Amicus Curiae Brief — Penry v. Johnson

Suprane Coust, U.S. 7

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No. 00-6677 | OPFLOE OF THE CLERK

IN THE

Supreme Court of the United States

JOHNNY PAUL PENRY,

Petitioner.

VS.

GARY L. JOHNSON, Director, Texas Department of

Criminal Justice Institutional Division,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

—_ a ——

——— —— — —--

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Counsel of Record

CHARLES L. HOBSON

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

id

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. In acase where the Texas “special issues,” which were

found inadequate as applied in Penry v. Lynaugh, are supple-

mented with instructions to answer an issue “no” if a life

sentence is the appropriate response to defendant’s mitigating

evidence, is the state court decision affirming the sentence

contrary to or an unreasonable application of Penry v. Lynaugh

and Boyde v. California?

2. Where a competency examination from an earlier,

unrelated case, in which it was requested by defense counsel, is

used in the penalty phase for a subsequent crime, is the state

court decision finding Estelle v. Smith inapplicable contrary to

clearly established Federal law?

(i)

TABLE OF CONTENTS

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The AEDPA issue should be resolved first, as a

TE secchndeccuscdtccouscesescesss 3

II

The state court decision on the jury instruction is not :

“contrary to . . . clearly established Federal law, as

: determined by the Supreme Court....” ............. 9

chee. ceeweeteeescecceecses 10

B. “Materially indistinguishable” ............... 11

| Il

The state court reasonably applied Penry / and Boyde

) to the facts of this case .......... 0. ccc cece eeeees 12

a cee he ceeenseeeeseoeeees 12

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IV

The Estelle v. Smith question under AEDPA is

essentially the same as under Teague ...........-+-: 20

Vv

The use of Dr. Peebles’ report did not violate

Botolhe v. Battle... ccc ccccccccccccccccsesccccses 23

A. Smith’s particular circumstances ...........-. 23

B. Counsel’s choice .......... ccc ecereeeeees 25

C. No imcrimination ...... 2... cece ec eeeeees 27

D. The complete picture ...... 2... 66sec eee 28

eee, Sng ccictéecedescecedbedenceensncteete 30

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TABLE OF AUTHORITIES

Cases

Anderson v. Creighton, 483 U. S. 635, 97 L. Ed. 2d 523,

SOF ae eh SN nde bbs cdocasunesnéeececees 7

Arizonans for Official English v. Arizona, 520 U. S. 43,

137 L. Ed. 2d 170, 117 S. Ct. 1055 (1997) ........... 8

Bell v. Jarvis, No. 98-7002 (CA4 Dec. 29, 2000) ...... 4,8

Boyde v. California, 494 U. S. 370, 108 L. Ed. 2d 316,

110 S. Ct. 1190 (1990) ........ 10, 11, 12, 16, 18, 19, 20

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

Se EN cc Sed ccdavauecunuenbhescuune 13

Buchanan v. Kentucky, 483 U. S. 402, 97 L. Ed. 2d 336,

Fae Gs UE 0 veVisececdeusses 23, 24, 25, 28

Bullington v. Missouri, 451 U. S. 430, 68 L. Ed. 2d 270,

SUPE CE n464 + tcenedumkeniebeusenes 22

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

ab ET ccdtantuaesieeebskendatees 22

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

Sb es SED cid badeusduadebandcaesesns 22

Christianson v. Colt Industries Operating Corp., 486 U. S.

800, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) .... 7,12

Coble v. State, 871 S. W. 2d 192

A GE CEE Ge Go ied ogc ck oad 10

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

Pe ah EE dcduvicenunamoeudsceusuebes 16

Dunn v. Simmons, 877 F. 2d 1275 (CA6 1989) ........ 13

vi

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

bee J, ) errr rrr 22

Espinosa v. Florida, 505 U.S. 1079, 120 L. Ed. 2d 854,

jy} Ge ®. ft), eee ee 22

Estelle v. Smith, 451 U. S. 454, 68 L. Ed. 2d 359,

BGS ©. Ca FR CUOED cccccccccccccccestss 20, 23-27

Fare v. Michael C.. 442 U. S. 707, 61 L. Ed. 2d 197,

} Ge 1... FPP TTeTrTirr Tree 25

Fuller v. State, 829 S. W. 2d 191

(Tex. Crim. App. 1992) ........- 0c ee eee eee e eens 10

Godfrey v. Georgia, 446 U. S. 420, 64 L. Ed. 2d 398,

— >) €e ey 2) errr Tre 22

Green v. French, 143 F. 3d 865 (CA4 1998) ......... 9, 20

Harris v. Stovall, 212 F. 3d 940 (CA6 2000) ........... 21

Holland v. Illinois, 493 U. S. 474, 107 L. Ed. 2d 905,

} } @e eh fT Ferrer ree x

Johnson v. Texas, 509 U. S. 350, 125 L. Ed. 2d 290,

jo} &e > |) 12,14

Lambrix v. Singletary, 520 U. S. 518, 137 L. Ed. 2d 771,

BEF G. Ca. ESET CUSSED cv cccccccccccceseveceses 4,22

Liverpool, New York & Philadelphia S. S. Co. v.

Commissioners of Emigration, 113 U. S. 33,

28 L. Ed. 899, 5 S. Ct. 352 (1885) .. 2... eee ee ees 4

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

98 S. Ct. 2954 (1978) .. 2... ccc cece ee eee eees 14

Lockhart v. Fretwell, 506 U. S. 364, 122 L. Ed. 2d 180,

113 S. Ct. 838 (1993) ... 2... cece eee eee eeee 8,22

. a. >

vii

Magniac v. Thompson, 7 Pet. (32 U. S.) 348,

PE CEE ‘ice baviguceus caeektet os eee 16

Marbury v. Madison, 1 Cranch (5 U. S.) 137,

ID Si ne ae 5

McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984) ... 18

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

GDS. CR CURR CURED oc ccccccccccccccs 23, 24, 25, 26

Mitchell v. Forsyth, 472 U. S. 511, 86 L. Ed. 2d 411,

Se ED on dd andndsaciaedsinend teens 6

Mitchell v. United States, 526 U. S. 314, 143 L. Ed. 2d 424,

es Ss vindendventds 24, 25, 27, 28, 29

Muskrat v. United States, 219 U. S. 346, 55 L. Ed. 246,

Pe EE boucdéuckdvesddideadstescsoce 5

Parke v. Raley, 506 U. S. 20, 121 L. Ed. 2d 391,

PE ot. bcendhcccodeuiiceseasécses 13

Penry v. Johnson, 215 F. 3d 504 (CAS 2000) .......... 25

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

109 S. Ct. 2934 (1989) ....... 2,4, 10, 11, 12, 14, 15, 19

Penry v. State, 903 S. W. 2d 715

ee 25, 28

People v. Wright, 430 N. W. 2d 133 (Mich. 1988) ...... 26

Ramadass v. Angelone, 530 U. S. 156,

147 L. Ed. 2d 125, 120 S. Ct. 2113 (2000) .... 11, 17,21

Roberts v. Louisiana, 428 U. S. 325,

49 L. Ed. 2d 974, 96 S. Ct. 3001 (1976) ............ 17

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

Se PE Sb dedccduenwesdbeddeeteves 19

Vill

Siegert v. Gilley, 500 U. S. 226, 114 L. Ed. 2d 277,

See i Gk CHIE Vo cdcctoccenedecncevecden 7,8

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 140 L. Ed. 2d 210,

SE es Ge SD 66-0606 bccecdaseneesccesesen 4

Strickland v. Washington, 466 U. S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) ........... 10

Stringer v. Black, 503 U. S. 222, 117 L. Ed. 2d 367,

Seed, Gs CUED 0.06 odes eébéesencssestecnus 22

Sullivan v. Louisiana, 508 U. S. 275,

124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) .......... 15

Teague v. Lane, 489 U. S. 288,

103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) ...... 4,5, 21

Tran v. Lindsey, 212 F. 3d 1143 (CA9 2000) ....... 4,7,8

United States v. Thomas, 116 F. 3d 606 (CA2 1997) .... 16

Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583,

SOE. Ge, HED ok. bbb cdeceecceedevtvensess 15

Watt v. Alaska, 451 U. S. 259, 68 L. Ed. 2d 80,

Be Gk BED bo SeSneecdendevcccbecsscces 8

Weeks v. Angelone, 528 U. S. 225, 145 L. Ed. 2d 727,

Se Gh HT ED 9.660 bevececdcdessocquesessex 7

Williams v. Taylor, 529 U. S. 362, 146 L. Ed. 2d 389,

120 S. Ct. 1495 (2000) ............... 5-7, 9-13, 20-22

United States Statutes

BB U. B. C. CARIGRIED «cc cccccccccccccccccescccees 4

BB U. &. C. GABSGED occ cccccccccsccccccccscess 4, 9, 20

ix

28 U.S.C. §2254(dX(1)............. 5, 12, 20, 21-22, 30

State Statute

Tex. Code Crim. Proc., Art. 37.071§ (2)(e)(1).......... 14

Treatise

R. Rotunda & J. Nowak, Treatise on Constitutional Law

NS de oe ee eee ee 5

Miscellaneous :

Dae GE GEN CUED bv ccccsbcccccoccecess 6,9, 13,19

Brief for Criminal Justice Legal Foundation as Amicus

Curiae in Saucier v. Katz, No. 99-1977 ... 0... ...05. 7

Haney & Lynch, Comprehending Life or Death Matters,

18 L. & Hum. Behav. 411 (1994).................. 18

K. Scheidegger, Overdue Process:

A Study of Federal Habeas Corpus in Capital Cases

and a Proposal for Reform (1995) .................. 6

S. O’Connor, Local Control of Crime, Address to the

Attorney General’s Crime Summit (Mar. 4. 1991),

reprinted in Habeas Corpus Issues: Hearings before the

House Subcommittee on Civil and Constitutional Rights,

Serial No. 39, 102d Cong., Ist Sess. (1991)........ 6, 13

Scheidegger, Habeas Corpus, Relitigation,

and the Legislative Power,

98 Colum. L. Rev. 888 (1998) ...............4 7,9, 13

U. S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1999

EE 6656 be 664000 b6000K E0604) b0b004s 0000 0008 4

IN THE

Supreme Court of the United States

JOHNNY PAUL PENRY,

Petitioner,

VS.

GARY L. JOHNSON, Director, Texas Department of

Criminal Justice Institutional Division,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional pro-

tections of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

This case involves the proper interpretation of Congress’s

landmark reform of habeas corpus law in the Antiterrorism and

Rule 37.6 Statement: This brief was written entirely by counsel for

amicus, as listed on the cover, and not by counsel for any party. No

outside contributions were made to the preparation or submission of

this brief.

Both parties have given written consent to the filing of this brief.

Effective Death Penalty Act of 1996 (“AEDPA”). This law, if

properly implemented, will greatly reduce unnecessary delay in

the enforcement of capital punishment and reduce the number

of correct criminal judgments erroneously overturned on federal

habeas. These changes would advance the rights of victims and

society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In 1977, in two separate incidents, petitioner Johnny Penry

raped two women at knife-point. See J. A. 19-20. In the

second incident, he demonstrated sufficient mental capacity to

deceive the victim. At the request of defense counsel, Penry

was examined for competency by Dr. Felix Peebles. J. A. 125.

The case was resolved by plea bargain, with a sentence of five

years on one count and dismissal of the other. J. A. 129-1 30.

On October 25, 1979, Penry raped Pamela Carpenter. J. A.

21-23. Having learned the consequences of leaving a living

victim to testify, he stabbed her, J. A. 23-24, with a knife he

had brought for that purpose. J. A. 21-22. Mrs. Carpenter died

later that day, after describing her attacker. J. A. 873-874.

Penry’s first death sentence was set aside by this Court on

habeas corpus in Penry v. Lynaugh, 492 U. S. 302, 328 (1989)

(“Penry I’), on the ground that the instructions, as applied to

the case, did not provide the jury “with a vehicle for expressing

its ‘reasoned moral response’ to [Penry’s mitigating] evidence

in rendering its sentencing decision.”

On retrial, the defense’s psychiatric expert relied on Dr.

Peebles’ report. J. A. 326-327. The prosecution expert relied

on the same report. J. A. 456. The experts disagreed as to

whether Penry was, in fact, mentally retarded. J. A. 279, 482.

The Court gave supplemental instructions on mitigating

evidence and personal culpability designed to remedy the

problem in Penry I. See J. A. 675. The jury returned “yes”

answers to the special issues, and Penry was sentenced to death.

The Texas Court of Criminal Appeals affirmed, after reviewing

“] 35 points of error,” in an opinion spanning 108 pages of the

Joint Appendix. Penry’s case was further reviewed by the same

court on habeas corpus, J. A. 863, following an evidentiary

hearing and extensive findings of fact by the trial court. J. A.

795-862. The United States District Court then thoroughly

reviewed Penry’s claims on federal habeas. J. A. 865-1036.

The Court of Appeals denied a certificate of appealability. J. A.

1037. This Court granted a writ of certiorari.

SUMMARY OF ARGUMENT

The issue of availability of relief under 28 U. S. C.

§ 2254(d) should be addressed as a threshold matter, before and

usually in lieu of the merits of the underlying decision, to avoid

advisory opinions and to further the purpose of the statute.

The state court decision is not contrary to Penry I, as the

present case is more than materially distinguishable on both the

instructions and the prosecutor’s argument. The state court

correctly recognized and reasonably applied Penry / and Boyde

v. California.

The question of whether the rule of Estelle v. Smith should

be extended to the facts of the present case should be analyzed

under the “clearly established” element of the statute, and the

analysis is essentially the same as under Teague v. Lane. The

present case differs markedly from Smith, in that the mental

examination (1) was requested by defense counsel; (2) related

to a prior crime for which criminal proceedings had concluded;

and (3) was relied on by the defense’s own expert. Extension

of Smith to these facts would be a new rule, and a wrong rule.

ARGUMENT

I. The AEDPA issue should be resolved first,

as a “threshold matter.”

Before we address the merits of the case, there is an

important methodology question which has divided the circuits.

Should a court addressing an issue subject to 28 U. S. C.

§ 2254(d) decide whether petitioner’s claim meets the criteria

of that section first, or should it go to the merits of the underly-

ing question first and only address the statutory standard if it

disagrees with the state court’s conclusion? Compare 7ran v.

Lindsey, 212 F. 3d 1143, 1154-1155 (CA9 2000), cert. denied,

148 L. Ed. 2d 274, 121 S. Ct. 340 (2000) (sometimes cited as

“Van Tran v. Lindsey”), with Bell v. Jarvis, No. 98-7002 (CA4

Dec. 29, 2000) (en banc) (slip op., at 14-16) (criticizing 7ran).

The difference between the two approaches may not matter

much in this individual case, but multiplied over the tens of

thousands of habeas cases per year, it is important. See U. S.

Dept. of Justice, Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics 1999, Table 5.70, p. 465 (2000).

The Court has addressed the order of consideration of

claims in several different contexts. Resolvability of aclaim on

one ground may make the answering of another question

unnecessary, undesirable, improper, or even illegitimate.

Jurisdiction goes to the head of the line, for without jurisdiction

there is no legitimate authority to decide anything else. See

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,94,

101-102 (1998). There is also a venerable rule that a case

should be resolved on nonconstitutional grounds if the constitu-

tional question, and hence potential or actual conflict with the

legislative branch, can be avoided. See Liverpool, New York,

and Philadelphia S. S. Co. v. Commissioners of Emigration,

113 U.S. 33, 39 (1885).

In habeas cases, the usual order is to decide “general

prerequisites” such as custody, exhaustion, and procedural

default first, see Lambrix v. Singletary, 520 U. S. 518, 524

(1997), although Congress has authorized an exception for the

dismissal on the merits of meritless but unexhausted applica-

tions. See 28 U. S. C. §2254(b)(2). The rule of Teague v.

Lane, 489 U. S. 288 (1989) follows these determinations but

precedes the underlying question. See Lambrix, 520 U. S., at

524; Penry v. Lynaugh, 492 U. S. 302, 329 (1989) (“threshold

matter”). The first question in the present case is where the

§ 2254(d) issue is to be resolved.

There is a substantial overlap between the analysis needed

to resolve a §2254(d)(1) issue and a Teague issue. See

Williams v. Taylor, 529 U. S. 362, 412 (2000) (comparing

Teague “old rule” with §2254(d)(1) “clearly established”).

This overlap suggests an efficiency in addressing these two

issues consecutively, before the underlying question. If the

claim is barred by either or both rules, there will be no need to

address the “merits” of the petitioner’s claim.

The practical appeal of this approach is reinforced by both

jurisprudential considerations and respect for the intent of

Congress. The reason why Teague is a threshold matter is that

announcing a new rule in a case where the rule does not affect

the outcome would be an advisory opinion. See Teague, supra,

489 U. S., at 316 (plurality opinion). That is, once a court

decides that petitioner’s proposed rule is new and does not

qualify for an exception, the question of whether the rule ought

to be adopted has no effect on the outcome of the case before

the court. Courts have legitimate authority to make law,

especially constitutional law, only in the course of deciding

cases. See Marbury v. Madison, | Cranch (5 U. S.) 137, 177-

178 (1803); Muskrat v. United States, 219 U. S. 346, 360-361

(1911); 1 R. Rotunda & J. Nowak, Treatise on Constitutional

Law § 2.13(b), p. 177 (2d ed. 1999). Once the court decides

under Teague that the petitioner would not be entitled to relief

even if he were right on the “merits,” its legitimate precedent-

making authority ends.

In this sense, §2254(d)(1) is the same kind of rule as

Teague. Where it applies, it precludes collateral relief regard-

less of the validity or invalidity of the underlying claim. This

issue, like Teague, should therefore be addressed as a threshold

matter.

Respect for the intent of Congress and the purpose of the

AEDPA also favors this approach. The central purpose of the

statute, voiced uniformly by its supporters, is to reduce the

unconscionable delays in habeas corpus, particularly in capital

cases. See 141 Cong. Rec. 14,734 (1995) (statement of Sen.

Feinstein); id., at 15,062 (statement of Sen. Hatch); id., at

15,019 (statement of Sen. Specter); id., at 15,036-15,037

(statement of Sen. Nickles). Specifically addressing § 2254(d),

Senator Hatch, the provision’s principal sponsor, noted

“Federal habeas corpus proceedings have become, in effect, a

second round of appeals in which convicted criminals are

afforded the opportunity to relitigate claims already considered

and rejected by the state courts.” /d., at 15,062, col. 2 (empha-

sis added); see also K. Scheidegger, Overdue Process: A Study

of Federal Habeas Corpus in Capital Cases and a Proposal for

Reform 27-28 (1995).

In Williams, Justice Stevens acknowledged that “Congress

wished to curb delays, to prevent ‘retrials’ on federal habeas,

and to give effect to state convictions to the extent possible

under law.” 529 U. S., at 386 (opinion of Stevens, J.). “That

acknowledgment is correct and significant to this case. It cannot

be disputed that Congress viewed § 2254(d)(1) as an important

means by which its goals for habeas reform would be

achieved.” /d., at 404 (majority opinion).

For § 2254(d)(1) to achieve its purpose, it is not enough to

preclude relief; it must preclude relitigation. The state’s

primary interest in habeas reform was not to block relief in

cases where it is warranted. But see infra, at 13 (problem of

erroneous grants of federal relief in cases correctly decided by

state courts). Rather, it was to reduce the “burden of federal

relitigation of state decisions... .” S.O’Connor, Local Control

of Crime, Address to the Attorney General’s Crime Summit 5

(Mar. 4. 1991), reprinted in Habeas Corpus Issues: Hearings

before the House Subcommittee on Civil and Constitutional

Rights, Serial No. 39, 102d Cong., Ist Sess., at 192, 197 (1991).

In habeas, as in immunity, once the respondent is forced to

litigate the question, most of the value of the protection is lost.

Cf. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Determining whether another court’s decision is within

reason is typically much easier and faster than deciding the

underlying question de novo. The doctrine of law of the case,

as applied to decisions of coordinate courts, is analogous to

§ 2254(d). See Scheidegger, Habeas Corpus, Relitigation, and

the Legislative Power, 98 Colum. L. Rev. 888, 914-916, 953

(1998). In that context, this Court admonished the courts of

appeals not to “squander private and public resources.”

Christianson v. Colt Industries Operating Corp. 486 U.S. 800,

818-819 (1988). Instead, once the second court finds the first

— decision “plausible, its . . . inquiry is at an end.” /d., at

Tran offered three reasons for deciding the underlying

question first. None is persuasive. First, Tran noted that Weeks

v. Angelone, 528 U. S. 225 (2000) decided first that the state

court decision was correct, and only then addressed the AEDPA

limitation. See Weeks, at 237; Tran, supra, 212 F. 3d, at 1155.

The obvious reason is that Williams v. Taylor, supra, was

pending but not decided at the time, and decision in this order

avoided the not-yet-resolved issue of the § 2254(d)(1) standard.

That reason no longer applies.

| The second reason was a reference to the qualified immu-

mivy cases. Tran, supra, 212 F. 3d, at 1155. Siegert v. Gilley,

500 U. S. 226, 232 (1991) decided that “determination of

whether the plaintiff has asserted a violation of a constitutional

right at all” first “permits courts expeditiously to weed out suits

which fail the test... .” But see id., at 235 (Kennedy, J.,

concurring in the judgment). Qualified immunity differs from

§ 2254(d) in that “clearly established” is determined at a greater

level of specificity. In Williams v. Taylor, supra, 529 U. S.., at

413-414 (opinion of O’Connor, J.), the “reasonable probability”

standard for ineffective assistance was “clearly established,”

while in Anderson v. Creighton, 483 U.S. 635, 639-641 (1987)

“probable cause” was deemed too general. See Brief for

Criminal Justice Legal Foundation as Amicus Curiae in Saucier

v. Katz, No. 99-1977, pp. 25-26 (contrasting meaning of

“clearly established” in the two contexts). The basis of Siegert

is that the decision of a “purely legal question,” Siegert, 500

U. S., at 232, is typically more expeditious than the case-

specific inquiry neede. ‘o ascertain whether the officer's

actions violated the aileged right and therefore provides the

quicker path to resolution of the case. The merits of the habeas

claim, in contrast, is typically not a “purely legal question.”

Tran simply ignores the underlying rationale of Siegert, which

points in the opposite direction for application of § 2254(d).

The final reason given by Tran is to “provide[ | guidance

for state courts... .” 212 F. 3d, at 1155. In the federal courts

of appeals, where most habeas cases will end, this “guidance”

is not worth the delay, expense, and dubious legitimacy of

writing opinions on points which do not affect the outcome.

The opinions are not binding on state courts. See Arizonans for

Official English v. Arizona, 520 U. S. 43, 58-59, n. 11 (1997);

id., at 66, n. 21; Lockhart v. Fretwell, 506 U.S. 364, 375-376

(1993) (Thomas, J., concurring). There is certainly no shortage

of case law on constitutional criminal procedure. Questions

bypassed on habeas can be considered in due course on direct

review. See, e.g., Holland v. Illinois, 493 U.S. 474, 486 (1990)

(resolving issue left open in Teague). The federal courts of

appeals “have no reason to presume state courts are in need of

[their] guidance in interpreting and applying the controlling

Supreme Court precedents.” Bell v. Jarvis, No. 98-7002 (CA4

Dec. 29, 2000) (en banc) (slip op., at 16). Tran’s mandate to

write pointless opinions sends an unfortunate and incorrect

message that federal courts do not have enough to do. Cf. Watt

v. Alaska, 451 U. S. 259, 274 (1981) (Stevens, J., concurring).

It should be expressly disapproved.

As we will show in the following parts of this brief, the

Texas Court of Criminal Appeals recognized the correct

precedents for this case and applied them reasonably to the

facts. That is sufficient to preclude relief under § 2254(d)(1).

Having decided enough to determine the outcome, a habeas

court should stop. There is no justification for delaying a

A TT

decision to opine on questions which do not affect the outcome,

and such delay would be contrary to the purpose of Congress in

enacting this statute.

II. The state court decision on the jury instruction is not

“contrary to... clearly established Federal law,

as determined by the Supreme Court... .”

The leading clause of 28 U. S. C. §2254(d) establishes a

general rule of claim preclusion. Unless one of the exceptions

is met, a claim adjudicated on the merits in state court is not a

ground for federal habeas relief. See Scheidegger, Habeas

Corpus, Relitigation, and the Legislative Power, 98

Colum. L. Rev. 888, 946 (1998); 141 Cong. Rec. 15,058, col.

1-2 (1995) (statement of Sen. Biden). The exception in

paragraph (2) of this subsection, relating to factual findings, is

not presented in this case. The exception in paragraph (1) has

two clauses, which have i t meaning. See Williams

v. Taylor, 529 U. S. 362, 404-405 (2000). We address the first

clause in this part and the second clause in part III, infra.

Under the statute, relief may be granted despite the prior

adjudication if the state court decision “was contrary to...

clearly established federal law, as determined by the Supreme

Court of the United States ... .” Williams endorsed the Fourth

Circuit’s interpretation of this clause in Green v. French, 143

F. 3d 865 (1998).

“First, a state-court decision is contrary to this Court’s

precedent if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law. Second,

a state-court decision is also contrary to this Court’s

precedent if the state court confronts facts that are materi-

ally indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to ours.” Wil-

liams, supra, 529 U. S., at 405.

10

A. Rule Selection.

The first part of this test refers to the state court’s selection

of the governing rule, as opposed to its application of the rule

to the facts of the case. For example, a decision that correctly

identified Strickland v. Washington, 466 U. S. 668 (1984) as

the rule for ineffective assistance claims is not “contrary to”

controlling law, regardless of how much a federal court might

disagree with the state court’s application of the rule. The latter

question falls under the second clause. See Williams, supra,

529 U. S., at 406.

Petitioner apparently does not claim that the state court

erred in rule selection. In his only mention of the governing

statute, he invokes the “materially indistinguishable” and

“unreasonable application” tests, but not the “contradicts the

governing law” test. See Brief for Petitioner 12.

This is a wise concession, because the state court clearly did

recognize and apply the correct controlling precedents. The

defendant contended on appeal that the jury instructions on

retrial failed to implement the requirement of Penry v.

Lynaugh, 492 U. S. 302 (1989) (Penry 1). Since the additional

instructions were clearly intended to do just that, see Brief for

Petitioner 9, the question is whether they were susceptible to

misinterpretation by the jury to a degree sufficient to warrant

reversal. The controlling case for that question is Boyde v.

California, 494 U. S. 370 (1990). See Brief for Petitioner 12-

13.

The state court recognized and applied the correct rules. It

relied on its prior opinion in Coble v. State, 871 S. W. 2d 192,

207 (Tex. Crim. App. 1993). See J. A. 782. Coble relied on

Fuller v. State, 829 S. W. 2d 191, 209 (Tex. Crim. App. 1992).

Fuller, in turn, correctly recognized Penry as the governing rule

for the substantive question and Boyde as the governing rule for

the claimed ambiguity. See ibid.

B. “Materially Indistinguishable.”

. Defendant contends that the present case is “materially

indistinguishable™ from Penry I, Brief for Petitioner 12, yet the

argument in support of this contention is just a straight “merits”

argument of the kind that would have been appropriate under

the now-repealed regime of de novo review. See id., at 12-24.

Accepting this argument would strip the term “materially

indistinguishable” of any meaning. Far worse, it would strip

the statute of any meaning and return to the status quo ante. It

would be precisely the step the Court rejected in Williams. See

529 U. S., at 404.

The facts of the present case are more than distinguishable

from Penry I, and the differences are more than material. The

jury in Penry | did not receive “any jury instruction on mitigat-

ing evidence.” 492 U. S., at 322 (emphasis added). The jury on

retrial did. J. A.675. One can argue until the cows come home

whether the instruction was good enough, but to claim that a

case of an arguably ambiguous instruction is “materially

indistinguishable” from a case with no instruction at all borders

on frivolous.

The two cases are also distinguishable in the arguments of

counsel. These arguments are part of the context of the

proceedings, and Boyde tells us that context is material. See

494 U. S., at 383. In the first trial, the defense asked the jury to

answer “no” to a special issue, even if the literal answer was

“yes,” in response to mitigating evidence. Penry I, supra, 492

U. S., at 325. The prosecutor argued in rebuttal that they could

not, and the Penry / Court thought that was significant. See id.,

at 325-326. In the present case, the prosecutor made the kind

of argument upheld as proper in Boyde, i.e., that the proffered

factors were either not mitigating or entitled to little weight.

Compare Boyde, 494 U. S., at 385-386, with J. A. 665-666. To

say that these are material distinctions would be an understate-

ment. “Material differences exist between this case and

[Penry /}, and the [Texas Court of Criminal Appeals’] decision

is not contrary to the rule [Penry /| announced.” Ramdass v.

12

Angelone, 530 U. S. 156, 147 L. Ed. 2d 125, 137, 120 S. Ct.

2113, 2120 (2000) (plurality opinion).

Ill. The state court reasonably applied Penry I

and Boyde to the facts of this case.

Under 28 U. S. C. § 2254(d)(1), a federal habeas court may

grant relief despite the prior adjudication of the claim “if the

state court identifies the correct governing legal rule from this

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case.” Williams v. Taylor, 529 U.S.

362, 407 (2000). Penry seeks to invoke this exception to the

general rule of claim preclusion. See Brief for Petitioner 12.

As noted, supra, at 10, the state court recognized Penry v.

Lynaugh, 492 U. S. 302 (1989) (Penry I) and Boyde v. Califor-

nia, 494 U. S. 370 (1990) as the controlling precedents. These

cases are further clarified in Johnson v. Texas, 509 U. S. 350

(1993). The crux of the present case is the state court’s

application of the Boyde standard to the instructions given in

the second trial. The state court concluded that there was no

reasonable probability that the jury understood the instructions

to preclude it from giving effect to Penry’s mitigating evidence.

See supra, at 10. Was that conclusion reasonable? If so, that

is the end of the case.

A. The Standard.

In Williams, the Court distinguished “an unreasonable

application of federal law” from “an incorrect application of

federal law.” 529 U. S., at 410 (emphasis in original). The

term “incorrect” may be appropriate for the tiny handful of

cases which reach this Court for decision on the merits.

However, amicus suggests that a change in terminology is in

order, given that the vast majority of cases do not. Questions

where the state and lower federal courts disagree are likely to

be close questions, “and close questions, by definition, never

have clearly correct answers.” Christianson v. Colt Industries

13

Operating Corp., 486 U. S. 800, 819 (1988). When this Court

answers a question, that answer is deemed correct by virtue of

the Court’s position as the court of last resort. See Brown v

Allen, 344 U. S. 443, 540 (1953) (Jackson, J., concurring in the

result) (“we are infallible only because we are final”). How-

ever, when the state court and the lower federal court disagree

and this Court denies certiorari, we do not know which is

correct and may not find out until years later, if ever. Compare

Dunn v. Simmons, 877 F. 2d 1275, 1279 (CA6 1989), cert.

denied, 494 U. S. 1061 (1990) (Kentucky procedure violates

federal standards”), with Parke v. Raley, 506 U. S. 20, 28

(1992) (same procedure “easily passes constitutional muster”):

see also Scheidegger, Habeas Corpus, Relitigation, and the

Legislative Power, 98 Colum. L. Rev. 888, 942 (1998). Rather

than saying that the habeas court finds that the state court

“applied clearly established federal law erroneously or

incorrectly,” Williams, 529 U. S., at 411, it would be better to

say, where otherwise appropriate, that the habeas court dis-

agrees with the state court’s application.

Disagreement is not enough. Habeas reform was expressly

premised on a rejection of the thesis that the federal court

resolution of the question is necessarily better. See 141

Cong. Rec. 15,062, col. 2 (1995) (statement of Sen. Hatch); see

also S. O'Connor, Local Control of Crime, Address to the

Attorney General’s Crime Summit 5 (Mar. 4. 1991), reprinted

in Habeas Corpus Issues: Hearings before the House Subcom-

mittee on Civil and Constitutional Rights, Serial No. 39, 102d

Cong. Ist Sess., 198 (1991). Congress has commanded that the

writ not issue for cases within the gray zone of reasonable

disagreement. See Williams, supra, 529 U. S., at 411. The

inquiry is objective rather than subjective, id., at 409-411, and

hence Williams rejected the “all reasonable jurists” standard.

Even so, the state court decision would have to be far wide of

the mark to be “unreasonable.” In Williams, for example, there

was “an obvious failure to consider the totality of the omitted

mitigation evidence.” 529 U. S., at 416 (O’Connor, J., concur-

ring) (emphasis added). No such failure appears here.

14

B. The Application.

l. The instructions.

There were several ways to fix the problem in Penry 1.

Another special issue could be added, as the Texas Legislature

did later. See Tex. Code Crim. Proc. Art. 37.071 § 2(e)(1). The

term “deliberately” in the first special issue could have been

defined broadly enough to encompass Penry’s mitigation

evidence, as Penry / indicated would be sufficient. See 492

U. S., at 323. The state is not constitutionally required to

provide any particular vehicle, however, so long as it provides

some method for consideration of the defendant’s mitigating

evidence. See Johnson, supra, 509 U. S., at 370. One such

method is to supplement the special issue with an instruction

telling the jurors to answer “no” to one issue if thev conclude

on the basis of the mitigating evidence that Penry did not

deserve to be sentenced to death, even if the literal answer to

the unadorned question would otherwise be yes. Penry J held

that an argument of counsel precisely to that effect was insuffi-

cient “{i]n light of the prosecutor’s argument [that they could

not do so], and in the absence of appropriate jury instructions

_.” 492 U. S., at 326. By implication, an appropriate

instruction would have been sufficient, and it would have been

more than sufficient absent a contrary prosecutor’s argument.

In the present case, the jury was told the consequences of its

answers to the special issues and then told “your answers .. .

should be reflective of your finding as to the personal culpabil-

ity of the defendant, JOHNNY PAUL PENRY, in this case.”

J. A. 675. The jury was then instructed to consider all the

mitigating evidence, defined in accordance with Lockett v.

Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). See J. A.

675. Then the court instructed, “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.” Ibid. (emphasis added).

15

The plain and obvious meaning of this instruction is to endorse

the argument made by counsel at the first trial. It is the

“appropriate instruction” that Penry / found lacking.

To be sure, supplementing a question with an instruction to

answer in a way that does not conform to the bare question is

not the optimum way to write instructions. The legitimate

question before this Court, however, is not whether the instruc-

tion is exemplary, but only whether it meets constitutional

minimums. See Victor v. Nebraska, 511 U.S. 1, 27-28 (1994)

(Ginsburg, J., concurring in part and concurring in the judg-

ment). Instructions of this type are not unusual, and nearly all

of us have encountered them at some time. Job applicants are

commonly asked if they have ever been convicted of a criminal

offense, yes or no, followed by instructions directing a negative

answer if the offense falls below some threshold of seriousness

or age. Even though the answer as directed is different from the

answer to the bare question, it seems to present little difficulty.

Indeed, even the essential “reasonable doubt” instruction,

given in every criminal jury trial, requires a literally false

answer in a sense. If the jury believes the defendant is much

more likely guilty than not, yet reasonable doubt exists, they are

instructed to pronounce him “not guilty,” contrary to what they

believe is the truth. This instruction is not only constitutional,

it is constitutionally required. See Sullivan v. Louisiana, 508

U. S. 275, 278 (1993).

A clever enough lawyer can, of course, always find some

claimed ambiguity in even the clearest language. Amicus

National Association of Criminal Defense Lawyers engages in

a bizarre parsing of the instruction in a quest for unclarity.

NACDL claims that the phrase “at the time” somehow restricts

the manner in which the jury can use the mitigating evidence,

rather than just designating the time for doing so. Brief for

National Association of Criminal Defense Lawyers as Amicus

Curiae 6 (NACDL Brief). Yet that very sentence unambigu-

ously tells the jury to use the evidence in assessing personal

culpability, exactly what Penry J requires, see 492 U. S., at 327-

16

328, and the following sentence expressly tells them to do so by

means of a negative finding if they find a life sentence is the

appropriate response.

Amicus NACDL goes on to claim that the latter sentence

permits the jury to give effect to mitigating evidence “only

when mitigation was appropriate ‘as reflected by a negative

finding to the issue under consideration.’ ”» NACDL Brief 6.

That is quite simply not what the instruction says. The quoted

phrase follows and unambiguously refers to “a life sentence,”

not to the mitigating evidence, and they had been told only

three sentences earlier that the penalty “should be reflective of

your finding as to the personal culpability ....” J. A. 675.

“In examining the charge for the purpose of ascertaining its

correctness in point of law, the whole scope and bearing of

it must be taken together. It is wholly inadmissible to take

up single and detached passages, and to decide upon them

without attending to the context, or without incorporating

such qualifications and explanations as naturally flow from

the language of other parts of the charge.” Magniac v.

Thompson, 7 Pet. (32 U. S.) 348, 390 (1833) (Story, J.); see

Boyde, supra, 494 U. S., at 378.

Only by the|kind of parsing that Boyde disapproved, see 494

U. S., at 381, are petitioner and amicus NACDL even able to

argue that the instructions failed to comply with Penry J.

~

2. “Nullification. a

The Texas Court of Criminal Appeals referred to the

instruction in question as a “nullification instruction.” J. A.

782. This is a poor choice of words, but the court’s choice of

words does not open an otherwise final judgment to attack. Cf.

Coleman v. Thompson, 501 U. S. 722, 739 (1991).

“Nullification is, by definition, a violation of a juror’s oath

to apply the law as instructed by the court . . . .” United States

v. Thomas, 116 F. 3d 606, 614 (CA2 1997). That means the

whole law, as conveyed by the whole set of instructions. An

17

instruction to answer a question in a particular way is not a

“nullification” instruction, even if the directed answer is

different from the answer to the bare question. Jurors who

answer according to the full instructions are obeying, not

violating, their oaths.

Roberts v. Louisiana, 428 U. S. 325 (1976), relied on by

petitioner, is inapposite. In that case, the Court rejected an

argument that an impermissibly mandatory capital sentencing

Statute was actually discretionary, because the jury could return

a verdict of a lesser degree of murder. See id., at 334-335. In

sharp contrast to the present case, the jury was told not to do

that, but only to consider the lesser offense if the evidence did

not justify conviction of the greater offense. /d., at 334, n. 10.

Although the Louisiana jury had discretion in practice, it was a

standardless discretion and depended on their willingness “to

- disregard the trial judge’s instructions.” /d., at 335.

In the present case, the jurors were given the Lockett

definition of mitigation and expressly directed to give a

negative finding to one of the special issues if they found that,

given the mitigation, a life sentence was appropriate. J. A. 675.

No disobedience was required to render a life sentence. The

jurors chose the death penalty because they believed it was the

appropriate sentence, after considering all the evidence.

3. Studies.

Amicus NACDL cites a number of minimally relevant

studies that supposedly show juror confusion in capital cases.

Such studies should be taken with the greatest skepticism, as

they are often driven by a predetermined agenda and not subject

to adversarial testing. “Mere citation of a law review to a court

does not suffice to introduce into evidence the truth of the

hearsay or the so-called scientific conclusions contained within

it.” Ramdass v. Angelone, 530 U. S. 156, 147 L. Ed. 2d 125,

139, 120 S. Ct. 2113, 2123 (2000) (plurality opinion); see also

id., 147 L. Ed. 2d, at 140, 120 S. Ct., at 2123 (noting interest of

sponsor and dubious methodology). It is very easy to manipu-

18

late methods or analysis to come up with the desired conclu-

sion. For example, the notorious Baldus study of capital

sentencing claimed to show a race-of-the-victim bias, but when

the case was actually tried the data were found to show, if

anything, just the opposite. McCleskey v. Zant, 580 F. Supp.

338, 367-368 (ND Ga. 1984), aff'd in part, rev'd in part on

other grounds, 753 F. 2d 877 (CA11 1985), aff'd, 481 U.S. 279

(1987).

To take just one example from the studies cited by NACDL,

we look at the methodology in Haney and Lynch, Comprehend-

ing Life or Death Matters, 18 Law and Human Behavior 411

(1994). College students were read the standard California

penalty instruction and then asked in the abstract to formulate

their own definitions of the terms “aggravation” and “mitiga-

tion.” /d., at 419. The students’ imperfect product in this

sterile, artificial context, see id., at 421, should surprise no one.

The students did not receive the evidence and argument or

participate in the deliberation that Boyde found important. See

494 U. S., at 380-381, 383-386. Further, the task they were

asked to perform, formulating a definition, is quite different

from the task juries perform and not, as the authors claim,

simpler. Cf. Haney & Lynch, at 419,n. 6. Defining legal terms

is a task our finest legal minds find challenging. The methodol-

ogy of this study appears calculated to produce a negative

result, and that result therefore has little or no meaning.

4. Context.

Applying the Boyde rule to the facts of this case requires

considering the instruction in the context of the whole trial. See

Boyde, supra, 494 U. S., at 383. The present case is remarkably

similar to Boyde. The instruction is not erroneous, but it is

claimed to be “ambiguous and therefore subject to an erroneous

interpretation.” /d., at 380. The jury was presented with

copious mitigating evidence and told to consider all of it. /d.,

at 383. Indeed, in the present case, the jury received more

complete instruction on mitigation than in Boyde, using the

19

Lockett language. Compare J. A. 675, with Boyde, 494 U. S.,

at 374, n. 1 (factor (k)); and id., at 374, n. 2 (subsequently

amended factor (k)). In both cases, defense counsel argued to

the jury the interpretation of the instructions that permitted

giving effect to all the mitigating evidence. Compare J. A. 640,

with 494 U. S., at 386. In both this case and Boyde, and in

sharp contrast to Penry I, the prosecutor did not deny that

interpretation but instead argued, entirely properly, that the

circumstances were factually unfounded, not mitigating, or

entitled to little weight. Compare J. A. 662-664 (abuse unsub-

stantiated); J. A. 665-666 (retardation mild, not causally related

to criminality, not mitigating, brain damage claim unfounded);

and Boyde, 494 U. S., at 385 (argument that mitigation was

minimal, not that it was not a proper factor), with Penry /,

supra, 492 U. S., at 325-326 (urging jurors to stick to the literal

questions). In general voir dire, the prosecutor expressly

endorsed the concept that the jury could answer a question “no”

if the mitigating evidence warranted a sentence less than death

and stated flatly that determining what was mitigating was up

to them, not dictated by the instructions. J. A. 9-10. He then

drove the point home during individual voir dire, as described

in detail in the state’s brief. The state court’s application of

Boyde to the facts of this case is eminently reasonable. It is the

Opposite conclusion, argued by petitioner, that would be

unreasonable.

This case is exactly the kind of case Congress had in mind

when it acted to limit the second-guessing of state decisions on

federal habeas corpus. See 141 Cong. Rec. 15,064, col. 2

(1995) (statement of Sen. Hatch) (purpose of habeas to correct

fundamental defects; reasonable application means no funda-

mental defect). Nothing horrific happened at Penry’s trial.

There are no confessions beaten out of prisoners, no lynch mob

around the courthouse, and no denial of counsel. Cf. Rose v.

Lundy, 455 U. S. 509, 544 (1982) (Stevens, J., dissenting)

(proposing limiting collateral review to such fundamental

violations). We have a defendant ably represented by counsel

who fully presents his mitigating evidence. The prosecution

20

rebuts firmly but fairly. The trial judge instructs the jury in a

careful, conscientious effort to comply both with this Court’s

complex and constantly changing jurisprudence of the Eighth

Amendment and with state law to the extent it is consistent with

that jurisprudence. The issue in dispute here raises no question

of actual innocence. The argument involves “parsing instruc-

tions for subtle shades of meaning.” Cf. Boyde, supra, 494

U. S., at 381. Direct review is enough for such disputes. They

do not rise to the level that justifies collateral attack on a final

judgment. The state court correctly recognized and reasonably

applied this Court’s precedents, and that, Congress has decided,

ends the case.

IV. The Estelle v. Smith question under AEDPA is

essentially the same as under Teague.

Part II of petitioner’s brief does not mention 28 U. S. C.

§ 2254(d) or the cases construing it at all, other than a quotation

of the Court of Appeals opinion. See Brief for Petitioner 29.

Regardless of which of the exceptions to the general rule of

claim preclusion he might invoke, though, none applies. See

supra, at 9.

What petitioner seeks, in essence, is an extension of the rule

of Estelle v. Smith, 451 U. S. 454 (1981) to a factual setting

substantially different from the one in that case. The Texas

Court of Criminal Appeals held “Estelle is inapplicable to the

facts of this case.” J. A. 767. That holding was neither

contrary to nor an unreasonable application of clearly estab-

lished law.

Although Williams v. Taylor, 529 U. S. 362, 407-409

(2000) largely endorsed the interpretation of 28 U. S. C.

§ 2254(d)(1) in Green v. French, 143 F. 3d 865, 869-870 (CA4

1998), it neither adopted nor rejected one prong of Green. That

was Green’s assertion “that state court decisions that unreason-

ably extend a legal principle from our precedent to a new

context where it should not apply (or unreasonably refuse to

21

extend a legal principle to a new context where it should apply)

should be analyzed under §2254(d)(1)’s ‘unreasonable

application’ clause.” Williams, 529 U. S., at 408. The Court

expressly left this question open. /d., at 408-409.

The plurality opinion in Ramdass v. Angelone, 530 U. S.

156, 147 L. Ed. 2d 125, 135-136, 120 S. Ct. 2113, 2119-2120

(2000) seems to say that Williams did accept this prong of

Green. This is a curious passage. If the opinion is merely

summarizing the holding of Williams, it is mistaken. A second

interpretation is that Ramdass went ahead and decided a

question Williams expressly reserved by simply making a bald

statement with no discussion. That seems unlikely. The best

interpretation under the circumstances, amicus submits, is that

the Ramdass plurality assumed for the sake of argument that the

reserved prong of Green was valid and decided the petitioner’ s

claim did not qualify for it. See id., 147 L. Ed. 2d, at 137-138,

120 S. Ct., at 2121. The concurring opinion does not cite or

rely on this “unreasonable refusal to extend” test. See id., 147

L. Ed. 2d, at 143-145, 120 S. Ct., at 2126-2128. The question

should therefore be regarded as still open.

Amicus CJLF submits that the Williams Court’s skepticism

of this test was well-founded. It is an unnecessary complication

of an already complex rule and resolves no issues which cannot

be resolved under the other prongs.

Most true “extension” issues are best analyzed under the

“clearly established” requirement, where a substantial body of

case law already exists. As applied to Supreme Court prece-

dents, “clearly established Federal law” is equivalent to “old

rules” under Teague v. Lane, 489 U. S. 288 (1989). Williams,

supra, 529 U. S., at 412. Conversely, a “new rule” is not

“clearly established.” “Thus, applying Teague principles,

‘clearly established federal law as determined by the Supreme

Court of the United States’ means that the rule sought by

petitioner must have been dictated or compelled by” the

pertinent Supreme Court precedents. Harris v. Stovall, 212

F. 3d 940, 944 (CA6 2000).

22

Much of the Teague line of cases deals with extension of

existing rules to different situations. Butler v. McKellar, 494

U. S. 407, 415 (1990) held that extension of the rule of Ed-

wards v. Arizona, 451 U. S. 477, 485 (1981) to a different

offense was a new rule. Caspari v. Bohlen, 510 U. S. 383, 393

(1994) held that extension of the rule of Bullington v. Missouri,

451 U. S. 430 (1981) to noncapital cases would be a new rule.

Stringer v. Black, 503 U. S. 222, 228-229 (1992) held that

application of the rule of Godfrey v. Georgia, 446 U. S. 420,

428-429 (1980), on vague death-eligibility circumstances, to a

differently worded but substantially equivalent circumstance,

was not a new rule. Lambrix v. Singletary, 520 U. S. 518

(1997) rejected a contention that Espinosa v. Fi lorida, 505 U.S.

1079 (1992) (per curiam) was merely “applying Godfrey to

Florida’s sentencing scheme,” see Lambrix, 520 U. S., at 542

(Stevens, J., dissenting), rather than a new rule.

Between Williams’ linkage of Teague with “clearly

established” and this well-developed body of case law, there is

no need for a separate “extension” analysis under the “unrea-

sonable application” clause of § 2254(d)(1). The refusal to

extend would only be unreasonable if extension were dictated

by precedent, and so the Teague case law covers the base.

Williams involved the unwarranted extension of Lockhart v.

Fretwell, 506 U. S. 364 (1993) to a new context where its

rationale did not apply. Part III of Justice O’Connor’s opinion,

applying the test adopted by a majority in part II, rejects this

analysis as contrary to clearly established federal law. See

Williams, supra, 529 U. S., at 413. There is no need to resort

to the “unreasonable application” prong for issues of this type.

Petitioner's Estelle v. Smith claim can be decided under

AEDPA the same as it would have been under Teague, with the

caveat that “clearly established law” is restricted to Supreme

Court precedent. See Williams, supra, 529 U. S., at 412. If the

application of the rule of Estelle v. Smith to these facts was

dictated by Supreme Court precedent existing in 1995, then the

state court decision is contrary to clearly established law and

23

not protected by § 2254(d)(1). If not, the state court resolution

of this issue stands. As we will show in the next part, the

present case is so far removed from Smith that applying it here

would not only be a new rule, it would be a wrong rule.

V. The use of Dr. Peebles’ report did not

violate Estelle v. Smith.

Penry claims that the admission of Dr. Peebles’ report,

along with the District Attorney’s references to it at trial

violated Estelle v. Smith, 451 U. S. 454 (1981), because the

report asserted that releasing Penry from custody would be

dangerous. See Brief for Petitioner 6, 24. Contrary to Penry’s

assertion, this does not place Smith “in point” with the present

case. The Smith rule was brought about by “the ‘distinct

circumstances’ of that case, 451 U. S., at 466—the trial judge

had ordered, sua sponte, the psychiatric examination and Smith

neither had asserted an insanity defense nor had offered

psychiatric evidence at trial.” Buchanan v. Kentucky, 483

U.S. 402, 422 (1987). Smith’s “distinct circumstances” are not

present here. Penry’s counsel for his prior rape case knew

about and approved the examination. Any incriminating

statements made during the examination must only have been

about the prior rape, a crime for which the defendant’s self-

incrimination privilege had ended long before the present trial.

Penry also raised a mental health issue in the penalty phase,

relying in part upon expert testimony to prove his point. This

case is thus far beyond the Smith rule, which is itself at the

outer limits of Miranda v. Arizona, 384 U. S. 436 (1966). Con-

trary to the petitioner’s claims, Smith is not “in point.” Cf.

Brief for Petitioner 25. It is not even close.

A. Smith's Particular Circumstances.

Since the Smith rule was a response to the distinct circum-

stances of that case, an understanding of the particular facts of

that case is essential to the proper application of that decision.

First, Smith’s competency exam was ordered without his

24

counsel’s knowledge or consent. See Smith, supra, 451 U. S..,

at 470-471. Smith therefore had no opportunity to consult with

counsel before making a crucial decision about his penalty

phase defense. See id., at 471. While this fact was most

relevant to the Sixth Amendment portion of Smith, see ibid., it

also influences the Fifth Amefidment analysis. Smith is an

extension of Miranda. See id., at 466-467. Miranda is itself

premised on the need to combat the compulsion inherent in

custodial interrogation where the suspect has not yet been able

to consult with counsel. See Miranda, supra, 384 U. S., at 466.

The Fifth Amendment analysis is much different if the suspect

may first consult with counsel before the examination. See

infra, at 25.

A second component of Smith is that the defense raised no

mental health issues in that case. If the defense raises the issue

of the defendant’s mental health, then both fairness and

accuracy require that the defendant submit to an examination

conducted by the prosecution’s expert. See Smith, supra, 451

U. S., at 465-466 (summarizing the treatment of the insanity

defense in the federal circuits); Buchanan, supra, 483 U. S., at

423-424. Just as testimony waives the Fifth Amendment

privilege with respect to the subject matter of the testimony, see

Mitchell v. United States, 526 U. S. 314, 321 (1999), so the

defendant who places his or her mental health at issue must

allow the prosecution a reasonable chance to rebut the defense’s

case. The only mental health evidence in Smith was Dr.

Grigson’s testimony, see 451 U. S., at 458-460, 466, so there

was no Fifth Amendment waiver with respect to Grigson’s

examination of the defendant.

The last part of the Smith mosaic is how the state incrimi-

nated the defendant through the competency examination. Dr.

Grigson’s future dangerousness opinion was based largely upon

the account of the crime given by Smith during the competency

examination. See Smith, supra, 451 U. S., at 463-464. When

the defendant’s description of the crime is used as a basis for

his death sentence for that particular crime, the Fifth Amend-

25

ment is clearly implicated. See Mitchell, 526 U. S., at 326.

Descriptions of past crimes for which the defendant has already

been sentenced do not raise these Fifth Amendment concerns.

As amicus will demonstrate, none of these factors are present

in this case. Therefore, Smith does not control.

B. Counsel's Choice.

The first major distinction between Smith and the present

case is that in this case counsel requested the psychiatric

examination that generated Dr. Peebles’ report, while in Smith

the trial court ordered the exam without consulting with

counsel. See Penry v. Johnson, 215 F. 3d 504, 511 (CAS

2000); Penry v. State, 903 S. W. 2d 715, 759-760 (Tex. Crim.

App. 1995); Smith, supra, 451 U. S., at 470-471. In addition to

eliminating any Sixth Amendment claim, see Buchanan, supra,

483 U. S., at 424-425, this fact also mitigates the need to

protect the defendant’s self-incrimination privilege through the

Miranda warnings. Since Smith’s Fifth Amendment holding is

simply an extension of Miranda, see Smith, supra, 451 U.S., at

469, if the Miranda warnings were unnecessary during Dr.

Peebles’ examination, then Smith does not support defendant’s

Fifth Amendment claim.

The Miranda rule is premised upon the inherent compulsion

of uncounseled custodial interrogation. See Miranda, supra,

384 U. S., at 465-466. Counsel plays a vital role in mitigating

this pressure in Miranda’s scheme. “The rule in Miranda . . .

was based on this Court’s perception that the lawyer occupies

a critical position in our legal system because of his unique

ability to protect the Fifth Amendment rights of a client

undergoing custodial interrogation.” Fare v. Michael C., 442

U. S. 707, 719 (1979). Consultation with counsel before

questioning would substantially alleviate the inherent pressures

on the suspect that brought about Miranda. In the Smith

context, consultation with counsel can help make the defendant

aware of the potential consequences of the examination, and his

right not to answer certain questions, as counsel can be trusted

26

to adequately warn his client. Cf. Smith, supra, 451 U. S., at

468 (suspect not informed of the potential gravity of the

examination). The Smith Court sought to prevent the defendant

from providing unwitting assistance to the state’s case for

executing him. See id., at 466. Where the defendant’s counsel

has requested the psychiatric examination, this threat is

minimized.

It is true that consultation with counsel does not by itself

satisfy Miranda as applied to the interrogation room. Thus, the

defendant has the right to have an attorney present during

custodial questioning in addition to any prior consultation with

counsel. See Miranda, supra, 384 U. S., at 470. But no similar

right exists with respect to psychiatric examinations. In Smith,

the defendant did not even assert a right to the presence of

counsel during his examination. Smith, supra, 451 U. S., at

470, n. 14. “In fact, the Court of Appeals recognized that ‘an

attorney present during the psychiatric interview could contrib-

ute little and might seriously disrupt the examination.’ ” /bid.

Although this statement addressed the Sixth Amendment right

to counsel rather than Miranda, and was dictum, the Miranda

rule does not include a right to counsel’s presence during a

psychiatric examination. An effective psychiatric examination

is impossible so long as a third party like defense counsel is

present. Therefore, under Smith, consultation with counsel is

sufficient.

“The real teaching of Miranda, and Estelle’s application of

it, is not a rigid formula, but that the Fifth Amendment must be

protected.” People v. Wright, 430 N. W. 2d 133, 139 (Mich.

1988). When counsel has arranged for the examination, the

concerns that prompted the holdings of Smith and Miranda are

abated. The defendant can go into the examination with the

complete knowledge of his rights. Cf. id., at 138 (Smith

distinguished where examination took place “after [defendant]

_. . had the assistance of counsel throughout the trial”).

Although Penry’s counsel in the prior rape case almost certainly

did not warn him about the potential use of Dr. Peebles’

27

conclusions to support a death sentence for some future capital

crime, this does not change the analysis. Instead, as the next

section demonstrates, the impossibility of predicting the future

use of the examination simply underscores the fact that Dr.

Peebles’ interview with the defendant and his subsequent report

did not incriminate Penry.

C. No Incrimination.

Perhaps the most telling difference between this case and

Smith is that Penry’s examination took place before he commit-

ted the capital murder that is the subject of the present case.

Because Dr. Peebles’ examination of him took place to deter-

mine his competency to stand trial for a separate, earlier crime,

the admission of Dr. Peebles’ statement in the 1990 Capital

murder trial did not violate Penry’s self-incrimination privilege.

. The Smith Court found a violation of the Fifth Amendment

privilege because the expert’s future dangerousness finding in

that case largely relied upon Smith’s account of the murder

during his examination by Dr. Grigson. See Smith, supra, 451

U. S., at 464. Thus, while in Smith “the ultimate penalty of

death was a potential consequence of what respondent told the

examining psychiatrist,” id., at 462, that was not true at the time

Dr. Peebles examined Penry. The examination only threatened

Penry’s interest after his subsequent rape and murder of Pamela

Carpenter. While the self-incrimination privilege may protect

the suspect from the ghosts of crimes past and present, it cannot

extend to crimes yet to come.

. If Penry’s Fifth Amendment privilege was violated in this

interview, it could only have been with respect to the 1977 rape

case for which the examination was conducted. A suspect’s

privilege against self-incrimination is not eternal. “It is true, as

a general rule, that where there can be no further incrimination,

there is no basis for the assertion of the privilege. We conclude

that principle applies to the cases in which the sentence has

been fixed and the judgment of conviction has become final.”

Mitchell, supra, 526 U. S., at 326 (emphasis added).

28

Dr. Peebles’ statement was admitted long after Penry had

pleaded guilty and been sentenced for the 1977 rape. Although

the privilege survives the guilt verdict and extends into the

sentencing phase of the trial, id., at 325, it does end after

sentencing. Since Penry could no longer be incriminated with

respect to the 1977 rape case, admitting Dr. Peebles’ report at

the trial for the subsequent rape and murder did not violate his

Fifth Amendment rights. This report was simply part of

Penry’s psychological history, just like the school and institu-

tional records routinely considered in such cases.

D. The Complete Picture.

The final major difference between Smith and this case is

that Penry made his mental state an issue in this case. At the

sentencing hearing, the defense called as an expert Dr. Randall

Price, a psychologist who testified about “neuropsychology,

organic brain damage, mental retardation, and the effects of

malingering on various psychological tests.” Penry v. State,

supra, 903 S. W. 2d, at 763. As part of the basis for his opinion

on Penry’s mental retardation, Dr. Price relied on Dr. Peebles’

report. J. A. 327. Since Penry utilized both mental health

expert evidence and Dr. Peebles’ report, Texas cannot be

faulted for providing the jury with the complete picture of Dr.

Peebles’ assessment of Penry.

When the defendant “presents psychiatric evidence, then, at

the very least, the prosecution may rebut this presentation with

reports of the examination that the defendant requested.”

Buchanan, supra, 483 U. S., at 422-423 (emphasis added). The

present case is thus far closer to Buchanan than it is to Smith.

Dr. Peebles’ reexamination was done at the request of Penry’s

counsel, and the report that followed was relied on partly by

defendant’s psychiatric witness in an attempt to convince the

jury that he did not deserve the death penalty because he was

mentally retarded. Texas deserved its fair chance to rebut

Penry’s case.

29

The fact that the defense’s expert only addressed Penry’s

alleged mental retardation and not his future dangerousn<ss

does not change the analysis. While Penry was able to argue

that his mental condition made him undeserving of a death

sentence, see Part III B, supra, the state must also be able to

rebut this by arguing that his condition makes him a continuing

danger to society. That is the conclusion reached by Dr.

Peebles’ report. See J. A. 60: Dr. Peebles was tragically right,

as Penry raped and murdered Pamela Carpenter only two years

after the 1977 rape.’

Thus Penry’s claim that the Fifth Amendment waiver

doctrine did not support admitting Dr. Peebles’ report cannot

stand. It is true that the act of testifying only waives the self-

incrimination privilege with respect to the contents of the

testimony. See Afitchell, supra, 526 U. S., at 321. However,

the report cannot be neatly cleaved from Penry’s case, since his

own expert relied on it, and it helped rebut psychiatric evidence

that Penry introduced. “Nice questions will arise” concerning

the scope of the initial testimony and whether the cross-

examination “are comprehended within its scope... .” /Jd., at

321-322. The waiver issue is at best a “nice question,” pre-

cisely the kind of question Congress decided to limit to direct

review. See supra, at 19.

Letting Texas provide the jury with an accurate picture of

Penry’s mental state is fair. He cannot complain about the state

utilizing a report that his own expert relied upon to introduce

the issue of his mental retardation. Penry’s self-incrimination

interest in a report concerning an earlier crime for which he has

already served his sentence is remote at best. Furthermore, his

need for the Miranda warnings before the examination was

ameliorated by his counsel’s request for the exam. Under these

2. As the state argues in its brief, admission of the report was surely

harmless, even if error. A mere psychiatrist’s prediction of future

dangerousness on top of Penry’s actual, subsequent acts of rape and

murder is like a feather on top of an anvil.

30

circumstances Smith is not controlling, and Penry’s Fiftu

Amendmeii right was not violated.

The present case is materially distinguishable from Smith,

and extension of Smith to the context of the present case is not

dictated by Supreme Court precedent. Therefore, 28 U. S. C.

§ 2254(d)(1) precludes collateral attack on the final judgment

of the Texas Court of Criminal Appeals.

CONCLUSION

The decision of the Court of Appeals for the Fifth Circuit

should be affirmed.

February, 2001

Respectfully submitted,

KENT S. SCHEIDEGGER

Counsel of Record

CHARLES L. HOBSON

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation