Appendix — Penry v. Johnson

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APPENDIX A

DECISION OF THE UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

For the Fifth Circuit U.S. COURT OF APPEALS

FILED

JUN 2 0 2000

No. 99-20868

CHARLES R. FULBRUGE if!

“ JOHNNY PAUL PENRY

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent -Appellee.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Penry filed a motion for a certificate of appealability

(COA)in this § 2254 capital habeas proceeding, alleging various

constitutional violations. For the reasons that follow, we deny

his motion.

Penry was convicted of capital murder and sentenced to death

in Texas state court for the rape and wiatne of Pamela Carpenter.

Penry raped Carpenter and stabbed k-r with a pair of sciss~~s. He

had met her several weeks earlier while helping to install

CLERK

appliances in her home. Penry matched the description Carpenter

gave of her attacker before she died. After being given his

Miranda warnings, Penry gave an oral confession and later a signed

confession to the rape and murder. At trial, Penry offered

mitigating evidence that he was mentally retarded and abused as a

child. He was convicted and sentenced to death. The United States

Supreme Court granted federal habeas relief and vacated his

sentence, holding that Penry’s rights were violated by jury

instructions the trial court gave at the punishment phase of his

trial.* The court found that none of the three special statutory

questions provided to the jury, under Texas law, allowed the jury

to give effect to Penry’s mitigating evidence. “The jury was never

instructed that it could consider the evidence offered by Penry as

mitigating evidence and that it could give mitigating effect to

that evidence.” Penry I, 492 U.S. at 320; 109 S.Ct. at 2947.

In the second trial. the trial court followed the Texas

statutory scheme and gave the jury the same three special questions

it had given the jury in the first trial. However, the judge also

provided supplemental instructions directing the jury to consider

any other relevant mitigating evidence and explained how to give

effect to that evidence. Penry was again convicted of capital

murder and sentenced to death. The sentence was again affirmed on

'Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) (*Penry 1”).

direct appeal’? and state habeas relief was denied. The district

court also denied Penry’s application for a COA. Penry now seeks

a COA from this court. We granted Penry’s motion for a stay of

execution, in order to consider his motion for a COA.

II.

A COA may only issue if the petitioner makes a “substantial

showing of the denial of a constitutional right .”* This burden can

be met if the issues presented “are debatable among jurists of

reason; ..a court could resolve the issues in a different manner; or

.the questions are adequate to deserve encouragement to proceed

further.”*

A death sentence alone does not justify the automatic issuance

of a COA, although it is a proper consideration.*® Any doubts as to

whether the COA should issue are to be resolved in the petitioner's

favor.‘

Penry’s petition was filed after the enactment of the

Antiterrorism and Effective Death Penalty Act (AEDPA). Thus, for

questions of law or mixed questions of law and fact adjudicated on

the merits in state court, we may grant federal habeas relief under

*Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995).

*28 U.S.C. § 2253(c) (2); Slack v. McDaniel, 120 S.Ct. 1595, 1603 (2000);

United States v. Kimler, 150 F.3d 429, 431 (5 Cir. 1998).

“Miller v. Johnson,200 F.3d 274, 280 (5™ Cir. 2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4@ (1983)); Hicks v.

Johnson, 186 F.3d 634, 636 (S™ Cir. 1999), cert denied 120 S.Ct. 976 (2000); see

also Slack, 120 S.Ct. at 1603-4 (quoting Barefoot-v. Estelle, 463 U.S. 880, 893

and n. 4, 103 S.Ct. 3383).

‘Lamb v. Johnson, 179 F.3d 352, 356 (s** cir. 1999), cert denied 120 S.Ct.

522 (1999).

*rd.

28 U.S.C. § 2254(d)(1) only if the state court decision “was

contrary to, or involved an unreasonable application of, clearly

established [Supreme Court precedent].”’ A state court decision is

“contrary to” Supreme Court precedent if: (1) the state court’s

conclusion is “opposite to that reached by [the Supreme Court] on

a question of law” or (2) the “state court confronts facts that are

materially indistinguishable from a relevant Supreme Court

precedent” and arrives at an opposite result. Williams v. Taylor,

2000 WL 385369, at *23 (U.S. Apr. 18, 2000). A state court

unreasonably applies Supreme Court precedent if: (1) it

unreasonably applies the correct legal rule to the facts of a

particular case or (2) it “unreasonably extends a legal principle

from [Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new

context where it should apply.” Id. at: *25. In deciding whether

a state court’s application was unreasonable, this court considers

whether the application was “objectively unreasonable.” Id. at

*26. We now turn to Penry’s specific arguments on appeal.

III.

Penry first argues that the jury instructions given during the

punishment phase of his trial did not allow the jury to consider

and give effect to mitigating evidence regarding his alleged mental

retardation and severe child abuse; thus, the instructions violated

"See Miller, 200 F.3d at 280-81.

the Supreme Court’s directive in Penry v. Lynaugh,’ (“Penry I”).

Penry explains that jurors could only give effect to his mitigating

evidence, as the Supreme Court required in Penry I, and grant him

a life sentence if they found that the evidence fit under one of

the three special questions required by Texas law.” In Penry I,

Penry’s federal habeas challenge to his first trial and conviction,

the Supreme Court found that, under the trial court’s instruction,

none of the three special statutory questions allowed the jury to

give effect to Penry’s mitigating evidence. At Penry’s retrial,

however, the trial court supplemented the instruction it gave in

Penry I. The court instructed the jury to consider any mitigating

circumstances supported by the evidence. The instruction stated,

in part:

(W)hen you deliberate on the questions posed in

the special issues, you are to consider

mitigating circumstances, if any, supported by the

evidence... A mitigating circumstance may include,

but is not limited to, any aspect of the defendant’s

character and record or circumstances of the crime

which you believe could make a death sentence

inappropriate in this case. If you find.any

mitigating circumstances..you must decide how much

weight they deserve, if any, and.give effect and

consideration to them in assessing the defendant’s

personal culpability at the time you answer the

"492 U.S. 302, 109 S.Ct. 2934 (1989).

"The three questions were: 1. Was the conduct of the defendant that

caused the death of the deceased committed deliberately and with the reasonable

expectation that the death of the deceased or another would result? 2. Is

there a probability that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society? 3. Was the conduct of the

defendant in killing the deceased unreasonable in response to the pr« vocation,

if any, by the deceased? Since Penry, the statute has been revised to add a

fourth question concerning mitigation.

special issue. If 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 the

personal culpability of the defendant, a negative

finding should be given to one of the special issues.

Penry correctly contends that the instruction still required

the jury to give a negative answer to one of the three special

issues in order for Penry to receive a life sentence. Penry argues

that because childhood abuse and mental retardation do not

necessarily fit within the scope of any of the special issues,

this instruction did not allow the jury to give effect to these

mitigating circumstances. However, on direct appeal, the Texas

Court of Criminal Appeals found that the instruction satisfied the

requirements of Penry I, and allowed the jury to give effect to

those mitigating circumstances.*®

We agree with the district court that the Texas Court of

Criminal Appeals’ holding that the challenged instruction was

constitutional was not an umreasonable application of clearly

established law, namely Penry I. The instruction directed the jury

to consider and give effect to any mitigating circumstances

supported by the evidence by answering “no” to one of the special

issues if they felt a life sentence was appropriate. This

instruction satisfied the deficiency in the trial court’s

“penry v. State, 903 S.W.2d 715, 765 (Tex. Crim. App. 1995).

disbeussten identified in Penry I: “(t]he jury was never

instructed that it could consider the evidence offered by Penry as

mitigating evidence and that it could give mitigating effect to

that evidence in imposing sentence.”*

We are not writing on a clean slate on this issue. This court

approved identical jury instructions on this point in Miller™ and

Emery v. Johnson.*» In Miller, we concluded that the defendant

failed to show that the same instructions given by the trial court

in this case violated Penry I. We rejected the argument that the

jury was prevented from considering the mitigating evidence.*

“Miller’s jury, unlike Penry’s, was instructed that it should

consider mitigating evidence when deliberating on the special

issues....{It]) was instructed that if it determined when giving

effect to the mitigating evidence, if any, that a life sentence

rather than a death sentence was an appropriate response to

Miller’s personal culpability, a negative finding should be given

to the special issue under consideration.”*

In the alternative, Penry argues that the jury charge was a

“nullification instruction” and was therefore unconstitutional

insofar as it instructed jurors to violate their oaths by rendering

an untruthful answer to one of the special issues if they wished to

“penry,492 U.S. at 320, 109 S.Ct. “at 2947.

2200 F.3d 274.

139 F.3d 191 (S™ Cir. 1997), cert denied 119 S.Ct. 418 (1998).

#200 F.3d at 290.

. , 200 F.3d at 290.

eee ee

give effect to the mitigating evidence presented in this case. We

disagree. The jury was not told to disregard the law; rather, it

was instructed on how to obey the law, as explained by the Supreme

Court in Penry I.

Iv.

Next, Penry argues that the admission of certain psychiatric

testimony and evidence offered by the state at trial violated his

Fifth and Sixth Amendment rights.

Penry’s Fifth Amendment challenge involves three categories of

psychiatric testimony and evidence presented by the state: 1. the

testimony of Dr. Fason admitted during the guilt/innocence phase of

trial; 2. the testimony of Dr. Quijano admitted during the

punishment phase of trial; and 3. the report of Dr. Peebles

describing a court-ordered examination of Penry, which was admitted

at the punishment phase of trial.

Penry’s primary challenge is to the testimony of Dr. Fason.

Penry contends that Fason’s testimony was based on his court-

ordered competency examination of Penry, and that the state’s use

of the testimony to argue future dangerousness during the

punishment phase violated Penry’s rights under Estelle v. Smith.”

451 U.S. 454, 101 S.Ct. 1866 (1981). Estelle held that the defendant’s

Fifth Amendment right against compelled self-incrimination was violated because

he was not told that any statements made during his competency exam could be used

More particularly, Penry argues that his Fifth Amendment privilege

against compelled self-incrimination was violated because he was

not advised before Dr. Fason’s examination of his right to remain

silent and that his statements could be used against him at the

sentencing proceeding.

On direct appeal, the Texas Court of Criminal Appeals found

that Dr. Fason’s testimony fell within the Buchanan v. Kentucky”’

exception to Estelle. Under Buchanan, if a defendant presents

psychiatric evidence, then the prosecution may present rebuttal

psychiatric evidence without violating the Fifth Amendment.

Penry contends that, as applied to this case, proper rebuttal

evidence under Buchanan is limited to evidence tending to prove

that Penry is not mentally retarded, and that the state’s evidence

went beyond that scope. After a careful review of the record, we

find that Fason’s testimony did fall within the Buchanan exception.

At the guilt/innocence phase of trial, Penry offered various

psychological records, including reports of his performance on a

number of psychological and IQ tests. The records also included

observations of his emotional status and social behavior. As

demonstrated by the closing argument of Penry’s attorney, one

reason these records were introduced was to lay a predicate for an

argument that Penry’s confessions were not truly voluntary because

against him at the punishment phase on the issue of future dangerousn. ss.

7483 U.S. 402, 107 S.Ct. 2906 (1987).

Penry is mentally retarded and thus submissive to authority

figures. The evidence was also offered to support Penry’s argument

that his mental retardation made him less likely to act with the

intent required for capital murder.

Dr. Fason’s testimony was introduced to rebut these arguments.

Fason testified that Penry had an antisocial personality disorder.

He explained how that condition could affect Penry’s IQ scores, and

that it was possible that Penry was not mentally retarded. Also,

he testified that someone with an antisocial personality disorder

would usually not be easily led by others and would likely

disrespect and rebel against authority. Fason did not discuss any

statements made by Penry during Fason’s examination, except whether

Penry was able to identify his attorney at the interview. We

disagree with Penry’s characterization of Fason’s testimony as a

“sham rebuttal” by the state in order to introduce to the jury the

idea that Penry was a “psychopath.” Penry’s defense centered

around his diminished capacity -- his alleged mental retardation at

the time of the offense -- and the idea that his mental status

rendered his confessions involuntary. Therefore, we conclude that

the Court of Criminal Appeals’ determination that Fason’s testimony

was proper rebuttal under Buchanan is neither contrary to nor an

unreasonable application of clearly established federal law.”

“See Vardas v. Estelle, 715 F.2d 206, 209-10 (5 Cir. 1983) (finding no

violation of defendant’s rifth Amendment privilege because state psychiatrists’

testimony was proper as rebuttal to defendant's insanity defense; psychiatrists

10 ,

In addition to his challenge to Dr. Fason’s guilt phase

testimony, Penry also challenges the court’s admission, at the

guntehaeen phase, of the testimony of Dr. Quijano and the report of

Dr. Peebles as violating Estelle.

At the punishment phase, Penry called various relatives and

neighbors who testified that they believed Penry was mentally

retarded and abused as a child. He also called Dr. Randall Price,

who had reviewed certain portions of Penry’s medical records, and

had also administered various psychological tests to Penry. Dr.

Price concluded that Penry had a brain impairment and was mentally

retarded, and that the mental retardation could have influenced his

involvement in criminal activity. Although he admitted that Penry

had an antisocial history, he stated that Penry “looks more like

people with brain damage...than those with antisocial personality.”

In rebuttal, the state called Doctors Quijano and Samenow and

introduced into evidence a number of Penry’s mental health records.

Dr. Quijano conducted a court-ordered competency examination of

Penry. He testified that Penry had an antisocial personality

disorder which made him more likely to be violent in the future.

However, he testified that he based his opinion only on Penry’s

medical records including evaluations by others, and not on his own

examination of Penry. Thus, the Texas Court of Criminal Appeals

testified that defendant was not insane, but instead was a sociopath.).

found no Fifth Amendment violation. This finding was not contrary

to nor an unreasonable application of clearly established federal

law.’

The report of Dr. Peebles was admitted into evidence during

the punishment phase, and was based on Dr. Peebles’ 1977

examination of Penry prior to his trial on an unrelated rape

charge. The report determined that Penry would be dangerous in the

future if released. At the time of Dr. Peebles’ examination, Penry

was not yet in custody on the instant capital charge, and thus

could not have been warned about the potential use of his

statements at the punishment phase of the capital trial. The Texas

Court of Criminal Appeals found no Fifth Amendment violation

because Penry’s attorney had requested the examination; thus, Dr.

Peebles was acting as an agent of the defense, not of the state, in

conducting his examination.*®° We cannot say that the court’s

conclusion was unreasonable or contrary to Supreme Court

see Williams v. Lynaugh, 809 F.2d 1063, 1068 (S™ Cir. 1987) (finding no

factual basis for Fifth Amendment violation where state psychologist’s testimony

on future dangerousness was not based on his interview with the defendant.) See

also Hughes v. Johnson, 191 F.3d 607, 616-17 (S™ Cir. 1999) (finding reasonable

a state court’s conclusion that psychiatrist's testimony did not violate Estelle,

despite his having conducted a prior improper interview, because it did not

influence his testimony; also rejecting idea that “taint” of prior improper

interview created absolute bar to any expression of opinion by that

psychiatrist); cf. Flores v. Johnson, 2000 WL 426212, at *1, * 7 - *13 (5™ Cir.

April 20, 2000) (Emilio M. Garza, J., specially concurring) (following but

questioning Supreme Court authority allowing psychiatric testimony on future

dangerousness deduced without examining the defendant).

*°penry, 903 S.W.2d. at 759-60; see Nelson v. State, 848 S.W.2d 126, 135

(Tex. Crim. App. 1992); Estelle, 451 U.S. at 467-68, 101 S.Ct. at 1875-76 (noting

that the defendant there did not initiate the examination and was not faced with

a person acting solely in his interest).

sansetua.*

Penry also argues that his Sixth Amendment right to effective

assistance of counsel was violated by the use of testimony on

future dangerousness from Doctors Quijano and Fason because Penry

and his counsel were told that their examinations of him were

solely for the purpose of determining competency. Under Powell v.

Texas, “once a capital defendant is formally charged, the Sixth

Amendment right to counsel precludes such an examination without

first notifying counsel that ‘the psychiatric examination [will]

encompass the issue of their client’s future dangerousness.’”” The

Texas Court of Criminal Appeals concluded that Penry’s attorney was

“on notice that if he intended to put on a ‘mental status’ defense,

he would have to anticipate the use of psychological evidence by

the prosecution in rebuttal.””? At a pretrial hearing, the trial

court expressly warned Penry’s counsel that the testimony of

Doctors Fason and Quijano might be admissible at trial if the

7*See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18

(1987) (finding that “if a defendant requests (the psychiatric] evaluation or

presents psychiatric evidence...the prosecution may rebut this presentation with

evidence from the reports of the examination that the defendant requested. The

defendant would have no Fifth Amendment privilege against the introduction of

this psychiatric testimony by the prosecution.”). (Emphasis added); see also

Schneider _v. Lynaugh, 835 F.2d 570, 577 (5™ Cir. 1988) (finding that, under

Buchanan, the fact that defendant requested the competency examination militated

against the defendant’s assertion of the Fifth Amendment privilege, particularly

when defendant had also introduced psychological evidence.) .

72492 U.S. 680, 681, 109 S.Ct. 3146, 3148 (1989) (quoting Estelle, 451 U.S.

at 471, 101 S.Ct. at 1877).

penry, 903 S.W.2d at 758.

defense put on psychiatric evidence.** At trial, Penry argued that

he was mentally retarded; thus his confessions were involuntary.

He also argued that mental retardation could have been a

contributing cause of Penry’s violent criminal acts and that his

mental retardation mitigated against the imposition of the death

penalty. The state was entitled to rebut this evidence by offering

psychiatric evidence that some condition other than mental

retardation was a more sound explanation for Penry’s conduct.

Thus, the Court of Criminal Appeals’ findings are not contrary to,

nor an unreasonable application of, clearly established federal

law.

Vv.

Penry next contends that his execution would violate the

Eighth Amendment, based on his alleged mental retardation and

severe child abuse. First, Penry makes a general argument that

execution of the mentally retarded is a per se violation of the

Eighth Amendment. We agree with the district court that this claim

is procedurally barred because Penry did not make the argument in

state court. However, even if this claim was not procedurally

barred, it has been rejected by the Supreme Court .*5

Penry also argues that the death penalty would be cruel and

741d. at 759, n. 46.

*SSee Andrews v. Collins, 21 F.3d 612, 632 (S™ Cir. 1994), cert. denied 513

U.S. 1114, 115 S.Ct. 908 (1995) (citing Penry v. Lynaugh, 492 U.S. 302, 109 $.ct.

2934 (1989)).

unusual as applied to him personally, because of his mental

retardation and severe childhood abuse. This argument also fails.

On Penry’s direct appeal, the Texas Court of Criminal Appeals

(citing Penry I) concluded that constitutional requirements were

met because the jury was able to consider and give effect to

Penry’s mitigating evidence before determining that the death

sentence was appropriate.** In Penry’s second trial, he presented

extensive mitigating evidence and the jury was instructed to

consider that evidence and told how to give it effect. More

significantly, although Penry was the individual before the Supreme

Court in Penry I, the Court did not suggest that his execution

would be unconstitutional based on his mental retardation or

childhood abuse. The Texas Court of Criminal Appeals’ conclusion

that Penry’s execution would not violate the Eighth Amendment was

neither contrary to nor an unreasonable application of clearly

established Supreme Court precedent.

vi.

Penry makes several other arguments in support of his motion.

He contends that: 1. the trial court violated his rights under

Simmons _v. South Carolina®” by excluding his signed statement

waiving any right to parole, while allowing the state to argue

future dangerousness; 2. his confessions were taken involuntarily

*penry, 903 S.W.2d at 766-67.

27612 U.S. 154, 114 S.Ct. 2187 (1994).

in violation of the Fifth Amendment; and 3. the jury instructions

at his competency trial were unconstitutionally vague because they

did mot define the toons “reasonable,” “rational,” and

“understanding.” We find all of these arguments to be

unpersuasive, essentially for the reasons given by the district

court in its thorough opinion of March 29, 1999.

VII.

For the reasons stated above, we deny Penry’s motion for a

certificate of appealability. We also vacate the stay of execution

previously entered by this court.

Dennis, J., Gusnting:

In Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I’), the Supreme Court held 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.” Jd.

at 319. Accordingly, the jury must be “instructed that it could consider the evidence offered by

Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing.

sentence.” Jd. at 320. The Court agreed with Penry “that his mitigating evidence of mental

retardation and childhood abuse has relevance to his moral culpability beyond the scope of the

special issues, and that the jury was unable to express its ‘reasoned moral response’ to that evidence

in determining whether death was the appropriate punishment.” Jd. at 322.

Moreover, in Penry J, the Court stated that in the absence of a special jury instruction

“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...a juror who believed that Penry’s

retardation and background diminished his moral culpability and made imposition of the death

penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that

Penry committed the crime ‘deliberately.’” Jd. at 323. Likewise, the Court observed, the mitigating

evidence concerning Penry’s mental retardation, which indicated his inability to learn from his

mistakes, was relevant to the second issue only as an aggravating factor because it suggests a “yes”

answer to the question of future dangerousness. Jd. at 323. Consequently, the Court concluded, the

second special issue “did not provide a vehicle for the jury to give mitigating effect to Penry’s

evidence of mental retardation and childhood abuse.” Jd. at 324. With respect to the third special

issue, the Court stated, a juror who found that Penry’s mental retardation and arrested emotional

development rendered him less culpable for his crime than a normal adult would not necessarily

conclude that Penry’s conduct was reasonable in response to the provocation, if any, by the deceased.

“Thus”, the Court reasoned, “a juror who believed Penry lacked the moral culpability to be sentenced

to death could not express that view in answering the third special issue if she also concluded that

Penry’s action was not a reasonable response to provocation.” /d. at 324-25.

In light of the prosecutor’s —_— to the jurors that, under their oath to follow the law,

they must follow the instructions they were given in answering the special issues, the Court

concluded that, “in the absence of appropriate jury instructions, 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.” Jd. at 326.

In Penry I, the State of Texas conceded at oral argument before the Supreme Court that ifa

juror concluded that Penry acted deliberately and was likely to be dangerous in the future, but also

concluded that because ofhis 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 the case. See id. at 326. Finally, the Court held that “[{iJn this case, in the absence of

instructions informing the jury that it could consider and give effect to the mitigating evidence of

Penry’s mental retardation and abused background by declining to impose the death penalty, we

conclude that the jury was not provided with a vehicle for expressing its ‘reasoned moral response’

to that evidence in rendering its sentencing decision.” /d. at 328.

Justice Scalia, in his concurring and dissenting opinion in Penry /, criticized the majority’s

holding as follows:

In providing for juries to consider all mitigating circumstances insofar as they bear

upon (1) deliberateness, (2) future dangerousness, and (3) provocation, it seems to

me Texas had adopted a rational scheme that meets the two concerns of our Eighth

Amendment jurisprudence. The Court today demands that it be replaced, however,

with a scheme that simply dumps before the jury all sympathetic factors bearing upon

the defendant's background and character, and the circumstances of the offense, so

that the jury may decide without further guidance whether he “lacked the moral

culpability to be sentenced to death,” ante, at 2950, “did not deserve to be sentenced

to death,” ante, at 2951, or “was not sufficiently culpable to deserve the death

penalty," ibid. The Court seeks to dignify this by calling it a process that calls for

a “reasoned moral response,” ante, at 2949, 2951--but reason has nothing to do with

it, the Court having eliminated the structure that required reason. It is an unguided,

emotional "moral response” that the Court demands be allowed--an outpouring of

personal reaction to all the circumstances of a defendant's life and personality, an

unfocused sympathy.

Id. at 359-60 (Scalia, J., concurring in part and dissenting in part).

The sentencing scheme and instructions adopted by Texas in Penry’s second trial, the subject

of the present case, do not satisfy the constitutional requirements described in Penry J. The jury was

not clearly and directly instructed that it could consider and give effect to the mitigating evidence

of Penry’s mental retardation, organic brain damage and abused background as a whole and beyond

the scope of the special issues by declining to impose the death penalty. Texas did not replace its

sentencing scheme with one which puts “before the jury all sympathetic factors bearing upon the

defendant’s background arid character, and the circumstances of the offense, so that the jury may

decide without further guidance whether he ‘lacked the moral culpability to be sentenced to

death{.]’” Jd. at 360 (Scalia, J., concurring in part and dissenting in part). Instead, in the present

case, the jury was instructed: “If you find that there are any mitigating circumstances in this case,

you must decide how much weight they deserve, if any, and therefore, give effect and consideration

to them in assessing the defendant's personal culpability at the time you answer the special issue.

If 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 the personal culpability of the defendant, a negative finding should be given

to one of the special issues.” These instructions require the jury to consider and use only mitigating _

evidence — to the special issues, and permit the jury to decline to impose the death penalty

only if that relevant mitigating evidence would cause the jury to change a “yes” answer to a “no.”

Therefore, the sentencing scheme used in Penry’s second trial is subject to the same flaws pointed

out by Penry I. It does not permit the jury to give effect to the mitigating evidence of retardation and

abuse as a whole and beyond the scope of the special issues by declining to impose the death penalty

despite its findings of “yes” to the three special issues questions. The jury’s consideration of the

mitigating evidence of mental retardation, organic brain damage and extensive child abuse is still

shackled and confined within the scope of the three special issues. Therefore, the trial court failed

to comply with the dictates of the Supreme Court and again deprived the jury of the ability to give

full and complete effect to Penry’s mitigating evidence of mental retardation, brain damage and child

abuse.

The Supreme Court in Penry / held that the jury was not adequately instructed to take into

consideration all of Penry’s mitigating evidence and that the terms in the Texas special issues were

not defined in such a way that the jury could consider and give effect to all of his mitigating evidence

in answering them. When the Court reversed and remanded for these reasons, the district court and

this court became bound by the mandate rule. The mandate rule is not, strictly speaking, merely a

matter of law of the case. See United States v. Wells, 519 U.S. 482, 488 n.4 (1997). On remand,

the district court and the court of appeals owe obedience to the mandate of the Supreme Court and

must carry it into effect. See Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427-28 (1978) (once

case is remanded, circuit court is bound by decree); MOORE’S FEDERAL PRACTICE 3D § 134.23{1){a].

Subsequently, the Supreme Court distinguished its holding from Penry / in cases involving

other types of mitigating evidence. See Johnson v. Texas, 509 U.S. 350, 369 (1993) (“The evidence

of petitioner’s youth, however, falls outside Penry’s ambit. Unlike 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.”); Graham v. Collins, 506 U.S. 461, 475-76 (1993) (“The

jury was not forbidden to accept the suggestion of Graham's lawyers that his brief spasm of criminal

activity in May 1981 was properly viewed, in light of his youth, his background, and his character,

as an aberration that was not likely to be repeated. Even if Graham's evidence, like Penry’s, had

significance beyond the scope of the first special issue, it is apparent that Graham’s evidence —

unlike Penry’s — had mitigating relevance to the second special issue concerning his likely future

dangerousness. Whereas Penry’s evidence compelled an affirmative answer to that inquiry, despite

its mitigating significance, Graham's evidence quite readily could have supported a negative

answer.””). Accordingly, we are still bound by the mandate and the holding of Penry / and must carry

them into effect now in the present case.

Moreover, there is no circuit precedent which prevents this panel from owing obedience to

the mandate and holding of Penry J. In our prior decisions, Penry / was not applicable because the

proffered evidence either was not constitutionally mitigating evidence’ or was not beyond the scope

of the special issues or beyond the effective reach of the jurors,’ or because the claim was

procedurally barred.’

In Graham v. Collins, 950 F.2d 1009 (5" Cir. 1992) (en banc), this court explained that Penry

'See Madden v. Collins, 18 F.3d 304, 398 (5* Cir. 1994) (citing Graham v. Collins, 950 F.2d

1009, 1029 (5* Cir. 1992) (en banc)).

*See Graham v. Collins, 950 F.2d 1009, 1029 (5* Cir. 1992) (en banc); Miller v. Johnson,

200 F.3d 274, 289-90 (5* Cir. 2000).

*See Emery v. Johnson, 139 F.3d 191, 199-200 (5* Cir. 1997).

I presented a “wholly different type of mitigating evidence. Net-evidence of good character, but of

bad character; not evidence of potential for rehabilitation, but of its absence; not evidence of a

transitory condition, but of a permanent one; but nonetheless evidence which was strongly mitigating

becouse these characteristics were due to the uniquely severe permanent handicaps with which the

defendant was burdened through no fault of his own, mental retardation, organic brain damage and

an abused childhood. There was no way this type of evidence could be given any mitigating force

under the second special issue.” Jd. at 1029. This court in Graham observed that “Penry can fairly

be read as precluding use of the Texas statutory scheme in any such situation. But, Penry can also

fairly be read as addressing only a situation where some major mitigating thrust of the evidence is

substantially beyond the scope of any of the [special] issues.” /d. at 1027. Consequently, the use

of the Texas statutory scheme was precluded in Penry’s situation and this panel has a duty to carry

into effect the mandate and holding of Penry J. For these reasons, I would grant Penry’s application

for a COA.

I would also grant a certificate of appealability to consider the alleged violations of Penry’s

5” and 6" Amendment rights. I share the concerns articulated by Judge Emilio M. Garza’s special

concurrence in Flores v. Johnson, 210 F.3d 456, 458-70 (5 Cir. 2000) (Judge Emilio M. Garza,

specially concurring) and believe that Penry has made a substantial showing that the cumulative

effect and reinforcement of the prohibited use of the Texas statutory scheme by the erroneous

admission of the psychiatric testimony further violated his constitutional rights.

APPENDIX B

DECISION OF THE UNITED STATES DISTRICT COURT

CLERK, ::. 3. i

SOUTHEKN th 4 <XaS

tee l E UNITED STATES DISTRICT COURT SoUrmenN Dstaicr OF Texas

ad perurh Jie OR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION MAR 30 1999

JOHNNY PAUL PENRY, § MC HAL N, MTV. Clon,

Petitioner, §

VS. § CIVIL ACTION NO. H-97-4094

GARY L. JOHNSON, §

Director, Texas Department of §

Criminal Justice, Institutional Division, §

Respondent. §

TABLE OF CONTENTS

I. Procedural History.....-.—-......................... 2

ll. Factual Background: The Record of Penryland Penryfl .................... 6

Il. The Applicable Legal Standards

PP ree er ee eT OPT ETT ETT eT eT Ter eT 14

A. The Antiterrorism and Effective Death Penalty Act... 14

B. Procedural Default and Procedural Bar hake aes 16

IV. The Jury Instructions on Mitigating Evidence(Claim!) .................... 20

V. The Eighth Amendment and an Emerging National Consensus (Claims [I and III)

PETE TE COTTE Tee EEE CT OTT E TT OPT TT REET TT CTT TT ITU 27

A. The “Categorical” Challenge to the Death Sentence (Claim III) _. 29

B. The Particularized Challenge to the Death Sentence (Claim I)

PESO OTC E Pee Te EPO EE EC CPTET TE ECLET CT UTR TTL 36

Cc The Combination of ClaimsUlanditil............ 39

VI. The Simmons Claim (Claim IV)

(ound als ob a de wad ee ek b0 eed hone 6 ibeneteesebesmeds 41

A. The Prosecution’s Argument ......... 6. es 44

B. The Trial Court’s Instructions 3.5... ce 44

\lee

33 «G57

Vil.

XI.

Xi.

XI.

The Estelle v. Smith Claim (Claim V)

A. The Psychiatric Testimony and the Prosecution’s Argument

Dr. Fason’s Testimony.........................49

Dr. Quijano’s Testimony .__.

3. Dr. Samenow’s Testimony and Dr. Peebles’ Report . 52

The Prosecutor’s Use of Dr. Peebles’ Report in Closing

DS ¢s<Videus wierd vawktetestsibonvceees 53

B. The Findings and Conclusions of the State Court... 54

Cc. Harmless Error Analysis............... 2.2... cece eee 56

The Exclusion of Evidence of Shirley Penry’s Mental [iness (Claim VT)

PT ee ee ee ane ho Pe eR a EEL ASR ee Pe ry 61

The State’s Failure to Administer Penry’s Anti-Psychotic Medicine (Claim VII)

A. The Brady Claim Cal aed aakadscknneebk eu twe aes 69

B. The Giglio Claim "9 eet 74

Cc. The Riggins Claim =ssi(‘( (t(;«;#t#tw#t#tt

Penry’s Claim That His Execution After Eighteen Years on Death Row Would Violate

the Eighth Amendment (Claim VII) ............ 2.20 ene 78

Penry’s Claims Regarding His Confessions (Claim IX)

| nice te ahaa ereae wh' ses 82

A. Respondent’s Procedural Arguments Lani taeih paink ewe 83

B. The Factual Background ............. 06 ee, .. 86

Cc. The Voluntariness and Waiver Claim ....................... 93

D. The Claims Relating to the Jury Instructions _................. 98

The Claim Based on the Denial of the Motion to Change Venue for the Retrial (Claim

‘i alee Cae eet Us a Adie ae AKT Oke che wuss ae tahoe hadadenais 100

A. Pretrial Publicity and Presumed Prejudice .................. 102

B. Voir Dire Rebuttal of Presumed Prejudice .................. 111

The Prosecution’s Definition of “Mitigating” During the Voir Dire (Claim XI) . 122

B. Inclusion of a “No Sympathy” Instruction ..................

XV. The Challenge to the Competency Trial (Claim XIII)

A. The Failure to Define Terms in the Jury Charge ........

B. The Failure to Clarify the Effect of a Finding of Incompetence

Cc. Failure to Change the Venue of the Competency Tria!l.........

XVI. The Trial Court’s Admission of Evidence Containing Hearsay (Claim XIV)

A. SE den ketaen eel steers See bbwete nbn anew

B. ne ee aay

Cc. ae a) eh eo cad eue es ekee et

XVIII. Certificate of Appealability ...................

A ere re

141

Se)

Pal

MEMORANDUM AND ORDER

Petitioner, Johnny Paul Penry, seeks a federal wnt of habeas corpus under

28 U.S.C. § 2254 vacating his state capital murder conviction and death sentence.

(Docket Entry No. 18). Respondent, Gary L. Johnson, Director, Texas Department of

Cnmuinal Justice—Institutional Division, has answered and moved for summary

judgment. (Docket Entry No. 20). Penry has replied to respondent’s motion for

summary judgment; moved to strike respondent’s motion for summary judgment; and

cross-moved for summary judgment on several of his claims for relief. (Docket Entry

Nos. 27 and 28).

Based on a careful review of the petition, the motions, the reply, the state

court records, and the applicable law, this court GRANTS respondent’s motion for

summary judgment; DENIES Penry’s motion to strike respondent’s motion for

summary judgment; and DENIES Penry’s cross-motion for summary judgment. Based

on these rulings, this court lifts the stay of execution, denies the petition for wnt of

habeas corpus, addresses the issuance of a certificate of appealability, and dismisses

this case.

The reasons for these rulings are set out in detail below.

99318 1622 P CASES PENR Y\97-4094 ¢1 | l

I. Procedural History

On November 7, 1979, the State of Texas indicted Penry for the capital

murder of Pamela Carpenter. (Trans. Vol. I ,p. 1).' In 1980, after a transfer of venue

on defendant’s motion, and following a competency hearing, a jury tried Penry,

convicted him of capital murder, and sentenced him to death. The Texas Court of

Criminal Appeals affirmed Penry’s conviction and sentence on direct appeal. Penry

v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985), cert. denied sub nom., Penry v.

Texas, 106 S. Ct. 834 (1986). The Court of Criminal Appeals denied Penry’s

application for state habeas relief on May 5, 1986. The Eastern District of Texas and

the Fifth Circuit denied Penry’s federal petition for a writ of habeas corpus. Penry v.

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

In 1989, the United States Supreme Court granted Penry’s petition for

habeas relief, ruling that the jury instructions in the sentencing phase of his tnal did not

allow the jury to consider and give effect to the mitigating evidence of Penry’s mental

retardation and history of childhood abuse. Penry v. Lynaugh, 109 S. Ct. 2934 (1989)

: The state court records of Penry’s 1990 retrial consist of a five-volume transcript of

pretrial motions, court orders, and other pleadings, cited as “Trans. Vol. __, p. ___”, a fifty-two

volume Statement of Facts, including hearings on pretrial motions, the suppression hearing, the

competency hearing, the change of venue hearing, jury voir dire, the guilt/innocence proceedings, the

sentencing proceedings, and the hearing on Penry’s motion for new trial, cited as “S.F. Vol. — P.

”, and a four-volume transcript of the state habeas proceedings, citedas“S.H. Vol. ,p.__.

The parties have also submitted the Statement of Facts from Penry’s 1980 suppression hearing and

his 1980 trial.

99318 1622 P CASESWENR Y\97-4094 e! | 2

(“Penry!”’). The Supreme Court held that the sentencing instructions deprived the jury

of a “vehicle for-expressing its ‘reasoned moral response’”’ to the mitigating evidence

Penry presented. /d. at 2952. Concluding that the sentence imposed did not result

from the individualized determination required by “the fundamental respect for

humanity underlying the Eighth Amendment,” the Supreme Court vacated the

conviction and sentence and remanded the case. /d. at 2945 (quoting Woodson v.

North Carolina, 96 S. Ct. 2978, 2991 (1976)).

After a second competency hearing, the State of Texas retried Penry for

capital murder (“Penry II”)? The jury found Penry guilty of capital murder on July 9,

1990, and sentenced him to death on July 17, 1990. The Texas Court of Cnminal

Appeals affirmed Penry’s conviction and sentence on direct appeal. Penry v. State,

903 S.W.2d 715 (Tex. Crim. App.), cert. denied sub nom., Penry v. Texas, 116 S. Ct.

480 (1995). On October 17, 1996, Penry filed an application for state habeas relief.

On July 3, 1997, the state district court held an evidentiary hearing on three of Penry’s

claims. On September 23, 1997, the state district court denied Penry’s habeas

The case was remanded to Trinity County, Texas, the location of Penry’s first trial.

The trial judge changed venue to Polk County, Texas, where Penry’s indictment had issued. The trial

court granted Penry’s motion for a change from that venue, moving the trial to Walker County,

Texas, but denied a subsequent motion to change venue. Penry’s second trial took place in Walker

County.

99318 1622 P CASES PENRY\97-4094 1! 3

952

application. On December 3, 1997, the Texas Court of Criminal Appeals denied the

habeas application, adopting the district court’s recommendation.

On December 9, 1997, the state district court scheduled Penry’s execution

for May 13, 1998. On March 2, 1998, Penry filed a federal petition for wnt of habeas

corpus in this court. Penry asserts the following claims for relief:

Il.

III.

IV.

VI.

99318 1622 P \CASESWENR Y\97-4094 ii

The trial court failed to give the jury a vehicle

for considering mitigating evidence concerning

Penry’s childhood abuse and mental

retardation.

Penry’s execution would violate his right to be

free from cruel and unusual punishment

because Penry is mentally retarded.

Penry’s execution would violate the Eighth

Amendment because there currently exists a

national consensus against the execution of the

mentally retarded.

The trial court violated Simmons v. South

Carolina by refusing to admit Penry’s

evidence regarding the unlikelihood of parole

yet permitting the prosecutor to argue Penry’s

future dangerousness.

The tnal court violated Penry’s rights under

Estelle v. Smith by admitting evidence derived

from involuntary psychiatric examinations.

The tral court violated Penry’s constitutional

rights by excluding evidence of Penry’s

mother’s mental illness.

$51

VIL.

VIII.

IX.

XI.

XII.”

XII.

XIV.

XV.

99318 1622 P CASESWENR Y\97-4094 e1!

The State violated Penry’s constitutional nghts

by failing to admunister his anti-psychotic

medication during the competency hearing and

by failing to correct inaccurate testimony

regarding the nature and purpose of the

medication.

Penry’s execution after eighteen years on death

row would violate his constitutional nghts

under the Eighth Amendment.

Penry’s Miranda rights were violated,

rendering his confessions illegal and

improperly admitted at trial.

The tnal court violated Penry’s rights under

the Sixth and Fourteenth Amendments by

refusing to change venue from Walker County.

Penry’s constitutional nghts were violated by

the prosecution’s misstatement of the law

during voir dire.

The trial court’s jury charge during the

punishment stage violated Penry’s

constitutional nights.

Penry’s competency hearing was

constitutionally inadequate.

The trial court’s admission of irrelevant

hearsay evidence violated Penry’s Fifth and

Sixth Amendment nghts.

Texas’s clemency procedures violate Penry’s

substantive and due process nghts under the

Fourteenth Amendment and, therefore, violate

Penry’s nghts under the Eighth Amendment.

On Apni 20, 1998, this court granted Penry’s motion for a stay of his

execution for the limited purpose of permitting full consideration of Penry’s claims.

Each of Penry’s claims is addressed below.

Il. Factual Background: The Record of Penry I and Penry Il

On October 25, 1979, Pamela Carpenter telephoned a friend, Cynthia

Peters, and told her friend that she had been raped and stabbed.’ Peters drove to

Carpenter’s house in Livingston, Texas and found Carpenter, still alive, lying on a bed

in her bedroom. Peters called the police.

Officer E.G. Paige of the Livingston Police Department arnved at

Carpenter’s house and talked to her. Carpenter did not know the identity of her

attacker, but gave a description of a white male with black, curly hair, cut over the ears;

slender and short; wearing a “reddish plaid shirt” with a “flowery design” and blue

jeans. (S.F. Vol. 42, p. 174). Officer Paige noticed a pair of scissors and a pocketknife

on the floor in front of Carpenter’s bed.

Carpenter was taken to the hospital, where she again descnbed the

attacker in similar terms. Carpenter also stated that she did not know the attacker

. The factual background, largely undisputed, is drawn from the prosecution's case-in-

chief during the guilt/innocence phase of Penry II.

9918 1622 P CASESWENR Y\97-4094 ¢1| 6

949

personally but had “seen him in the area.” (S.F. Vol. 43, p. 264). Carpenter died at

the hospital a short tume later.

Billy Ray Nelson, a Polk County deputy shenff, had heard a police radio

report of the attack and a descnption of the attacker. Nelson thought the descnption

matched Penry, whom he knew. Nelson drove to Penry’s father’s house in Livingston,

Texas. Penry answered the door, wearing blue jeans without a shirt. Nelson told Penry

bnefly about the attack on Carpenter and asked Penry to come with him to the police

station. Penry put on a shirt and Nelson drove him to the Livingston police station in

the police car.

When Penry got out of the car at the station, Nelson and another officer

in the car noticed blood soaking through the back of Penry’s shirt. The officers asked

Penry about the blood. Penry took off his shirt and showed the officers two puncture

wounds below his nght shoulder. Penry told the officers that he had received the

wounds that morning when he had fallen off his bicycle and landed on a stick. Penry’s

shirt did not have holes in it, but Penry told the officers that the shirt he had been

wearing when he was injured was at his father’s house.

The officers obtained Penry’s consent to search his father’s house for the

shirt and drove Penry back to the house. Penry entered the house, located the shirt, and

gave it and an undershurt to the officers. The shirt and undershirt were later determined

99318 1622 P CASESWENR Y197-4094 ei | 7

$45

to be torn in the location corresponding to Penry’s puncture wounds. Both shirts had

a blood stain around the tear.

The officers asked Penry to accompany them to the Carpenter home.

Penry agreed. At the Carpenter home, Penry remained in Nelson’s patrol car. While

waiting in the patrol car, and not in response to any question, Penry told Nelson three

times that he did not commit the crime. After they had been at the Carpenter home for

approximately forty-five minutes, Penry told Nelson “that he wanted to get it off of his

conscience.” (S.F.-Vol 43, p. 303). Nelson, believing Penry was to going to reiterate

his innocence, told Penry to “be quiet.” (/d.). Penry then said that he had “done it.”

(/d., p. 304).

The officers brought Penry into the Carpenter home. Penry “point[ed] out

things” before they reached the house and told Nelson “about the door that he had

entered.” (/d., p. 305). Inside the house, Penry “explained everything in detail.” (/d.,

p. 306). 7

The officers drove Penry back to the Livingston police station. Penry was

taken before Justice of the Peace Garnet Galloway, who read Penry his magistrate

warnings, which are similar to Miranda warnings. Before Penry signed the warnings,

Penry’s father entered the courtroom and read Penry his Miranda rights. (1980 SF.

947

Vol. 4, pp. 184, 204-07). Penry’s father then asked Penry if he had committed the

cnme. Penry answered “yes.”

Penry gave a wmnitten confession that afternoon and a second written

confession the next day, both in narrative form. In the confessions, Penry stated that

he had first met Carpenter three weeks earlier when he had helped “a guy named

Harold” move some heavy appliances into Carpenter’s home. Penry stated that he

returned to Carpenter’s home on October 25th, entered the house, and threatened

Carpenter with his pocketknife. Carpenter fought with Penry, knocking the pocketknife

out of Penry’s hand and stabbing Penry in the back with a pair of einai Penry

described subduing Carpenter, kicking and as her,” raping her, and stabbing

her with the scissors. (1990 Jury Trial; State’ s Exhibit No. 48-A, p. 3). Penry then

enuined to his father’s house.

At the trial, the State presented testimony from Harold Stubblefield. On

October 9, 1979, Stubblefield had hired Penry to help install a freezer and stove in

Carpenter’s home. Stubblefield testified that Carpenter was present when he and Penry

installed the appliances. Redenchsenmusteiteseenetienteedtiiiite

that the puncture wounds in Penry’s back were consistent with wounds that could have

been caused by the scissors found in Carpenter’s home. The forensic pathologist also

PDI 1622 P CASESPENR YO 4094 «| 9

946

= ee ee 00 ee —

testified that a large bruise on Carpenter’s chest was consistent with an injury that

could have been caused by a pair of boots obtained from Penry.

In his defense, Penry presented medical records documenting his mental

retardation,‘ pessibte organic brain damage, and evidence he described as showing his

desire to please authority figures. Penry also presented testimony from one of the

officers that picked up Penry at his father’s house on October 25, 1979. That officer

testified that Penry put on shoes, rather than boots, when they left to go to the police

station. Penry concluded with the testimony of Dr. Roberto Bayardo, a forensic

. In Penry |, the Supreme Court described the mitigating evidence of mental retardation

that Penry had presented to the jury during the sentencing phase of his first trial. The Court noted

the evidence of mental retardation:

° As a child, Penry was diagnosed as having organic brain damage.

° Penry scored between 50 and 63 on IQ tests taken at different times,

indicating “mild” or “moderate” mental retardation.

° Penry was evaluated aS having the “mental age” of a 6-1/2 year old.

. Penry’s “social maturity” was that of a 9 or 10 year old.

° Penry’s mother, Shirley Penry, testified that Penry “was unable to learn in

school and never finished the first grade.”

° Penry was “in and out of a number of state schools and hospitals” until he was

twelve years old, when he stopped attending school.

° Penry’s aunt “struggled for over a year to teach Penry how to print his name.”

Penry |, 109 S. Ct. at 2941-42. “

945

pathologist. Dr. Bayardo testified that Penry’s boots were unlikely to have caused the

bruise on Carpenter’s chest.

The State offered Dr. Fred Fason as a rebuttal witness. Dr. Fason testified

that Penry had an antisocial personality, a factor that could lower the scores Penry

obtained on IQ tests. Dr. Fason testified that such a personality would cause Penry to

rebel against, rather than submit to, authority. Dr. Fason testified that he believed

—

Penry did not have significant brain damage or mental retardation; Penry possessed the

intellectual capacity to understand Miranda wamings and to waive those wamings in

a knowing and intelligent manner; and Penry had the capacity to act intentionally.

During the sentencing phase of the retrial, the prosecution offered

testimony from five prison guards and a deputy sheriff that Penry demonstrated

aggressive and dangerous behavior in prison and while in custody during his first trial

in 1980. The prosecution also offered testimony from Maurice Cook, the Texas

Ranger who took Penry’s second confession; from a woman mentioned in Penry’s

second confession as someone he had wanted to rape, and from a woman Penry was

convicted of raping in 1977.

Penry presented Dr. Randall Price, a clinical neuropsychologist, who

testified that he believed Penry suffered from organic brain impairment and mental

retardation. Dr. Price testified thet organic brain ienpeirment ten seduce the shility to

99918 122 P \CASESWENR V7 -a986 01 11

$44

control behavior and impulses. One of Penry’s childhood teachers testified that Penry

was retarded and did not fake his retardation. Penry also presented additional medical

records regarding his brain damage, mental retardation, and behavioral problems

throughout his childhood and adolescence.

Several of Penry’s relatives and childhood neighbors testified to Penry’s

childhood abuse. This evidence included testimony by Penry’s sisters, Belinda

Anderson and Trudy Ross; Penry’s aunts, Lucille Anderson, Marilyn Barnet, and Patsy

Ross, and Penry’s neighbors, Carolyn Ward and Billie Johnson. The jury heard the

followmg testumony:

. When Penry was ten months old, Penry’s mother, Shirley Penry,

“sock[ed]” Penry “right in the mouth” when he was sitting in his

highchair. (1990 S.F. Vol. 48, p. 1165).

. When Penry was older, Shirley Penry beat her son almost every

day, using belt buckles, belts, brooms, toy brooms, sticks, mop

sticks, switches, and her fists. Shirley Penry would “stomp on”

Penry, try to “claw[]” Penry, threaten to “scratch his little eyeballs

out,” hit Penry in the head with a shoe, put cigarettes out on

Penry’s skin, hold Penry’s head under water, and make Penry stand

in front of a heater until his legs blistered. (/d., pp. 1086, 1088,

1113-15, 1264). When Penry was four years old, Shirley Penry

placed him in boiling water that caused scarring from his waist

down. (/d., pp. 1125, 1261-62). Shirley Penry “[stood] there” as

Penry screamed. (/d., p. 1125).

° Shirley Penry would lock Penry in his room for up to twelve to

fourteen hours without food or water, and sometimes for days at a

time. (/d., pp. 1083, 1116). When Penry was forced to defecate

99318 1622 P CASESWENR Y97-4094 e111 12

943

in his room or the attic, Shirley Penry would beat him. (/d., pp.

1262-63, 1271). On occasion, Shirley Penry forced Penry to dink

his own urine and to eat his own feces. (/d., pp. 1089-91, 1115-

16)

° Neighbors heard “ternfied screams, pleading screams” coming

from the Penry household. (/d., p. 1249).

. Shirley Penry verbally abused Penry, making comments such as “I

ought to just drowned you, you little bastard” and calling him

“short little bastard” and “mother-fucker.” On one occasion,

Shirley Penry grabbed a knife and threatened to cut off Penry’s

penis. (/d , pp. 1085-86, 1088, 1118).

The prosecution offered Dr. Walter Quiyano and Dr. Stanton Samenow as

rebuttal witnesses. Dr Quyano testified that he did not believe that Penry was mentally

retarded, had brain damage, or lacked the capacity to control his mpulses. Dr. Quiyano

and Dr. Samenow both testified that Penry had an antisocial personality and would be

a danger in the future. Dr. Samenow testified that Penry could control himself and

could act deliberately

Based on this evidence and the court’s instructions, the jury found Penry

guilty of capital murder and sentenced him to death. In this habeas petition, Penry

challenges some of the evidence presented, some of the evidence excluded, and the

court’s instructions.

99318 1622 P CASES PENR V9? 4084 €1 | 13

942

III. The Applicable Legal Standards

A. The Antiterrorism and Effective Death Penalty Act

Penry filed this habeas petition on March 2, 1998; the Antiterronsm and

Effective Death Penalty Act of 1996 (“AEDPA”) governs. Lindh v. Murphy, 117 S.

Ct. 2059, 2063 (1997), Nobles v. Johnson, 127 F.3d 409, 415 (Sth Cir. 1997), cert

denied, 118 S. Ct. 1845 (1998); Williams v. Cain, 1245 F.3d 269, 274 (Sth Cir. 1997).

The AEDPA provides that a federal habeas petition shal! not be granted with respect

to any claim adjudicated on the ments wu; state court’ unless the adjudication:

(1) 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

(2) resulted in a decision that was based onan

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d)(1)-(2). The AEDPA further provides

(e)(1) In a proceeding instituted by an application for a wnt

of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a

In Nobles, the court noted that before applying the AEDPA standards, the court must

determine whether the petitioner’s claim was adjudicated on the ments in state court proceedings

Nobles, 127 F.3d at 416. Penry does not contend that his claims were not adjudicated on the merits ~

in state court. In Drinkard v. Johnson, 97 F.3d 751, 768 (Sth Cir. 1996), overruled on other grounds

by Lindh, 117S. Ct. at 2059, the Fifth Circuit held that a claim is adjudicated on the merits if, as here,

the state court in post-conviction proceedings has entered findings of fact and/or conclusions of law

on the issue.

99316 1622 P CASES PENR Y97-4094 ¢/ | l 4

941

factual issue made by a State court shall be presumed

to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and

convincing evidence

28USC §2254(e)(1)

Section 2254(d) establishes different standards of renew for questions

of fact, questions of law, and mixed questions of law and fact. Federal courts

reviewing factual determinations may grant relief only if the state court adjudication

“resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence.” Drinkard v. Johnson, 97 F.3d 751,767 (Sth Cir. 1996) (quoting

28 USC. § 2254(d)(2)), cert. denied, 117 S. Ct. 1114 (1997), overruled on other

grounds by Lindh, 117 S. Ct. at 2059. In reviewing a question of law, a federal court

may grant habeas relief only if it determines that a state court’s decision was “contrary

to clearly established Federal law, as determined by the Supreme Court.” /d. at

768 (quoting 28 U.S.C. § 2254(d)(1)). In reviewing a mixed question of law and fact,

“a federal court may grant habeas relief only if it determines that the state court

decision rested on ‘an unreasonable application of]] clearly established Federal law, as

determined by the Supreme Court’ to the facts of the case.” /d. at 767-68 (quoting 28

U.S.C. § 2254(d)(1)) (alteration in orginal); see also Nobles, 127 F.3d at 416.

99318 1622 P CASES PENR Y\97-4094 ¢1) 15

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The “unreasonable application” standard requires more than a simple

disagreement with a state court decision. Drinkard, 97 F 3d at 768. An application of

law to facts 1s “unreasonable ‘only when it can be said that reasonable junsts

considering the question would be of one view that the state court ruling was

incorrect.’” Jones v. Jones, 163 F.3d 285, 303 (Sth Cir. 1998) (citing Cain, 125 F.3d

at 277). A state court decision will not be reversed if the decision 1s a reasonable, good

faith application of Supreme Court precedent. Mata v. Johnson, 99 F.3d 1261, 1267

(Sth Cir. 1996), vacated in part on other grounds, 105 F 3d 209 (Sth Cir. 1997). A

review of mixed questions of law and fact 1s “most closely akin to the traditional

‘clearly erroneous’ standard.” Jd. at 1267.

B. Procedural Default and Procedural Bar

“A procedural default... occurs when a pnsoner fails to exhaust available

state remedies and ‘the court to which the petitioner would be required to present his

claims in order to meet the exhaustion requirement would now find the claims

procedurally barred.’” Nobles, 127 F.3d at 420 (quoting Coleman v. Thompson, 111

S. Ct. 2546, 2557 n.1 (1991)). To exhaust state remedies, a habeas petitioner “must

have provided the state courts with a ‘fair opportunity to apply controlling legal

principles to the facts bearing upon his constitutional claim.’” /d. (quoting Anderson

v. Harless, 103 S. Ct. 276, 277 (1982)); see also Shute v. Texas, 117 F.3d 233, 237

99318 1622 P CASES PENR Y\97-4094 1! 16

939%

(Sth Cur. 1997) (“To exhaust available state remedies, a habeas petitioner ‘must fairly

appnse the highest court of his state of the federal mghts which were allegedly

violated.” (quoting Deters v. Collins, 985 F.2d 789, 795 (Sth Cir. 1993))).

Texas courts considering unexhausted claims on a successive habeas

petition would find them procedurally barred. Article 11.071 § S(a) of the Texas Code

of Cnmunal Procedure prohibits a Texas court from considering a successive habeas

petition on the ments unless the petition satisfies one of the exceptions set forth in §

5(a)(1), (2), or (3).° The Texas Court of Crnminal Appeals has applied article 11.071

’ Article 11.071 § S(a) provides

(a) If an initial application for a wnt of habeas corpus is untimely or

if a subsequent application is filed after filing an initial application, a

court may not consider the ments of or grant relief based on the

subsequent or untimely initial application unless the application

contains sufficient specific facts establishing that

(1) the current claims and issues have not been and

could not have been presented previously in a timely

initial application or in a previously considered

application filed under this article or Article 11.07

because the factual or legal basis for the claim was

unavailable: (A) on the date the applicant filed the

previous application, or (B) if the applicant did not file

an initial application, on or before the last date for the

tumely filing of an initial application;

(2) by a preponderance of the evidence, but for a

violation of the United States Constitution no rational

juror could have found the applicant guilty beyond a

reasonable doubt; or

(3) by clear and convincing evidence, but for a

99318 1622 P CASES PENRY\97-4094 ¢1 | ] 7

$35

to bar the presentation of new issues in successive petitions when the claimant’s

onginal petition was filed before the statute’s effective date of September 1995. Ex

parte Davis, 947 §.W.2d 216, 221 (Tex. Crm. App. 1996) (en banc). The Fifth Circuit

has held that article 11.071 is an adequate state procedural bar, finding that the rule is

strictly and regularly enforced. Muniz v. Johnson, 132 F.3d 214, 221 (Sth Cir. 1998).

The Texas abuse of the wnt doctrine is also an adequate state procedural bar for the

purpose of federal habeas review. Nobles, 127 F.3d at 423; see also Fearance v. Scott,

56 F.3d 633, 642 (Sth Cir. 1995).

In addition to the exhaustion issue, claums for federal habeas relief are

procedurally barred if they were defaulted in the state court proceedings. “In all cases

in which a state prisoner has defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule, federal habeas review of the claims 1s

barred unless the prisoner can demonstrate cause for the default and actual prejudice

as a result of the alleged violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.” Coleman, 111 S. Ct. at

2565; see also Muniz, 132 F.3d at 220.

violation of the United States Constitution no rational

juror would have answered in the state’s favor one or

more of the special issues that were submitted to the

jury in the applicant’s trial under Article 37.071 or

37.0711.

99318 1622 P \CASESWPENR Y\97-4094 ¢1 1 18

937

“In order to prove a fundamental miscarnage of justice, the pnsoner must

assert his actual innocence.’”’ Muniz, 132 F.3d at 221 n.12 (quoting Glover v. Cain,

128 F.3d 900, 904 (Sth Cir. 1997)); see also Corwin v. Johnson, 150 F.3d 467, 473

(Sth Cir. 1998). In Sawyer v. Whitley, the Supreme Court held that a petitioner

attempting to assert a procedurally defaulted challenge to his death sentence may

overcome the default by showing that he is “‘actually innocent’ of the death penalty.”

112 S. Ct. 2514, 2517 (1992). The petitioner must “show by clear and convincing

evidence that but for constitutional error at his sentencing hearing, no reasonable juror

would have found him eligible for the death penalty.” /d. at 2525.

The Sawyer actual innocence exception is limited to factual innocence.

See Callins v. Johnson, 89 F.3d 210,215 (Sth Cir. 1996); Fearance, 56 F.3d at 637-38.

In Callins, the Fifth Circuit held that even if a mentally retarded person was

constitutionally ineligible for the death penalty, that individual is not “actually

innocent” under Sawyer. 89 F.3d at 215. Penry’s argument that he may assert

procedurally defaulted claims because he is mentally retarded and, therefore, “actually

innocent” of the death penalty, is barred by Fifth Circuit precedent.

Each of Penry’s claims is examined under the AEDPA.

99318 1622 P \CASESPENRY 97-4094 e! | 19

IV. The Jury Instructions on Mitigating Evidence (Claim 1)

At the close of the sentencing phase of Penry’s 1980 tnal, the jury

imposed the death penalty by unanimously answering “yes” to the three “special

issues” set out in the Texas Code of Criminal Procedure at article 37.071(b). The

Supreme Court in Penry | determined that none of the three “special issues” clearly

provided a means for the jury to give effect to Penry’s mitigating evidence. Penry, 109

S. Ct. at 2949. The Supreme Court stated:

[I]n the absence of instructions informing the jury that it

could censider and give effect to the mitigating evidence of

Penry’s mental retardation and abused background by

declining to impose the death penalty, we conclude that the

jury was not provided with a vehicle for expressing its

“reasoned moral response” to that evidence in rendering its

sentencing decision.

Id. at 2952.

At the conclusion of the sentencing phase of the 1990 trial, the court again

submitted the same Texas statutory special issues that the jury had answered in Penry

Special Issue No. 1

Was the conduct of the defendant, JOHNNY PAUL

PENRY, that caused the death of the deceased, PAMELA

CARPENTER, committed deliberately and with the

reasonable expectation that the death of the deceased or

another would result?

99318 1622 P CASESVWENR Y\97-4094 ¢1| 20

(Trans. Vol.

instructions:

lIs a)

Is there a probability that the defendant, JOHNNY PAUL

PENRY, would commit cnmunal acts of violence that would

constitute a continuing threat to society?

Special Issue No. 3

Was the conduct of the defendant, JOHNNY PAUL

PENRY, in killing PAMELA CARPENTER, the deceased,

unreasonable in response to the provocation, if any, by the

deceased?

5, pp. 1330-31).

Unlike Penry |, however, the tnal court on retnal also gave the following

You are instructed that if you return an affirmative finding

on each of the special issues submitted to you, the court

shall sentence the defendant to death. You are further

instructed that if you return a negative finding on any special

issue submitted to you, the court shall sentence the

defendant to the Texas Department of Corrections for life.

You are therefore instructed that your answers to the special

issues, which determine the punishment to be assessed the

defendant by the court, should be reflective of your finding

as to the personal culpability of the defendant, JOHNNY

PAUL PENRY, in this case.

You are instructed that when you deliberate on the questions

posed in the special issues, you are to consider mitigating

circumstances, if any, supported by the evidence presented

in both phases of the trial, whether presented by the state or

the defendant. A mitigating circumstance may include, but

is not limited to, any aspect of the defendant’s character and

9318 1622 P CASESPENR Y\97-4094 1 | 21

$34

record or circumstances of the cmme which you believe

could make a death sentence mappropnate in this case. If

you find that there are any mitigating circumstances 1n this

case, you must decide how much weight they deserve, if

any, and therefore, give effect and consideration to them in

assessing the defendant’s personal culpability at the tume

you answer the special issue. If 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, 1s an appropnate

response to the personal culpability of the defendant, a

negative finding should be given to one of the special issues

(Trans. Vol. 5, p. 1329).

Penry argues that even with the added instructions, the special issues did

not allow the jury to consider Penry’s retardation and childhood abuse in deciding

whether to answer “yes” or “no.” Penry contends that if the jurors wished to give

effect to the mitigating evidence, the tnal court’s instruction forced them to lie when

answering the special issues and to violate thew oaths to answer the special issues

truthfully. Penry argues that the mitigating evidence instruction was merely a

“nullification instruction” that did not cure the Penry | constitutional error.

The Texas Court of Criminal Appeals, on Penry’s direct appeal,

considered and rejected this claim, holding that the “nullification instruction . . . 1s

sufficient to meet the constitutional requirements of Penry v. Lynaugh.” Penry, 903 ~

S.W.2d at 765. Whether a jury instruction placed relevant mitigating evidence beyond

99318 1622 P CASESPENR Y97-4094 1 | 22

: 933

the reach of the jurors is a mixed question of law and fact. Drinkard, 97 F.3d at 768-

69 In this case, the state court’s ruling 1s not an unreasonable application of clearly

established federal law

In Buchanan v. Angelone, 118 S. Ct. 757 (1998), the Supreme Court

articulated the standard for determining whether jury instructions adequately permit a

jury to consider and give effect to mitigating evidence: “whether there 1s a reasonable

likelihood that the jury has applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” /d at 761 (quoting Boyde v

California, 110S Ct 1190,1198(1990)) A court addresses this issue by considenng

“the entire context in which the instructions were given.” Buchanan, 118 S. Ct. at 762;

see also Johnson v. Texas, 113 S. Ct. 2658, 2669 (1993). “In evaluating the

instructions, we do not engage in a technical parsing of this language of the

instructions, but instead approach the instructions in the same way that the jury

would—with a ‘commonsense understanding of the instructions in the light of all that

has taken place at the tnal.”” Johnson v. Texas, 113 S. Ct. at 2669 (quoting Boyde, 110

S.Ct. at 1198). “A Penry claim does not anse when constitutionally relevant evidence

‘can be given mitigating effect in some way under the Texas special issues."” Davis

v. Scott, 51 F.3d 457, 464 (Sth Cir. 1995) (quoting Motley v. Collins, 18 F.3d 1223,

1234 (Sth Cir. 1994)) (emphasis in original).

99318 1622 P CASESPENR YO" 4094 ¢)! 23

932

Both the Supreme Court and the Fifth Circuit have held that jury

arguments explaining how mitigating evidence can or should be considered in

sentencing affect whether the jury was reasonably likely to have applied the instructions

to prevent consideration of relevant mitigating endence See Buchanan, 118 S. Ct. at

762-63, Drinkard, 97 F.3d at 761 n.16. The Supreme Court has also noted that a

defendant's presentation of extensive mitigating evidence is likely to convey to the jury

that they may take the evidence into account in sentencing See Johnson v. Texas, 113

S. Ct. at 368, Boyde, 110 S. Ct. at 1199-1200.

The record of Penry’s 1990 tnal supports the state appellate court's

conclusion that the jury was able to give constitutionally sufficient consideration to

Penry’s mitigating evidence. During the vou dire examination of the venire in the 1990

tnal, the prosecutor told the venire that they could answer one of the special issues

“no” if they felt that Penry’s mitigating evidence warranted a life sentence:

Another area, in fact, that a jury can take into consideration

is what we refer to loosely sometimes as mitigating

evidence. There is not a separate question on mutigating

evidence, but you will probably receive some sort of an

instruction from the Judge, concerning mitigating evidence.

_.. [F]urthermore, if you feel like that [mitigating] evidence

is Strong enough that you feel like it would even warrant a

lesser sentence than death, that it would warrant a life

99918 1622 PCASESPENR YW? 4004 011 24

931

sentence instead of death, then you can answer one or more

of these questions no, so that the defendant will receive a

life sentence instead of the death penalty.

(S.F. Vol. 15, pp. 186-87)

Durning closing argument in the sentencing phase, defense counsel

emphasized this point

You are going to get just three yes or no questions. You are

not going to get any questions about mutigating

circumstances. Three questions called Special Issues, and

none of them say anything about mentally retarded, none of

them say anything about child abuse, but, the Judge told

you, he told you that when you answer those questions you

are to give affect [sic] and consideration to mitigating

circumstances. If you determine, when giving affect [sic] to

the mitigating evidence, if any, that a life sentence is

reflected by a negative finding of the issue under

consideration, rather than the death sentence, appropnate

response to the personal culpability of the Defendant, then,

a negative finding should be given to one of the Special

Issues

(SF. Vol. 51, pp. 1902-03) Defense counsel then explicitly told the jury that they

were able to answer “no” to one of the special issues despite the fact that a “no”

answer was not the “literally correct” answer:

Let me try to simplify it. If, when you thought about mental

retardation and the child abuse, you think that this guy

deserves a life sentence, and not a death sentence, decide

life in pnison is punishment enough, then, you got to answer

one of those questions no. The Judge has not told you

which question, and you have to give that answer, even if

99318 1622 P CASESWENR Y 97-4094 1) 25

930

you decide the literally correct answer 1s yes. Not the

easiest instruction to follow, and the law does funny things

sometimes, but, it is what it says, and I have taken all of this

tume with you to make sure that you understand what it says

If you think that because of this mitigating evidence the man

deserves a life sentence, then, there has got to be a no on

that verdict sheet somewhere.

(/d , p. 1903).

The court’s instruction on the effect of mitigating evidence tracked Penry

I by “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 instruction went further, informing the jurors that they should answer

one of the special questions “no” if they believed that Penry’s personal culpability

warranted a life sentence instead of death. Both the prosecutor and defense counsel

told the jurors that they were able to answer one of the special issues “no” if they

believed Penry’s mitigating evidence warranted a life sentence, even if that answer was

not “literally correct.”

The Fifth Circuit recently approved a mitigating evidence instruction very

similar to the instruction given to Penry’s jury. In Emery v. Johnson, 139 F.3d 191 (Sth

Cir. 1997), the petitioner was sentenced to death under the version of the Texas Code

of Criminal Procedure article 37.071 used in Penry’s trial and retrial. The trial court in

Emery gave an instruction which was virtually identical to that given by the tnal court

99318 1622 P CASESVPENR Y\97-4094 ¢1 | 26

925,

| :

at Penry’s retrial. The Fifth Circuit upheld the instruction against the petitioner’s Penry

challenge, stating:

This instruction allowed the jury to consider any appropriate

mitigating circumstance, including a history of child abuse,

and required the jury not to sentence Emery to death if a life

sentence was appropnate in light of his moral culpability.

The instruction adequately addressec’ the Court’s concerns

about Texas’s death penalty scheme by giving the jury the

ability to consider any appropriate mitigating circumstance.

Id. at 200. The Fifth Circuit’s ruling in Emery supports the state court’s conclusion as

to Penry’s first claim.

The state appellate court’s conclusion that the tral court’s instructions on

mitigating evidence were constitutional is consistent with, and not an unreasonable

application of, clearly established federal law. This court DENIES Penry’s claim that

the tnal court’s instructions did not permit the jury to consider and give effect to his

mitigating evidence of mental retardation and childhood abuse.

Vv. The Eighth Amendment and an Emerging National Consensus (Claims II

and III)

In Penry I, Penry argued that the execution of a mentally retarded person

“like himself with a reasoning capacity of approximately a 7-year-old would be cruel

and unusual [punishment] because it is disproportionate to his degree of personal

culpability.” Penry I, 109 S. Ct. at 2956. The Supreme Court rejected this argument,

99318 1622 P \CASESPENRY\97-4094 e1 | 27

927

holding that sentencing junes are able to evaluate sufficiently whether the extent of a

particular defendant’s mental retardation reduces his culpability to justify declining to

impose a death sentence.

In Penry I, Penry also argued that “there is objective evidence . . . of an

emerging national consensus against execution of the mentally retarded, reflecting the

‘evolving standards of decency that mark the progress of a maturing society.’” /d. at

2955 (quoting Trop v. Dulles, 78 S. Ct. 590, 598 (1958)). The Supreme Court rejected

this argument, finding insufficient evidence of a national consensus against execution

of the mentally retarded to make it unconstitutional. /d The Court held that the

execution of a mentally retarded person would not violate the Eighth Amendment as

long as the sentencing jury could consider od give effect to the nature and extent of

the defendant’s mental retardation in each case. /d. at 2958.

In his present petition, Penry again argues that the execution of a mentally

retarded person violates the Eighth Amendment. Penry argues that since Penry l, a

national consensus against execution of the mentally retarded has developed. Penry

argues that this emerging national consensus against execution of the mentally retarded

also “establishes a societal consensus against . . . the execution of persons exhibiting

a certain level of mental retardation.” Penry relies on new evidence, not presented in

Penry I, to argue that current community views prohibit the execution of all mentally

99318 1622 P \CASES\PENR Y\97-4094 ¢1 1 28

Se)

retarded persons. Penry also relies on this new evidence to argue that the execution of

an individual with his level of mental retardation is constitutionally prohibited.

This court considers both of Penry’s arguments below.

A. The “Categorical” Challenge to the Death Sentence (Claim III)

Respondent argues that Penry’s claim that the Eighth Amendment

categoncally prohibits execution of mentally retarded individuals is procedurally barred

because, although Penry argued in state court that his execution would be

unconstitutional because of his level of intelligence and background, he did not argue

that execution of any mentally retarded person was categorically prohibited. Penry’s

direct appeal to the Court of Criminal Appeals did not contain an argument that

“evolving standards of decency” comapatedie prohibit execution of any mentally

retarded person. In his direct appeal, Penry did not cite or rely upon evidence of an

evolving national standard forbidding execution of any mentally retarded individual.

In contrast, Penry explicitly relies upon such evidence to support both of his arguments

before this court. Penry also failed to raise this claim in his state habeas application.

(Petition for a Post-Conviction Writ of Habeas Corpus, Ex parte Penry, Cause No.

15,977-C).

Penry did not give the Texas Court of Criminal Appeals a “‘fair

opportunity’ to apply controlling legal principles to the facts bearing upon his . . .

99918 1622 P CASESPENRY\97-4094 1 | 29

92%

claim” that the Eighth Amendment categorically bars execution of the mentally

retarded. The claim is procedurally barred.’

Even if the claim was not procedurally barred, this court would reject the

claim on its merits. Penry argues that there is sufficient objective evidence of a national

consensus against execution of mentally retarded persons to enable a court to find that

permitting the State of Texas to execute Penry would violate the “evolving standards

of decency” that the Eighth Amendment protects. Penry has a “heavy burden” to show

the national — he asserts. Stanford v. Kentucky, 109 S. Ct. 2969, 2977 (1989)

(quoting Gregg v. Georgia, 96 S. Ct. 2909, 2926 (1976)).

In considering this argument in Penry I, the Supreme Court required an

“objective indicator of contemporary values epon which we can rely,” such as the

“judgment of legislatures and juries.” Penry I, 109 S. Ct. at 2955-56. The Penry I

Supreme Court considered the following evidence:

° a federal criminal statute, the Anti-Drug Abuse Act of 1988, 21

U.S.C. § 848(1) (1988), prohibiting the execution of a mentally

retarded person;

; This court does not find Penry’s claim to be barred by the law of the case doctnne.

Penry’s evidence of national opposition to the execution of the mentally retarded arose after Penry _

I and demonstrates more extensive opposition to execution of the mentally retarded than was shown

in Penry 1. See Society of the Roman Catholic Church of the Diocese of Lafayette, Inc. v. Interstate

Fire & Cas. Co., 126 F.3d 727, 735 (Sth Cir. 1997) (noting that the law of the case doctrine does not

bar adjudication of a claim presented in a previous appeal if the “evidence in a subsequent trial was

substantially different”).

99318 1622 P \CASESVPENRY\97-4094 ¢! | 30

$24

° one state, Georgia, banned the execution of a mentally retarded

person;

. one state, Maryland, had enacted a statute banning the execution

of a mentally retarded person to take effect on July 1, 1989;

. public opinion polls taken in Texas, Flonda, and Georgia, showing

public opposition to execution of the mentally retarded; and

. a resolution of the American Association on Mental Retardation

opposing execution of the mentally retarded.

Id. at 2955.

The Supreme Court found that this evidence, combined with evidence that

fourteen states did not allow the death penalty under any circumstances, was

insufficient to show a national consensus against execution of the mentally retarded.

Id. The Supreme Court found that public opinion polls expressing disapproval of the

execution of mentally retarded persons and the opposition of the American Association

on Mental Retardation were not sufficiently reliable indicators of a national consensus

to allow the Court to find the execution of mentally retarded persons categorically

prohibited by the Eighth Amendment. “The public sentiment expressed in these and

other polls and resolutions may ultimately find expression in legislation, which is an

objective indicator of contemporary values upon which we can rely.” /d.

Penry now offers evidence that the federal government and twelve of the

thirty-eight states that allow capital punishment specifically exempt the mentally

99318 1622 P CASES PENR Y\97-4094 1! 3 l

923

retarded from the death penalty. See Violent Crime Control and Law Enforcement Act,

18 U.S.C. § 3596(c); Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(/); ARK. CODE

ANN. § 5-4-618(b); COLO. REV. STAT. § 16-9-403; GA. CODE ANN. § 17-7-131(j); IND.

CODE ANN. § 35-36-9-6; KAN. STAT. ANN. § 21-4623(d); Ky. REV. STAT. ANN. §

532.140; MD. ANN. CODE of 1957, art. 27 § 412(g); NEB. REV. STAT. ANN. § 28-

105.01(2); N.M. STAT. ANN. § 31-20A-2.1(B); N.Y. CRIM. Proc. LAw § 400.27(12);

‘TENN. CODE ANN. § 39-13-203(b); WASH. REV. CODE ANN. § 10.95.030(2). Twelve

additional states and the District of Columbia do not allow capital punishment under

any circumstances.®

The Supreme Court has found the application of the death penalty to a

particular class of persons inconsistent with “eveiving standards of decency” in cases

in which only a small number of states permitted the challenged application of the death

penalty. See Ford v. Wainwright, 106 S. Ct. 2595, 2601 (1986) (no states permitted

’ Penry also cites two states in which bills prohibiting execution of mentally retarded

persons are pending in the state legislature. See H.B. 2544, 43rd Leg. (Ariz. 1998) and H.B. 1288,

89th Leg., 2d Reg. Sess. (Mo. 1998). Both bills were introduced on January 13, 1998. Though

neither bill was enacted into statute, both states have similar bills pending in their 1999 legislative

sessions. See H.B. 2539, 44th Leg. (Ariz. 1999); H.B. 425, 90th Leg., Ist Reg. Sess. (Mo. 1999).

Several other states, including Texas, are considering similar bills in their 1999 legislative sessions.

See, e.g., H.B. 2121, 76th Leg. (Tex. 1999); S.B. 180, 181st Leg. (Mass. 1999), H.F. 26, 78th Leg.,

Ist Sess. (lowa 1999); SB. 188, 74th Leg. (S.D. 1999).

Penry also cites two states that by statute allow capital punishment but have not

executed any prisoners since the Supreme Court upheld the constitutionality of capital punishment

in Gregg v. Georgia, 96 S. Ct. 2909, 2923 (1976), and do not have any prisoners currently on death

row. Penry argues that these states have “implicitly rejected” capital punishment.

99318 1622 P CASES\PENRY\97-4094 ¢! | 32

922

execution of the legally insane); Enmund v. Florida, 102 S. Ct. 3368, 3374 (1982)

(only eight states permitted capital punishment for participation in a robbery in which

an accomplice kills a person); Coker v. Georgia, 97 S. Ct. 2861, 2867-68 (1977) (only

one state permitted capital punishment for the crime of rape of an adult woman), _

also Thompson v. Oklahoma, 108 S. Ct. 2687, 2695-96 (1988) (no state that set

minimum age limits on imposition of the death penalty permitted the execution of those

who committed capital murder at age fifteen or younger).

In cases in which the Court has found that imposing the death penalty on

a particular category of persons did not offend evolving standards of decency, over half

the states that permitted capital punishment allowed execution of that category of

persons. In Stanford, the Supreme Court considoind whether imposing the death

sentence on a sixteen or seventeen year-old defendant violated the Eighth Amendment.

The Court noted that “{o]f the 37 States whose laws permit capital punishment, 15

decline to impose it upon 16-year-old offenders and 12 decline to impose it on 17-year-

old offenders.” Stanford, 109 S.Ct. at 2975. The Court concluded that “a majority of

the States that permit capital punishment authorize it for crimes committed at age 16

or above.” /d. at 2976. The Court relied on this empirical result in finding that the

Constitution did not forbid such punishment. In Tison v. Arizona, 107 S. Ct. 1676,

1686 (1987), the Court upheld Arizona’s imposition of the death penalty for a

99318 1622 P CASES PENR Y\97-4094 1} 33

921

defendant convicted of being a major participant in a felony with reckless indifference

to human life, when eleven states that permitted capital punishment forbade the

challenged imposition of the death penalty.

The record before this court shows that twenty-six of the thirty-eight states

that permit capital punishment allow execution of the mentally retarded.’ Under the

Supreme Court precedents, this level of acceptance in the state legislatures does not

provide the objective support for Penry’s argument necessary before a court may find

a violation of the Eighth Amendment on the ground of an emerging national consensus.

Penry also submits evidence from polls finding that jurors are less likely

to sentence a defendant to death if the defendant is mentally retarded and evidence that

relatively few mentally retarded persons have been executed since 1976. This evidence

does not show that jurors or prosecutors are categorically opposed to the execution of

all mentally retarded persons. Rather, the evidence supports the ability of jurors to give

The Stanford Court explicitly rejected the argument that the number of states

permitting the challenged application of the death penalty should be compared to the number of states

overall, including those that do not allow the death penalty at all. Stanford, 109 S. Ct. at 2975-76

n.2. The Court also rejected the argument that the fact that the federal government has made a class

of individuals ineligible for the death penalty is determinative of a national consensus. See id. at 2977

(“[E]}ven if it were true that no federal statute permitted the execution of persons under 18, that

would not remotely establish—in the face of a substantial number of state statutes to the contrary—a

national consensus that such punishment is inhumane, any more than the absence of a federal lottery

establishes a national consensus that lotteries are socially harmful.”).

99918 1622 P CASESWPENR Y\97 4094 1! 34

920

effect to a particular defendant’s mental retardation as a mitigating circumstance in

sentencing. See Stanford, 109 §. Ct. at 2977.

In Penry |, the Supreme Court rejected Penry’s evidence of public opinion

polls and statements from professional associations expressing opposition to execution

of mentally retarded persons as insufficient to show a national consensus against the

application of the death penalty to a particular class of persons. Penry I, 109 S. Ct.

2955. The evidence in Penry II portrays a growing disapproval of the execution of the

mentally retarded. However, the Supreme Court has not held that evidence of a trend

against a particular application of the death penalty is sufficient to enable a court to find

that application “cruel and unusual.” See Stanford, 109 S. Ct. at 2975-76 (requiring

the petitioner to establish a “degree of national consensus . . . sufficient to label a

particular punishment cruel and unusual” (emphasis added)), id. at 2977 (stating that

the petitioner has a “‘heavy burden’ _. . to establish a national consensus” against an

application of the death penalty); :d (noting that the petitioner had not established a

“settled consensus”), Penry 1, 109 S. Ct. at 2955 (noting that although Penry’s public

opimon and professional association evidence may “ultimately find expression in

legislation,” the evidence had failed to establish a present “national consensus”).

Penry’s arguments and data do not respond to a fundamental problem the

Supreme Court identified with the “categorically ineligible” approach Penry advances.

99018 1622 PCASESPENR YS? 4004 011 35

919

In Penry I, the Supreme Court noted that a categorical prohibition against imposing a

punishment against all retarded persons but permitting the same punishment for others

had a troubling and dangerous consequence. The Court noted that “[m]entally retarded

persons are individuals whose abilities and experiences can vary greatly,” Penry 1, 109

S. Ct. at 2957, as can their ability to bear personal culpability for their actions. The

Court recognized the difficulty, and danger, in reducing all mentally retarded

individuals to a single category. Such a categorical approach could improperly limit

hard-won opportunities for retarded persons to participate fully in events requinng legal

recognition, such as marriage or making contracts. /d_ at 2958. Penry does not address

the difficulty inherent in his argument.

Penry’s evidence is not sufficient to permit this court to find that there

currently exists a “national consensus” against execution of mentally retarded persons,

making such executions unconstitutional. Penry is not entitled to federal habeas relief

on this claim, both because it is procedurally barred and on the merits. This court

DENIES Penry’s claim that the execution of any mentally retarded person violates the

Eighth Amendment’s prohibition of “cruel and unusual” punishment.

B. The Particularized Challenge to the Death Sentence (Claim II)

In his federal petition for habeas relief, Penry reiterates the argument he

made on direct appeal in state court, that the degree and nature of his mental retardation

99318 1622 P \CASESVWENR Y\97-4094 ci | 36

915

and history of childhood abuse make him insufficiently culpable to permit his

execution. Respondent asserts that the claim is barred by 28 U.S.C. § 2244(b)(1) as

a successive petition because the Supreme Court considered and rejected it in Penry |.

Section 2244(b)(1) states: “A claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a pnor application

shall be dismissed.” The AEDPA does not alter the pre-AEDPA definition of a

““second or successive’ petition.” Jn re Gasery, 116 F.3d 1051, 1052 (Sth Cir. 1997).

Circuits that have considered the issue have held that a claim in a habeas petition filed

after a retnal and second conviction is not treated as presented in a “second” or

“successive” petition if it attacks only the second conviction or sentence. See, e.g.,

Esposito v. United States, 135 F.3d 111, 113 (2d Cir. 1997); Pratt v. United States,

129 F.3d 54, 62 (ist Cir. 1997); Palmer v. Clarke, 961 F.2d 771, 774-75 (8th Cir.

1992). Penry’s claim that the evidence of the nature and extent of his mental

impairment presented in the 1990 retrial makes the death sentence he received

unconstitutional is not barred by section 2244(b)(1).

Respondent alternatively argues that this court is barred from considering

Penry’s argument by the “law of the case” doctsinn. The doctrine of the law of the case

is inapplicable because additional evidence, not presented in his first trial, provides

changed factual support for Penry’s claim. Society of the Roman Catholic Church of

99318 1622 P \CASESWENR Y\9" 4094 ¢i| 37

917

the 7 of Lafayette, Inc. v. Interstate Fire & Cas. Co., 126 F.3d 727, 735 (Sth

Cir. 1997). Penry’s claim is not barred by the law of the case doctrine.

On Penry’s direct appeal, the Texas Court of Cnminal Appeals noted that

the “Eighth Amendment does not preclude the execution of mentally retarded persons,”

citing Penry I. Penry, 903 S.W.2d at 766. The Texas appellate court stated further

that there is no “authority stating that it is unconstitutional to execute persons who have

brain damage or were abused as children.” /d. at 766-67. Again citing Penry I, the

Texas court concluded that the Eighth Amendment was satisfied because Penry’s

sentencing jury had the “means to consider all of the evidence, including [Penry’s]

mitigating circumstances, and yet determined that death was the appropnate

punishment.” /d. at 767. The state court’s decision on this mixed question of law and-

fact is not an unreasonable application of federal law as clearly established by the

United States Supreme Court.

In his second trial, Penry presented Dr. Randall Price as a witness. Dr.

Price drew an explicit link between what he believed to be Penry’s organic brain

damage and Penry’s inability to control himself or use good judgment. (S.F. Vol. 48,

pp. 1337-38). Penry also presented far more graphic and extensive evidence of the

abuse he suffered as a child than had been presented in his first tnal. Penry’s new

evidence of childhood abuse included evidence that he had suffered more frequent and

99318 1622 P \CASESWENR Y\97-4094 ci) 38

316

more violent physical, mental, and psychological abuse than had been apparent from

the evidence introduced in his first trial.

In Penry |, the Supreme Court held that the constitutional requirements are

met when a jury 1s able to consider and give effect to mitigating evidence that may

show that a particular defendant cannot be held culpable for his actions. Penry I, 109

S. Ct. at 2958. In Penry’s second trial, the jury heard extensive mitigating evidence,

argument, and instructions. The jury was able to consider whether Penry’s mental

retardation and his childhood abuse lessened Penry’s culpability to a level at which the

death penalty was not an “appropnate punishment.”

This court finds that, considering the additional mitigating evidence Penry

presented in his second trial, the Texas Court of Cnminal Appeals’ conclusion that the

execution of someone with Penry’s level of mental retardation and history of childhood

abuse does not violate the Eighth Amendment was not an unreasonable application of

federal law. This court DENIES Penry’s request for habeas relief based on Claim II.

C. The Combination of Claims II and III

Penry characterizes Claim II as dependent on his new evidence of a

national trend toward disapproval of execution of the mentally retarded. “[{I]t may be

possible that this objective evidence establishes a societal consensus against only the

execution of persons exhibiting a certain level of mental retardation.” (Docket Entry

99918 1622 P CASESPENR Y97-4084 1) 39

915

No. 28, p. 21). This argument is not barred by the law of the case doctrine because it

is narrower than the categorical Eighth Amendment argument the Supreme Court

considered in Penry | and because it relies on “substantially different” evidence.

Because it attacks a second conviction, Penry’s habeas petition is not governed by rules

restricting the consideration of successive petitions. Penry’s claim is not barred by 28

U.S.C. § 2244(b)(2), which forecloses consideration of a claim presented in a

successive petition that was not presented in a prior petition, because the claim relies -

on evidence of an alleged national consensus developed since Penry’s first habeas

petition.

Penry did not, however, present this claim to the Texas courts on appeal

or during the state habeas proceedings. indeed, Penry did not articulate this argument

until his reply. Respondent did not have an opportunity to raise a procedural default

bar to the argument. This court is not required to raise a procedural default sua sponte.

See Trest v. Cain, 118 S. Ct. 478, 480 (1997) (“We are not aware of any precedent

stating that a habeas court must raise [a procedural default] where the State itself does

not do so.”). While a district court may exercise its discretion to raise a procedural

default sua sponte, Magouirk v. Phillips, 144 F.3d 348, 357 (Sth Cir. 1998), this court

concludes that it should not avoid the merits of Penry’s “combination” claim by raising

a procedural default bar.

9318 1622 P CASESVPENR Y\97-4094 1) 40

914

This court finds that Penry’s new evidence of the degree of his mental

retardation and the effects of the childhood abuse he suffered, in combination with the

previously available evidence, is not sufficient to raise a fact issue that a national

consensus has developed, making it unconstitutional to execute such an individual.

Penry’s summary judgment evidence does not provide the objective support necessary

to create a fact issue that a national consensus against the execution of a person with

Penry’s level and degree of mental capability has developed, requiring a finding of a

constitutional violation. Summary judgment in favor of respondent on this claim is

appropnate. See, e.g, Goodwin v. Johnson, 132 F.3d 162, 169 (Sth Cir. 1997)

(applying the Rule 56 summary judgment standard to a capital defendant’s habeas

petition). |

This court DENIES Penry’s claim that his execution violates the Eighth

Amendment because there exists a national consensus against applying the death

penalty to an individual with Penry’s level of mental retardation and background of

abuse.

VI. The Simmons Claim (Claim IV)

In Simmons v. South Carolina, 114 S. Ct. 2187, 2190 (1994), the

Supreme Court held that when a capital murder defendant would be ineligible for parole

under state law if sentenced to life imprisonment, and the prosecution argues that the

P9318 1622 P\ A SESPENRY 97-4094 ¢/! 4 l

912s

defendant would be dangerous in the future, due process requires the jury to be

informed that the defendant would be ineligible for parole. The Fifth Circuit has

rejected the extension of the Simmons rule to a Texas capital defendant. Under Texas

law, a capital defendant is not legally ineligible for parole. In Allridge v. Scott, the

Fifth Circuit held that Simmons applies only to situations in which the defendant is

“legally ineligible” for parole.'® 41 F.3d 213, 222 (Sth Cir. 1994); see also Boyd v.

Johnson, No. 97-10823, 1999 WL 71660, at *5 (Sth Cir. Feb. 12, 1999) (to be

published in F. 3d.); Muniz v. Johnson, 132 F.3d 214, 224 (Sth Cir. 1998); Woods v.

Johnson, 75 F.3d 1017, 1037 (Sth Cir. 1996); Montoya v. Scott, 65 F.3d 405, 416 (Sth

Cir. 1995).

It is undisputed that Penry would ion been legally eligible for parole had

he been sentenced to life imprisonment. However, during the sentencing phase of the

retrial, Penry offered into evidence his signed statement purporting “to give up [his]

- Penry argues that this court should not follow the A/lridge line of cases in light of an

opinion joined by four Justices of the Supreme Court dissenting from the denial of a petition for wnt

of certiorari in Brown v. Texas, 118 S. Ct. 355 (1997) (Stevens, J., dissenting from the denial of

petition for a writ of certiorari). In his opinion, Justice Stevens noted that there was an “obvious

tension” between Simmons and the refusal by the State of Texas to allow a defendant to give the jury

truthful information about his parole eligibility. Jd. at 355. An opinion dissenting from the denial of

a petition for writ of certiorari does not have precedential value. The Fifth Circuit cases on point,

based on Supreme Court majority opinions, are binding on this court. See Teague v. Lane, 109 S.

Ct. 1060, 1067-68 (1989). The Fifth Circuit has recognized, but specifically declined to apply, Justice

Stevens’ dissenting opinion in an opinion addressing a Simmons claim. See Muniz, 132 F.3d at 224

n.22 (citing Justice Stevens’ dissenting opinion as “but cf”).

99318 1622 P CASESWPENRY\97-4094 ¢/ | 42

912

nght to parole for the rest of [his] life.” The tral court sustained the prosecutor’s

objection to the introduction of this statement and excluded Penry’s statement from

evidence. (S.F. Vol. 50, pp. 1600-02).

During the sentencing phase of the tral, the court instructed the jury not

to consider the possibility of parole in determining Penry’s sentence. (Trans. Vol. 5,

p. 1328; SF Vol. 51, pp. 1915-16). In his closing argument, the prosecutor argued

that Penry would be a future danger to society. (S.F. Vol. 51, pp. 1946-47). After

closing arguments, immediately after the jury began to deliberate, Penry’s counsel

objected to the prosecutor’s future dangerousness argument and moved for a mistnal.

(/d., pp. 1948-49). The tnal court overruled Penry’s objection and denied his motion.

(Id., p. 1949). |

Penry argues that the trial court erred by permitting the prosecutor to argue

that Penry would be a future danger to society while denying Penry the opportunity to

present evidence that parole was at least highly unlikely. Penry appears also to

challenge the tnal court’s refusal to give Penry’s requested jury instruction regarding

parole.

On direct appeal, the Texas Court of Criminal Appeals rejected Penry’s

challenge to the jury instruction, noting that Penry’s offer of “waiver of parole” was not

99318 1622 P CASES\PENR Y\97-4094 ¢! | 43

911

legally binding. Penry, 903 S.W.2d at 763-64. The court rejected Penry’s challenge

to the prosecutor’s argument as not properly preserved for review. /d. at 764.

A. The Prosecution’s Argument

Penry procedurally defaulted on his claim that the prosecution’s closing

argument violated his nghts. A procedural default in state court bars federal habeas

review if the last state court rendering a judgment clearly and expressly rests its

judgment on the procedural default. Muniz, 132 F.3d at 220; Moore v. Roberts, 83

F.3d 699, 702 (Sth Cir. 1996), cert. denied, 117 S. Ct. 772 (1997). The Fifth Circuit

has held that the Texas contemporaneous objection rule is an independent and adequate

state procedural bar. Muniz, 132 F.3d at 221; Livingston v. Johnson, 107 F.3d 297,

311-12 (Sth Cir. 1997); Amos v. Scott, 61 F 3d 333, 345 (Sth Cir. 1995). Penry does

not argue that he meets the cause and prejudice or actual innocence exceptions to the

procedural default rule. To the extent that Penry’s Simmons claim rests on the tnal

court’s failure to grant his motion for a mistrial based on the prosecutor’s future

dangerousness argument, he has procedurally defaulted that claim.

B. The Trial Court’s Instructions

Penry’s Simmons claim can also be read as a challenge to the trial court’s

failure to instruct the jury on the remoteness of Penry’s chances for parole, — on

Penry’s signed “waiver.” The Court of Criminal Appeals rejected Penry’s Simmons

99318 1622 P CASESWPENR Y\97-4094 1 | 44

G10

claim on the ments, holding that under Texas iaw “{t}he matter of parole or a

defendant’s release thereon is not a proper consideration for a jury’s deliberations in

the punishment phase of a capital murder trial.” Penry, 903 S.W.2d at 764. The Texas

court’s conclusion is consistent with the Fifth Circuit decision in A//ridge, and is neither

contrary to, nor an unreasonable application of, clearly established federal law.

Penry argues that his case is distinguishable from Al/ridge because he

offered, in a wmitten, signed statement, to become “parole ineligible.” Penry offers the

affidavit of Dr. James W. Marquart, a professor of criminology at Sam Houston State

University, opining that the Texas parole board would have given “great weight” to

Penry’s signed “waiver” in deciding whether to grant Penry parole in the future.

(Docket Entry No. 19, Appendix, Ex. C, Affidavit of James W. Marquart, J 4). Dr.

Marquart recognized that Penry’s signed statement was not a legally binding waiver of

parole, but stated that “a parole board would have seen that document and given it

great weight in determining whether Mr. Penry should be paroled,” even if Penry

“changed his mind and sought to ‘take back’ this statement.” (/d., $9 4, 7). In Dr.

Marquart’s opinion, the combination of the nature of Penry’s crime and Penry’s signed

Statement would have “forever erased [Penry’s] chances of parole.” (/d., § 8). Pony

argues that in sentencing, the jury was entitled to consider that for all practical

purposes, Penry would not receive parole.

99318 1622 P\CASESPENRY 97-4094 el | 45

% OS

It is undisputed that Penry’s statement of waiver did not make him “legally

ineligible” for parole. Dr. Marquart’s affidavit speculates as to what the parole board

might decide in the future. The Fifth Circuit cases clearly hold that Simmons is

restricted to situations in which the defendant is presently ineligible for parole, as a

matter of law. See Boyd, 1999 WL 71660, at *5; Muniz, 132 F.3d at 224; Woods, 75

F.3d at 1037; Johnson v. Scott, 68 F.3d 106, 111 (Sth Cir. 1995); Montoya, 65 F.3d at

416; Kinnamon vy. Scott, 40 F.3d 731, 733 (5th Cir. 1994). As the court stated in

Allridge:

A capital defendant’s parole ineligibility . . . must be a

matter of law because evidence of such ineligibility is

inherently “truthful” and allows the defendant to deny or

explain the state’s case for future dangerousness. But if a

defendant’s ineligibility is a matter of fact, i.e., the

defendant probably will not be eligible for parole, then the

evidence is purely speculative (maybe even inherently

“untruthful”) and therefore cannot positively deny future

dangerousness. The jury is left only to speculate about what

a parole board may, or may not, do twenty or thirty years

hence.

Allridge, 41 F.3d at 221-22 (citations omitted) (emphasis in orginal).

Penry argues that his case is different from Allridge because the

prosecutor based his future dangerousness argument on Penry’s danger to “free”

society, improperly referencing a possibility of parole. The case law does not support

Penry’s proffered distinction. Even when the prosecution argues that a defendant will

99318 1622 P CASES\WPENR Y\97-4094 el! 46

90S -

be a future danger to “free” society, Simmons does not apply unless the defendant is

legally ineligible for parole. /d. at 222. Penry’s case does not violate Simmons simply

because the prosecutor argued that Penry may be a future danger to “free” society.

This court must follow binding Fifth Circuit precedent. That precedent

establishes that the Texas Court of Cnminal Appeals’ rejection of Penry’s Simmons

claim was not “contrary to, or an unreasonable application of, clearly established

federal law, as determined by the Supreme Court.” This court DENIES Penry’s

Simmons claim."

VII. The Estelle v. Smith Claim (Claim V)

In Estelle v. Smith, 101 S. Ct. 1866 (1981), the Supreme Court held that

the prosecution’s use of a capital murder defendant’s pretrial psychiatric examination

in the sentencing phase as the basis for an examining psychiatrist’s opinion as to the

defendant’s future dangerousness violated the Fifth and Sixth Amendments. The

Penry requests an evidentiary hearing on his Simmons claim. Penry argues that he

could offer evidence “regarding how often, if ever, a defendant tried for capital murder has been

paroled -- at any point in his or her sentence.” (Docket Entry No. 28, p. 39). Even if Penry presented

such evidence, it would not distinguish his case from the Allridge line of cases. This court may not

grant an evidentiary hearing on a claim which the petitioner has failed to develop in state court unless

“the facts underlying the claim would be sufficient to establish by clear and convincing evidenve that

but for constitutional error, no reasonable fact finder would have found the applicant guilty of the

underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Penry’s alleged constitutional error does not relate

to his guilt. Moreover, even if Penry could prove the facts underlying the claim, he would not be

entitled under Allridge to a reversal of his sentence. Penry’s request for an evidentiary hearing to

develop his Simmons claim is DENIED.

318 1622 P \CASESPENRYO7-a084 ei 47

907

Supreme Court held that in the absence of proper Miranda warnings and an effective

waiver from the defendant, the Fifth Amendment privilege against self-incnmination

precluded the State from using statements the defendant made during the pretnal

psychiatric examination to prove the defendant’s future dangerousness. /d. at 1876.

In Buchanan v. Kentucky, 107 S. Ct. 2906 (1987), the Supreme Court

clanfied that its holding in Estelle did not apply if the defendant requested a pretnal

psychiatric examination or if the defendant presented psychiatnc evidence at tnal. /d.

at 2917-18. The Fifth Circuit has held that the first exception, that the defendant

requests the examination, applies only if the defendant specifically requests an

evaluation as to his future dangerousness. See Vanderbilt v. Collins, 994 F.2d 189, 196

(Sth Cir. 1993); Battie v. Estelle, 655 F.2d 692, 702 (Sth Cir. 1981).

In Estelle v. Smith, the Supreme Court also found that the State’s failure

to give defense counsel notice of the examination, including its scope and nature,

violated the defendant’s Sixth Amendment rights. Estelle, 101 S. Ct. at 1877. The

State violates the Sixth Amendment if defense counsel is told that the defendant will

be examined, but not that the examination will be used as evidence of the defendant's

future dangerousness. Vanderbilt, 994 F.2d at 198. In Powell v. Texas, 109 S. Ct.

3146 (1989), the Court held that a defendant does not waive his Sixth Amendment nght

to counsel even if the defendant waives a Fifth Amendment challenge to the State’s use

99318 1622 P CASESWPENR YW7-4094 1 | 48

906

of statements he or she made in a pretnal psychiatric examination by requesting the

examination or by introducing psychiatric evidence. /d at 3150.

Penry argues that both his Fifth and £i..5 Amendment nghts were violated

when the prosecution presented testumony from three psychiatrists and then used that

testimony to argue that Penry would be dangerous in the future and that his mental

status did not make the death sentence inappropmate.

A. The Psychiatric Testimony and the Prosecution’s Argument

1. Dr. Fason’s Testimony

During the guilt/innocence phase of Penry’s second tnal, Dr. Fason told

the jury that he had conducted one three-minute interview with Penry and one twenty-

minute interview. Dunng both interviews, —_ communicated fully, identified his

lawyer, and acted appropnately. (S.F. Vol. 46, pp. 786-88). Dr. Fason denied that he

observed “any kind of a psychosis, or other type of mental illness” in Penry during the

interviews. (/d , p. 788). Dr. Fason discussed the accuracy of IQ tests and noted that

a personality disorder, such as an antisocial personality, could affect a person’s score

on an IQ test. (/d, pp. 788-92). Dr. Fason stated that he had reviewed “rather

extensive” records “pertaining to Johnny Paul Penry’s prior history” and records of

neurological testing done on Penry. (/d, pp. 794-95). Dr. Fason stated that he

99318 1622 P CASESPENR Y\97-4094 c! | 49

disagreed with a report that concluded that Penry “may have a significant degree of

brain damage.” (/d., p. 795).

The prosecutor then asked Dr. Fason for his opinion as to Penry’s mental

status in 1979, when the alleged rape and murder occurred. Dr. Fason concluded that

“based on all of those records that [he] reviewed and [his] personal internews with

[Penry], the tests, [Dr. Fason’s] training and experience and education,” Penry “is on

the borderline between mild mental retardation and dull normal.” (/d., p. 796). Dr.

Fason also testified that Penry “has a personality disorder, an anti-social personality

disorder.” (/a@.). Dr. Fason admitted that a person with an antisocial personality

disorder could also be referred to as a “psycho-path.” (/d.). Dr. Fason described an

antisocial personality as “a person that has repeated difficulties with authority. They

tend to be very selfish, callous and self-centered.” (/d , p. 798). Dr. Fason testified

that he did not know of a cure for an antisocial personality. (/d., p. 800). Dr. Fason

then again explained that an antisocial personality disorder could lower a person’s

score on an IQ test.

The prosecutor asked Dr. Fason whether Penry “‘is the type of person that

looks up to an authority figure.” (/d., p. 804). Dr. Fason testified that he believed

Penry does not respect authority and would not be “led easily by other people” because

of his antisocial personality. (/d, pp. 804-05). Dr. Fason also testified that he

99318 1622 P \CASESWENR 97-4094 ! | 50

904

believed Penry had the capacity to act intentionally and possessed the intellectual

capability to understand Miranda warnings and waive those warnings knowingly and

intelligently. (/d., pp. 811-13).

Although Dr. Fason did not specifically testify as to Penry’s future

dangerousness, the prosecutor referred to Dr. Fason’s testimony during the sentencing

phase of the trial in arguing Penry’s future dangerousness. (S.F. Vol. 51, pp. 1933-34).

2. Dr. Quijano’s Testimony

During the sentencing phase, Dr. Quijano testified that although Penry’s

~IQ test scores placed him in the “mildly mentally retarded” to “borderline” range of

intelligence, Penry’s “adaptive skills” were sufficient to classify him as “not mentally

retarded.” (S.F. Vol 50, pp. 1629, 1648). Dr. Quijano also testified that he believed

Penry had the ability to control his actions. After Dr. Quijano denied that Penry was

retarded or had organic brain damage, Dr. Quijano testified that Penry suffered from

an antisocial personality disorder. (/d., pp. 1648-49). As evidence of Penry’s

antisocial personality, Dr. Quijano noted

repeated violations of the law, disregard of the nghts of

others, the inability to learn from previous experience in the

sense that one does not profit from the punishment or from

being caught. There is an element of cold bloodiness [sic]

99318 1622 P\CASESPENRY 97-2086 61 51

903

(/d.,p. 1651). Dr. Quijano also testified that persons with an antisocial personality and

a history of violence could be classified as dangerous and that there is no cure for an

antisocial personality. (/d., p. 1652). Dr. Quijano testified that he believed Penry “is

more likely to engage in continuing acts of violence in the future.” (/d., p. 1654).

3. Dr. Samenow’s Testimony and Dr. Peebles’ Report

Dr. Samenow testified during the sentencing phase that he believed Penry

to have an “anti-social personality.” (/d., p. 1731). Dr. Samenow agreed that Penry

was aggressive, violent, manipulative, dangerous, and unremorseful. (/d., pp. 1734-

36). When asked if he believed Penry was likely to change, Dr. Samenow testified that

“the prognosis would be pretty bleak.” (/d., p. 1736).

In his testimony during the sentencing phase of Penry’s 1990 trial, Dr.

Samenow made only one reference to a report from Dr. Peebles, who had examined

Penry before his 1977 conviction for aggravated rape. Penry’s counsel had requested

that Dr. Peebles examine Penry. (S.F. Vol. 47, p. 1058). Dr. Samenow noted that Dr.

Peebles’ report reflected that Penry “on occasion, heard voices and saw things, but .

.. he probably learned this at Rusk State Hospital and is using this as an excuse to

cover up his offenses.” (S.F. Vol. 50, p. 1729). Dr. Samenow then testified that “TDC

Medical Records” showed that Penry had on occasion used his mental retardation as

an excuse for violent or destructive behavior. (/d., pp. 1730-31). Dr. Samenow

99318 1622 P \CASESPENR Y\97-4094 e1 | 52

902

testified that he had developed his diagnosis of Penry’s antisocial personality from a

review of “records” showing that Penry had a history of committing “anti-social acts”

and a “broad range of criminal activity.” (/d., pp. 1731-32). Dr. Samenow testified

that he based his conclusion that Penry’s crimes were planned or premeditated from

these same “records” and from Penry’s “prior criminal and violent behavior.” (/d_, pp.

1733-34). Dr. Samenow broadly referred to the “TDC Medical Records” as supporting

his opinion that Penry could exercise self-control; could act deliberately; was

aggressive, violent, and manipulative, was capable of acting voluntarily; and was

dangerous and unlikely to change. (/d., pp. 1734-37)."”

- Dr. Samenow’s description of the records he reviewed in preparing to testify shows

that Dr. Peebles’ report was one of many documents that Dr. Samenow consulted. Dr. Samenow

testified that he reviewed

[t}he confession of the Defendant that was dated 1979, I believe, two

of them. Information concerning 1977 rape conviction involving a

Diana Koch. The Defendant's records from Austin State Hospital,

University of Texas Medical Branch at Galveston, TDC Medical and

Mental Health Records, Mental Health or records from the Polk

County Mental Health and Mental Retardation Unit, records from the

Mexia State School, records from the Texas Rehabilitation

Comumssion, the Rusk State Hospital, the Goose Creek Independent

School District, Competency and Insanity Examination by Dr.

Kenneth A. Vogtsberger, TDC Disciplinary Records on this

een? ect + rer gauge eama aaa

I believe a Competency Trial Transcript . .

(S.F. Vol. 50, pp. 1715-16).

99918 1622 P CASESPENRY 97-4004 e1) 53

4. The Prosecutor’s Use of Dr. Peebles’ Report in Closing

Argument

In closing argument, the prosecutor used Dr. Peebles’ report to argue

Penry’s future dangerousness:

In 1977, this man raped Diana Rearden. A few months later

he was examined by Dr. Felix Pebbles [sic], who found that

he was sane. He knew the difference between right and

wrong, and he was competent to stand tnal, but, Dr. Pebbles

[sic], went on and made an additional finding that was really

out of the ordinary, and I have never seen this in any kind of

a report, he just added it, he said that it is my further

professional opinion, that if Johnny Paul Penry were

released from custody, that he would be dangerous to other

persons.

(S.F. Vol. 51, pp. 1946-47).

B. The Findings and Conclusions of the State Court

On Penry’s direct appeal, the Texas Court of Criminal Appeals thoroughly

discussed Penry’s Estelle v. Smith claim and, applying the Supreme Court rulings in

Estelle and Buchanan, rejected the claim. Penry, 903 S.W.2d at 757-60. As to the

Sixth Amendment claim, the Texas court found that Penry’s attorney was “on notice

that if he intended to put on a ‘mental status’ defense, he would have to anticipate the

use of psychological evidence by the prosecution in rebuttal.” /d. at 758-59. The court

also found that Penry was not examined for future dangerousness. Based on these

findings, the Texas court concluded that there had been no Sixth Amendment violation.

99318 1622 P CASES PENR Y97-4094 ei! 54

As to Penry’s Fifth Amendment claim, the Texas Court of Criminal

Appeals found that the testimony of Dr. Fason, who did not testify regarding future

dangerousness, was proper rebuttal testimony under Buchanan. The state court noted

that Dr. Quiyano had testified as to Penry’s future dangerousness but did not base his

opinion on his examination of Penry. /d. at 759. As to Dr. Peebles’ 1977 examination,

the state court found that defense counsel had requested that examination and that

during the 1990 tnal, no expert witness referred to any testimonial statements contained

in the Peebles report. /d The state appellate court specifically found that Dr.

Samenow and Dr. Quijano did not base their opinions regarding future dangerousness

on Dr. Peebles’ examination and report. /d. Based on these facts, the Texas court

concluded that Estelle did not apply to Penry’s trial and did not support his claim for

relief. /d| The Texas court determined that Penry’s claim regarding the prosecutor’s

closing argument was procedurally barred. /d. at 760.

This court finds that Penry has failed to rebut, by the necessary clear and

convincing evidence, the presumption that the state court’s factual findings are correct,

as the AEDPA requires. The legal conclusions of the Texas Court of Criminal Appeals

are neither contrary to, nor an unreasonable application of, clearly established federal

law, and they are not based on an unreasonable determination of the facts in light of the

99318 1622 P CASES PENRY\97-4094 «1 55

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evidence presented. This court DENIES Penry’s request for federal habeas relief on

his Estelle v. Smith claim.

C. Harmless Error Analysis

Even if this court rejected the Texas Court of Cnminal Appeals’ findings

and concluded that Dr. Fason’s testimony violated Estelle v. Smith to the extent that

it went beyond rebutting the testimony Penry offered by providing an opinion as to

future dangerousness, the error was harmless under Brecht v. Abrahamson, 113 S. Ct.

1710 (1993).

Under Brecht, a trial error of constitutional magnitude does not entitle a

defendant to habeas relief unless the error “‘had a substantial or injurious effect or

influence in determining the jury’s verdict.’” Id at 1722 (quoting Kotteakos v. United

States, 66 S. Ct. 1239, 1253 (1946)); see also Harris v. Warden, Louisiana State

Penitentiary, 152 F.3d 430, 437 (Sth Cir. 1998); Woods v. Johnson, 75 F.3d at 1017,

1026-33 (Sth Cir. 1996) (applying the Brecht standard to reject a petitioner’s Estelle

claim). In Woods, the Fifth Circuit found the prosecution’s violation of Estelle to be

harmless because the psychiatrist’s testimony as to future dangerousness was

“equivocating and weak”; the jury could not reasonably construe the psychiatrist’s

testimony as based on his examination of the defendant; and the prosecution primarily

relied on other evidence of the defendant’s future dangerousness. Woods, 75 F.3d at

99318 1622 P \CASESVPENR Y\97-4094 ¢1| 56

1027, 1028-33. The Woods court found the psychiatrist’s testimony to be

“equivocating and weak” for two reasons. The psychiatrist admitted that behavioral

scientists’ efforts to predict future behavior were not very accurate. He also testified

only that someone who had committed violent acts in the past was “more likely” to

commit future violent acts. /d. at 1027.

Dr. Fason’s direct testimony on Penry’s future dangerousness was highly

“equivocating and weak,” so much so that it is debatable whether he even testified as

to future dangerousness. Additionally, on cross-examination, Dr. Fason substantially

limited the potential impact of his direct testimony. After Penry’s counsel asked Dr.

Fason if he would need longer than a twenty-minute examination to make a diagnosis

of an antisocial personality, Dr. Fason eneuueed that, although he would not need

additional time to make a “diagnosis,” he would need significantly more time to make

a prognosis as to the future and, indeed, could not make such a prognosis as a scientific

opinion. (S.F. Vol. 46, p. 821). This testimony is similar to the psychiatrist’s

testmony in Woods, disclaiming an ability to predict the defendant’s future

dangerousness beyond a statement that someone with a past history of violent acts has

a greater likelihood of committing future violence than a person with no pnor violent

conduct.

99318 1622 P \CASESPENRY 97-4094 1; 57

Dr. Fason’s testimony on direct examination was less inflammatory than

testimony presented in cases finding harmful error. See Satterwhite v. Texas, 108 S.

Ct. 1792, 1799 (1988) (the psychologist testified that the defendant unequivocally “will

present a continuing threat to society by continuing acts of violence,” was “as severe

a sociopath as you can be,” and was “beyond the reach of psychiatric rehabilitation’’);

Estelle, 101 S. Ct. at 1871 (the psychologist testified that the defendant was a “very

severe scciopath” who would “continue his previous behavior,” whose sociopathic

condition would “only get worse,” and who would “go ahead and commit other similar

or same criminal acts if given the opportunity to do so’’).

In addition, the record reflects that Dr. Fason’s diagnosis drew primarily

from sources other than his examination of Penry. Although Dr. Fason included the

examination in his diagnosis, he disagreed that the diagnosis was made “on the basis

of” the interview. (S.F. Vol. 46, p. 820). Dr. Fason had also reviewed Penry’s “rather

extensive” medical records in reaching his conclusions. Dr. Fason testified on redirect

examination that his diagnosis of Penry’s antisocial personality was his “impression,

diagnostic impression, and that is based on review of all of the records.” (/d., p. 829).

See Woods, 75 F.3d at 1028-30 (the psychiatrist’s limited opinion concerning the

defendant’s future dangerousness was based primarily on a hypothetical given by the

prosecutor); Savino v. Murray, 82 F.3d 593, 605-06 (4th Cir. 1996) (finding harmless

99318 1622 P \CASES\PENR Y\97-4094 e1 | 58

$96

error when the expert “said he reviewed numerous outside materials” in diagnosing the

defendant).

Finally, Dr. Fason’s testimony was a very small part of the prosecution’s

evidence of Penry’s future dangerousness. Two other experts, Drs. Quijano and

Samenow, testified far more extensively and unequivocally than Dr. Fason that Penry

would be a future danger. Dr. Quijano testified during the sentencing phase that Penry

was “likely to engage in continuing acts of violence in the future.” (S.F. Vol. 50, p.

1654). Dr. Samenow testified that the possibility that Penry’s antisocial behavior would

change “would be pretty bleak.” (/d., p. 1736). The prosecution also presented

testimony during the sentencing phase from five prison guards and a deputy shenff that_

Penry had committed violent and aggressive _ while in custody and had a reputation

for being dangerous. Four of the prison guards specifically testified that they believed

Penry would be a future danger. (S.F. Vol. 47, pp. 970, 983, 1008-09, 1157-60). The

prosecution also presented Penry’s 1977 aggravated rape conviction and testimony

from the victim, as well as testimony from the woman Penry identified in his confession

as someone he wanted to rape.

In his closing argument, the prosecutor relied far more heavily on evidence

of Penry’s dangerousness other than Dr. Fason’s testimony. The prosecutor made only

a bnef reference to Dr. Fason’s testimony to support his argument as to Penry’s future

99318 1622 P \CASES\PENRY\97-4094 €1 1 59

dangerousness. See Woods, 75 F.3d at 1032 (noting that the objectionable references

to the psychiatrist’s testimony constituted less than ten percent of the prosecutor’s

closing argument).

The aggravated nature of Penry’s crime, the inculpatory and remorseless

statements in his confessions, and Penry’s other violent acts, all . supported the

prosecution’s future dangerousness argument. In Woods, the court found that

admission of the psychiatrist’s testimony was harmless error, in part because “[t]he real

strength of the prosecution case on future dangerousness was the nature of the crime

itself... coupled with the [previous] conviction and fifteen-year sentence for attempted

aggravated rape.” Jd; see also Savino, 82 F.3d at 605 (“At sentencing, the

Commonwealth presented compelling oetenee of Savino’s prior criminal record and

his own statements of his criminal history. The nature of the crime and the

circumstances surrounding it certainly revealed viciousness and dangerousness.”’).

This court concludes that the admission of any testimony by Dr. Fason that

could be characterized as evidence of Penry’s future dangerousness did not have a

“substantial and injurious effect” on the jury’s verdict. Even if this court were to

determine that Dr. Fason’s testimony violated the Supreme Court’s decision in Estelle

v. Smith, the court would conclude that the error was harmless. The court DENIES

Penry’s Estelle claim.

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VIII. The Exclusion of Evidence of Shirley Penry’s Mental Illness (Claim VI)

During the sentencing phase of his retnal, Penry offered two hospital

records documenting post-partum psvchotic, schizophrenic behavior by Shirley Penry,

Penry’s mother. The trial court excluded the documents. (S.F. Vol. 49, pp. 1561-65).

Penry argues that the tral court’s exclusion of the evidence violated his constitutional

nghts by preventing the jury from hearing and considering relevant mitigating evidence.

The Court of Criminal Appeals upheld the trial court’s exclusion of the

evidence as urelevant, finding that “the records did not discuss whether [Penry’s]

mother abused any of her children, or even whether her mental condition made it likely

that she would abuse her children. There was no evidence that her psychological

problems would have led to child ene.” Penry, 903 S.W.2d at 762. The

determination by the state appellate court that the evidence was irrelevant is not an

~ unreasonable application of clearly established federal law and cannot provide a basis

for granting Penry federal habeas relief under the AEDPA.

A state tnal court’s ruling that the proffered testimony is inadmissible is

entitled to deference by a federal habeas court. See Panzavecchia v. Wainwright, 658

F.2d 337, 340 (Sth Cir. 1981) (“{FJlederal courts are compelled to defer to a state

court’s interpretation of its own criminal laws, rules of evidence and rules of criminal

procedure.” (citing Spencer v. Texas, 87 S. Ct. 648 (1967))); see also Little v. Johnson,

99318 1622 P \CASESVPENR Y\97-4094 ¢/! 6 ]

893

APPENDIX C

DECISION OF THE UNITED STATES COURT OF APPEALS DENYING

MOTIONS FOR PANEL REHEARING AND REHEARING EN BANC

PWRW &G UNITED STATES COURT OF APPEALS

FILED

JUL 25 2000

No. 99-20868

JOHNNY PAUL PENRY

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

On Petition for Rehearing

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In his petition for rehearing, Penry contends for the first

time that Battie v. Estelle, 655 F.2d 692 (S™ Cir. 19681), controls

the admissibility of the Peebles report. Battie was decided before

Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906 (1987), and we

explained in Schneider v. Lynaugh, 83S F.2d 570 (S** Cir. 1988), how

Buchanan controls this issue when an accused requests 4n

examination, particularly when he puts his mental status at issue.

In Schneider, we stated that:

Schneider requested the competency examination. Before

Buchanan, we heid that this fact “(did) not obviate the

For the Fifth Circuit U.8. COURT OF APPEALS

CHARLES R. FULBRUGE It

Veet RK

Issa Yu, oS *

necessity for giving the Miranda warnings” when the

examination extended beyond the subject of competency.

(Battie, 655 F.2d at 702-3). The Court in Buchanan. however,

regarded such a request 4s militating against the defendant’s

assertion of the privilege, for it stated that “if a defendant

requests such an evaluation or presents psychiatric evidence,

then, at the very least, the prosecution may rebut this

presentation with evidence from the reports of the examination

that the defendant requested.”

835 F.2d at 577.

Because Schneider, rather than Battie, controls our decision

on this issue, we DENY Penry’s petition for panel rehearing.

Judge Dennis would GRANT the motion for panel rehearing.

No judge in regular. active service on the court having

requested that the court be polled on Rehearing En Banc, (Fed. R.-

App. P. and 5th Cir. R. 35) the Petition for Rehearing En Banc is

also DENIED.

ENTERED FOR THE COURT:

bf. .

United States Circuit Judge

APPENDIX D

DECISION OF THE UNITED STATES DISTRICT COURT

DENYING MOTION TO ALTER AND AMEND JUDGMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS yg {3 1999

HOUSTON DIVISION

Michael N. Milby, Clerk of Court

JOHNNY PAUL PENRY, §

Petitioner, §

VS. § CIVIL ACTION NO. H-97-4094

GARY L. JOHNSON, §

Director, Texas Department of §

Criminal Justice, Institutional Division, §

Respondent. §

MEMORANDUM AND OPINION

In a March 29, 1999 Memorandum and Order, this court analyzed the

petition for writ of habeas corpus filed by petitioner, Johnny Paul Penry, and granted

summary judgment in favor of respondent, Gary L. Johnson, Director of the Texas

Department of Crissinel Justice—Institutional Division, on each of Penry’s claims.

(Docket Entry No. 33). Following a detailed review of Penry’s arguments, this court

determined that Penry was not entitled to a Certificate of Appealability (“COA”).

Penry has filed a motion to alter and amend the judgment and a brief in

support. (Docket Entry Nos. 36, 37). Based on the motion, the brief, this court’s

March 29, 1999 Memorandum and Order, and the applicable law, this court DENIES

Penry’s motion to alter and amend the judgment. The reasons are-stated below.

aA 1014

9976 1655 P CASES\9797 4094197 4094 (D4

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I. The Motion to Alter and Amend the Judgment

Penry raises two grounds: (1) this court applied an impermissibly

restrictive standard in denying Penry a COA; and (2) this court erred in its legal

analysis of Pettry’s “mitigation instruction” claim.

A. The Legal Standard for Granting a COA

The law is clear that a COA issues if the petitioner has made a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);

see also United States v. Kimler, 150 F.3d 429, 431 (Sth Cir. 1998). “A petitioner can

meet this burden by demonstrating that ‘the issues [presented] are debatable among

jurists of reason; that a court could resolve the issues in a different manner; or that the

questions are adequate to deserve encouragement to proceed further.’” Little v.

Johnson, 162 F.3d 855, 859 (Sth Cir. 1998) (alteration in original) (quoting Barefoot

v. Estelle, 103 S. Ct. 3383, 3394-95 & n.4 (1983)), cert. denied, 119 S. Ct. 1768

(1999). “The nature of the penalty in a capital case is a ‘proper consideration in

determining whether to issue a [COA], but the severity of the penalty does not in

itself suffice to warrant the automatic issuing ofa certificate.’” Jd. (quoting Barefoot,

103 S. Ct. at 3394-95).

Penry’s disagreement is not with this court’s statement of the legal

standard for granting a COA, but rather the application of that standard. In its prior

9976 1655 P \CASES\97197 40941974094 (04 2

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Memorandum and Order, this court found that “Penry has failed to make a

‘substantial showing of the denial of a constitutional right’” “because . . . each of his

claims is foreclosed by clear, binding precedent, often recently decided.” (Docket

Entry No. 33, p. 156). Penry asserts that the merits of some of his claims are

“debatable among jurists of reason” because support for these claims has come from

“Judges and Justices from the Supreme Court, Fifth Circuit, and the Texas Court of

Criminal Appeals,” although the support is found only in concurring and dissenting

opinions. (Docket Entry No. 37, p. 4).' Penry argues that “[t]o deny [him] a

certificate of appealability is implicitly to call into question the reasonableness of

some of the country’s greatest legal minds.” (/d.).

Penry’s approach to the legal standard for the issuance of COAs

overstates the basis, and understates the purpose, of aCOA. Courts deny COAs on

issues that have sparked vigorous disagreement among judges, but have been

decided, even without consensus among all “jurists of reason.”

Penry identifies the following jurists as those supporting his “most important claims”:

Brown v. Texas, 118 S. Ct. 355 (1997) (Stevens, J.; Souter, J.; Ginsburg, J.; Breyer, J.) (respecting

the denial of the petition for writ of certiorari); Whitaker v. State, 977 S.W.2d 595, 601-02 (Tex.

Crim. App. 1998) (Price, J., concurring), cert. denied, 119 S. Ct. 878 (1999); May v. Collins, 904

F.2d 228, 232-33 (Sth Cir. 1990) (Reaveley, J. and King, J., concurring). (Docket Entry No. 37, p.

4).

9976 1655 P \CASES\97\97 -4094\97-4094 (04 3

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In Little v. Johnson, the petitioner requested a Certificate of Probable

Cause (“CPC”) on a due process claim based on the admission of psychiatric

testimony on the potential for future dangerousness in the sentencing phase of his

capital trial. The testimony was based on a hypothetical set of facts. See 162 F.3d

at 862-63. The Fifth Circuit declined to issue the CPC, despite the fact that three

Supreme Court justices--Justices Blackmun, Brennan, and Marshall--had previously

found that such psychiatric testimony was constitutionally defective. See Barefoot,

103 S. Ct. at 3406-18 (Blackmun, J., dissenting).

In Trevino v. Johnson, 168 F.3d 173, 180 (Sth Cir. 1999), petition for

cert. filed, -- U.S.L.W. -- (U.S. June 17, 1999) (No. 98-9936), the petitioner

requested a COA on his claim that his state habeas proceedings violated his due

process rights. The Fifth Circuit did not grant the petitioner the COA, because “[o]ur

circuit precedent makes clear that [petitioner’s] ‘claim fails because infirmities in

state habeas proceedings do not constitute grounds for relief in federal court.’” Jd. at

180 (quoting Hallmark v. Johnson, 118 F.3d 1073, 1080 (Sth Cir.), cert. denied sub

: In Section 102 of the AEDPA, Congress amended 28 U.S.C. § 2253 to provide that

a COA, rather than a CPC, is the appropriate mechanism for allowing a habeas petitioner to appeal

a final judgment from a federal district court. “The standard for obtaining a COA is the same as for

a CPC.” Muniz v. Johnson, 114 F.3d 43, 45 (Sth Cir. 1997); Murphy v. Johnson, 110 F.3d 10, 11

(5th Cir. 1997). However, “a COA, unlike a CPC, must ‘indicate which specific issue or issues

satisfy the showing required . . . ."” Murphy, 110 F.3d at 11 n.1 (quoting 28 U.S.C. § 2253(c)(3)).

9976 1655 P CASES\97\97 40941974094 (04 4

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nom. Johnson v. Monroe, 118 S. Ct. 576 (1997)). The Fifth Circuit observed that five

of the six circuits that had considered the issue had arrived at the same conclusion.

See id. The fact that a United States court of appeals had disagreed did not prevent

the Fifth Circuit from denying the petitioner a COA.

In Castillo v. Johnson, 141 F.3d 218 (Sth Cir.), cert. denied, 119 S. Ct.

28 (1998), the petitioner claimed that his federal constitutional rights were violated

by the state trial court’s exclusion of polygraph evidence, a Susie based on a state

law per se bar on such evidence. Citing United States v. Sheffer, 118 S. Ct. 1261

(1998), the Fifth Circuit found that a per se rule against the admission of polygraph

evidence did not violate the Fifth or Sixth Amendment nghts of the accused to

present a defense. See id. at 222. The Fifth Circuit declined to issue the petitioner

a CPC, notwithstanding the fact that Justice Stevens dissented from the Supreme

Court’s opinion approving a per se bar on polygraph evidence. See Sheffer, 118 S.

Ct. at 1270-79 (Stevens, J., dissenting).

In Barber v. Johnson, 145 F.3d 234 (Sth Cir.), cert. denied, 119 S. Ct.

518 (1998), the petitioner had been convicted of capital murder and sentenced to

death. The petitioner petitioned for state habeas relief, asserting error in the

admission of certain psychiatric testimony. The Texas Court of Criminal Appeals

denied that relief because it found any error to be harmless. See Barber v. State, 757

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S.W.2d 359 (Tex. Crim. App. 1988). The petitioner unsuccessfully sought habeas

relief in federal district court. In his appeal to the Fifth Circuit, the petitioner

complained that the Texas Court of Criminal Appeals and the district court

mistakenly applied the harmless error Casieads articulated in Brecht v. Abrahamson,

113 S. Ct. 1710 (1993), rather than the standard set out in Chapman v. California, 87

S. Ct. 824 (1967). Noting that a prior panel, Hogue v. Johnson, 131 F.3d 466 (Sth

Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998), had already decided the issue, the

Fifth Circuit denied the petitioner’s request for a CPC, even though the “holding in

Hogue may be viewed as inconsistent with the Supreme Court’s underlying reasoning

for applying the Brecht standard in federal habeas review.” Barber, 145 F.3d at 236.

The Barber court disagreed with the holding of a prior Fifth Circuit panel, yet

declined to issue a CPC because the prior panel’s decision was binding. See id. at

237.

In Boyd v. Johnson, 167 F.3d 907 (Sth Cir. 1999), cert. denied, -- S. Ct.

--, 1999 WL 412897 (U.S. Aug. 5, 1999), the Fifth Circuit considered the petitioner’s

request for a CPC on his Simmons claim.’ Penry asserted a similar clai__ in this case

. In Simmons v. South Carolina, 114S. Ct. 2187, 2190 (1994), the Supreme Court held

that when a capital murder defendant would be ineligible for parole under state law if sentenced to

life imprisonment, and the prosecution argues that the defendant would be dangerous in the future,

due process requires the jury to be informed that the defendant would be ineligible for parole. The

Fifth Circuit has rejected the extension of the Simmons rule to a Texas capital defendant. See

9976 1655 P \CASES\9797 40941974094 [04 6

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and now argues that it is especially worthy of aCOA. The Fifth Circuit denied the

request for a CPC in Boyd. In Boyd, as in this case, petitioner asserted that the trial

court erred by permitting the prosecutor to argue future dangerousness while denying

petitioners the opportunity to present evidence and argue that if the jury imposed a

sentence, parole would not be likely. In Boyd, as in this case, petitioner relied on a

dissent from the denial of certiorari in Brown v. Texas, 118 S. Ct. 355 (1997)

(Stevens, J., dissenting from the denial of the petition for a writ of certiorari). Four

justices joined in the dissent. In the dissenting opinion, Justice Stevens noted the

“obvious tension” between Simmons and the refusal by the State of Texas to allow

a defendant to give the jury truthful information about his parole eligibility, observing

that this tension made the Texas capital punishment scheme “especially troubling.”

See id. at 355-56. The Boyd court declined to grant a CPC on the Simmons claim,

despite the dissent by four members of the Supreme Court from the denial of petition

for a writ of certiorari in Brown. See 167 F.3d at 912-13.

Penry’s argument would appear to require that a COA issue in every

appeal from a denial of habeas in a capital case. There have been, and are,

individuals and jurists of reason who find capital punishment unconstitutional in any

Allridge v. Scott, 41 F.3d 213, 222 (Sth Cir. 1994). Under Texas law, a capital defendant is not

legally ineligible for parole. The Fifth Circuit held that Simmons applies only to situations in which

the defendant is “legally ineligible” for parole. Jd. at 222.

9976 1655 P \CASES\97\97-4094\97-4094 (04 7

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case, as a violation of basic moral standards of decency. Penry echoed this argument

in his habeas petition, particularly as applied to the execution of those with the

impairments Penry presents. However, it is clear that the disagreement by jurists of

reason over the constitutionality of capital punishment does not require a COA in

every capital case.

COAs should be granted on an issue presented in the habeas petition that

is not settled. See Drinkard v. Johnson, 97 F.3d 751, 756 n.6, 779 (Sth Cir. 1996),

cert. denied, 117S. Ct. 1114(1997), overruled on other grounds by Lindh v. Murphy,

117 S. Ct. 2059 (1997).* However, habeas petitioners cannot obtain a COA by

finding support for their claims in concurring or dissenting opinions, in the face of

binding majority decisions adverse to their claims.

' There is some authority suggesting that a significant circuit split might also warrant

the issuance of a COA, even when there is binding authority in the circuit of the court considering

the COA request.

In Lozada v. Deeds, 111 S. Ct. 860 (1991) (per curiam), a Nevada District Court and

the Ninth Circuit denied the petitioner’s request fora CPC. See 111 S. Ct. at 861. The Supreme

Court found that the Ninth Circuit erred in denying the petitioner a CPC, because at least two circuit

courts had resolved the habeas claim at issue in a different manner. See id.

In Lynce v. Mathis, 117 S. Ct. 891 (1997), the petitioner’s request for a CPC on his

ex post facto claim had been denied by a Florida district court based on clear Florida and Eleventh

Circuit precedent. See 117 S. Ct. at 893. The Eleventh Circuit also denied the petitioner a CPC in

an unpublished order. Noting that the Tenth Circuit had “reached a different conclusion on similar

facts,” the Supreme Court granted certiorari and reversed the Eleventh Circuit. See id.

This court does not reach the issue of whether this situation requires the issuance of

a COA. None of Penry’s claims is supported by a binding majority decision of any circuit court.

9976 1655 P \CASES\97\97 4094197 4094 (04 8

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Penry’s claims are foreclosed by clear, binding Fifth Circuit precedent.

His claims have not attracted the support of a majority in any other circuit. Penry is

not entitled to a COA as to such issues.

B. The Mitigation Instruction Claim

In Penry’s federal habeas challenge to his first trial and conviction, the

Supreme Court granted relief after finding that none of the three special issues set out

in article 37.071(b) of the Texas Code of Criminal Procedure provided a means for

the jury to give effect to Penry’s mitigating evidence. See Penry v. Lynaugh, 109 S.

Ct. 2934, 2949 (1989) (“Penry I’). During the sentencing phase of Penry’s retrial,

the jury was again asked to answer the same special issues.° In the retrial, however,

The special issues that the jury was asked to answer included:

Special Issue No. 1

Was the conduct of the defendant, JOHNNY PAUL PENRY, that

caused the death of the deceased, PAMELA CARPENTER,

committed deliberately and with the reasonable expectation that the

death of the deceased or another would result?

Special Issue No. 2

Is there a probability that the defendant, JOHNNY PAUL PENRY,

would commit criminal acts of violence that would constitute a

continuing threat to society?

Special Issue No. 3

Was the conduct of the defendant, JOHNNY PAUL PENRY, in

killing PAMELA CARPENTER, the deceased, unreasonable in

response to the provocation, if any, by the deceased?

(Trans. Vol. 5, pp. 1330-31).

9976 1655 P \CASES\97\97-4094\97-4094 (04 9

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ae oe

the trial judge provided the jury with an instruction on how to incorporate Penry’s

mitigating evidence into its sentencing decision. In this habeas challenge, Penry

claims that this instruction was insufficient to cure the constitutional deficiencies

identified by the Supreme Court in Penry J.

This court analyzed the jury instruction, Penry’s presentation of

extensive mitigating evidence, and defense counsel’s jury arguments. In Emery v.

Johnson, 139 F.3d 191 (Sth Cir. 1997), cert. denied, 119 S. Ct. 418 (1998), the Fifth

Circuit had approved an instruction similar to the one at issue in Penry’s retrial.® This

court held that in the sentencing phase of Penry’s second trial, the jury was able to

In Emery, the jury was instructed as follows:

{[YJour answers to the Special Issues, which determine the

punishment to be assessed the defendant by the court, should be

reflective of your finding as to the personal moral culpability of the

defendant in this case.

When you deliberate about the questions posed in the Special Issues,

you are to consider any mitigating circumstances supported by the

evidence presented in both phases of the tral. A mitigating

circumstance may be any aspect of the defendant’s background,

character, and record, or circumstances of the crime, which you

believe makes a sentence of death inappropriate in this case. If you

find that there are any mitigating circumstances, you must decide how

much weight they deserve and give them effect when you answer the

special issues. If you determine, in consideration of this evidence,

that a life sentence, rather than a death sentence, is an appropriate

response to the personal moral culpability of the defendant, you are

instructed to answer the Special Issue under consideration “No”.

Emery, 139 F.3d at 200.

9976 1655 P CASES\97\97-4094\97 4094 (04 10

: 1005

give “constitutionally sufficient consideration to Penry’s mitigating evidence.”

(Docket Entry No. 33, p. 24).

Penry new asks this court to reconsider its ruling. Penry asserts that jury

instruction given in his retrial was defective in that it did not place his mitigating

evidence within the effective reach of the jury; that the defects in the jury instruction

were not present in the instruction at issue in Emery; and that these defects could not

be cured by arguments of counsel or by the presentation of mitigating evidence.

In Penry’s retrial, the trial court gave the following instruction to the

jury:

You are instructed that if you return an affirmative finding

on each of the special issues submitted to you, the court

shall sentence the defendant to death. You are further

instructed that if you return a negative finding on any

special issue submitted to you, the court shall sentence the

defendant to the Texas Department of Corrections for life.

You are therefore instructed that your answers to the

special issues, which determine the punishment to be

assessed the defendant by the court, should be reflective of

your finding as to the personal culpability of the defendant,

JOHNNY PAUL PENRY, in this case.

You are instructed that when you deliberate on the

questions posed in the special issues, you are to consider

mitigating circumstances, if any, supported by the evidence

presented in both phases of the trial, whether presented by

the state or the defendant. A mitigating circumstance may

include, but is not limited to, any aspect of the defendant’s

character and record or circumstances of the crime which

9976 1655 P CASES\97\97 409497 4094 (04 11

1004

you believe could make a death sentence inappropriate in

this case. If you find that there are any mitigating

circumstances in this case, you must decide how much

weight they deserve, if any, and therefore, give effect and

consideration to them in assessing the defendant’s personal

culpability at the time you answer the special issue. If 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 the personal

culpability of the defendant, a negative finding should be

given to one of the special issues.

(Trans. Vol. 5, p. 1329).

Penry asserts that this instruction has two flaws not present in the jury

instruction given in Emery.’ First, Penry’s jury was instructed to give a negative

finding to one of the special issues only if the jury determined that a “life sentence

. , rather than a death sentence, is an appropriate response to the personal

culpability of the defendant.” (/d. (emphasis added)). The Emery instruction, by

contrast, asked the jury to consider the “personal moral culpability” of the defendant.

Penry asserts that the phrase “personal culpability of the defendant,” without the word

“moral,” might lead the jurors to believe that they could “only consider whether

To the extent that Penry’s claim rests on a challenge to the constitutionality of a

“nullification instruction,” rather than on the differences between his instruction and the one given

in Emery, this claim is foreclosed by Emery. See Emery, 139 F.3d at 199-200; Gribble v. Johnson,

8 F. Supp. 2d 942, 956-57 (S.D. Tex. 1998); see also Wheatfall v. State, 882 S.W.2d 829, 841 (Tex.

Crim. App. 1994); Coble v. State, 871 S.W.2d 192, 206 (Tex. Crim. App. 1993) (en banc); Fuller

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