texas responded

to Furman with the “special issues” capital-sentencing scheme at

issue in this case, which was designed to guide jurors’

consideration of mitigating evidence offered in the sentencing

phase of capital cases.

The immediate post-Furman Supreme Court cases addressing this

and other sentencing schemes attempted to strike a balance between

satisfying two competing constitutional requirements–the

requirement of “individualized sentencing” that takes into account

the unique facts of each case and each defendant, and the

requirement of preventing the arbitrary imposition of the death

penalty that can result from giving the sentencer unfettered

discretion. These cases announced the principles that would

10

underlie the Supreme Court’s later pronouncement that a capital

sentencing scheme must allow the sentencer to give full effect to

all of the defendant’s mitigating evidence.

In Jurek v. Texas, 428 U.S. 262 (1976), the Supreme Court

upheld the facial constitutionality of the Texas special-issues

sentencing scheme on the same day that it ruled on the validity of

the post-Furman death penalty statutes of four other states. See

Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the facial

constitutionality of Georgia’s capital-sentencing scheme, which

narrowed the class of death-eligible offenders and guided the

sentencer’s consideration of mitigating and aggravating evidence);

Proffitt v. Florida, 428 U.S. 242 (1976) (upholding the facial

constitutionality of Florida’s capital-sentencing scheme, which

narrowed the class of death-eligible offenders and guided the

sentencer’s consideration of mitigating and aggravating evidence);

Woodson v. North Carolina, 428 U.S. 280 (1976) (striking down North

Carolina’s mandatory capital-sentencing scheme because it gave

sentencers no discretion to impose the death penalty for certain

crimes); Roberts v. Louisiana, 428 U.S. 325 (1976) (striking down

Louisiana’s capital-sentencing scheme requiring the imposition of

the death penalty for certain crimes). In Jurek, a plurality of the

Court explained that, while the Texas sentencing scheme was

constitutional on its face, “[a] jury must be allowed to consider

on the basis of all relevant evidence not only why a death sentence

11

should be imposed, but also why it should not be imposed.” Jurek,

428 U.S. at 271 (plurality opinion) (citing Woodson, 428 U.S. at

303-05); see also Roberts, 428 U.S. at 334-36 (plurality opinion).

Therefore, “the constitutionality of the Texas procedures turns on

whether the enumerated questions allow consideration of

particularized mitigating factors.” Jurek, 428 U.S. at 272. While

observing that the future-dangerousness special issue allowed

consideration of some types of mitigating evidence, the Jurek

plurality also left room for as-applied challenges to the Texas

sentencing scheme, noting that the Texas Court of Criminal Appeals

had not yet interpreted the deliberateness and provocation special

issues. Id. at 272 n.7 (“[I]t is as yet undetermined whether or not

the jury’s consideration of those questions would properly include

consideration of mitigating circumstances.”).

2. Lockett v. Ohio and Eddings v. Oklahoma

Echoing these post-Furman concerns that the sentencer be able

to consider and give effect to mitigating evidence in a

constitutionally adequate way, the Supreme Court in Lockett v.

Ohio, 438 U.S. 586 (1978), struck down Ohio’s death penalty

statute, which allowed the sentencer to impose a sentence less than

death for certain crimes only if the mitigating evidence showed

that (1) the victim induced or facilitated the offense, (2) the

offense was a result of duress, coercion, or strong provocation, or

(3) the offense was a product of psychosis or mental retardation.

12

A plurality of the Court explained that this sentencing scheme,

which allowed the sentencer to consider some aspects of the

mitigating evidence presented but not others, was unconstitutional

because

the Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital case,

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.

Id. at 604 (plurality opinion); see also Kansas v. Marsh, 126 S.

Ct. 2516, 2525 (2006) (noting that the Ohio sentencing scheme in

Lockett was unconstitutional “because, by limiting a jury’s

consideration of mitigation to three factors specified in the

statute, it prevented sentencers in capital cases from giving

independent weight to mitigating evidence militating in favor of a

sentence other than death”) (emphasis added). Four years later, in

Eddings v. Oklahoma, 455 U.S. 104 (1982), a majority of the Court

adopted the Lockett plurality’s reasoning to vacate an Oklahoma

death sentence where the sentencing judge refused to consider, as

a matter of law, the defendant’s mitigating evidence of his abusive

childhood and treatable emotional disturbance. The Court rejected

the state appellate court’s application of a heightened-relevance

standard to the mitigating evidence, noting that while the

sentencer can “determine the weight to be given relevant mitigating

evidence,” it “may not give it no weight by excluding such evidence

13

from [its] consideration.” Id. at 115; see also Marsh, 126 S. Ct.

at 2525 (observing that, in Eddings, “a majority of the Court held

that a sentencer may not categorically refuse to consider any

relevant mitigating evidence”).

3. Franklin v. Lynaugh

The Court considered an as-applied challenge to the Texas

capital-sentencing scheme for the first time in Franklin v.

Lynaugh, 487 U.S. 164 (1988). There, the Court held that the

special issues allowed the jury to give constitutionally adequate

effect to the petitioner’s mitigating evidence of good behavior

during a previous term of imprisonment. A plurality of the Court

stated that, because the petitioner’s evidence of good prison

behavior did not have mitigating significance independent of its

relevance to the petitioner’s propensity to commit future crimes,

“[i]n resolving the [future-dangerousness special issue] the jury

was surely free to weigh and evaluate petitioner’s disciplinary

record as it bore on his ‘character’–that is, his ‘character’ as

measured by his likely future behavior.” Id. at 177-78. Justice

O’Connor concurred separately, emphasizing that, although Jurek

upheld the facial validity of the Texas capital sentencing scheme,

and in this case the mitigating relevance of all of the

petitioner’s evidence was within the scope of the special issues,

[i]f . . . petitioner had introduced mitigating evidence

about his background or character or the circumstances of

the crime that was not relevant to the special verdict

questions, or that had relevance to the defendant’s moral

14

culpability beyond the scope of the special verdict

questions, the jury instructions would have provided the

jury with no vehicle for expressing its “reasoned moral

response” to that evidence. If this were such a case,

then we would have to decide whether the jury’s inability

to give effect to that evidence amounted to an Eighth

Amendment violation. In my view, however, this is not

such a case.

Id. at 185 (O’Connor, J., concurring).

4. Penry I

The very next term, the Supreme Court considered just such a

case in Penry I, 492 U.S. 302. The Penry I Court held that habeas

relief was appropriate because a juror presented with the Texas

special issues could not have given effect to the full scope of the

mitigating evidence that had been presented at the sentencing

phase. Penry, a death-row habeas petitioner, had offered mitigating

evidence at sentencing of (1) a low I.Q. indicating likely mental

retardation; (2) an organic brain disorder that prevented him from

appreciating the wrongfulness of his conduct or conforming his

behavior to the law; (3) a troubled, abusive upbringing; and (4) an

anti-social personality disorder. Penry argued that the Texas

special issues, as applied in his case, were an inadequate vehicle

to allow the jury to consider or give effect to this evidence,

because the evidence had mitigating relevance beyond the scope of

the special issues. The Court, with Justice O’Connor writing for

the majority, first held that granting Penry the relief he

requested would not announce a new rule on collateral review in

violation of Teague v. Lane, 489 U.S. 288 (1989), because granting

15

such relief was “dictated by Eddings and Lockett.” Penry I, 492

U.S. at 317.

The Court then granted the habeas petition, emphasizing 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.” Id. at 319. Only then can the sentence imposed “‘reflect

a reasoned moral response to the defendant’s background, character,

and crime.’” Id. (quoting California v. Brown, 479 U.S. 538, 545

(1987) (O’Connor, J., concurring)). Indeed, as “both the

concurrence and dissent in Franklin understood,” Jurek, in which

the Court upheld the facial validity of the Texas capital-

sentencing scheme, “rest[ed] fundamentally on the express assurance

that the special issues would permit the jury to fully consider all

the mitigating evidence a defendant introduced that was relevant to

the defendant’s background and character and to the circumstances

of the offense.” Id. at 321 (emphasis added).

In Penry’s case, however, the Court held that the evidence of

mental retardation and abusive childhood had mitigating relevance

beyond the scope of the deliberateness and future-dangerousness

issues, because it also spoke to Penry’s moral culpability;

therefore, the jury was unable to give effect to the mitigating

evidence in a manner consistent with the Eighth Amendment. First,

with regard to the deliberateness special issue, the Court reasoned

16

that, although a jury could give partial effect to Penry’s mental

retardation and abusive past by finding that his actions were not

deliberate, a jury could also conclude that Penry acted

deliberately but, because of his mental retardation and abusive

childhood, “was less morally ‘culpable than defendants who have no

such excuse,’ but who acted ‘deliberately’ as that term is commonly

understood.” Id. at 322-23 (quoting California v. Brown, 479 U.S.

at 545 (O’Connor, J., concurring)). Without a special instruction

enabling the jury to give effect to the impact of Penry’s

mitigating evidence on his moral culpability, the jury lacked an

adequate vehicle through which to express its “reasoned moral

response” to this evidence. Second, the Court held that the future-

dangerousness instruction was likewise constitutionally inadequate

because, in this case, “Penry’s mental retardation and history of

abuse is . . . a two-edged sword: 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.” Id. at 324.

Because Penry’s mitigating evidence, viewed through the lens of

future dangerousness, “is relevant only as an aggravating factor[,]

. . . ‘[i]t did not allow the jury to consider a major thrust of

Penry’s evidence as mitigating evidence.’” Id. at 323-24 (quoting

Penry v. Lynaugh, 832 F.2d 915, 925 (5th Cir. 1987)).

Although the Court did not expressly use the words “full

effect” in Penry I, its reasoning makes clear that “full effect” is

17

what it meant. See, e.g., Penry I, 492 U.S. at 323 (“In the absence

of 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.”) (emphasis added); id. at 318-19 (“Penry

argues that those assurances were not fulfilled in his particular

case because, without appropriate instructions, the jury could not

fully consider and give effect to the mitigating evidence of his

mental retardation and abused childhood in rendering its sentencing

decision.”). Further, even the dissent in Penry I recognized that

the Court was applying a full-effect standard:

that the constitutionality 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. . . . What the

Court means by “fully consider” (what it must mean to

distinguish Jurek) is to consider for all purposes,

including purposes not specifically permitted by the

questions.

Penry I, 492 U.S. at 355 (Scalia, J., dissenting) (citation

omitted). Thus there can be no doubt that the Penry I Court applied

a standard requiring the jury to be able to give full consideration

and full effect to a defendant’s mitigating evidence.

The State contends that the “full effect” language in Penry I

and its progeny “is merely dicta, because it would otherwise

18

overrule Jurek”; however, this argument mischaracterizes the

holding in Jurek, which upheld only the facial validity of the

Texas special issues scheme. See Jurek, 428 U.S. at 272 (stating

that “the constitutionality of the Texas procedures turns on

whether the enumerated questions allow consideration of

particularized mitigating factors,” but also noting that “it is as

yet undetermined whether or not the jury’s consideration of [the

special issues] would properly include consideration of mitigating

circumstances” in every situation). The Penry I Court’s holding was

a case-specific application of Jurek, which expressly left room for

as-applied challenges. See Penry I, 429 U.S. at 320 (“[B]oth the

concurrence and the dissent understood Jurek as resting

fundamentally on the express assurance that the special issues

would permit the jury to fully consider all the mitigating evidence

a defendant introduced that was relevant to the defendant’s

background and character and to the circumstances of the

offense.”). That Jurek involved only a facial challenge to the

Texas statute is apparent not only from the Court’s decision in

Penry I, holding the Texas statute unconstitutional as applied, but

also from the Court’s decisions in as-applied challenges to the

constitutionality of the death penalty procedures in other states.

As discussed above, the Supreme Court upheld facial challenges to

the death penalty procedures in Georgia and Florida at the same

time that it upheld the facial challenge to the Texas statute. See

19

Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242.

Nevertheless,

after Gregg and Proffitt and prior to Franklin, [the

Court] held unconstitutional specific applications of the

same Georgia and Florida statutes [it] earlier had

approved. See Godfrey v. Georgia, 446 U.S. 420 (1980)

(vague and overly broad construction of aggravating

factor rendered death sentence unconstitutional);

Hitchcock v. Dugger,[481 U.S. 393 (1987),] (holding it

unconstitutional to restrict jury’s consideration of

mitigating factors to those enumerated in the statute).

Johnson v. Texas, 509 U.S. 350, 384 (1993) (O’Connor, J.,

dissenting). Further, applying the full-consideration and full-

effect standard does not require overruling Jurek, because “some

types of mitigating evidence can be fully considered by the

sentencer in the absence of special jury instructions.” Penry I,

492 U.S. at 315 (citing Franklin v. Lynaugh, 487 U.S. at 175

(plurality opinion); Franklin v. Lynaugh, 487 U.S. at 185-86

(O’Connor, J., concurring in judgment)); see also Graham v.

Collins, 506 U.S. 461, 521 (1993) (Souter, J., dissenting)

(explaining that the petitioner’s evidence of “[v]oluntary chores

for and church attendance with a relative, and supplying some level

of support for [his] children” could be considered through the

future-dangerousness special issue). The Constitution requires a

court to determine whether the special issues as applied enable the

sentencer to give full consideration and full effect to the capital

defendant’s mitigating evidence; the “full-effect” standard is

not–and has never been–inconsistent with the holding in Jurek.

20

5. Graham v. Collins and Johnson v. Texas

After Penry I, the Court addressed in Graham, 506 U.S. 461,

and Johnson, 509 U.S. 350, two more as-applied challenges to the

Texas special issues sentencing scheme, both of which denied relief

to petitioners who claimed that the special issues failed to give

effect to the mitigating evidence of their youth. In Graham, the

Court held that Teague barred it from granting relief to a habeas

petitioner who lodged a Penry challenge to his death sentence,

which became final in 1984. The petitioner argued that the Texas

special issues did not give constitutionally adequate effect to his

mitigating evidence of good character and youth. Because the Court

disposed of the case on Teague grounds, it did not address the

substantive merits of the petitioner’s Penry claim; instead, it

considered whether granting the petitioner’s requested relief would

have constituted a new rule at the time the petitioner’s sentence

became final in 1984, holding that

even if Penry reasonably could be read to suggest that

Graham’s mitigating evidence was not adequately

considered under the former Texas procedures, that is not

the relevant inquiry under Teague. Rather, the

determinative question is whether reasonable jurists

reading the case law that existed in 1984 could have

concluded that Graham’s sentencing was not

constitutionally infirm. We cannot say that all

reasonable jurists would have deemed themselves compelled

to accept Graham’s claim in 1984. . . . The ruling Graham

seeks, therefore, would be a “new rule” under Teague.

Id. at 477.

21

Later that term, in Johnson, 509 U.S. 350, the Court

considered a similar challenge on direct review. In Johnson, the

only mitigating evidence that the petitioner offered was that of

his youth at the time he committed the crime. The Court noted that,

unlike other mitigating evidence that the Court had considered in

previous cases, “[t]he relevance of youth as a mitigating factor

derives from the fact that the signature qualities of youth are

transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside.” Id.

at 368 (emphasis added). Given these unique characteristics of

youth, the Court held that this evidence did not lie beyond the

reach of the sentencer applying the Texas special issues because

“there is ample room in the assessment of future dangerousness for

a juror to take account of the difficulties of youth as a

mitigating force in the sentencing determination.” Id. The Court

applied the standard set forth in Boyde v. California, 494 U.S. 370

(1990), to “determine ‘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.’”

Johnson, 509 U.S. at 367 (quoting Boyde, 494 U.S. at 380).

“Although the reasonable likelihood standard does not require that

the defendant prove that it was more likely than not that the jury

was prevented from giving effect to the evidence, the standard

requires more than a mere possibility of such a bar.” Id. The

22

Court, again emphasizing the unique qualities of youth as a

mitigating factor, distinguished Penry I, noting that “[u]nlike

Penry’s mental retardation, which rendered him unable to learn from

his mistakes, the ill effects of youth that a defendant may

experience are subject to change and, as a result, are readily

comprehended as a mitigating factor in consideration of the second

special issue.” Johnson, 509 U.S. at 369. Further, unlike the

evidence of mental retardation at issue in Penry I, a juror’s

consideration of the impact of youth on the petitioner’s conduct

“is not independent of an assessment of personal culpability. . . .

If any jurors believed that the transient qualities of petitioner’s

youth made him less culpable for the murder, there is no reasonable

likelihood that those jurors would have deemed themselves

foreclosed from considering that in evaluating petitioner’s future

dangerousness.” Id. at 369-70. Thus Graham and Johnson stand for

the proposition that youth, which is different in kind and in

mitigating effect from Penry’s evidence of mental retardation and

abusive childhood, can be fully considered and given effect through

the special-issues sentencing scheme.

6. Penry II

In Penry II, 532 U.S. 782, Justice Kennedy, the author of

Johnson, joined the majority, and the Court reaffirmed that the

standard is full effect, once again invalidating the application of

the Texas special issues to Penry’s mitigating evidence of mental

23

retardation and abusive upbringing. After the Court vacated Penry’s

death sentence in Penry I, the State of Texas retried Penry, who

was again found guilty of capital murder and sentenced to death.

During the sentencing phase of the second trial, the court

submitted the same special issues to the jury that were the focus

of Penry I, only this time the court also provided a supplemental

“nullification” instruction. This instruction directed the jury to

consider the effect of all of the mitigating evidence on Penry’s

personal culpability, and,

[i]f you determine, when giving effect to the mitigating

evidence, if any, that a life sentence, as reflected by

a negative finding to the issue under consideration,

rather than a death sentence, is an appropriate response

to [Penry’s] personal culpability . . . , a negative

finding should be given to one of the special issues.

Id. at 790.

The Court, fully aware of the analytical constraints imposed

by the deferential AEDPA standard of review, held that the Texas

Court of Criminal Appeals had unreasonably applied the holding of

Penry I when it held that the special issues and the nullification

instruction were constitutionally adequate vehicles to give effect

to Penry’s mitigating evidence. Justice O’Connor, writing for the

Court, stated:

the key under Penry I is that the jury be able to

“consider and give effect to [a defendant’s mitigating]

evidence in imposing sentence.” 492 U.S., at 319, 109 S.

Ct. 2934 (emphasis added). See also Johnson v. Texas, 509

U.S. 350, 381(1993) (O’CONNOR, J., dissenting) (“[A]

sentencer [must] be allowed to give full consideration

and full effect to mitigating circumstances” (emphasis in

24

original)). For it is only when the jury is given a

“vehicle for expressing its ‘reasoned moral response’ to

that evidence in rendering its sentencing decision,”

Penry I, 492 U.S. at 328, that we can be sure that the

jury “has treated the defendant as a ‘uniquely individual

human being]’ and has made a reliable determination that

death is the appropriate sentence,” id., at 319 (quoting

Woodson v. North Carolina, 428 U.S. 280, 304, 305

(1976)).

Penry II, 532 U.S. at 797. As the Court held in Penry I, the

deliberateness and future-dangerousness issues were not broad

enough to provide a vehicle that allowed the jury to express its

reasoned moral response to the full mitigating impact of all of the

evidence; neither was the State’s attempted fix–the nullification

instruction–constitutionally sufficient, because “it made the jury

charge as a whole internally contradictory and placed law-abiding

jurors in an impossible situation.” Id. at 799. Under this scheme,

there was still “at the very least, ‘a reasonable likelihood that

the jury . . . applied the challenged instruction in a way that

prevent[ed] the consideration’ of Penry’s mental retardation and

childhood abuse.” Id. (quoting Boyde, 494 U.S. at 380). Because the

State failed to define either special issue “in a way that would

clearly direct the jury to consider fully Penry’s mitigating

evidence as it bears on his personal culpability,” the Texas

special-issues scheme was still unconstitutional as applied to

Penry’s mitigating evidence, and the Texas Court of Criminal

Appeals’ conclusion otherwise was an unreasonable application of

25

clearly established federal law. Penry II, 532 U.S. at 803

(emphasis added).

7. Tennard v. Dretke and Smith v. Texas

The Supreme Court’s decision in Tennard, in light of which

this court must assess Nelson’s Penry claim, reaffirms that a jury

cannot be precluded from giving full effect to a defendant’s

mitigating evidence and leaves no doubt that this standard was in

effect at the time that Nelson’s conviction became final.5 The

Supreme Court handed down Tennard on June 24, 2004, reversing a

panel of this court that had applied the aforementioned

“constitutional-relevance” test to deny a COA on a death-row

inmate’s petition for habeas relief on Penry grounds. The Court

explained that the petitioner, who argued that the Texas special

issues sentencing scheme did not enable the sentencer to give full

effect to his mitigating evidence of impaired intellectual

functioning and low I.Q. score, was entitled to a COA, and that the

5

Tennard’s conviction became final when the Supreme Court

denied certiorari on his direct appeal on June 28, 1991. Tennard v.

Texas, 501 U.S. 1259 (1991). Under AEDPA, therefore, the Supreme

Court’s duty in Tennard was to determine whether the Texas Court of

Criminal Appeals unreasonably applied federal law that was clearly

established as of June 28, 1991. In light of AEDPA’s mandate, the

Tennard Court’s insistence that a jury be able to consider and give

effect to evidence with mitigating relevance to a defendant’s moral

culpability in addition to the special issues indicates that the

“full-effect” standard was well in place by 1991; indeed, as

explained above, this standard, which is the same standard that the

Court applied in Penry I, was “dictated by Eddings and Lockett.”

Penry I, 492 U.S. at 317. Nelson’s conviction became final in

1994, three years after Tennard’s. Nelson v. Texas, 510 U.S. 1215

(1994).

26

lower courts had erred by applying the Fifth Circuit’s

“constitutional-relevance” test.

Specifically, the Supreme Court excoriated the Fifth Circuit

for invoking its own restrictive gloss on the Court’s Penry I

decision, uniformly applying to Penry claims a heightened-relevance

standard that “has no foundation in the decisions of this Court.”

Tennard, 542 U.S. at 284. The Court then reiterated that the

appropriate-relevance standard in a capital case–as in any other

case–is a low one:

When we addressed directly the relevance standard

applicable to mitigating evidence in capital cases in

McKoy v. North Carolina, 494 U.S. 433, 440-41 (1990), we

spoke in the most expansive terms. We established that

the “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 440 (quoting New Jersey v.

T.L.O., 469 U.S. 325, 345 (1985)). . . . Thus, a State

cannot bar “the consideration of . . . evidence if the

sentencer could reasonably find that it warrants a

sentence less than death.” 494 U.S. at 441.

Tennard, 542 U.S. at 284-85.

Then, “[o]nce this low threshold for relevance is met, the

‘Eighth Amendment requires that the jury be able to consider and

give effect to’ a capital defendant’s mitigating evidence.” Id. at

285 (quoting Boyde v. California, 494 U.S. 370, 377-378 (1990)

(citing Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma,

27

455 U.S. 104 (1982); Penry I, 492 U.S. 302 (1989))); see also Payne

v. Tennessee, 501 U.S. 808, 822 (1991) (“We have held that a State

cannot preclude the sentencer from considering ‘any relevant

mitigating evidence’ that the defendant proffers in support of a

sentence less than death . . . [V]irtually no limits are placed on

the relevant mitigating evidence a capital defendant may introduce

concerning his own circumstances.” (quoting Eddings, 455 U.S. at

114)).

The Court emphasized that, in assessing the relevance of

mitigating evidence, a reviewing court should not weigh the

severity or sufficiency of the evidence, except

insofar as evidence of a trivial feature of the

defendant’s character or the circumstances of the crime

is unlikely to have any tendency to mitigate the

defendant’s culpability. See Skipper [v. South Carolina,

476 U.S. 1,] 7, n.2 (“We do not hold that all facets of

the defendant’s ability to adjust to prison life must be

treated as relevant and potentially mitigating. For

example, we have no quarrel with the statement . . . that

‘how often [the defendant] will take a shower’ is

irrelevant to the sentencing determination[.”).] . . .

However, to 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. Rather, the question

is simply whether the evidence is of such a character

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

death,’” Skipper, [467 U.S.] at 5.

Tennard, 542 U.S. at 286-87.

The Court concluded:

the Fifth Circuit’s screening test has no basis in our

precedents and, indeed, is inconsistent with the standard

we have adopted for relevance in the capital sentencing

context. We therefore hold that the Fifth Circuit

28

assessed Tennard’s Penry claim under an improper legal

standard. Cf. Miller-El v. Cockrell, 537 U.S. [322, 341

(2003)] (holding, on certiorari review of the denial of

a COA, that the Fifth Circuit had applied an incorrect

standard by improperly merging the requirements of two

statutory sections).

Tennard, 542 U.S. at 287.

Although the decision in Tennard principally focused on

rejecting the “constitutional-relevance” standard, the Court also

indicated that Tennard’s evidence may have had relevance beyond the

scope of the special issues, and that a jury might have been

precluded from giving effect to that aspect of Tennard’s mitigating

evidence. The Court explained that a COA should have issued because

[t]he relationship between the special issues and

Tennard’s low IQ evidence has the same essential features

as the relationship between the special issues and

Penry’s mental retardation evidence. Impaired

intellectual functioning has mitigating dimension beyond

the impact it has on the individual’s ability to act

deliberately. See Penry I, 492 U.S. at 322. A reasonable

jurist could conclude that the jury might well have given

Tennard’s low IQ evidence aggravating effect in

considering his future dangerousness . . . .

Id. at 288-89.

In its most recent pronouncement on the Penry issue, the

Supreme Court in Smith v. Texas, 543 U.S. 37, once again reiterated

that, to comply with the Eighth Amendment, a capital sentencing

scheme must give full effect to all of a defendant’s mitigating

evidence. In a per curiam opinion issued shortly after Tennard, the

Court reversed the Texas Court of Criminal Appeals’ denial of state

habeas relief, holding that the Texas special issues and a

29

supplemental nullification instruction similar to the one at issue

in Penry II did not give full effect to the petitioner’s mitigating

evidence of the petitioner’s (1) learning disabilities; (2) low

I.Q. scores; and (3) childhood abuse and troubled upbringing.

First, the Court held that, in light of Tennard, the Texas

Court of Criminal Appeals erred when it relied on the Fifth

Circuit’s “constitutional-relevance” test to dispose of the

petitioner’s Penry claim. Second, the Court held that, under its

precedent, the Texas Court of Criminal Appeals erred when it held

that the special issues and nullification instruction gave

sufficient mitigating effect to the petitioner’s mitigating

evidence. The Court, reviewing its case law, stressed that “[i]n

Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), we held a similar

‘nullification instruction’ constitutionally inadequate because it

did not allow the jury to give ‘full consideration and full effect

to mitigating circumstances’ in choosing the defendant’s

appropriate sentence. Id. at 797 (quoting Johnson v. Texas, 509

U.S. 350, 381 (1993) (O’CONNOR, J., dissenting)).” Smith, 543 U.S.

at 38. The Smith Court therefore once again reaffirmed that the

standard is full consideration and full effect.

The State’s contention that Smith and Penry II are inapposite

to the instant case because they involved a nullification

instruction is not well taken. As we explained above, the

nullification instruction was not an adequate solution to the

30

problem the Court identified in Penry I–namely, that the jurors

could not give Penry’s mitigating evidence full effect through the

special issues. Penry II, 532 U.S. at 797 (“[T]he key under Penry

I is that the jury be able to ‘consider and give effect to [a

defendant’s mitigating] evidence in imposing sentence.’” (emphasis

and alteration in original) (quoting Penry I, 492 U.S. at 319)).

Accordingly, the focus of our inquiry is not whether there was a

nullification instruction, but whether the procedure, whatever it

was, allowed the jury to express its reasoned moral response to the

defendant’s mitigating evidence. See id. And the standard for

making that determination is whether there is a reasonable

likelihood that the procedure precluded the jury from giving full

consideration and full effect to the defendant’s mitigating

evidence.

This review of the relevant Supreme Court case law therefore

establishes that, at the time Nelson’s conviction became final in

1994, the clearly established law as announced by the Supreme Court

was a full-effect standard. The Penry II Court left no doubt that

full effect was the applicable standard, or that this was the

standard that applied in Penry I. The debate has long since been

over. Today, we make clear that we are following the Supreme

Court’s directive and applying the standard it articulated; i.e.,

whether there is a reasonable likelihood that the special issues

precluded the jury from giving full consideration and full effect

31

to the defendant’s mitigating evidence, including evidence that has

mitigating relevance outside the scope of the special issues

because it speaks to a defendant’s moral culpability. This standard

was “dictated by” the Supreme Court’s earlier decisions in Eddings

and Lockett, see Penry I, 492 U.S. at 317, and Graham and Johnson

are not to the contrary. Moreover, the Court’s most recent

decisions in Tennard and Smith reaffirm that this standard was

clearly established federal law at the time Nelson’s conviction

became final. Accordingly, we turn to the question presented in

this case–whether the state court’s determination that the Texas

capital-sentencing scheme was constitutional as applied in Nelson’s

case was contrary to or an unreasonable application of clearly

established law as announced by the Supreme Court.

C. Application of Clearly Established Federal Law to Nelson’s

Case

The Texas Court of Criminal Appeals concluded that the special

issues were constitutional as applied to Nelson. Because there is

a reasonable likelihood that the jury was precluded from giving

full effect to Nelson’s mitigating evidence, we hold that the Texas

Court of Criminal Appeals’ determination was an unreasonable

application of clearly established law as announced by the Supreme

Court.

1. Nelson’s Mitigating Evidence

The parties agree that, at the punishment phase of the trial,

Nelson presented the following mitigating evidence of: (1) an

32

abusive childhood; (2) substance abuse; (3) troubled relationships

with his brother and with women; (4) having had a child out of

wedlock with whom he was not permitted to have a relationship; and

(5) a mental disorder. Specifically, Nelson offered the testimony

of his father, who described in great detail the emotional abuse

and rejection that Nelson suffered at the hands of his mother while

he was growing up. Nelson’s father explained that Nelson was the

second of two boys, and Nelson’s mother, who had always wanted a

girl, rejected Nelson from birth, refusing to care for him, “change

him or feed him [or] anything.” After Nelson’s parents separated

when Nelson was fourteen years old, his mother completely abandoned

him, leaving and refusing to take him with her.

Nelson also presented testimony from Dr. John Hickman, a

psychiatrist who personally interviewed and assessed Nelson. Dr.

Hickman testified extensively about the symptoms of borderline

personality disorder, which can manifest themselves in “psychotic

outburst[s]” and a “lack of impulse control.” According to Dr.

Hickman, a person with borderline personality disorder has little

insight into his own illness and may “periodically go through an

outburst of feelings which can become very violent, very

destructive,” even though he exhibits normal behavior “75 to 80

percent” of the time. Dr. Hickman noted that Nelson in particular

experiences “a lot of impulse and a lot of raw energy and anger

. . . [that] he has no [insight] into whatsoever” as a result of

his borderline personality disorder.

33

He further explained that borderline personality disorder can

be especially “severe” in cases of maternal abandonment, and, in

this case, Nelson’s abusive upbringing and rejection by his mother

engendered a “rage toward women” that was evidenced by the nature

of the crime that he committed. Dr. Hickman observed that Nelson’s

borderline personality disorder was a consequence of growing up in

a home where Nelson did not learn to control his anger and where he

was subjected to psychologically abusive treatment by his mother,

who told him that “he couldn’t do anything right” and that “she

didn’t want him.” In Dr. Hickman’s judgment, at the time he

committed the crime, Nelson “had a psychotic outburst” and was

under the influence of “either a mental or physical form of duress”

resulting from “his physical and psychological makeup.” Dr. Hickman

also stated that, in addition to being “psychologically abused” by

his mother, Nelson had “some family history which indicates

disregard and abuse for women” and that “it is almost as if he is

trained to be that way.” Additionally, Dr. Hickman noted that

Nelson’s substance abuse likely exacerbated the effects of Nelson’s

borderline personality disorder, describing “eruptive episodes,

generally influenced by alcohol or cocaine, where all that

primitive impulse comes out,” which were “guaranteed to be self-

destructive.” In sum, Dr. Hickman observed that Nelson “has a

morass of anger, hostility, given the combination of a borderline

personality, given stress factors, given alcohol, given cocaine,

all hell is going to break loose with him.”

34

Although Dr. Hickman testified that borderline personality

disorder can be treated in some cases, he indicated that borderline

personality disorder is difficult to treat because persons with

borderline personality disorder do not want to “admit they are weak

and vulnerable” and often refuse to undergo therapy. Dr. Hickman

estimated that in Nelson’s case, it could take at least a year just

to break down Nelson’s “defenses” and convince him to participate

in treatment; after that, Nelson would require “long

psychotherapy–and I’m talking about two to five years. That is

standard for borderline. And . . . medication.” Dr. Hickman

emphasized that this intensive psychotherapy would require “two or

three times a week with . . . a therapist that can work with him”

in addition to “the proper drug medication” and “a strict

environment” where Nelson could “learn internal controls.” Dr.

Hickman noted that, even with such treatment, he could not

guarantee Nelson’s success, and “if he doesn’t get treatment, I

think we can predict dangerousness.”

2. The Special Issues as Applied to Nelson’s Mitigating

Evidence

As a threshold matter, the State contends that Penry and its

progeny apply only to a very narrow set of cases in which the

mitigating evidence is “double-edged,” i.e., has both aggravating

and mitigating effect, and the future-dangerousness special issue

gives the evidence only aggravating effect. Thus, according to the

State, a Penry analysis in this case is not necessary. We disagree.

35

The Supreme Court has never limited the applicability of

Penry–either explicitly or implicitly–to cases involving “double-

edged” mitigating evidence. In Penry I, the Court’s observation

that Penry’s evidence of mental illness was “two-edged” was just

one of many reasons that the special issues were inadequate

vehicles to give Penry’s evidence full mitigating effect; it was

not the determining factor. See Penry I, 492 U.S. at 324 (listing

the “two-edged sword” nature of Penry’s evidence as one of a number

of reasons that the future-dangerousness issue could not give

Penry’s evidence full mitigating effect). Justice O’Connor’s

dissent in Johnson explains that placing too much weight on the

Court’s description of Penry’s evidence as “two-edged”

mischaracterizes the Penry I Court’s reasoning:

The second special issue was not inadequate because

evidence worked only against Penry; it was inadequate

because it did not allow the jury to give full effect to

Penry’s mitigating evidence. Penry, 492 U.S. at 323. Our

discussion of the third special issue–whether the

defendant’s conduct was unreasonable in response to the

provocation–also focused on the inability of a juror to

express the view that Penry lacked “the moral culpability

to be sentenced to death” in answering the question. Id.

at 324-25. The point of Penry is clear: A death sentence

resulting from application of the Texas special issues

cannot be upheld unless the jurors are able to consider

fully a defendant’s mitigating evidence. Accord, id. at

355 (SCALIA, J., concurring in part and dissenting in

part) (The Court today holds that “the constitutionality

turns on whether the [special] questions allow mitigating

factors not only to be considered . . . , but also to be

given effect in all possible ways, including ways that

the questions do not permit”).

36

See Johnson, 509 U.S. at 386 (O’Connor, J., dissenting). Indeed,

Chief Justice Rehnquist dissented from the Court’s decision in

Tennard arguing that Tennard’s evidence was not “two-edged.”

Tennard, 542 U.S. at 292-93 (“In either case–contrary to Penry

I–the evidence could be given mitigating effect in the second

special issue. In short, low intelligence is not the same as mental

retardation and does not necessarily create the Penry I “two-edged

sword.”). A majority of the Court declined to accept that argument

in Tennard and, therefore, we cannot accept it here.

Further, the Court has indicated that Penry applies–or at

least potentially could apply–in cases involving evidence that is

not double-edged. See, e.g., Smith, 543 U.S. 37 (reversing the

state court’s denial of habeas relief because the special issues

could not give full effect to mitigating evidence of low I.Q. and

troubled upbringing); Tennard, 542 U.S. 274 (holding that habeas

petitioner was entitled to a COA on his Penry claim based on

mitigating evidence of low I.Q. and impaired intellectual

functioning). In short, the State urges this court to wrench one

component of the Court’s reasoning in Penry I out of context and

use it as a dispositive screening test in our assessment of Penry

claims. In effect, the State asks this court to develop another

“restrictive gloss on Penry I,” similar to the “constitutional-

relevance” test that the Court struck down in Tennard. Tennard, 542

U.S. at 283. The Court has never used the consideration of whether

37

evidence is double-edged as a single-issue screening test as the

State urges us to do; and, given the Court’s strong admonition in

Tennard, we decline to do so. Consequently, we turn now to the

State’s alternative argument that Nelson’s evidence could be

adequately considered through the two special issues.

a. Deliberateness Special Issue

Nelson’s mitigating evidence of borderline personality

disorder and abandonment by his mother had relevance beyond the

scope of the deliberateness special issue. As the Supreme Court

observed in Penry I, a reasonable juror could have concluded that,

while the murder was deliberate, Nelson was less morally culpable

as a result of his borderline personality disorder and abusive

childhood than a murderer without such a mental illness and similar

upbringing might have been. See Penry I, 492 U.S. at 323-24; see

also Skipper v. South Carolina, 476 U.S. 1, 13-14 (1986) (Powell,

J., concurring in judgment) (stating that evidence concerning a

defendant’s “emotional history . . . bear[s] directly on the

fundamental justice of imposing capital punishment”). Because a

major mitigating thrust of evidence of a mental disorder and an

abusive childhood is that such afflictions could reduce an

offender’s moral culpability, it is “reasonably likely” that a

juror would not have been able to give full effect to his “reasoned

moral judgment” regarding the full mitigating impact of Nelson’s

evidence through the narrowly worded deliberateness instruction.

38

See, e.g., Penry II, 532 U.S. at 797; Penry I, 492 U.S. at 322.

Significantly, the Supreme Court has never held that the

deliberateness issue alone is broad enough to give full effect to

mitigating evidence that also bears on a defendant’s moral

culpability; indeed the Court’s most recent opinion in Smith v.

Texas suggests the contrary. There, the Court characterized Smith’s

evidence as follows:

(1) he had been diagnosed with potentially organic

learning disabilities and speech handicaps at an early

age; (2) he had a verbal IQ score of 75 and a full IQ of

78 and, as a result, had been in special education

classes throughout most of his time in school; (3)

despite his low IQ and learning disabilities, his

behavior at school was often exemplary; (4) his father

was a drug addict who was involved with gang violence and

other criminal activities, and regularly stole money from

family members to support a drug addiction; and (5) he

was only 19 when he committed the crime.

Smith, 542 U.S. at 41. Considering the nature of this evidence, the

Court noted that, “just as in Penry II, the burden of proof on the

State was tied by law to findings of deliberateness and future

dangerousness that had little, if anything, to do with the

mitigation evidence petitioner presented.” Id. at 48. Likewise,

Nelson’s mitigating evidence had relevance beyond the

deliberateness special issue insofar as it bore on his moral

culpability for the crime. Consequently, although the jury may have

been able to give partial effect to this evidence through the

deliberateness special issue, there is a reasonable likelihood that

39

it was unable to give full effect to this evidence, because it had

relevance beyond whether Nelson acted deliberately.

b. Future-Dangerousness Special Issue

Likewise, the future-dangerousness special issue cannot give

Nelson’s evidence full mitigating effect. The jury heard

conflicting evidence about the treatability of Nelson’s borderline

personality disorder and about the efficacy of any possible

treatment. According to the expert testimony, even assuming that

Nelson’s borderline personality disorder were treatable, success

would depend on many factors. Based on this evidence, the jury

could have easily concluded that it was unlikely that Nelson would

successfully complete treatment. The State’s expert, Dr. Grigson,

testified that there was insufficient information to make a

diagnosis of antisocial personality disorder, but repeatedly

emphasized that “in [his] opinion there is no question whatsoever

that [Nelson] will commit future acts of danger.” In contrast,

Nelson’s expert, Dr. Hickman, diagnosed Nelson with borderline

personality disorder. He further testified that, with treatment

consisting of incarceration, two to five years of intensive

psychotherapy two to three times a week, medication, and refraining

from drug and alcohol abuse, Nelson may not be continuing threat.

He opined that if Nelson did not receive treatment, he would pose

a danger to society. He also explained that “the last thing a

borderline wants to do is admit they are weak and vulnerable,” and

40

thus borderline patients often resist treatment. Indeed, in its own

closing, the State emphasized the strong possibility that Nelson

would not receive the treatment he needed to keep his borderline

personality disorder in check, and even if he did receive such

treatment, there were no guarantees that the therapy would be

effective to prevent future violence:

Dr. Hickman said, if, if, if, if he is imprisoned long

enough, if he undergoes psychotherapy, if he chooses to

take his medication, and if he leaves dope and alcohol

alone, then maybe, maybe he won’t be a future danger.

Look at Special Issue Number Two, ladies and gentlemen.

There is not an asterisk next to that, there is not

something referring you down here that says if, if, if,

if. We look at the defendant right now, and right now

even their witness [said], yes, he may be a danger.

Based on the expert testimony at trial, the jury might have

concluded that Nelson could be treated, and therefore, it could

have given some effect to this mitigating evidence within the

context of the future-dangerousness special issue. But if the jury

concluded that the condition was not treatable or that treatment

was improbable, as the State argued, it would necessarily have to

answer “yes” to the special issue. Just as in Penry I and Penry II,

it is likely that a juror considering Nelson’s evidence of

borderline personality disorder would have felt that he could give

the evidence only one possible effect via the future-dangerousness

issue: Such a juror would have seen the evidence as only

aggravating, because Nelson’s borderline personality disorder and

the difficulty of treating it increase the likelihood that Nelson

41

will act out violently again. Consequently, there would be no

vehicle to give mitigating effect to his evidence of borderline

personality disorder, i.e., no way for the jury to express its

conclusion that even though he is likely to be dangerous in the

future, his mental illness makes him unworthy of the death penalty.

Cf. Penry I, 492 U.S. at 302 (“[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.”). And, also similar to Penry I, the jury was

likely precluded from interpreting the future-dangerousness issue

in a way that gave effect to the major mitigating thrust of the

evidence, that it tends to lessen Nelson’s moral culpability for

the crime. See Penry I, 492 U.S. at 322-24.

The State and the dissenting opinions of Chief Judge Jones and

Judge Owen argue that the evidence at issue here is more comparable

to the evidence of youth at issue in Johnson and Graham.

Specifically, they contend that, because borderline personality

disorder can be a “transient” condition like youth, a jury could

believe that Nelson would be less dangerous in the future, thereby

giving full mitigating effect to the evidence. We disagree. This

argument erroneously analogizes evidence of youth and evidence of

mental illness. The Supreme Court in Johnson held that the future-

dangerousness issue could give effect to both mitigating aspects of

youth–likelihood of future violent behavior and moral

42

culpability–due to the uniquely transient nature of youth. See

Johnson, 509 U.S. at 368 (“The relevance of youth as a mitigating

factor derives from the fact that the signature qualities of youth

are transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside. . . .

[T]here is ample room in the assessment of future dangerousness for

a juror to take account of the difficulties of youth as a

mitigating force in the sentencing determination.”); see also

Eddings, 455 U.S. at 115 (“[Y]outh is more than a chronological

fact. It is a time and condition of life when a person may be most

susceptible to influence and to psychological damage.”). In this

sense, the Supreme Court, which has never endorsed the extension of

Johnson and Graham to treatable mental illness, has treated youth

as sui generis, because it is a condition that is certain to pass.6

In contrast, as acknowledged by Nelson’s own expert witness, there

was no guarantee that Nelson’s borderline personality disorder

6

The sui generis nature of youth in the death penalty context

is perhaps best evidenced by the Supreme Court’s categorical

holding in Roper v. Simmons, 543 U.S. 551 (2005), that the

Constitution prohibits the execution of persons who were under

eighteen years of age at the time of their crime. See id. at 569

(noting that three unique characteristics of youth mitigate

juveniles’ moral culpability for certain behavior: “[a] lack of

maturity and an underdeveloped sense of responsibility[, which]

. . . often result in impetuous and ill-considered actions and

decisions”; increased “vulnerab[ility] or susceptib[ility] to

negative influences and outside pressures, including peer

pressure”; and “that the character of a juvenile is not as well

formed as that of an adult. The personality traits of juveniles are

more transitory, less fixed”) (citing Johnson, 509 U.S. at 367;

Eddings, 455 U.S. at 115).

43

would diminish over time. Dr. Hickman noted that, although

borderline personality disorder is treatable, success is by no

means certain and is expressly conditioned on intensive therapy

that, a juror could conclude, the Texas prison system is unlikely

to provide. In fact, Dr. Hickman’s trial testimony indicated that,

because of the severity of borderline personality disorder and

patients’ common resistance to therapy, successful treatment is

often the exception rather than the rule. Unlike a jury considering

evidence of youth, therefore, a reasonable likelihood existed that

a jury considering Nelson’s mitigating evidence of borderline

personality disorder would have felt foreclosed from giving full

mitigating effect to Nelson’s evidence of his disorder via the

future-dangerousness issue. Thus, based on the principles

announced in Penry I and its progeny, the future-dangerousness

special issue, like the deliberateness special issue, provided a

constitutionally insufficient vehicle to allow a jury to express

its reasoned moral response and give full effect to Nelson’s

mitigating evidence. The Texas Court of Criminal Appeals’s holding

to the contrary is an unreasonable application of clearly

established federal law as announced by the Supreme Court.

This is not simply a matter of disagreement with the state

court’s conclusion that the jury could consider and give effect to

Nelson’s mitigating evidence through the special-issues sentencing

scheme. We are mindful that under AEDPA a federal court may not

44

grant habeas relief simply because it disagrees with the state

court’s resolution of an issue; it may grant relief only if the

state court’s decision was contrary to or an unreasonable

application of clearly established Supreme Court precedent. See 28

U.S.C. § 2254(d)(1). Indeed, Chief Judge Jones’s dissent invokes

this standard, asserting that our approach to the future-

dangerousness issue improperly “relies upon a string of

hypotheticals to create [a] Penry violation” and adopts an

“attenuated theory of the jury deliberations [that] extends Penry

I far beyond its intended boundaries.” Chief Judge Jones’s Dissent

at 21 n.19; see also Judge Owen’s Dissent. But rather than

extending the reach of Penry I or any other case in violation of

the AEDPA standard of review, our approach merely follows the

Supreme Court’s longstanding directive to determine only “whether

the evidence is of such a character that it ‘might serve as a basis

for a sentence less than death,’” which was clearly established

federal law at the time that Nelson’s conviction became final.

Tennard, 542 U.S. at 287 (quoting Skipper, 467 U.S. at 5) (emphasis

added).

In contrast, the alternative approach, upon which the

dissenting opinions of Chief Judge Jones and Judge Owen base their

conclusions that the Texas Court of Criminal Appeals did not

unreasonably apply clearly established federal law, would require

us, sitting as a federal appellate habeas court, to weigh the

45

evidence presented at sentencing in a manner that the Supreme Court

in Tennard held was an unreasonable application of clearly

established federal law at least as far back as 1991. See id. at

286-87. Like Nelson’s case, Tennard reached the Supreme Court on

federal habeas review and was governed by the AEDPA standard. As

noted above, we measure clearly established federal law for AEDPA

purposes as of the date that the defendant’s conviction became

final. While Tennard’s conviction became final in 1991, Nelson’s

conviction did not become final until 1994. See supra note 4.

Therefore, the principles that the Supreme Court in Tennard held

had been clearly established in 1991 were certainly clearly

established by the time that Nelson’s conviction became final in

1994. Although Chief Judge Jones and Judge Owen correctly recite

the AEDPA standard in their dissenting opinions, they simply fail

to accept that Tennard--which stood for the propositions that (1)

a reviewing court may not reweigh or reassess the mitigating

evidence presented at sentencing, and (2) a jury must be able to

give effect to the impact of that mitigating evidence on the

defendant’s moral culpability via the special issues--also set

forth the federal law that was clearly established for the purposes

of Nelson’s case.

Specifically, the dissenting opinions of Chief Judge Jones and

Judge Owen run afoul of Tennard by assuming that the jury in

Nelson’s case found that Nelson’s borderline personality disorder

46

was treatable, and that the Texas Court of Criminal Appeals would

therefore not have acted unreasonably in treating it as akin to the

mitigating evidence of youth at issue in Graham and Johnson.

However, we know from the record only that the jury determined that

Nelson was a future danger after hearing conflicting expert

testimony about whether he suffered from borderline personality

disorder and, if so, whether it could be treated. Despite the

purportedly definitive reading of the record contained in Chief

Judge Jones’s dissent, we cannot be certain of the precise reasons

for the jury’s future-dangerousness determination. Instead, we know

that the jury could have arrived at its conclusion for any of the

following reasons: (1) the jury believed that Nelson suffered from

borderline personality disorder but that the disorder was not

treatable; (2) the jury believed that Nelson suffered from

borderline personality disorder that was treatable but that some

other factor rendered Nelson a future danger; or (3) the jury did

not believe that Nelson actually suffered from borderline

personality disorder. To conclude that the mental illness at issue

was treatable in the face of these multiple possibilities, the

dissenting opinions of Chief Judge Jones and Judge Owen reassess

and reweigh the evidence presented at sentencing, even though we,

47

sitting as a federal appellate habeas court, have no way of knowing

why the jury determined that Nelson was a future danger.7

Weighing the evidence in this manner violates the Supreme

Court’s express admonition in Tennard that we not substitute our

own interpretation of the evidence for that of the jury or assess

the strength of the mitigating evidence presented except “insofar

as evidence of a trivial feature of the defendant’s character or

the circumstances of the crime is unlikely to have any tendency to

mitigate the defendant’s culpability.” Tennard, 542 U.S. at 286.

Just as the Supreme Court in Penry I made no determination as to

whether the jury actually believed that Penry was mentally retarded

based on the conflicting trial evidence, we may not conduct an

7

Compare Johnson, in which the Supreme Court singled out

youth, as opposed to other conditions that could be transitory,

because its ephemeral nature is bound up in its mitigating impact

such that a juror could not reasonably assess youth as a mitigating

factor without taking into account this aspect of transience. See

Johnson, 509 U.S. at 368 (emphasizing that the impact of youth on

the defendant’s conduct “is not independent of an assessment of

personal culpability”). Because this transient quality is so

subsumed within the mitigating relevance of youth, the Court did

not inquire whether the jury might have found that Johnson was

likely to mature as he grew up before it held that the jury could

give full effect to youth through the future-dangerousness issue;

the undisputed chronological fact of the defendant’s age was

enough. In contrast, under the approach favored by the dissenting

opinions of Chief Judge Jones and Judge Owen in this case, when

presented with mitigating evidence of a possibly treatable mental

illness, an appellate habeas court must conduct such an inquiry

into the jury’s findings and weigh the evidence to determine

whether the illness is treatable. Perhaps for this very reason, the

Supreme Court, which spoke about youth in very specific terms in

Johnson, has never extended Johnson’s reasoning to any other

mitigating evidence--including possibly treatable mental illness--

that might have transient characteristics.

48

independent review of the conflicting evidence in this case to make

a determination as to whether the jury actually believed that

Nelson’s mental illness was treatable. In short, under Tennard,

which clarified the clearly established law in this area as of

1991, we may not graft a treatability test based on our view of the

strength of the evidence onto the low relevance threshold as the

dissenting opinions of Chief Judge Jones and Judge Owen propose,

and neither may the Texas Court of Criminal Appeals. Rather, the

only question we may ask regarding the jury’s interpretation of the

mitigating evidence presented at trial is “simply whether the

evidence is of such a character that it ‘might serve as a basis for

a sentence less than death.’” Id. at 287 (quoting Skipper, 467 U.S.

at 5) (emphasis added).

Further, the Supreme Court has made it clear in Boyde and in

Johnson (both issued before Nelson’s conviction became final) that

once the low relevance threshold is satisfied, rather than

inquiring into or second guessing the jury’s interpretation of the

trial evidence, all a court must determine is whether a reasonable

likelihood exists that the jury applied the instructions in a

manner that precluded it from giving effect to the defendant’s

mitigating evidence as it pertains to the defendant’s moral

culpability. In the instant case, given the conflicting testimony

regarding the treatability of Nelson’s mental illness, there is

certainly a reasonable likelihood that the jury felt precluded from

49

giving full effect to the impact of the evidence on Nelson’s moral

culpability via the future-dangerousness issue because it found

that Nelson’s illness could not be treated. See Johnson, 509 U.S.

at 367 (explaining that the Boyde “reasonable likelihood standard

does not require that the defendant prove that it was more likely

than not that the jury was prevented from giving effect to the

evidence”).

Therefore, rather than “extend[ing] Penry I far beyond its

intended boundaries, without instructions from the Supreme Court,”

Chief Judge Jones’s Dissent at 21 n.19, our approach is firmly

grounded in Supreme Court precedent and consistent with the AEDPA

standard of review. The alternative upon which the dissenting

opinions of Chief Judge Jones and Judge Owen rely to affirm the

state court’s denial of habeas relief in this case--that we scour

the trial record for evidence of treatability and substitute our

interpretation of the evidence for that of the jury’s--is not

merely incorrect, but is an unreasonable application of clearly

established federal law as announced by the Supreme Court. See

Tennard, 542 U.S. at 288-89; see also Smith, 543 U.S. at 38; Penry

II, 532 U.S. at 803; Penry I, 492 U.S. at 323; Skipper, 467 U.S. at

5.

This case is therefore different from the Supreme Court’s

recent decision in Brown v. Payton, 544 U.S. 133, 147 (2005), which

Judge Clement discusses in her dissenting opinion. In Payton, the

50

Supreme Court reversed the Ninth Circuit’s grant of habeas relief

to a death-row petitioner who challenged the constitutionality of

California’s “factor (k)” jury instruction, concluding that the

Ninth Circuit did not give proper deference to the state court’s

decision. Specifically, the Court held that “[i]t was not

unreasonable for the state court to determine that the jury most

likely believed that the evidence in mitigation, while within the

reach of the factor (k) instruction, was simply too insubstantial

to overcome the arguments for imposing the death penalty.” Id.

(emphasis added). In Payton, the state court held that the

mitigating evidence of the defendant’s religious conversion fell

within the reach of the catch-all instruction directing the jury to

consider “‘[a]ny other circumstance which extenuates the gravity of

the crime even though it is not a legal excuse for the crime,’”

although the prosecutor argued to the jury that it could not

consider this evidence. Payton, 544 U.S. at 137 (alteration in

original) (quoting Cal. Penal Code Ann. § 190.3 (West 1988)). In

reversing the Ninth Circuit’s determination that the state court

erred in denying habeas relief, the Supreme Court emphasized that

the state court’s holding was a reasonable interpretation of its

prior decision in Boyde, 494 U.S. 370, in which the Court upheld

the validity of the factor (k) instruction in similar

circumstances. See Payton, 544 U.S. at 144 (“As the California

Supreme Court recognized, like in Boyde, for the jury to have

51

believed it could not consider Payton’s mitigation evidence, it

would have had to believe that the penalty phase served virtually

no purpose at all.”). Accordingly, the Ninth Circuit had deviated

from the deferential AEDPA standard when it reversed the state

court’s determination.

Nevertheless, Judge Clement’s dissenting opinion, which relies

on Payton to conclude that this court should defer to the Texas

Court of Criminal Appeals’s denial of habeas relief, fails to

recognize that “[t]he [AEDPA] standard is demanding but not

insatiable; . . . ‘[d]eference does not by definition preclude

relief.’” Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 2325

(2005) (third alteration in original) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003)). In contrast to the

circumstances at issue in Payton, Nelson’s mitigating evidence

clearly has relevance beyond the issues of deliberateness and

future dangerousness under Penry I and its progeny. If the jury

concluded that Nelson was likely to be dangerous in the future

based on his mental disorder and abusive childhood, but also

concluded that this evidence rendered him less morally culpable, it

had no way to give effect to the mitigating aspect of that evidence

through the two special issues. See Smith, 543 U.S. at 38; Tennard,

542 U.S. at 288-89; Penry II, 532 U.S. at 803; Penry I, 492 U.S. at

323. Moreover, Tennard precludes a reviewing court from reweighing

the evidence presented at trial to determine whether the alleged

52

mitigating circumstance is treatable and therefore transient.

Tennard, 542 U.S. at 286-87. Thus, unlike the state court’s

determination in Payton, where the Supreme Court in Boyde had

previously held that the challenged California instruction was

broad enough to allow the jury to consider the impact of the

mitigating evidence on the defendant’s moral culpability, it was

unreasonable for the Texas Court of Criminal Appeals in this case

to conclude that Nelson’s mitigating evidence was within the reach

of the jury through the narrow special issues, given the law

clearly established by the Supreme Court in Penry I and its

progeny.

Finally, in support of its argument that evidence of a

potentially treatable mental disorder should be analyzed similarly

to the Court’s consideration of youth, the State relies on Fifth

Circuit case law that has erroneously interpreted Penry as

requiring that the mitigating evidence be given only “some effect.”

Specifically, it relies on this court’s opinion in Lucas v.

Johnson, 132 F.3d 1069 (5th Cir. 1998), in which the panel held

that the special issues gave constitutionally sufficient effect to

Lucas’s evidence of schizophrenia coupled with a troubled

upbringing. See id. at 1083 (“[The] prospect of medical treatment

placed the evidence of his mental illness and abusive childhood

within ‘the effective reach of the sentencer’ as a potential

mitigating factor with respect to the second issue, that is, the

53

jury could have considered whether, in an institutional setting,

the probability that Lucas posed as a future danger to society was

not so great as to merit imposition of the death sentence.”). In

reaching this conclusion, Lucas cited the Supreme Court’s decisions

in Johnson and Graham for the proposition that “Penry’s application

has since been limited to that narrow class of situations in which

the petitioner’s mitigating evidence was placed beyond the jury’s

effective reach,” and that the evidence in that case was within the

jury’s effective reach, because the jury could have given it

partial effect. Id. at 1082. As explained above, the Supreme Court

has clearly held that the standard is full effect. Thus, continued

reliance on the partial-effect methodology is erroneous, because

that standard fails to take into account, as Penry I and its

progeny require, a jury’s inability to give mitigating effect to a

defendant’s moral culpability via the future-dangerousness issue.

See Smith, 543 U.S. at 38; Tennard, 542 U.S. at 288-89; Penry II,

532 U.S. at 803; Penry I, 492 U.S. at 323. Moreover, and most

importantly, AEDPA requires us to determine whether the state court

unreasonably applied “clearly established federal law as announced

by the Supreme Court,” not by the Fifth Circuit. 28 U.S.C.

§ 2254(d)(1). Accordingly, to the extent that this court’s cases

have applied a less-than-full-effect standard to Penry claims in

the past, i.e., to the extent that past cases failed to account for

the jury’s ability to give effect to the impact of mitigating

54

evidence on a defendant’s moral culpability via the special issues,

those cases were based on an erroneous interpretation of Supreme

Court precedent. See Smith, 543 U.S. at 38 (holding that a

sentencing scheme that fails to “give full consideration and full

effect to mitigating circumstances in choosing the defendant’s

appropriate sentence” is “constitutionally inadequate” under Penry

I and its progeny) (internal quotation marks and citations

omitted).

3. Sufficiency of Nelson’s Mitigation Evidence

We also reject the argument that Nelson’s evidence of

borderline personality disorder is insufficient to warrant relief

based on Penry. The Supreme Court has recognized that

gravity has a place in the relevance analysis, insofar as

evidence of a trivial feature of the defendant’s

character or the circumstances of the crime is unlikely

to have any tendency to mitigate the defendant’s

culpability. See Skipper [v. South Carolina, 476 U.S. 1,]

7, n.2 (“We do not hold that all facets of the

defendant’s ability to adjust to prison life must be

treated as relevant and potentially mitigating. For

example, we have no quarrel with the statement . . . that

‘how often [the defendant] will take a shower’ is

irrelevant to the sentencing determination[.”).].

Tennard, 542 U.S. at 286-87. The Tennard Court was discussing

evidence that had no probative worth in the jury’s consideration of

a defendant’s moral culpability, not evidence that the jury may

choose to believe or disbelieve. In contrast, the strength of

Nelson’s evidence of borderline personality disorder and abusive

childhood “goes to the credibility of [Nelson’s] mitigation

55

evidence, which should be judged by the jury in answering effective

supplemental instructions addressing the mitigation evidence.” Blue

v. Cockrell, 298 F.3d 318, 322 (5th Cir. 2002), abrogated on other

grounds by Tennard, 542 U.S. 274. Further, any argument that this

court should dispose of Nelson’s Penry claim on grounds that the

evidence is insufficient endorses precisely the type of judicial

evidence-weighing that the Court in Tennard expressly warned

against:

[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. Rather, the question is simply whether the

evidence is of such a character that it “might serve ‘as

a basis for a sentence less than death,’” Skipper, [467

U.S.] at 5.

Tennard, 542 U.S. at 286-87. Nowhere does Tennard prescribe (or

even allow for) a balancing test that weighs the strength of the

mitigating evidence against that of the aggravating evidence. Such

reasoning runs afoul of the low relevance standard that the Court

emphasized in Tennard, i.e., any tendency to mitigate the

defendant’s culpability, and comes perilously close to applying a

heightened-relevance test similar to the one that the Court struck

down in Tennard. Accordingly, we also reject this argument.

4. Harmless Error

56

Finally, we reject the State’s argument that any Penry error

in this case is subject to harmless-error analysis under Brecht v.

Abrahamson, 507 U.S. 619, 622-23 (1993), which applies to error

that is “amenable to harmless-error analysis because it ‘may . . .

be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the trial].’”

Id. at 629 (omission and alteration in original) (quoting Arizona

v. Fulminante, 499 U.S. 279, 309 (1991)). The State advances this

harmless-error theory for the very first time on en banc rehearing

in a discussion that consumes less than a page of its brief; it did

not argue the applicability of harmless error before this court

during Nelson’s original habeas appeal, before the Supreme Court on

certiorari review, or before this court when we initially

reconsidered Nelson’s habeas appeal on remand in light of Tennard.

It was not until a concurring panel member in the most recent

Nelson panel opinion suggested that Brecht might be applicable that

the State argued harmless error in its en banc brief. The State’s

failure to argue this point prior to now is understandable because

the Supreme Court has never applied a harmless-error analysis to a

Penry claim or given any indication that harmless error might apply

in its long line of post-Furman cases addressing the jury’s ability

to give full effect to a capital defendant’s mitigating evidence.

See generally Tennard, 542 U.S. 274; Penry II, 532 U.S. 782; Penry

I, 492 U.S. 302; Eddings, 455 U.S. 104; Lockett, 438 U.S. 586.

57

Indeed, the Penry II Court applied the Brecht harmless-error test

to Penry’s claim that the prosecution’s use of a psychiatrist’s

report violated his Fifth Amendment rights, see Penry II, 532 U.S.

at 795. Conspicuously absent from the discussion regarding Penry’s

Eighth Amendment claim, however, is any mention of the harmless-

error test in either the majority or the dissenting opinions.

Implicit in the Court’s failure to apply harmless error in

cases where the jury has been precluded from giving effect to a

defendant’s mitigating evidence is the recognition that a Penry

error deprives the jury of a “vehicle for expressing its ‘reasoned

moral response to the defendant’s background, character, and

crime,’” which precludes it from making “‘a reliable determination

that death is the appropriate sentence.’” Penry II, 532 U.S. at 797

(quoting Penry I, 492 U.S. at 328, 319) (internal quotation marks

omitted) (emphasis added). This reasoned moral judgment that a jury

must make in determining whether death is the appropriate sentence

differs from those fact-bound judgments made in response to the

special issues. It also differs from those at issue in cases

involving defective jury instructions in which the Court has found

harmless-error review to be appropriate. Cf. Neder v. United

States, 527 U.S. 1, 8-15 (1991) (applying harmless-error review

where the jury instructions omitted an element of the offense,

reasoning that, given the evidence presented, the verdict would

have been the same had the jury been properly instructed); Johnson

58

v. United States, 520 U.S. 461, 468-69 (1997) (applying harmless-

error review where the jury instructions omitted the materiality

element of the perjury charge, noting that the error did not

warrant correction in light of the “overwhelming” and

“uncontroverted” evidence supporting materiality). Given that the

entire premise of the Penry line of cases rests on the possibility

that the jury’s reasoned moral response might have been different

from its answers to the special issues had it been able to fully

consider and give effect to the defendant’s mitigating evidence, it

would be wholly inappropriate for an appellate court, in effect, to

substitute its own moral judgment for the jury’s in these cases.

See Tennard, 542 U.S. at 286-87 (“[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 [to serve as a basis less than death] is incorrect.

Rather, the question is simply whether the evidence is of such a

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

death”’ (quoting Skipper, 467 U.S. at 5)); cf. Sullivan v.

Louisiana, 508 U.S. 275, 281 (1993) (refusing to apply harmless

error where the jury was improperly instructed on the burden of

proof at the guilt/innocence phase, noting that “the essential

connection to a ‘beyond a reasonable doubt’ factual finding cannot

be made where the instructional error consists of a misdescription

of the burden of proof, which vitiates all the jury’s findings. A

59

reviewing court can only engage in pure speculation–its view of

what a reasonable jury would have done. And when it does that, ‘the

wrong entity judge[s] the defendant guilty’” (quoting Rose v.

Clark, 478 U.S. 570, 578 (1986)).

Therefore, given the Supreme Court’s refusal to allow an

appellate court to substitute its own moral judgment for a moral

judgment that the jury was unable to make in a Penry case, we

decline to do so now.8

III. CONCLUSION

At the time that Nelson’s conviction became final, the Supreme

Court had clearly established that the relevant inquiry is whether

there was a reasonable likelihood that the jury would interpret the

Texas special issues in a manner that precluded it from fully

considering and giving full effect to all of the defendant’s

mitigating evidence. For the foregoing reasons, we conclude that

there is a reasonable likelihood that the jury was precluded from

giving full consideration and full effect to Nelson’s mitigating

evidence via the Texas special issues; therefore the state court’s

8

The State’s reliance on Calderon v. Coleman, 525 U.S. 141

(1998), in support of its argument that the Brecht harmless-error

test is applicable is misplaced. Coleman involved a jury

instruction that gave the jury inaccurate information on the

governor’s power to commute a sentence, which the lower court found

might have misled the jury and distracted it from the mitigating

evidence presented. Coleman is not at all comparable to cases

involving Penry violations, where the jury is precluded from giving

its reasoned moral response to the defendant’s mitigating evidence.

60

determination that the special issues were constitutional as

applied to Nelson’s case was unreasonable. Accordingly, we REVERSE

the district court’s denial of habeas relief and REMAND with

instructions to grant the writ of habeas corpus.

61

DENNIS, CIRCUIT JUDGE, CONCURRING IN THE JUDGMENT AND ASSIGNING

ADDITIONAL REASONS.

In this case we must decide whether petitioner, Billy Ray

Nelson, was sentenced to death in violation of the Eighth Amendment

because the jury was not instructed that it could consider and give

effect to his mitigating evidence by deciding between the death

penalty or a lesser sentence of life imprisonment. The three-judge

panel of this court concluded that Nelson’s death penalty must be

affirmed, but its members did not agree upon a majority rationale

or opinion. Chief Judge Jones issued an opinion concluding that the

pre-1991 Texas capital sentencing statute as applied to Nelson’s

mitigating evidence and case did not violate the Eighth Amendment

and affirming the district court’s judgment denying Nelson’s federal

habeas corpus petition. I filed an opinion concurring in that

result, concluding that, under the Supreme Court’s decisions in

Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”) and other cases,

because Nelson had introduced relevant mitigating evidence of

impairment by mental disease, childhood abuse, and chemical abuse

and dependency, the State’s use of the pre-1991 Texas statutory

scheme to sentence him to death violated his constitutional rights.

However, I concluded that under the harmless error test of Brecht

v. Abrahamson, 507 U.S. 619 (1993), the constitutional violation was

harmless error. Judge Stewart also concurred in the result, but he

did not join either opinion or assign reasons.

62

After rehearing the case en banc, the majority of this court

has now decided that the application of the pre-1991 Texas statutory

capital sentencing scheme to Nelson’s case violated the Eighth

Amendment and that this violation cannot be disregarded as harmless

error. I join fully in the majority’s conclusions and agree

substantially with its reasons. The majority’s analysis of Nelson’s

Penry I claim is similar to that set forth in my separate panel

opinions here and in other cases.1 Accordingly, I join the

majority’s decision and assign additional reasons hereafter.

On the harmless error issue, I acknowledge my mistake at the

panel level in undertaking a harmless error analysis of the

constitutional defect in this case. After considering the parties’

briefs and conducting my own additional research, I now see that (1)

the State waived its harmless error argument by not urging it prior

to this en banc rehearing and (2) the constitutional deficiency in

the capital sentencing mechanism as applied to this case was a

structural defect, not a mere constitutional trial error, and

1

See, e.g., Cole v. Dretke, 443 F.3d 441, 442-51 (5th Cir.

2006) (Dennis, J., dissenting); Nelson v. Dretke, 442 F.3d 282,

288-309 (5th Cir. 2006) (Dennis, J., concurring in the judgment);

Robertson v. Cockrell, 325 F.3d 243, 274-80 (5th Cir. 2003) (en

banc) (Dennis, J., dissenting); Tennard v. Cockrell, 284 F.3d 591,

597-604 (5th Cir. 2002) (Dennis, J., dissenting); Penry v. Johnson,

215 F.3d 504, 513-16 (5th Cir. 2000) (Dennis, J., dissenting). I am

grateful to my law clerks who worked with me on these opinions and

especially to three, Kevin Kneupper, Jelani Jefferson, and Bradley

Meissner, who helped in preparing this en banc concurring opinion.

63

therefore cannot be subjected to harmless error analysis.2 The

reasons for these conclusions are set forth in the final section of

this opinion.

1. The Eighth Amendment Requirement Of Individualized Sentencing

Obliges States, Including Texas, To Enable Capital Sentencers

To Select The Appropriate Penalty After Full Consideration Of

The Defendant’s Mitigation Evidence.

The Supreme Court’s recognition of the constitutional

requirements regarding individualized sentencing began in 1976, when

the Court issued a series of major decisions concerning the

constitutionality of the death penalty that altered the fundamentals

of the Court’s death penalty jurisprudence.3 These cases dealt with

death penalty statutes enacted by various states in response to the

Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972),

which had previously invalidated the death penalty. None of the

2

In my dissent from a previous decision, I reached the same

conclusion with respect to the Penry I violation in that case,

i.e., that it was a structural defect, not a trial error, and

therefore could not be subjected to harmless error analysis. See

Hernandez v. Johnson, 248 F.3d 344, 378-81 (5th Cir. 2001) (Dennis,

J., dissenting). Later, however, I became dissuaded of that view

by my imperfect understanding of the relationship between the

Supreme Court’s decisions in Johnson v. Texas, 509 U.S. 350 (1993),

Boyde v. California, 494 U.S. 370 (1990), Calderon v. Coleman, 525

U.S. 141 (1998), and the Court’s structural defect/harmless error

jurisprudence. After additional study and a better understanding of

these Supreme Court decisions, I have returned to my original view

that the type of constitutional violation here is a structural

defect, not a trial error. I have set forth the reasons for my

error and the need for its correction in the last section of this

opinion dealing with the harmless error question.

3

See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.

Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976);

Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v.

Louisiana, 428 U.S. 325 (1976).

64

five cases produced a majority opinion, but several major, enduring

principles nevertheless emerged from these cases. First, states

cannot make the imposition of the death penalty mandatory from any

class of crimes. See Woodson, 428 U.S. at 302-305; Roberts, 428

U.S. at 335-36; see also Sumner v. Shuman, 483 U.S. 66, 74 (1987).

Second, state death penalty statutes must limit and guide the

sentencer’s discretion to impose the death penalty in order to

prevent its arbitrary and capricious application. See, e.g.,

Johnson v. Texas, 509 U.S. 350, 360 (1993) (“In the five cases, the

controlling joint opinion of three Justices reaffirmed the principle

of Furman that ‘discretion must be suitably directed and limited so

as to minimize the risk of wholly arbitrary and capricious

action.’”) (quoting Gregg, 428 U.S. at 189). Third, the capital

sentencer must be allowed to consider and give effect to the unique

circumstances of the individual defendant and his particular crime

when determining the appropriate sentence. See, e.g., Shuman, 483

U.S. at 74 (“In the two cases striking down as unconstitutional

mandatory capital-sentencing statutes, the opinions stressed that

one of the fatal flaws in those sentencing procedures was their

failure to permit presentation of mitigating circumstances for the

consideration of the sentencing authority.”). These underlying

principles have continued to guide the Supreme Court’s death penalty

jurisprudence.

Prior to Penry I, and certainly before Nelson’s conviction

became final in 1994, the relevant Supreme Court decisions had

65

clearly established the Eighth Amendment requirement of

individualized sentencing in capital cases. See, e.g., McCleskey

v. Kemp, 481 U.S. 279, 303-04 (1987) (noting that “the Court has

imposed a number of requirements on the capital sentencing process

to ensure that capital sentencing decisions rest on the

individualized inquiry contemplated in Gregg” and stating that “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”); Zant v. Stephens, 462 U.S.

862, 879 (1983) (“What is important at the selection stage is an

individualized determination on the basis of the character of the

individual and the circumstances of the crime.”); Eddings v.

Oklahoma, 455 U.S. 104, 113-14 (1982) (holding that the capital

sentencer may not be prevented from considering any relevant

mitigating evidence presented by the defendant); Bell v. Ohio, 438

U.S. 637, 642 (1978) (plurality opinion) (same); Lockett v. Ohio,

438 U.S. 586, 604-05 (1978) (plurality opinion) (same). That is,

in order to constitutionally impose and carry out the death penalty,

a capital sentencer must at least be enabled (although it need not

be instructed) (1) to make an individualized assessment of the

defendant’s moral culpability and deathworthiness, based on a full

consideration of each defendant’s mitigating evidence, as well as

the character and record of the individual offender and the

circumstances of the particular offense; and (2) to give full effect

66

to that evidence by selecting the appropriate sentence, either life

imprisonment or death, according to each defendant’s level of moral

culpability and deathworthiness. See Cole, 443 F.3d at 443-44

(Dennis, J., dissenting); Nelson, 442 F.3d at 303-06 (Dennis, J.,

concurring in the judgment); Tennard, 284 F.3d at 599-601 (Dennis,

J., dissenting).

Nor is the Eighth Amendment’s concern with individual

culpability limited to the selection phase;4 rather, the principle

that capital punishment must be reserved for the most culpable

perpetrators of the most serious crimes “is implemented throughout

the capital sentencing process.” Roper v. Simmons, 543 U.S. 551,

568 (2005). Indeed, the imperative that only the most culpable

offenders be sentenced to death has also long animated the Court’s

decisions holding that certain classes of crimes and offenders are

categorically ineligible for the death penalty, including persons

under the age of 18 at the time of their crime, see id. at 569-75

(holding that reduced culpability of juveniles “demonstrate[s] that

juvenile offenders cannot with reliability be classified among the

worst offenders”); see also Thompson v. Oklahoma, 487 U.S. 815, 835,

836-38 (1988) (plurality opinion) (prohibiting imposition of death

4

In Tuilaepa v. California, 512 U.S. 967, 971-72 (1994), the

Court recognized that there were two phases of the capital

sentencing process: the “eligibility decision,” which serves to

narrow the class of defendants eligible for the death penalty, and

the “selection decision,” “where the sentencer determines whether

a defendant eligible for the death penalty should in fact receive

that sentence.”

67

penalty for persons under 16 at the time of their crime; “The

reasons why juveniles are not trusted with the privileges and

responsibilities of an adult also explain why their irresponsible

conduct is not as morally reprehensible as that of an adult.”); the

mentally retarded, see Atkins v. Virginia, 536 U.S. 304 (2002)

(“Their deficiencies do not warrant an exemption from criminal

sanctions, but diminish their personal culpability.”); persons

convicted of raping an adult woman, see Coker v. Georgia, 433 U.S.

584, 598 (1977) (“Rape is without doubt deserving of serious

punishment; but in terms of moral depravity and of the injury to the

person and to the public, it does not compare with murder, which

does involve the unjustified taking of human life.”); murderers

whose killings do not involve an elevated level of moral depravity

or any other aggravating circumstance, see Godfrey v. Georgia, 446

U.S. 420, 433 (1980) (plurality opinion) (reversing death sentence

where “[t]he petitioner’s crimes cannot be said to have reflected

a consciousness materially more ‘depraved’ than that of any person

guilty of murder”); and persons convicted of felony murder who lack

a sufficiently culpable mental state, see Enmund v. Florida, 458

U.S. 782, 798 (1982) (“Enmund[’s] . . . culpability is plainly

different from that of the robbers who killed; yet the State treated

them alike and attributed to Enmund the culpability of those who

68

killed the Kerseys. This was impermissible under the Eighth

Amendment.”).5

2. Penry I Recognized That The Eighth Amendment Requires A

Capital Sentencing Jury To Have The Ability To Both

Consider And Give Effect To All Relevant Mitigating

Evidence In Choosing A Sentence.

Given the pre-existing Eighth Amendment requirement that a

capital sentencer must have individualized sentencing capability,

it is not surprising that the Supreme Court in Penry I held that the

Texas sentencing scheme was unconstitutional as applied when the

Texas courts’ reading of the statute did not permit the jury as

sentencer to either assess the defendant’s culpability or select the

appropriate sentence. Consistent with the well established

individualized sentencing principles that it had held to be required

by the Eighth Amendment, the Supreme Court in Penry I held:

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 . . . .”

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 should

5

See also Tison v. Arizona, 481 U.S. 137, 156-57 (1987)

(clarifying scope of Enmund, and noting that “[a] critical facet of

the individualized determination of culpability required in capital

cases is the mental state with which the defendant commits the

crime”).

69

reflect a reasoned moral response to the defendant’s

background, character, and crime.”

Penry I, 492 U.S. at 319 (italics in original) (emphasis added)

(internal citations omitted). In Penry I, “[t]he State conceded at

oral argument . . . that if a juror concluded that Penry acted

deliberately and was likely to be dangerous in the future, but also

concluded that because of his mental retardation he was not

sufficiently culpable to deserve the death penalty, that juror would

be unable to give effect to that mitigating evidence under the

instructions given in this case.” Id. at 326. Consequently, the

Court held that “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 sentencing decision.” Id. at 328 (emphasis

added).

3. The Supreme Court Has Consistently Reaffirmed Penry I’s

Holding That A Capital Sentencing Jury Must Be Able To

Consider And Give Effect To All Relevant Mitigating

Evidence In Selecting A Sentence.

In its immediately following 1990 term, the Supreme Court

repeatedly reaffirmed and applied the holding of Penry I, i.e., that

the Eighth Amendment requires that the capital sentencer be able to

consider and give effect to all relevant mitigating evidence in

selecting and imposing the appropriate life or death sentence. See

70

Boyde v. California, 494 U.S. 370, 377-78 (1990) (“The Eighth

Amendment requires that the jury be able to consider and give effect

to all relevant mitigating evidence offered by petitioner.”)

(citing, inter alia, Penry I); McKoy v. North Carolina, 494 U.S.

433, 443 (1990) (“As the Court stated in [Penry I]: . . . . “‘[T]he

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.’ 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.”) (internal citation omitted); Saffle v. Parks, 494 U.S.

484, 491 (1990) (“In Penry, we held that resolution of a claim that

the Texas death penalty scheme prevented the jury from considering

and giving effect to certain types of mitigating evidence did not

involve the creation of a new rule under Teague. See Penry, 492 U.S.

at 315 []. To the extent that Penry’s claim was that the Texas

system prevented the jury from giving any mitigating effect to the

evidence of his mental retardation and abuse in childhood, the

decision that the claim did not require the creation of a new rule

is not surprising. Lockett and Eddings command that the State must

allow the jury to give effect to mitigating evidence in making the

sentencing decision; Penry’s contention was that Texas barred the

jury from so acting.”); Blystone v. Pennsylvania, 494 U.S. 299, 304-

71

05 (1990) (“Last Term, we elaborated on this principle, holding that

‘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.’ Penry v. Lynaugh, 492 U.S. 302, 328[]

(1989)”).

Through the 1990s, the Court continued to ratify the Penry I

requirement that the capital sentencing jury must able to consider

and give effect to the defendant’s relevant mitigating evidence in

selecting and imposing the appropriate sentence. See Payne v.

Tennessee, 501 U.S. 808, 822 (1991) (“We have held that a State

cannot preclude the sentencer from considering ‘any relevant

mitigating evidence’ that the defendant proffers in support of a

sentence less than death. . . . [V]irtually no limits are placed

on the relevant mitigating evidence a capital defendant may

introduce concerning his own circumstances . . . .”) (internal

citations omitted); Buchanan v. Angelone, 522 U.S. 269, 276 (1998)

(“In the selection phase, our cases have established that the

sentencer may not be precluded from considering, and may not refuse

to consider, any constitutionally relevant mitigating evidence.

[citing Penry I, Eddings, and Lockett]. . . . Our consistent

concern has been that restrictions on the jury’s sentencing

determination not preclude the jury from being able to give effect

to mitigating evidence.”).

In Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”), the

Supreme Court emphatically reaffirmed and applied the rule of Penry

72

I. The Court held that in Penry I it had “confirm[ed] that in a

capital case, ‘[t]he sentencer must . . . be able to consider and

give effect to [mitigating] evidence in imposing sentence,’ so that

‘‘the sentence imposed . . . reflec[ts] a reasoned moral response

to the defendant’s background, character, and crime.’’” Id. at 788

(quoting Penry I, 492 U.S. at 319) (alterations in original). The

Court in Penry II made clear that a Texas court violates the rule

of Penry I and the Eighth Amendment when it only allows the jury to

use relevant mitigating evidence to answer the special issues

without also allowing it to use such evidence to select the

appropriate life or death sentence. The Penry II Court explained

“the key under Penry I” as follows:

Penry I did not hold that the mere mention of “mitigating

circumstances” to a capital sentencing jury satisfies the

Eighth Amendment. Nor does it stand for the proposition

that it is constitutionally sufficient to inform the jury

that it may “consider” mitigating circumstances in

deciding the appropriate sentence. Rather, the key under

Penry I is that the jury be able to “consider and give

effect to [a defendant’s mitigating] evidence in imposing

sentence.” 492 U.S., at 319, 109 S.Ct. 2934 (emphasis

added). See also Johnson v. Texas, 509 U.S. 350, 381, 113

S.Ct. 2658, 125 L.Ed.2d 290 (1993) (O’CONNOR, J.,

dissenting) (“[A] sentencer [must] be allowed to give

full consideration and full effect to mitigating

circumstances” (emphasis in original)). For it is only

when the jury is given a “vehicle for expressing its

‘reasoned moral response’ to that evidence in rendering

its sentencing decision,” Penry I, 492 U.S., at 328, 109

S.Ct. 2934, that we can be sure that the jury “has

treated the defendant as a ‘uniquely individual human

bein[g]’ and has made a reliable determination that death

is the appropriate sentence,” id., at 319, 109 S.Ct. 2934

(quoting Woodson v. North Carolina, 428 U.S. 280, 304,

305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).

Penry II, 532 U.S. at 797.

73

Applying the rule of Penry I again, the Court in Penry II held

that the pre-1991 Texas capital sentencing scheme was

unconstitutional as applied in Penry’s second capital sentencing for

essentially the same reasons it was constitutionally defective the

first time. The state trial court had attempted to cure the

constitutional deficiency with an ad hoc supplemental instruction,

but that instruction did not pass muster under the rule of Penry I

because it did not clearly inform the jurors that they were legally

empowered to consider and give effect to Penry’s mitigating evidence

in selecting and imposing the appropriate life or death sentence.

As the Penry II court stated, repeating the words of Penry I: “‘[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 804 (quoting

Penry I, 492 U.S. at 326).

In 2004, the Supreme Court twice reaffirmed the rule of Penry

I in Texas death penalty cases. In Tennard v. Dretke, 542 U.S. 274

(2004), and Smith v. Texas, 543 U.S. 37 (2004), the Court confirmed

Penry I’s vitality and restated the rules governing its application.

Tennard and Smith made plain that the inquiry that this court must

undertake in a Penry case is simply to consider whether the

defendant’s evidence is relevant (i.e., whether it tends to prove

or disprove any fact that the sentencer might deem mitigating), and,

if so, determine whether the special issues inhibit the jury’s

ability to consider and give effect to that evidence. Tennard and

74

Smith also clearly instructed both this court and the Texas courts

to refrain from placing restrictive glosses on the Court’s

jurisprudence and creating unwarranted impediments to Penry claims.

In Tennard, the Court first summarized the rules of federal law

it had recognized in Penry I, that: (1) the pre-1991 Texas capital

sentencing scheme “provided a constitutionally inadequate vehicle

for jurors to consider and give effect to the mitigating evidence

of mental retardation and childhood abuse....” Tennard, 542 U.S. at

276; (2) “‘it is not enough simply to allow the defendant to present

mitigating evidence to the sentencer...’” but rather “‘[t]he

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

evidence in imposing sentence,’” id. at 278 (quoting Penry I, 492

U.S. at 319); (3) the “give effect to” language of Penry I was “the

key” to that decision, id. at 278; (4) the same two special issues

that were presented to Tennard’s jury were “insufficient for the

jury in Penry’s case to consider and give effect to Penry’s evidence

of mental retardation and childhood abuse,” id.; (5) Penry’s mental

retardation evidence “‘‘had relevance to [his] moral culpability

beyond the scope of the [deliberateness] special verdict

questio[n]’’ because ‘[p]ersonal culpability is not solely a

function of a defendant’s capacity to act ‘deliberately,’’” id. at

278-79 (quoting Penry I, 492 U.S. at 322) (alterations in original);

(6) Penry’s mental retardation evidence “was relevant to the future

dangerousness special issue ‘only as an aggravating factor,’” id.

75

at 279 (quoting Penry I, 492 U.S. at 323); and (7) “the two special

issues simply failed to ‘provide a vehicle for the jury to give [the

evidence of childhood abuse] mitigating effect.’” Id. (quoting

Penry I, 492 U.S. at 322-24).

The Tennard court next called upon us to comply with the rules

of federal law it had established concerning the introduction and

use by the sentencing body of a defendant’s mitigating evidence in

a capital case. It adduced its holding in McKoy that in capital

cases the “meaning of relevance is no different in the context of

mitigating evidence . . . 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.” Tennard, 542 U.S. at 284 (quoting McKoy, 494 U.S. at

440) (internal quotation marks omitted). Then, the Court in Tennard

recognized the effects of its previous holdings regarding the

relevance standard in capital cases. “Once this low threshold for

relevance is met, the ‘Eighth Amendment requires that the jury be

able to consider and give effect to’ a capital defendant’s

mitigating evidence.” Id. at 285 (quoting Boyde, 494 U.S. at

377-78).

Further, the Court commented on and quoted from its opinion in

Skipper v. South Carolina, 476 U.S. 1 (1986), regarding its rules

about the introduction and use of relevant mitigating evidence. “We

have never denied that gravity has a place in the relevance

76

analysis, insofar as evidence of a trivial feature of the

defendant’s character or the circumstances of the crime is unlikely

to have any tendency to mitigate the defendant’s culpability.”

Tennard, 542 U.S. at 286 (citing Skipper, 476 U.S. at 7 n.2).

“However, to 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. Rather,

the question is simply whether the evidence is of such a character

that it ‘might serve ‘as a basis for a sentence less than death.’’”

Id. at 287 (quoting Skipper, 476 U.S. at 5). The Tennard court also

held that the Fifth Circuit had erred in creating and applying its

own restrictive gloss—its “constitutional relevance” rule6—as a

threshold screening test to truncate its judicial review, rather

than applying the federal rules clearly established by the Court’s

decisions to the defendant’s mitigating evidence and Penry claim.

The Court disapproved of the “constitutional relevance” rule as

“ha[ving] no foundation in the decisions of this Court. Neither

Penry I nor its progeny screened mitigating evidence for

‘constitutional relevance’ before considering whether the jury

instructions comported with the Eighth Amendment.” Id. at 284.

6

Under the Fifth Circuit’s rule at that time, to be

constitutionally relevant, the defendant’s mitigating evidence had

to show (1) a uniquely severe permanent handicap with which the

defendant was burdened through no fault of his own, and (2) that

the defendant’s criminal act was attributable to that severe

condition.

77

Finally, the Tennard court held that evidence of impaired

intellectual functioning is obviously evidence under the clearly

established relevance standard that “‘might serve ‘as a basis for

a sentence less than death,’’” id. at 287 (quoting Skipper, 476 U.S.

at 5), and that “[t]he relationship between the special issues and

Tennard’s low IQ evidence has the same essential features as the

relationship between the special issues and Penry’s mental

retardation evidence. Impaired intellectual functioning has

mitigating dimension beyond the impact it has on the individual’s

ability to act deliberately.” Id. at 288 (citing Penry I, 492 U.S.

at 322).

Justice O’Connor wrote the opinion for a six-member majority

in Tennard, and was joined by Justices Stevens, Kennedy, Souter,

Ginsburg and Breyer.

Shortly after Tennard, in Smith, the Supreme Court reiterated

that the standard relevance test governs the admission and use of

mitigating evidence in capital cases. The Smith court also

reaffirmed the rule “that the jury must be given an effective

vehicle with which to weigh mitigating evidence so long as the

defendant has met a low threshold for relevance, which is satisfied

by evidence which tends logically to prove or disprove some fact or

circumstance which a fact-finder could reasonably deem to have

mitigating value.” Smith, 543 U.S. at 44 (quoting Tennard, 542 U.S.

at 284-85) (internal quotation marks omitted).

78

In Smith, the defendant had presented evidence that (1) he had

potentially organic learning disabilities and speech handicaps; (2)

he had a verbal IQ of 75, a full IQ of 78, and had been in special

education classes in school; (3) his behavior at school was often

exemplary, notwithstanding his low IQ and learning disabilities; (4)

his father was a drug addict and violent criminal who regularly

stole money from his family to support his drug addiction; and (5)

he was only 19 years old at the time of his crime. Id. at 41.

According to the Smith court, “[t]hat petitioner’s evidence was

relevant for mitigation purposes is plain under our precedents, even

those predating Tennard.” Id. at 45 (citing Penry I, 492 U.S. at

319-322, Payne, 501 U.S. at 822), Boyde, 494 U.S. at 377-78, and

Eddings, 455 U.S. at 114). Having found the evidence relevant, the

Court stated that “the Eighth Amendment required the trial court to

empower the jury with a vehicle capable of giving effect to that

evidence.” Id.; see also id. at 46 (noting that Penry II “held that

‘the key under Penry I is that the jury be able to ‘consider and

give effect to [a defendant’s mitigation] evidence in imposing

sentence’‘”) (quoting Penry II, 532 U.S. at 797).

Seven members of the Court joined the per curiam opinion in

Smith, including Chief Justice Rehnquist and Justices O’Connor,

Stevens, Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia,

joined by Justice Thomas, dissented, saying only that he would

affirm the judgment of the Texas Court of Criminal Appeals and

79

adhering to his longstanding position in Walton v. Arizona, 497 U.S.

639, 673 (1990) (Scalia, J., concurring in part and concurring in

the judgment), of not “vot[ing] to uphold an Eighth Amendment claim

that the sentencer’s discretion has been unlawfully restricted.”

See Smith, 543 U.S. at 49 (Scalia, J., dissenting).

Finally, in 2006, the Court again confirmed the Penry I rule

requiring that a capital sentencing jury be able to consider and

give effect to relevant mitigating evidence in the selection of the

appropriate life or death sentence. See Oregon v. Guzek, 126 S. Ct.

1226, 1228 (2006) (“The Eighth Amendment insists upon ‘‘reliability

in the determination that death is the appropriate punishment in a

specific case.’’ The Eighth Amendment also insists that a

sentencing jury be able ‘to consider and give effect to mitigating

evidence’ about the defendant’s ‘character or record or the

circumstances of the offense.’”) (quoting Penry I, 492 U.S at

327-328) (internal citations omitted).

In sum, the Supreme Court has continued to reaffirm and apply

the Penry I rule in many cases since its inception in 1989, has

recognized its application to cases involving such relevant

mitigating evidence as impaired intellectual function, low IQ,

troubled and abusive childhood, participation in special education

classes, and mental retardation, and has developed numerous

auxiliary jurisprudential rules in support of the application of the

Penry I rule.

80

4. The Court’s Cases Demonstrate That Johnson Does Not

Change or Limit The Penry I Rule; It Merely Establishes

Auxiliary Principles Relating To Its Application.

Contrary to the argument by the State and my dissenting

colleagues, the Supreme Court in Johnson did not change or limit the

Penry I rule that the Eighth Amendment requires that a capital

sentencing jury must be able to give full consideration and effect

to all of a defendant’s relevant mitigating evidence in imposing the

appropriate life or death sentence. In Johnson, the Court merely

recognized three auxiliary principles for implementing the Penry I

rule: (1) Because of the unique manner in which youth mitigation

evidence aligns the inquiry into future dangerousness with an

assessment of culpability or deathworthiness, a defendant’s relevant

mitigating evidence of youth may be given full consideration and

effect by the jury’s answer to the future dangerousness special

issue; (2) In order to determine whether a Penry violation occurred,

a reviewing court must ask whether there is a reasonable likelihood

that the jury has applied the special issues in a way that prevents

it from giving full consideration and effect to any relevant

mitigating evidence; and (3) the state may shape and structure the

jury’s consideration so long as it does not preclude the jury from

giving effect to any relevant mitigating evidence, because, as the

Court subsequently explained, “[o]ur consistent concern has been

that restrictions on the jury’s sentencing determination not

preclude the jury from being able to give effect to mitigating

evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998).

81

That Johnson established these auxiliary principles and did not

change or limit the rule of Penry I itself was most clearly

demonstrated by the Court’s decision in Buchanan. In that case, the

Court held that the state trial court’s refusal to give instructions

on the concept of mitigation and on particular statutorily defined

mitigating factors did not violate the Eighth and Fourteenth

Amendments. Id. at 276-78. The Court explained that the defendant,

in arguing to the contrary, misunderstood the significant

distinction it had drawn between the two phases of the capital

sentencing process: the eligibility phase, in which the jury narrows

the class of defendants eligible for the death penalty, and the

selection phase, with which Buchanan was concerned, in which the

jury determines whether to impose a death sentence on an eligible

defendant. Id. at 275-76 (citing Tuilaepa v. California, 512 U.S.

967, 971-972 (1994)). In explaining the eligibility and selection

phases, the Court again ratified the Penry I rule and described the

principles that had been generated by Johnson in terms that indicate

the Court views them as supporting, rather than limiting, rules:

In the eligibility phase, the jury narrows the class of

defendants eligible for the death penalty, often through

consideration of aggravating circumstances. In the

selection phase, the jury determines whether to impose a

death sentence on an eligible defendant. . . .

. . . . It is in regard to the eligibility phase that we

have stressed the need for channeling and limiting the

jury’s discretion to ensure that the death penalty is a

proportionate punishment and therefore not arbitrary or

capricious in its imposition. In contrast, in the

selection phase, we have emphasized the need for a broad

inquiry into all relevant mitigating evidence to allow an

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individualized determination. Tuilaepa, supra, at

971-973, 114 S.Ct., at 2634-2636; Romano v. Oklahoma, 512

U.S. 1, 6-7, 114 S.Ct. 2004, 2008-2009, 129 L.Ed.2d 1

(1994); McCleskey v. Kemp, 481 U.S. 279, 304-306, 107

S.Ct. 1756, 1773-1775, 95 L.Ed.2d 262 (1987); Stephens,

supra, at 878-879, 103 S.Ct., at 2743-2744. . . .

In the selection phase, our cases have established that

the sentencer may not be precluded from considering, and

may not refuse to consider, any constitutionally relevant

mitigating evidence. Penry v. Lynaugh, 492 U.S. 302,

317-318, 109 S.Ct. 2934, 2946-2947, 106 L.Ed.2d 256

(1989); Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102

S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio,

438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d

973 (1978). However, the state may shape and structure

the jury’s consideration of mitigation so long as it does

not preclude the jury from giving effect to any relevant

mitigating evidence. Johnson v. Texas, 509 U.S. 350, 362,

113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993); Penry,

supra, at 326, 109 S.Ct., at 2951; Franklin v. Lynaugh,

487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155

(1988). Our consistent concern has been that restrictions

on the jury’s sentencing determination not preclude the

jury from being able to give effect to mitigating

evidence.

Id. at 275-76 (emphasis added).

Thus, as the Buchanan Court read Penry I together with Johnson,

Tuilaepa, Romano and other cases, the rule of Penry I is not limited

by Johnson at all. Instead, the Penry I holding that the Eighth

Amendment requires that a capital sentencing jury be able to

consider fully and give effect to the defendant’s relevant

mitigating evidence by selecting the appropriate sentence stands

unlimited and unscathed by Johnson. Johnson, as read by Buchanan,

merely establishes precedent for application of the Boyde test and

adds that a State may shape and structure mitigation consideration

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so long as it does not prevent the sentencer from giving effect to

the mitigating evidence.

Moreover, as pointed out earlier, since Johnson was decided,

the Court in Penry II, Tennard, and Smith repeatedly reaffirmed the

rule and holding of Penry I as Justice O’Connor described it, first,

in Penry I itself, next, in her dissent in Johnson, again in the

six-member majority of Penry II, and finally in Tennard. In her

Johnson dissent, Justice O’Connor stated:

[In Penry I],we plainly held that the Texas special

issues violated the Eighth Amendment to the extent they

prevented the jury from giving full consideration and

effect to a defendant’s relevant mitigating evidence.

Penry was in no way limited to evidence that is only

aggravating under the “future dangerousness” issue. We

stated there that “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.” That we meant “full effect” is

evident from the remainder of our discussion. We first

determined that Penry’s evidence of mental retardation

and his abused childhood was relevant to the question

whether he acted deliberately under the first special

issue. But having some relevance to an issue was not

sufficient, and the problem was not, as the Court today

suggests, simply that no jury instruction defined the

term “deliberately.” Instead, we noted that the jury must

be able to give effect to the evidence as it related to

Penry’s “[p]ersonal culpability,” which “is not solely a

function of a defendant’s capacity to act

‘deliberately.’” 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.” That is, the evidence had relevance beyond

the scope of the first issue.

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Johnson, 509 U.S. at 385-86 (O’Connor, J., dissenting) (alteration

in original) (internal citations omitted).

Significantly, too, Justice Kennedy, Johnson’s author, joined

the six member majorities in Penry II and Tennard, and the seven

member majority in Smith. Further, Tennard and Smith made clear

that the rule of Penry I applies to all categories of mitigating

evidence that are relevant to the assessment of a defendant’s

diminished culpability or that might cause a jury through its

reasoned moral response to select life imprisonment rather than a

death sentence for the defendant. These decisions, along with

Buchanan, have resoundingly ratified and continued to uphold Justice

O’Connor’s view as expressed in Penry I that the Eighth Amendment

requires that a capital sentencing jury be able to fully consider

defendant’s relevant mitigating evidence by using that evidence to

assess his moral culpability and to give full effect to that

evidence by selecting the appropriate life or death sentence for him

in that case.

Also, as the Court has made clear in Buchanan, Tennard, Smith,

and other cases, the State’s ability to shape and structure the

capital sentencer’s consideration of mitigation evidence may not be

used to “preclude the jury from giving effect to any relevant

mitigating evidence” by selecting the appropriate sentence for the

offender in each case. Buchanan, 522 U.S. at 276. The Court

emphasized its continued disapproval of the use of the Texas special

issues to in any way “constrain” the jury’s ability to give effect

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to mitigation evidence by selecting the appropriate sentence. In

comparing the Virginia sentencing system involved in Buchanan with

the Texas system used in Penry I, the Court stated:

The instruction informed the jurors that if they found

the aggravating factor proved beyond a reasonable doubt

then they “may fix” the penalty at death, but directed

that if they believed that all the evidence justified a

lesser sentence then they “shall” impose a life sentence.

The jury was thus allowed to impose a life sentence even

if it found the aggravating factor proved. Moreover, in

contrast to the Texas special issues scheme in question

in Penry, the instructions here did not constrain the

manner in which the jury was able to give effect to

mitigation.

Id. at 277 (internal citation and footnote omitted).

Furthermore, as described earlier, the Court in Tennard and

Smith emphatically held that state and inferior federal courts may

not through judicial glosses or otherwise create ad hoc or common

law type threshold or screening rules that cut short appellate

review of death penalty cases and thus indirectly have the effect

of approving and encouraging constraints upon the manner in which

the capital sentencing juries are able to give full effect to

relevant mitigating evidence in the selection of the appropriate

death or life imprisonment sentence in individual cases.

The reaffirmation of Penry I’s rule that the capital sentencing

jury be able to give both full consideration and full effect to

relevant mitigating evidence, moreover, necessitates realigning the

Boyde test analogue for application to the present case in which,

allegedly, the capital sentencer was incapable of either

appropriately considering or giving effect to the defendant’s

86

mitigating evidence for the purposes of individualized sentencing.

Due to the marked differences between the Texas sentencing system

in the present case and the California system in Boyde, the Boyde

rule cannot be applied in precisely the same way to the alleged dual

error in the present case.

In Boyde, although the jury was instructed that it must impose

the death penalty if it found the aggravating circumstances to

outweigh the mitigating circumstances and a life imprisonment

sentence if it found vice versa, the jurors retained a great deal

of discretion in that they could decide what weight to assign the

aggravating and mitigating factors and they were fully enabled to

make the ultimate choice of whether to impose or withhold the death

penalty. Thus, the California system in Boyde was markedly

different from the pre-1991 Texas system under which the jury was

not legally authorized to choose between life and death sentences

in any case. In Boyde, the defendant argued that although the jury

retained significant sentencing discretion, his constitutional

rights were violated because the jury was given an instruction that

could have misled it into thinking it was not free to consider his

mitigating evidence of background and character in deciding whether

to impose the death penalty. Near the beginning of the Supreme Court

opinion, Chief Justice Rehnquist reaffirmed the rule of Penry I:

“The Eighth Amendment requires that the jury be able to consider and

give effect to all relevant mitigating evidence offered by

petitioner.” Boyde, 494 U.S. at 378. However, after that point the

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Boyde opinion does not refer to the “give effect” part of the rule

as it was not genuinely at issue, the only real question being

whether the allegedly ambiguous jury instruction had prevented the

jury from “be[ing] able to consider . . . all relevant mitigating

evidence.” Id. The Court decided that the rule to be applied to

such an alleged ambiguous jury instruction would be the “reasonable

likelihood” test and, upon applying that test, concluded that there

was no reasonable likelihood that Boyde’s jury had been precluded

from considering the relevant background and character mitigation

evidence. As Chief Justice Rehnquist explained:

In this case we are presented with a single jury

instruction. The instruction is not concededly

erroneous, nor found so by a court, as was the case in

Stromberg v. Cailfornia, 283 U.S. 359, 51 S.Ct. 532, 75

L.Ed. 1117 (1931). The claim is that the 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. Although a defendant need not establish that

the jury was more likely than not to have been

impermissibly inhibited by the instruction, a capital

sentencing proceeding is not inconsistent with the Eighth

Amendment if there is only a possibility of such an

inhibition. This “reasonable likelihood” standard, we

think, better accommodates the concerns of finality and

accuracy than does a standard which makes the inquiry

dependent on how a single hypothetical “reasonable” juror

could or might have interpreted the instruction.

Id. at 380.

Because the capital sentencing jury in the present case, like the

jury in Penry I, was not free or able to choose a life imprisonment

sentence for Nelson, the alleged constitutional deficiency here

88

affected the jury’s ability to both “consider and give effect” to

Nelson’s relevant mitigating evidence; it is not merely an alleged

ambiguous jury instruction that could have affected only their

understanding of the types of mitigating evidence that they could

consider. Indeed, as I explain in the last section of this opinion,

the constitutional deficiency here is a structural defect which

affected the entire capital sentencing proceeding and cannot be

analyzed for harmless error, i.e., the alleged binary defect is (1)

the total absence of the jury’s ability to consider the mitigating

evidence for purposes of assessing Nelson’s moral culpability or

deathworthiness; and (2) the total absence of the jury’s ability to

give the evidence effect by selecting the sentence it deems

appropriate based on that assessment. Accordingly, if the Boyde

test is to be applied by analogy in the present case, it must be

adjusted to properly and completely fit both elements of the alleged

constitutional violation here. Because, unlike the situation in

Boyde, there is a serious question here whether the jury was

precluded from giving effect to Nelson’s mitigating evidence, the

proper inquiry here should be whether there is a reasonable

likelihood that the jury was prevented from considering Nelson’s

mitigation evidence to assess his culpability or giving effect to

that evidence by selecting the appropriate sentence.

Because of the unique nature of the youth mitigation evidence

at issue in Johnson, the Court there apparently considered that only

an alleged failure in the jury’s ability to consider the evidence

89

was at issue. The Court in Johnson must have concluded that the

jury was fully capable of giving effect to the mitigating evidence

by selecting the sentence if the jury instruction had not precluded

them from giving it full consideration. Thus, the situations posing

only unitary errors in both Boyde and Johnson were quite similar in

this respect despite other differences in the two sentencing

systems. Consequently, there was no need for the Court to consider

further reshaping the Boyde test analogue that it derived from its

Boyde decision. For all of these reasons, the Johnson Court’s use

of a Boyde test analogue capable of testing only for a preclusion

of the jury’s ability to consider the evidence should not prevent

courts from reshaping the analogue test to make it suitable for

detecting a preclusion of both the jury’s ability to consider and

to give effect to relevant mitigating evidence.

Considering all of the foregoing reasons, I conclude that the

Court’s decisions subsequent to Johnson demonstrate that neither it

nor any other decision has been read as limiting or changing the

constitutional requirements and principles established in Penry I.

5. Texas’ Pre-1991 Capital Sentencing Scheme Provided a

Constitutionally Inadequate Vehicle for Jurors to Consider and

Give Effect to the Mitigating Evidence that Nelson Presented.

As I explained above, by the time Nelson’s conviction became

final in 1994, the relevant Supreme Court cases had clearly

established that in order to constitutionally impose and carry out

the death penalty, a capital sentencer must be enabled: (1) to make

an individualized assessment of each defendant’s moral culpability

90

and deathworthiness and (2) to give full effect to that evidence by

selecting between either life imprisonment or death as the

appropriate sentence.

In this case, Nelson presented evidence during the punishment

phase of his trial that (1) he was rejected by his mother; (2) he

abused drugs and alcohol; (3) he had troubled relationships with his

brother and with women; (4) he had fathered a child, with whom he

was not allowed to have a relationship; and (5) he suffered from

borderline personality disorder. The state courts held that all of

Nelson’s evidence could be adequately considered within the

“deliberateness” and “future dangerousness” special issues.

It is abundantly clear that there is more than a reasonable

likelihood that the jury was not permitted to fully consider and

give effect to Nelson’s mitigating evidence, as the “deliberateness”

and “future dangerousness” special issues did not permit the jury

to consider how that evidence affected their assessment of Nelson’s

moral culpability or to agree upon whether the death penalty or life

imprisonment was the appropriate sentence in his case. There can

be no question that Nelson’s mitigating evidence, particularly his

evidence of a frequently disorienting borderline personality

disorder, a medically recognized mental illness,7 implicates his

7

Nelson’s expert psychiatric witness, Dr. Hickman, testified

that his borderline personality disorder caused him to experience

sudden, violent outbursts of emotion that clouded his judgment. See

See Nelson v. Dretke, 442 F.3d 282, 310-11 (5th Cir. 2006) (Dennis,

J., concurring in the judgment) (describing testimony about

Nelson’s psychological condition in detail). The fourth

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deathworthiness and his moral culpability. Nelson’s troubled

background and mental disorder make him less morally culpable

independently of the issues of whether he acted deliberately or

would be a future danger. But “because the jury was only called

upon to answer two relatively simple yes or no questions, there is

no reason to suppose that it could or would consider the evidence

for the complex purpose of assessing the comparative level of

Nelson’s culpability.” Nelson, 442 F.3d at 306 (Dennis, J.,

concurring in the judgment). Accordingly, for the reasons set forth

in my concurring panel opinion, I agree with the en banc majority

that a Penry violation occurred in this case and that the state

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