Amicus Curiae Brief — Penry v. Johnson

FEB 1S Der! pu AIS

No. 00-6677

IN THE

Supreme Court of the snide States a

JOHNNY PAUL PENRY,

Petitioner,

Vv.

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

BRIEF OF AMICUS CURIAE STATE OF ALABAMA

IN SUPPORT OF RESPONDENT

BILL PRYOR CARTER G. PHILLIPS

ATTORNEY GENERAL OF ALABAMA GENE C. SCHAERR*

J. CLAYTON CRENSHAW REBECCA K. SMITH

ASSISTANT ATTORNEY GENERAL TIMOTHY D. HAWKES

OFFICE OF THE ATTORNEY SIDLEY & AUSTIN

GENERAL, STATE OF ALABAMA 1722 Eye Street, N.W

11 South Union Street Washington, D.C. 20006

Montgomery, AL 36130 (202) 736-8000

(334) 242-7300

Counsel for Amicus Curiae

February 15, 2001 * Counsel of Record

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON. D.C 20001

PUREST AVAIL ARIE COP' 1

QUESTIONS PRESENTED

Like Williams v. Taylor, 529 U.S. 362 (2000), this case

involves the construction of the habeas corpus provisions of

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) now codified at 28 U.S.C. § 2254(d)(1). The

case presents two specific issues:

1. Whether the Texas Court of Criminal Appeals’

holding that Estelle v. Smith, 451 U.S. 454 (1981), does not

apply in the circumstances of this case (because the

psychiatric examination at issue here was conducted two

years prior to the offense and thirteen years prior to the

pertinent capital murder trial) was “contrary to Clearly

established Federal law, as determined by [this] Court,” or

represents an “unreasonable application of[] clearly

established Federal law” within the meaning of Section

2254(d)(1).

2. Whether the Texas Court of Criminal Appeals’

holding that the instructions given to the jury in the

sentencing phase of petitioner’s trial, including the

supplemental instruction given in response to Penry v.

Lynaugh, 492 U.S. 302 (1989), is “contrary to” any “clearly

established Federal law” expressed in that decision, or

represents an “unreasonable application” of that decision

within the meaning of Section 2254(d)(1).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 00000...00.00....cccssssssessssseveeeeee

TABLE OF AUTHORITIES ..000....0000......0c.ccccsss0seeeeeeee V

INTEREST OF AMICUS CURIAE ....00....000000000000000000

SOUR sec cecxcicccaconcnvcsessoncnssornonsnee 1

STATEMENT OF FACTS ..o.0.000......-cssssssessssssevessoseveves 5

ARGUMENT. oo.oo......ccccsssscesssssssssssesessssssvesesssvesssenneveve 5

I. THE TEXAS COURTS’ DETERMINATION

THAT NO FIFTH AMENDMENT VIOLATION

OCCURRED AS A _ RESULT OF THE

ADMISSION, AS REBUTTAL EVIDENCE, OF

A PSYCHIATRIC EVALUATION FROM AN

UNRELATED CRIMINAL PROSECUTION,

DOES NOT WARRANT HABEAS RELIEF

ee nciriisnscnsnianciiemnssennentestiisinninanenitinanes 5

A. The Texas Courts’ Decision Cannot Be

“Contrary To” Estelle v. Smith Under A Proper

Standard Of Materiality ................................... 6

1. The Facts Of Two Cases Should Not Be

Considered “Materially Indistinguishable”

Where Facts That This Court Treated As

Significant In The First Case Are Not

Present In The Subsequent Case .................. 7

2. Numerous Facts That This Court Treated

As Significant In Estelle Are Not Present

| re -" 10

B. Texas’s Decision Was Not An “Unreasonable

Application” Of Estelle .......0.0.00000.0...... eae 12

(iii)

iV

TABLE OF CONTENTS—continued

1. A State Court’s Failure To Extend To A

New Context A Principle That By Its Terms

Or Its Logic Is Limited To A Different

Context Cannot Be Considered An

“Unreasonable Application” Of That

2. By Its Terms And Its Logic, The

Exclusionary Principle Articulated In

Estelle 1s Limited To Situations In Which

The Defendant Neither Initiates Nor

Introduces Psychiatric Evidence ..................

ll. THE TEXAS COURTS’ ANALYSIS OF THE

JURY INSTRUCTIONS, INCLUDING THE

SUPPLEMENTAL INSTRUCTION, DOES NOT

WARRANT HABEAS’ RELIEF UNDER

AEDPA ............. ibiniiateaidasiiieiliialiaumpiiipauieaciistaians )

A. The Texas Courts’ Analysis Is Not “Contrary

To” This Court’s Decision In Penry / Because

This Case Lacks At Least Two Of The Facts

That This Court Found Significant There .........

B. The Texas Courts’ Analysis Is Not An

“Unreasonable Application” Of Penry / ...........

1. Penry I Established The Need For A

Supplemental Instruction, But Did Not

Attempt To Define The Precise Language

Fe I vccrccntcrenicncctncincnnenttensnitiiinn

2. The Supplemental Instruction Adequately

Permitted The Jury To Consider And Give

Effect To Petitioner’s Mitigating Evidence

I wtcesccsescncenectcinensnestessssecensnsensennnemiascssones

Page

12

15

17

18

19

20

21

26

> = see

Vv

TABLE OF AUTHORITIES

CASES Page

Ex parte Baldree, 810 S.W.2d 213 (Tex. Crim.

RE cE RLS NE AB 23

Buchanan v. Angelone, 522 U.S. 269 (1998)......... 22

Buchanan v. Kentucky, 483 U.S. 402 (1987)........ 10, 16

Coble v. State, 871 S.W.2d 192 (Tex. Crim. App.

EL Leen nt Oa 24

Coleman v. State, 881 S.W.2d 344 (Tex. Crim.

EEE AOL SE 22

Coleman v. Thompson, 50\ U.S. 722 (1991)......... 25

Emery v. Johnson, 139 F.3d 191 (Sth Cir. 1997)... 23

Emery v. State, 881 S.W.2d 702 (Tex. Crim. App.

Ith lneeei tadt 22

Estelle v. Smith, 451 U.S. 454 (1981).....5, 10, 11, 15, 17

Franklin v. Lynaugh, 487 U.S. 164 (1988)............ 23

Graham v. Collins, 506 U.S. 461 (1993)............... 21

Green v. French, 143 F.3d 865 (4th Cir. 1998) ..... 9

Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App.

SET eee a en ee 23

Helene Curtis v. National Wholesale Liquidators,

Inc., 890 F. Supp. 152 (E.D.N_Y. 1995)... 8

Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App.

RCE a TED eo Co 23

Johnson v. Texas, 509 U.S. 350 (1993)... 21

Jurek v. Texas, 428 U.S. 262 (1976) 0000... 23

Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App.

REE re A RS SEE 23

Miller v. Johnson, 200 F.3d 274 (Sth Cir. 2000)... 23

Penry v. Johnson, 215 F.3d 504 (Sth Cir.

RNR NP NT A RO 6, 17, 22, 24

Penry v. Lynaugh, 492 U.S. 302 (1989)... passim

Penry v. Texas, 903 S.W.2d 715 (Tex. Crim.

NS ccd INS Ae 5, 6, 19

Rios v. State, 846 S.W.2d 310 (Tex. Crim. App.

ee ee ee 23

vi

TABLE OF AUTHORITIES—continued

Page

Trevino v. State, 815 S.W.2d 592 (Tex. Crim.

EERE ES 23

United States v. Alfaro, 919 F.2d 962 (Sth Cir.

BI eccedencnpinacnssaisinssieisiasinnundasintalainiienenmsendints 8

Weeks v. Angelone, 528 U.S. 225 (2000) .............. 22

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

(Michael) Williams vy. Taylor, 529 US. 420

STI nccconconssnsschananenasncinnensentionennentseeneets 1, 3,9, 14

STATUTE

SURGE. Be oceecccevcecesecccvscnecscosessscossness 3,5

LEGISLATIVE HISTORY

H.R. Conf. Rep. No. 104-518 (1996), reprinted in

ts oe Sf ee 2, 10, 14

142 Cong. Rec. $3463 (daily ed. Apr. 17, 1996)

(statement of Sen. Heflin) .......................065 2

142 Cong. Rec. $3465 (daily ed. Apr. 17, 1996)

(statement of Sen. Warner) ................-........06 2

President’s Statement on Signing the Anti-

terrorism and Effective Death Penalty Act of

1996, 32 Weekly. Comp. Pres. Doc. 720 (Apr.

| Se ae 2

INTEREST OF AMICUS CURIAE

Amicus Curiae is a state in which the people, through their

state legislature, have repeatedly authorized the death penalty

for especially heinous crimes. This legislative decision has

not been undertaken lightly. Rather, it is based on a firm

conviction that capital punishment is the most effective

way—perhaps the only way—to protect the state’s citizenry

from particularly predatory criminals. Amicus thus has a

strong interest in ensuring that the Antiterrorism and Effective

Death Penalty Act of 1996 is allowed to play the role that

Congress envisioned, namely, preventing the federal courts,

on habeas review, from interfering unduly with a state’s

efforts to perform this traditional “police power” function in

the manner specified by the people’s representatives. '

INTRODUCTION

Last Term, in Williams v. Taylor, 529 U.S. 362 (2000), and

(Michael) Williams v. Taylor, 529 U.S. 420 (2000), this Court

began the important work of clarifying for the lower federal

courts the limits on federal habeas court review of state-court

decisions under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). This case provides an opportunity

to continue that effort. Here, the Court can make clear the

limited circumstances in which a state-court decision can be

considered, for purposes of AEDPA, “contrary to” or an

“unreasonable application of” a clearly established principle

of federal law articulated in a decision of this Court.

' As a state, Alabama is not required to seek leave to file an amicus

curiae brief. See Sup. Ct. R. 37.4. The undersigned counsel alone have

authored this brief, and no person or entity other than amicus has made a

monetary contribution to its preparation or submission. See Sup. Ct. R.

37.6.

2

As the Court has unanimously recognized, in enacting

AEDPA “Congress wished to curb delays, to prevent ‘retrials’

on federal habeas, and to give effect to state convictions to the

extent possible under law.” Williams, 529 U.S. at 386

(opinion of STEVENS, J.); id. at 404 (O’CONNOR, J., for

majority). Indeed, the legislative history indicates that the

statute’s habeas provisions were enacted specifically to curb

the prior “abuse of the statutory writ of habeas corpus, and to

address the acute problem[] of unnecessary delay .. . in

capital cases.” H.R. Conf. Rep. No. 104-518, at 111 (1996),

reprinted in 1996 US.C.C.A.N. 944, 944; see, eg, 142

Cong. Rec. $3463 (daily ed. Apr. 17, 1996) (Statement of

Sen. Heflin) (AEDPA “contains strong provisions to reform

Federal habeas corpus laws—something that is long

overdue”). As one Senator put it,

Finally, the charade of habeas corpus appeals will be

reformed: death row inmates will no longer be allowed

to drag out their appeals for several decades. I have

faith that our State courts respect our constitutional

rights, and in the exceptional case where Federal rights

have been violated, defendants retain very reasonable

access to Federal courts to prove their innocence.

142 Cong. Rec. $3465 (statement of Sen. Warner). In signing

the legislation, President Clinton endorsed this view of the

problem the Act was meant to solve. President’s Statement

on Signing the Antiterrorism and Effective Death Penalty Act

of 1996, 32 Weekly Comp. Pres. Doc. 720 (Apr. 24, 1996)

(“For too long, and in too many cases, endless death row

appeals have stood in the way of justice being served.”’).

At the same time, Congress clearly recognized that the prior

abuse of the writ by some federal courts was detrimental, not

only to sound criminal-justice policy, but also to the proper

relationship between the federal government and the states.

See, e.g., 142 Cong. Rec. $3465 (statement of Sen. Warner)

(“I have faith that our State courts respect our constitutional

rights, and in the exceptional case where Federal rights have

3

been violated, defendants retain very reasonable access to

Federal courts to prove their innocence.”). Accordingly,

AEDPA was “intended to advance” principles of “comity . . .

and federalism” in addition to “finality.” (Michael) Williams,

529 U.S. at 436.

The specific provision at issue here—28 USC.

§ 2254(d)(1)}—was crafted with these objectives in mind. As

the majority noted in Williams, Congress viewed. this

provision “as an important means by which its goals for

habeas reform would be achieved.” 529 US. at 404

(O’CONNOR, J.). This section establishes that, for questions

adjudicated on the merits in state court (such as the ones at

issue here), federal habeas relief is available only if the state

court decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court.” 28 U.S.C. § 2254(d)(1). As the

majority recognized in Williams, this provision thus “places a

new constraint on the power of a federal habeas court to grant

a state prisoner’s application for a writ of habeas corpus with

respect to claims adjudicated on the merits in state court.”

529 US. at 412.

The Williams Court also clarified the scope of AEDPA by

defining the key terms in Section 2254(d)(1). Specifically,

the Court determined that a state court decision is “contrary

to” clearly established Supreme Court precedent only if the

state court “applies a rule that contradicts the governing law

set forth in [this Court’s] cases” or “decides a case differently

than this Court has on a set of materially indistinguishable

facts.” Jd at 405, 413. The Court also opined that a state

court’s decision involves an “unreasonable application” of

federal law if the state court “identifies the correct governing

legal principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” /d.

The Court emphasized that, under this provision, “a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-

4

court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also

be unreasonable.” /d. at 411.

The Court did not, however, indicate how it would

determine whether the facts of a case are “materially”

distinguishable from the facts in a decision of this Court. Nor

did the Court reach a holding as to whether an “unreasonable

application” of a Supreme Court precedent can be established

on the basis of a refusal to extend such a precedent to a new

context or, if so, “how such ‘extension of legal principle’

cases should be treated under § 2254(d)(1).” /d at 408-09.

Not surprisingly, the petitioner in this case attempts to

establish (if only implicitly) that his claims fit neatly into both

of these supposed “exceptions” to Section 2254(d)(1).

This case thus provides an opportunity for the Court to

address these two unresolved issues. For reasons explained in

detail below, this Court should hold, first, that the facts of a

case cannot be considered “materially indistinguishable” from

a prior decision of this Court where facts that this Court

treated as significant in the first case are not present in the

subsequent case. This principle should apply even if those

facts were not identified as dispositive and, indeed, arguably

were not dispositive of the outcome in the prior case.

Second, the Court should hold that a state court’s failure to

extend to a new context a principle that, by its terms or its

logic, is limited to a different context cannot be considered an

“unreasonable application” of that principle. This approach

should apply, moreover, even if the principle articulated by

this Court could reasonably be extended to the new context.

These two holdings, which fully dispose of petitioner’s

claims here, are compelled by AEDPA’s language and

structure. They are consistent with this Court’s earlier

pronouncements. And they are necessary to ensure that

AEDPA serves its proper role of protecting state criminal-

justice systems from over-reaching by !ower federal courts.

—— ee we 1 ww Ee

5

STATEMENT OF FACTS

To avoid burdening the Court with yet another recitation of

the facts pertinent to this case, amicus adopt the statement of

facts presented in the respondent’s brief.

ARGUMENT

The remainder of this brief explains why this case does not

t«l within the class of cases identified by 28 U.S.C.

§ 2254(d)(1) for which federal habeas relief is available. This

is sO notwithstanding petitioner’s arguments that the decision

of the Texas Court of Criminal Appeals affirming his

sentence was both “contrary to” and an “unreasonable

application of” this Court’s decisions in Penry v. Lynaugh,

492 U.S. 302 (1989) (“Penry 1”), and Estelle v. Smith, 451

U.S. 454 (1981). Because the issues raised by petitioner’s

Estelle claim are of more general application than those raised

by his Penry / claim, amicus will address the Estelle claim

first.

I. THE TEXAS COURTS’ DETERMINATION THAT

NO FIFTH AMENDMENT VIOLATION OC-

CURRED AS A RESULT OF THE ADMISSION, AS

REBUTTAL EVIDENCE, OF A PSYCHIATRIC

EVALUATION FROM AN UNRELATED CRIM-

INAL PROSECUTION, DOES NOT WARRANT

HABEAS RELIEF UNDER AEDPA.

Petitioner’s Estelle claim involves a psychiatric report

requested by Penry’s own defense counsel in an earlier case,

regarding a separate crime, and admitted as rebuttal

testimony in the punishment phase of Penry’s capital trial. In

1977—two years before he raped and killed Pamela

Carpenter and thirteen years before the capital murder trial at

issue here—Penry underwent a psychiatric examination with

Dr. Felix Peebles regarding an unrelated aggravated rape

charge. See Penry v. Texas, 903 S.W.2d 715, 759 (Tex.

6

Crim. App. 1995). Penry’s defense counsel in that case

requested the examination. /d Among other things, Dr.

Peebles’s report “determined that Penry would be dangerous

in the future if released.” Penry v. Johnson, 215 F.3d 504,

511 (Sth Cir. 2000). Given that it occurred some two years

before Carpenter’s rape and murder, Dr. Peebles’s report

contained no testimony from Penry concerning the crime at

issue here.

During the punishment phase of Penry’s second trial, his

counsel introduced testimony about his psychological state.

In rebuttal, the State presented the testimony of two

psychiatrists who, among other documents, considered Dr.

Peebles’s 1977 report. Dr. Peebles’s report also was

admitted into evidence.

On direct review, the Texas Court of Criminal Appeals

ultimately determined that the admission of this evidence did

not violate the Fifth Amendment under the reasoning of

Estelle. That is because, at the time Penry made his statement

to Dr. Peebles—i.e., during an earlier, unrelated, defense-

requested examination—he was not being confronted by an

agent of the state. Penry, 903 S.W.2d at 759-60 (citing

Estelle).

Petitioner asserts that the Texas decision is contrary to

Estelle and falls within Section 2254(d){1) because the facts

of the cases are “materially indistinguishable” and yet Texas

reached a different result. Pet. Br. at 13-14; see Williams, 529

U.S. at 406. In the alternative, petitioner asserts that the

Texas decision is an “unreasonable application” of Estelle to

the facts of petitioner’s case. Pet. Br. at 14; see Williams, 529

U.S. at 407-12. As shown below, both claims must fail.

A. The Texas Courts’ Decision Cannot Be “Contrary

To” Estelle vy. Smith Under A Proper Standard Of

Materiality.

The first prong of the AEDPA inquiry requires a federal

court to consider whether the state court’s decision was

7

“contrary to” clearly established Supreme Court precedent.

In Williams, the Court observed that, under the “contrary to”

,Clause of § 2254(d)(1), a federal court may grant a writ of

habeas corpus if the state court “decides a case differently

than this Court has on a set of materially indistinguishable

facts.” Jd at 413. Without further elaboration, this language

threatens to invite, through the back door, the very sort of

unfettered, intrusive review of state-court decisions that

Congress intended to curtail when it enacted AEDPA. That is

because this formulation would seem to leave lower federal

courts free to determine de novo which factual differences are

“material” and which are not.

This risk can be eliminated if this Court adopts an

appropriately narrow standard for materiality, namely,

whether this Court itself treated as significant in the earlier

case a fact that is missing from (or different in) the case at

issue. Under this standard, as shown below, the facts ~~~

pertaining to petitioner’s Estelle claim are easily

distinguished from the facts of Estelle itself.

1. The Facts Of Two Cases Should Not Be

Considered “Materially Indistinguishable”

Where Facts That This Court Treated As

Significant In The First Case Are Not Present In

The Subsequent Case.

The importance of establishing a standard for materiality

can be seen from a simple example. Suppose this Court

issues a decision in which, in the course of its analysis (not

just in the description of the factual background), it treats four

specific facts as having some bearing on the ultimate result

(e.g., excluding a particular piece of evidence or finding jury

instructions inadequate). Suppose further thatthe Court does

not specify (as it generally does not) which of the various

possible subsets of those four facts would be either necessary

or sufficient to justify that result.

8

Now suppose that, in a subsequent habeas case, two of

those facts are present, but two are not. If on direct review

the state court reaches a result “different” from the result

reached by this Court (i.e., not excluding a piece of evidence

or finding a jury instruction adequate), the question under

Williams will of course be whether the absence of the two

“missing” facts creates a “material distinction” with this

Court’s earlier decision.

The problem, of course, is that a federal habeas court's

view of whether these distinctions are “material” is likely to

be influenced by that court’s view of the merits of the

underlying issue. If the habeas court agrees with the state

court’s analysis of the merits, it will likely agree that the

distinctions between the case at issue and this Court’s earlier

decision are material. But if the federal court disagrees with

the state court’s decision as a de novo matter (i.¢., it believes

the evidence should have been excluded or the jury

instruction was inadequate), it likely will believe that the

distinctions between the two cases are not “material.” Thus,

if the federal court simply thinks the state court reached the

wrong result under this Court’s precedent, and if the federal

court is allowed an unfettered hand to determine for itself

_ which distinctions are “material,” it will usually have little

difficulty finding that the state-court decision is “contrary to”

the pertinent decision of this Court. Cf., e.g., United States v.

Alfaro, 919 F.2d 962, 964-65 (Sth Cir. 1990) (rejecting a

“materially untrue” standard because it was “not .. . very

helpful” and “confusing”); Helene Curtis v. National

Wholesale Liquidators, Inc. 890 F. Supp. 152, 158 (E.D.N_Y.

1995) (“Materiality is, by its very nature, a subjective concept

that is difficult to define.”). In that circumstance, moreover,

AEDPA’s “contrary to” prong is likely to be invoked,

routinely, in what are properly viewed as—in the words of

Justice O’Connor’s opinion in Williams—‘“run-of-the-mill”

cases. 529 US. at 406.

9

The solution to this problem is to adopt a standard of

“materiality” that leaves somewhat less room for judgment on

the part of the federal habeas court, and is therefore less likely

to be influenced by the federal court’s views of the underlying

merits. Such a standard, moreover, is readily available and

generally straightforward in its application: The habeas court

can simply identify the facts that this Court identified as

significant to its decision (including the absence of certain

facts). Or, as the Fourth Circuit put it in Green v. French,

143 F.3d 865, 870 (4th Cir. 1998) (the decision analyzed at

length in Williams) the habeas court can look to the facts “on

the basis of which the precedent was decided.” If any of

those facts is not present in the subsequent case, that case

cannot be said to be “materially indistinguishable” from the

earlier decision of this Court. In other words, this Court’s

prior decision should be allowed to speak for itself, without

further interpretation by a federal habeas court.

By affording greater deference to state-court decisions, this

approach obviously promotes the values of “comity ... and

federalism” that this Court has said underlie AEDPA.

(Michael) Williams, 529 U.S. at 436. It also reduces the risk

that the “contrary to” prong of AEDPA will be routinely

invoked to overturn “run-of-the-mill” state-court decisions.

Most important, this approach is far more consistent with

AEDPA’s language than an approach that allows federal

habeas courts a free hand to make determinations about

whether the facts in the case before them are “materially

indistinguishable” from the facts in a prior decision by this

Court. The statutory requirement that a state-court decision

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

determined by” a decision of this Court, suggests a measure

of “deference” to state courts in interpreting and applying the

decisions of this Court.’ And if a federal habeas court has to

* Indeed, the Conference Committee explained that the statute “requires

deference to the determinations of state courts that are neither ‘contrary

10

explain why the absence of certain facts that this Court treated

as significant to its prior decision is not enough to create a

“material” distinction, that by itself will strongly suggest that

the state-court decision is not, in fact, “contrary to . . . clearly

established” federal law.

2. Numerous Facts That This Court Treated As

Significant In Estelle Are Not Present Here.

With respect to petitioner’s Estelle claim, this case presents

an even stronger situation than the hypothetical example

discussed above. None of the facts that the Court treated as

significant in Estelle is present in this case.

First, in Estelle, it was the trial court that “informally

ordered the state’s attorney to arrange a psychiatric

examination” to determine the defendant's competency to

stand trial. 451 U.S. at 456. This was done “even though

defense counsel had not put into issue [defendant s]

competency to stand trial or his sanity at the time of the

offense.” /d at 457 n.1. Moreover, defense counsel

apparently did not even discover that this psychiatric

examination had occurred until after jury selection began. /d.

at 458 n.5. .

Here, by contrast, petitioner's own defense counsel

requested the examination in advance of the petitioner’s trial.

Second, in Estelle, the psychiatric examination was

conducted with regard to the crime at issue and involved

details of that crime. Indeed, the psychiatrist “drew his

conclusions largely from [defendant's] account of the crime

during their interview.” /d. at 464. Hence, as this Court later

observed, the defendant's “communications to the psychiatrist

during the examination had become testimonial in nature.

Buchanan v. Kentucky, 483 U.S. 402, 421 (1987).

’ nor an ‘unreasonable application of,’ clearly established federal law ”

R. Conf. Rep. No. 104-518, at 111, reprinted in 1996 US.CC.AN. at

£=5

ll

Here, by contrast, petitioner was examined by Dr. Peebles

about an entirely separate crime, some two years before he

murdered Pamela Carpenter (thereby, ironically, fulfilling Dr.

Peebles’ prediction of petitioner’s future dangerousness).

Accordingly, none of Dr. Peebles’s conclusions could

possibly be based on petitioner’s unwitting “testimony” about

the instant capital murder case.

Third, Estelle involved a significant curtailment of the

defendant’s freedom and a significant opportunity for the

state to dominate the defendant’s will. The defendant “was in

custody [in jail] when the examination was ordered and when

it was conducted,” upon the order of the court and with the

facilitation of the state’s attorney. Estelle, 451 U.S. at 467

And defense counsel was not even timely informed about the

examination, let alone given an opportunity to consent to it.

Here, by contrast, the psychiatric report resulted from a

defense-requested psychiatric examination in an entirely

separate Case, occurring some two years before the instant

crime and some thirteen years before the instant trial.

Moreover, there is no indication from the record that the

concerns underlying custodial interrogations present in Estelle

were remotely present for petitioner.

Fourth, in Estelle, the defendant introduced no psychiatric

evidence, nor had-he indicated that he might do so. Rather,

the state offered information obtained from the court-ordered

competency examination “as affirmative evidence to persuade

the jury to return a sentence of guilt.” /d. at 466.

Here, by contrast, petitioner himself raised the issue of. and

introduced testimony about, his psychological state Dr

Peebles’s report came in not as affirmative evidence, but as

rebuttal to issues petitioner himself chose to raise.

Accordingly, in every respect that this Court saw fit to

mention in Estelle, the facts in petitioner’s case are readily

and materially distinguishable.

12

B. Texas’s Decision Was Not An “Unreasonable

Application” Of Estelle.

Petitioner also claims, in the alternative, that the Texas

courts’ application of Estelle was “unreasonable.” Given the

significant distinctions between this case and that one, this

argument can only mean that, in petitioners’ view, the Texas

courts acted unreasonably in refusing the extend the principle

articulated in Estelle to the very different circumstances of

this case.

This argument thus raises the critical issue that was left

open in Williams, i.e., what standard should be applied in

determining whether a state court’s decision not to extend a

Supreme Court decision to a different factual setting can be

deemed “unreasonable.” As shown below, such a decision

should not be deemed unreasonable when the principle

articulated by this Court is, by its own terms or its underlying

logic, designed to apply in a different set of circumstances—

even if this Court might later conclude (outside of the

AEDPA habeas context) that the principle should apply in the

new context as well. As shown below, application of this

principle squarely forecloses petitioner's “unreasonable

application” claim.

1. A State Court’s Failure To Extend To A New

Context A Principle That By Its Terms Or Its

Logic Is Limited To A Different Context Cannot

Be Considered An “Unreasonable Application”

Of That Principle.

In Williams, this Court did not have occasion to develop

fully a standard for determining when a state court’s

extension of (or refusal to extend) this Court's precedent

would be considered “unreasonable.” 529 U.S. at 408. At the

outer limit, the Court stated that it would not go so far as to

require that a state court apply federal law “‘in a matter that

reasonable jurists would all agree is unreasonable”” to be

considered “unreasonable.” Jd. at 409 (quoting Green, 143

13

F.3d at 870) (emphasis added). Rather, the ——

het! , the proper inquiry is

Ry that state court’s application of clearly established

federal law was objectively unreasonable.” /d.

The Court also cautioned that “an unreasonable applicat

of federal law is different from an incorrect quiladin of

federal law,” and characterized this as “the most important

point” to remember when applying AEDPA. /d at 410.

Under AEDPA, habeas relief is not available simply because

a federal habeas court “concludes in its independent judgment

that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” /d at

411. “Rather, that application must also be unreasonable.”

Id. Splits of authority among the lower courts are common

ee an tiem Gut ites cide tas Gesn eijestivaly

unreasonable, even if this Court ulti

one position is correct. Satara

The Court left open, however, the ion of

“extension of legal principle’ cases sould be tr thee

AEDPA. /d at 409. Amicus believes the Court should adopt

the following standard: a state court decision declining to

extend to a new context a principle from this Court’s

precedent is objectively reasonable if that precedent, by its

terms or its clear logic, is designed for or limited to a different

context. This should be the case, moreover, even if the

habeas court believes the Supreme Court precedent should, as

a de novo matter, apply to the new context.’ Such a standard

is warranted for at least three reasons.

* Thus, to determine whether a failure to extend this Court's precedent

ae iniy wire what do the terms and logic

$ earher decision require, given the differing facts at issue in

the instant case” Obviously, if a case falls squarely within the holding of

a pnor Supreme Court decision, it would be unreasonable to refuse to

extend that decision to the new case. But there may also be situations in

which a new case, although not falling squarely within the holding of any

pnor Supreme Court decision, is unambiguously controlled by the logic of

a pmor decision or combination of decisions. In that unusual

14

First, such a rule is necessary to respect the distinction

noted in Williams between “unreasonable” applications of

federal law and those applications that are merely “incorrect.”

If a state court’s refusal to extend to a new context a principle

that was developed for or limited to a different context could

be said to be “unreasonable,” it is hard to imagine any such

decisions that would fall into the “merely incorrect” category.

Second, such a rule is also necessary to give effect to the

congressional judgment that Section 2254(d)(1) requires some

amount of “deference” to state-court interpretations of this

Court’s decisions. H.R. Conf. Rep. No. 104-518, at 111,

reprinted in 1996 U.S.C.C.AN. at 944. If a federal habeas

court may treat as “unreasonable” a state court’s decision not

to extend a principle articulated by this Court to a context for

which it was not designed or intended, it is hard to imagine

how a federal court could ever find room for deference to the

state court’s interpretation.

Third, and more generally, the standard suggested here will

help to ensure that AEDPA fulfills its purpose of promoting

what this Court called the values of “comity .. . and

federclism.” (Michael) Williams, 529 U.S. at 436. As the

Court noted, those values require a sense of “mutual respect

and common purpose . . . between the States and the federal

courts.” Jd And, as Congress recognized in passing

AEDPA, this sense of “mutual respect” requires that federal

authorities be “careful to limit the scope of federal intrusion

into state criminal adjudications and to safeguard the States’

interest in the integrity of their criminal and collateral

proceedings.” /d

Consistent with these bedrock principles, unless the terms

or logic of this Court’s precedent compels (or forbids) its

extension to another context, it cannot be “unreasonable”

within the meaning of AEDPA for a state court to hold that

circumstance, a failure to follow that logic could also be deemed

unreasonable.

eee —

15

such an extension (or refusal) is unwarranted. While this

Court may at some point have occasion to address directly the

underlying question on the merits, and may then decide for

itself whether to extend the existing precedent to the new

context, the AEDPA context is not the proper place to correct

a mere difference of opinion.

2. By Its Terms And Its Logic, The Exclusionary

Principle Articulated In Estelle Is Limited To

Situations In Which The Defendant Neither

Initiates Nor Introduces Psychiatric Evidence. _

Under this standard, petitioner’s Estelle claim cannot

satisfy the demands of AEDPA. The terms and logic of

Estelle expressly limit its holding to the “distinct

circumstances” of that case: “A criminal defendant, who

neither initiates a psychiatric evaluation nor attempts to

introduce any psychiatric evidence, may not be compelled to

respond to a psychiatrist if his statements can be used against

him at a capital sentencing proceeding.” 451 U.S. at 466, 468

(emphasis added). Accordingly, this Court made expressly

clear that its holding turned in part on the absence of two

factual circumstances: a criminal defendant initiating a

psychiatric evaluation or introducing psychiatric evidence.

Petitioner’s case presents both of the factors this Court

found notably absent in Estelle: (i) petitioner and his counsel

initiated the examination (and in an earlier, entirely separate

matter) and (ii) petitioner put his psychiatric condition at

issue in the instant trial and introduced psychiatric evidence.

Accordingly, by the terms and logic of Estelle’s holding, it is

objectively reasonable for the Texas courts to have declined

to extend Estelle to the very context that the Court expressly

distinguished in its opinion.

: This is not, of course, to suggest that this Court cannot fully

revisit issues it has reserved in one case and decide them in

the opposite way upon full consideration in a subsequent case

But where this Court’s most relevant precedent expressly

16

distinguishes certain factual circumstances, it cannot be

unreasonable for a state court to hold that where those

distinguished circumstances exist, the Court’s rule should not

be extended.

Petitioner’s citation to some lower court cases and a dissent

from this Court- (to the effect that a defense counsel’s

initiation of the psychiatric examination does not remove

Fifth Amendment concerns) does not render Texas’s decision

to the contrary “unreasonable” under AEDPA. See Pet. Br. at

35-38; cf. Williams, 529 U.S. at 412 (holding that AEDPA

“restricts the source of clearly established law to this court’s

jurisprudence”) Even assuming arguendo that every lower

court to consider similar facts had gone against Texas, and

even if this Court, if considering the matter in a non-AEDPA

context, might decide against Texas’s conclusion, that alone

does not mean that Texas’s determination is “unreasonable.”

To be sure, the presence of that authority might be useful to

help buttress a state court in taking the contrary view to

Texas’s and concluding that, despite Estelle’s terms and logic,

it was reasonable to extend that decision to a circumstance

expressly distinguished by Estelle. But the existence of these

decisions does not establish that Texas’s decision not to

extend Estelle to this context was unreasonable.“

‘ Even if this Court were to adopt a less deferential standard, the Texas

courts’ decision is still objectively reasonable. First, this Court has

expressly declined to extend Estelle to situations in which a defendant

places his psychological state at issue and the examination 1s introduced as

rebuttal evidence. Buchanan vy. Kentucky, 483 U.S. 402, 423 (1987).

Where, as here, the defendant placed his mental status in issue, this Court

found no Fifth Amendment violation in the state presenting rebuttal

evidence in the form of “excerpts” from a psychiatric examination where

the report did not “describe[] any statements by (the defendant] detailing

with the crimes for which he was charged.” /d. at 423.

Second, petitioner has failed to show any violation of the bedrock

principle underlying the Fifth Amendment, that is, that the state must

produce evidence against a defendant “‘by the independent labor of its

17

Il. THE TEXAS COURTS’ ANALYSIS OF THE JURY

INSTRUCTIONS, INCLUDING THE SUPPLE-

MENTAL INSTRUCTION, DOES NOT WAR-

RANT HABEAS RELIEF UNDER AEDPA.

Petitioners’ remaining claim is based on this Court’s 1989

decision vacating his first death sentence. There, the Court

determined that, “in the absence of instructions informing the

jury that it could consider and give effect to the mitigating

evidence of Penry’s mental retardation and abused

~r yr a death sentence was improper. Penry I, 492

S. at 308.

In 1990, after retrial before a separate jury, petitioner was

again convicted of capital murder and sentenced to death.

chis time, however, the judge gave a supplemental instruction

that explicitly instructed the jury that it must “give effect and

consideration” to “any mitigating circumstances” including

“any aspect of the defendant’s character and record.” See

Penry, 215 F.3d at 508 (quoting the trial court’s instruction).

The jury was further instructed that, if it determined that a life

sentence was appropriate, it should give a negative finding to

one of the three Special Issues presented to it. /d

officers, not by the simple, cruel expedient of forcing i is lips.”

, orcing it from his lips.

Estelle, 451 U.S. at 462 (quoting Culombe v. Connecticut, 367 U.S. 568

581-82 (1961)). Here, because petitioner’ S own attorney requested Dr

Peebles’ evaluation, Dr. Peebles was not an agent of the state, and the state

did nothing to “force” any information from petitioner.

Third, ing the psychiatric evaluation in circumstances such

excluding as

these would not serve the deterrence goal that underlies the exclusionary

rule. As the Fifth Circuit succinctly explained, at the time Dr. Peebles

examined him, “Penry was not yet in custody on the instant capital charze

and, thus, could not have been warned about the potential use of his

statements at the punishment phase of the capital trial.” Penry v. Joh»son,

215 F.3d 504, 511 (Sth Cir. 2000). Accordingly, excluding that evaluation

would be a pure windfall to petitioner; it would not deter unconstitutional

conduct by other state actors

18

Petitioner challenges these instructions as inadequate under

Penry I. Once again, he argues that this claim falls within the

category of habeas claims cognizable by the federal courts

under Section 2254(d)(1) because, according to petitioner, the

Texas Court of Criminal Appeals’ decision was both

“contrary to” and an “unreasonable application of Penry 1

And once again, neither of these arguments has merit

A. The Texas Courts’ Analysis Is Not “Contrary

To” This Court’s Decision In Penry | Because

This Case Lacks At Least Two Of The Facts That

This Court Found Significant There.

As with his Estelle claim, petitioner contends that the Texas

courts’ analysis of the jury instructions in this case 1s

“contrary to” Penry J because, in his view, the facts of the two

cases are “materially indistinguishable.” Pet. Br. at 13-14

Under the standard articulated above, however, this is

incorrect because two critical facts that were absent in Penry /

are present here.

First and foremost, the trial court in this case gave a

supplemental instruction that was nof given in Penry I, and

that clearly allowed the jury to consider all of the mitigating

evidence petitioner wished to present. Whether or not another

court might deem this instruction adequate to cure the

problem identified in Penry I (a subject addressed below),

there is no doubt that such an instruction was not given in

Penry I, and that this Court specifically pointed to the absence

of such an instruction in its opinion. 492 US. at 328.

Second, during Penry’s second trial, his defense counsel,

without objection from either the court or the prosecution,

stated the following during closing argument:

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 prison is punishment enough,

then, you got to answer one of those questions no. The

19

Judge has not told you which question, and you have to

give that answer, even if you decide the literally correct

answer is 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 this time with you to make

sure ycu understand what it says

JA 3:640.

The prosecution during petitioner’s second trial did not

attempt to contradict this statement by petitioner’s counsel—a

statement that encouraged the jury to treat the supplemental

instruction as a kind of “nullification” instruction. Penry, 903

S.W.2d at 765. By cortrast, in Penry I, the prosecution did

contradict a similar plea when petitioner’s counsel made it

during his first trial. This Court, moreover, expressly cited

that prosecution action in holding that the instructions given

during the first trial were inadequate. 492 US. at 326.

Whether or not this Court would find these distinctions

dispositive if the Court were reviewing the matter de novo,

there is no doubt that these two facts are “material” in the

sense described above. That is, the Court itself treated them

as significant (if not dispositive) to the analysis in Penry I.

This case therefore cannot be considered “materially

indistinguishable” from Penry /.

B. The Texas Courts’ Analysis Is Not An “Unreason-

able Application” Of Penry i.

Petitioner is also incorrect in contending that the Texas

courts “unreasonably applied” Penry / to this case. First,

contrary to petitioners’ suggestions, Penry / made no attempt

to define the language of a proper instruction, much less to

hold that Texas’s three Special Issues were invalid regardless

of the supplemental instructions that might be given along

with them. Second, especially when combined with the

unrebutted explanation by petitioner’s own counsel, the trial

court’s supplemental instruction, while perhaps not perfect in

every detail, gave the petitioner an adequate opportunity to

20

have the jury consider his mitigating evidence. Each of these

points is elaborated below.

1. Penry I Established The Need For A Supple-

mental Instruction, But Did Not Attempt To

Define The Precise Language Of That

Instruction.

In Penry I the Court did not specify a single, exclusive

remedy for the defect it identified. To be sure, the Court's

opinion can reasonably be read to suggest that a supplemental

instruction on the word “deliberately” in the First Special

issue might address some of the concerns raised by the Court.

See 492 US. at 323. But the opinion did not suggest that

such a definition was a necessary or sufficient component of

an appropriate supplemental instruction. Thus, the only thing

“clearly established” by Penry J was the defect—not the

remedy.

Certainly, to comply with Penry /, the trial court might have

attempted to define the terms of the Special Issues so as to

encompass mitigating evidence of mental retardation and an

abused childhood. However, as this Court’s careful analysis

of the Special Issues in Penry / makes clear, the language of

the Special Issues does not fully encompass all of the

mitigating evidence offered by petitioner. See id. at 322-25.

And it is doubtful that this language could be defined in a way

that would clarify, rather than cloud, the jury’s ability to

consider and give effect to such evidence. For example,

while “deliberately” might be defined to include mental

retardation, the inclusion of evidence that the defendant was

abused as a child would arguably stretch the definition of the

term beyond what ii can reasonably bear.

Rather than defining specific terms in a way that might only

add to jury confusion, the trial court elected to make explicit

the jury’s obligation to consider mitigating evidence. To be

sure, this may not be a perfect reconciliation of the Texas

statutory scheme and the principles established in Penry / and

21

other decisions of this Court such as Graham v. Collins, 506

U.S. 461 (1993), and Johnson v. Texas, 509 US. 350

(1993}—which is likely an impossible task. But the trial

court’s effort is certainly a reasonable one, and one that is

entitled to deference under the narrow standard of review for

habeas petitions established by Congress under AEDPA.

The reasonableness of the state courts’ approach is

confirmed by petitioner’s own argument. A central premise

of that argument is that Penry J required the trial court to

abandon the Special Issues framework altogether. See Pet.

Br. at 19 (stating that the trial court erred because it “did not

liberate the jury from the confining effect of the three ‘special

issues’”); see also Brief of American Association of Mental

Retardation (“AAMR”) ef ai. at 11 (“[T]he trial judge could

easily have added a fourth special issue question on

mitigation... .”). In other words, petitioner and the amici

AAMR et al. argue that the only way the trial court could

have remedied the defect identified in Penry ] was either to

ignore or to rewrite the statute completely—a step that the

trial court was not at liberty to take.°

2. The Supplemental Instruction Adequately

Permitted The Jury To Consider And Give

Effect To Petitioner’s Mitigating Evidence.

The trial court’s supplemental instruction, moreover,

addressed the Court’s concerns in the most direct way

possible. In Penry J, “(t]he jury was never instructed that it

’ The remedy proposed by petitioner was specifically rejected by this

Court in Graham vy. Collins, 506 U.S. 461, 476 (1993) (rejecting the

notion that the Texas statute must be read to “require in all cases that a

fourth ‘special issue’ be put to the jury”); see also Johnson v. Texas, 509

U.S. 350, 373 (1993) (“To rule in Petitioner’s favor, we should have to

require that a jury be instructed in a manner that leaves it free to depart

from the special issues in every case. This would, of course, remove all

power on the part of the States to structure the consideration of mitigating

evidence—a result we have been consistent in rejecting.”).

22

could consider the evidence offered by Penry as mitigating

evidence and that it could give mitigating effect to that

evidence in imposing sentence.” 492 U.S. at 320. By

contrast in this case, the jury was instructed to “decide how

much weight” the mitigating evidence deserved and to “give

effect and consideration to them in assessing the defendant’s

personal culpability.” Penry, 215 F.3d at 508 (quoting trial

court’s instruction). It was also told, in essence, that if it

believed that those mitigating circumstances justified a life

sentence rather than a death sentence, it should issue a

negative finding as “to one of the special issues.” Jd

The approach taken by the trial court is consistent with

other decisions of this Court. For example, in Buchanan v.

Angelone, 522 U.S. 269 (1998), this Court approved a jury

instruction because it “afforded jurors an opportunity to

consider mitigating evidence.” 522 US. at 277. In Weeks v.

Angelone, the jury received “an explicit direction to consider

mitigating evidence.” 528 U.S. 225, 233 (2000). Precisely

the same sort of instruction was given here:

[Y]Jou 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 you believe

could make a death sentence inappropriate in this case.

Penry, 215 F.3d at 508.

The approach taken by the trial court also typifies the

approach of numerous Texas courts in the wake of Penry I.

Indeed, the instruction here was based on similar instructions

in earlier cases dealing with death sentence challenges that

invoked Penry I. See, e.g., Coleman v. State, 881 S.W.2d

344, 356 (Tex. Crim. App. 1994); Emery v. State, 881 S.W.2d

23

702, 712 n.16 (Tex. Crim. App. 1994);° Miller v. Johnson,

200 F.3d 274, 289 (Sth Cir. 2000) (reviewing a habeas

petition in a case where a Texas triai court gave a very similar

supplementary instruction).

The instructions given in these cases reflect the reasonable

efforts of Texas courts to reconcile Penry / with the Texas

death penalty scheme. Although the facial validity of the

statute had been upheld in Jurek v. Texas, 428 U.S. 262. 276

(1976), and again in Franklin v. Lynaugh, 487 U.S. 164, 182

(1988) (plurality opinion), Penry J did not explain how a

court could instruct a jury to give effect to its “reasoned moral

response” (giving the jury discretion to consider a broad

range of mitigating evidence) in the context of the Texas

Statute, which clearly narrowed the mitigating evidence that

6 :

The instruction given is also quoted in Eme

ry v. Johnson, 139 F.3

191, 200 (Sth Cir. 1997), where the Fifth Circuit, on habeas aoe

concluded that the instruction comported with the requirements of Penry 1

: Texas courts considering Penry / claims generally have separated cases

into those that require a supplemental “Penry instruction” and those that

do not. If the mitigating evidence relied on by the defendant falls within

the scope of the special issues, then no additional instruction is required

See, e.g., Kemp v. State, 846 S.W.2d 289, 310 (Tex. Crim. App. 1992)

( [A]ppellant was not entitled to a separate Penry instruction in order for

the jury to give mitigating effect to the evidence he presented at trial.”);

Jackson v. State, 822 S.\W.2d 18, 23 (Tex. Crim. App. 1990) (appellant’s

age Is relevant to special issue No. 2 (future dangerousness) so no special

instruction was necessary), Ex parte Baldree, 810 S.W.2d 213, 215 (Tex

Cnm. App. 1991) (no additional instruction was necessary for the jury to

consider and give effect to evidence of a drug problem, a suicide attempt

and lack of education). On the other hand, if the mitigating evidence does

not fall within the scope of the special issues, a separate instruction is

required. See, e.g, Rios v. State, 846 S.W.2d 310, 316-17 (Tex. Crim

App. 1992) (additional instruction that directed the jury to consider all

mitigating evidence but only insofar as it created a reasonable doubt as to

one of the special issues was inadequate under Penry I), Gribble v. State

808 S.W.2d 65, 76 (Tex. Crim. App. 1990) (additional instruction should

have been given where the defendant offered evidence of a troubled

childhood including possible sexual abuse)

24

the jury could consider to several specific categories. See,

e.g., Trevino v. State, 815 S W.2d 592, 621 (Tex. Cnm. App

1991) (en banc) (“{T]}he high Court [in Penry /] failed to

inform this court how the jury is to give ‘mitigating effect’ to

mitigating evidence that is not capable of being considered

outside the special issues”) On its face, the statute simply

provides no mechanism to accommodate all of mitigating

evidence required by Penry /

To be sure, as this Court and the Texas courts have

recognized, the special issues inherently encompass a broad

range of mitigating evidence. Thus, even without a

supplemental instruction, petitioner's evidence of possible

mental retardation has some bearing on the first Special Issue

(which requires the jury to consider the “deliberateness” of

the act) and the second Special Issue (which requires the jury

to consider whether the defendant is likely to pose a

continued threat to others).

But in this case, the trial court believed some of the

mitigating evidence might not fit comfortably within the three

Special Issues. And thus, whatever mitigating effect was left

over was fully addressed by the supplemental instruction.

Specifically, the jury was told to answer one of the Special

Issues in the negative if it believed that the mitigating

evidence presented by petitioner warranted a sentence less

than death. Penry, 215 F.3d at 508. Whether this instruction

is viewed as broadening the special issues to cover all of the

mitigating evidence presented by petitioner, or as a type of

“nullification instruction” (i.e., effectively instructing the jury

to disregard the statutory scheme if it finds the mitigating

evidence compelling),’ the instruction clearly corrects the

” Although “nullification instruction” may be a misnomer, Texas courts

have adopted this term to describe supplemental instructions base on

Penry. See, e.g., Coble v. State, 871 S.W.2d 192, 207 (Tex. Crim. App.

1993) (“We have held that a jury nullification charge is sufficient to meet

Penry requirements.”) (citing San Miguel v. State, 864 S.W.2d 493, 495

25

flaw identified in Penry | Nor is there any “reasonable

likelihood that the jury was unable to understand or to apply

the instruction Johnson, 509 U Sat 367

*- e+e #© &

“This is a case about federalism” Coleman v

S01 US. 722, 726 (1991) That is because, at on an

case “concerns the respect that federal courts owe the States

when reviewing the claims of state prisoners in federal

habeas corpus” /d The language and history of AEDPA

make clear that such respect should be at its zenith when a

federal habeas court determines whether a state-court decision

is “contrary to” or an “unreasonable application of” a decision

by this Court

(Tex. Crim. App. 1993), and Fuller v. State. 829 S W

htm fon tote ; W.2d 191, 209 (Tex.

26

CONCLUSION

For these reasons, the decision of the Court of Appeals

denying petitioner's motion for a Certificate of Appealability

should be affirmed

Respectfully submitted,

BILL PRYOR CARTER G. PHILLIPS

ATTORNEY GENERAL OF ALABAMA GENE C SCHAERR*

J CLAYTON CRENSHAW REBECCA K. SMITH

ASSISTANT ATTORNEY GENERAL TIMOTHY D. HAWKES

OFFICE OF THE ATTORNEY SIDLEY & AUSTIN

GENERAL, STATE OF ALABAMA _ 1722 Eye Street, N W

11 South Union Street Washington, D.C. 20006

Montgomery, AL 36130 (202) 736-8000

(334) 242-7300

Counsel for Amicus Curiae

February 15, 2001 * Counsel of Record