Amicus Curiae Brief — Abdul-Kabir v. Quarterman

FILED

() JUL 17 2006

' OFFICE OF THE CLERK J

No. 05-11284

In the Supreme Court of the Anited States

JALIL ABDUL-KABIR,

Petitioner,

Vv.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONS DIVISION,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

For the Fifth Circuit

BRIEF OF DERYL MADISON, RONALD CHAMBERS,

BILLY COBLE, FERNANDO GARCIA, CHARLES

MINES, BILLY NELSON, JONATHAN REED,

STEVEN RODRIGUEZ, AND ROY SMITH AS AMICI

CURIAE IN SUPPORT OF PETITIONER

CHRISTOPHER J. RICHART DaviD R. Dow

Mayer, Brown, Rowe Counsel of Record

& Maw LLP University of Houston Law

700 Louisiana St., Ste. 3600 Center

Houston, TX 77002 100 Law Center

(713) 238-3000 Houston, Texas 77204

713-743-2171 (voice) .

713-743-2131 (facsimile)

Counsel for Amici Curiae

ara a a a a TE a REET

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

TABLE OF CONTENTS

TABLE OF AUTHIORITIES...........csccccccrscocsccccsessccscecssecseees iti

INTEREST OF THE AMICI CURIAE.......c0cccccccceccesseessesseces ]

SUMMARY OF ARGUMENT...........:cccecssesessssereeeeseeeesenes l

SITE eecinthitictcieniinnticininnianiianentecrmetnnenienmmmmnin 2

I. This Court’s Penry Jurisprudence Requires

the Punishment Phase Jury to Have a

Meaningful Vehicle to Consider and Give

Effect to All of a Defendant’s Mitigating

NN destersitenneeciteiacinnsicansinidinerpabasianidinltatitcinitmmepeanesdiieninn 2

Il. The Fifth Circuit’s Pre-Tennard Treatment of

Penry Claims Limited Penry / to Its Facts................ 6

Ill. The Fifth Circuit’s Post-Jennard

Jurisprudence Also Fails to Apply Penry / in a

Manner Faithful to This Court’s Decisions............... 8

A. The Fifth’s Circuit’s Post-Tennard

Approach to Penry Claims Based on

Mental Health Problems or a

Dysfunctional Childhood Upbringing

Is Still Without a Basis in this Court’s

l. The Fifth Circuit Has

Improperly Drawn a

Distinction Between Treatable

and Untreatable Mental Health

EEE OIC On ae IPN ae 9

ii

TABLE OF CONTENTS - continued

Page

2. The Fifth Circuit Has

Minimized the Effects of the

Petitioners’ Mental Health

Problems and Dysfunctional

Childhood Environments to

Deny Relief Even Though

Tennard Specifically Rejects

Such an Analysis. .............sccsesseseeees 12

B. The Fifth Circuit has Frequently

Relied on Its Pre-Tennard Penry

Decisions to Deny Relief, Sometimes

Without Analyzing the Significant

Impact Tennard and Smith had on That

Be Cr I cncncnessansnnienmecininenmntbtinterens 15

c. The Fifth Circuit’s Most Recent Penry

Decision Applies a Novel Estoppel

Theory to Deny Relief and Departs

From the Precedents of Both This

Court and the Fifth Circuit. ...............:.:c000 16

D. The Fifth Circuit Has Also Adopted a

Narrow Reading of Tennard and Smith

er ia sactcticnicctntncntintniisenenivemnien 18

I IY secrcesncsineesnenimersinemseresiueennsanuansnencnnmsannninnit 20

iil

TABLE OF AUTHORITIES

Page(s)

Cases

Barnard v. Collins,

958 F.2d 634 (Sth Cir. 1992) ..........ccccccesssseceeseeseereceeeees 19

Bigby v. Dretke,

402 F.3d 551 (Sth Cir. 2005),

cert. denied, 126 S. Ct. 239 (2005) ........ccccccecceeee 7, 13,17

Blue v. Cockrell,

ee ee re Cl Be ierstcierccscnstennneniccnitinscscsnennions 6

Bower v. Dretke,

No. 03-40980, 2005 U.S. App. LEXIS 16891

(Sth Cir. Aug. 11, 2005) (per curiam), cert.

denied,

52GB. Ce, DEG6 (AIOE) ncccccccccccccscccescccccscsssesss 9, 18, 19, 20

Boyd v. Johnson,

BGT PDE Se7 Ce CR, BGTG) anon ccccccccvcesccmnevecesnscensnsocsces ED

Brewer v. Dretke,

442 F.3d 273 (Sth Cir. 2006) (per curiam),

petition for cert. filed, US.L.W.__ (US.

May 30, 2006) (No. 05-11287) ............... 8, 12, 13, 14, 16

California v. Brown,

ENT T EE MCLE IE I 9

Coble v. Dretke,

444 F.3d 345 (Sth Cir. 2006)............00000 8, 12, 14, 15, 19

Cole v. Dretke,

418 F.3d 494 (Sth Cir. 2005) oo... cece ceceeececceeeeees 8, 10, 14

iv

TABLE OF AUTHORITIES - continued

Page(s)

Draughon v. Dretke,

427 F.3d 286 (Sth Cir. 2005),

cert. denied, 126 S. Ct. 1577 (2006) ...........:.000063 8, 13,14

Draughon v. Texas,

831 S.W.2d 331 (Tex. Crim. App. 1992) (en

banc), cert.

GRRE, TIDE. Ce. BS TT GDB O) secsccecescssscssconsccvssnecoesesnese 13

Franklin v. Lynaugh,

ae ee SD ieticictiinbinesincinssecnsiangincimaienientonas 2, 5, 18

Garcia v. Quarterman,

No. 03-11097 (Sth Cir. July 13, 2006)................ 16, 17, 18

_ Graham v. Collins,

es ITE cisicicnseinsccbiabenisitcitipedccndeaninnniittingans 14,19

Graham v. Collins,

950 F.2d 1009 (Sth Cir. 1992) (en banc),

Fe ee Se Ci iccctctcctcncnttincstntenamnciervenannnienne 6, 7

Graham v. Collins,

896 F.2d 893 (Sth Cir. 1990), superseded

on reh'g en banc, 950 F.2d 1009 (Sth Cir.

1992), aff'd, 506 U.S. 461 (1993) oo. ccecceseseeeeeennens 6,7

Hernandez v. Johnson,

248 F.3d 344 (Sth Cir. 2001)... cece eceteeeeteeeeeeeeeees 7, 16

Jackson v. Dretke, ;

450 F.3d 614 (Sth Cir. 2006).................. liicecesiinais 9, 19, 20

Vv

TABLE OF AUTHORITIES -— continued

Page(s)

Johnson v. Texas,

Fe Us BN CRED rcectisstenintnevienidupinietinniinl 5, 10, 11, 18

Jurek v. Texas,

I is Be CO FD cicecesnctnsestniitinissieninsceenisiiainnntitiin 5, 20

Lucas v. Johnson,

132 F.3d 1069 (Sth Cir. 1998)...............ccssccsesssenee 15, 16

Mayo v. Lynaugh,

Ie FB Ge Ce Gee Be Rec cenccctersnscsivecseninntintenpiiiansid 6

McKoy v. North Carolina,

Ss Ne CD iiiccsetcccernitchinceniiineiepeniintiiinianieiuaia 19

Mines v. Dretke,

No. 03-11137, 2004 U.S. App. LEXIS 26259

Ce TR. BG, Be cccicccnscsadirienstiseiicintinplindsiiidbenisaasann 15

Nelson v. Dretke,

GES FSG BeBe COG Cis. Ba B Pc ccccccssosvccssccssscacsnseesece passim

Payne v. Tennessee,

Fe Sos Ie Pin sinncestctpticcmistinbencditpanisiaiiiasdaemeaidiadalin 20

Penry v. Lynaugh (“Penry 1"),

FEE EPs UU IIE ccesinoessennstisteibeidaslenaeiiatia iid passim

Penry v. Johnson (“Penry II”),

ae AUER: | PINE CIID icccccecterneniehtbiccntpabipiensaiieaibiasmabiaie 1,2

Robertson v. Cockrell,

Bee Ce ee Ee Be ccctestvttstenisesnicizcsvinnn 1,3, 6,7

vi

TABLE OF AUTHORITIES - continued

Page(s)

Robinson v. Johnson,

Pe ee Ae GN Gs BD crcevccecescscccoscnscosescnsinesensesoes 15

Skipper v. South Carolina,

aT eit iclintniciatienhcttninenennindpmincineiaicinatnatnitin 5,14

Smith v. Cockrell,

TL AO 7

Smith v. Dretke, -

kn 15

Smith v. Texas,

543 U.S. 37 (2004) (per curiam) .................0cccceeees passim

Ex parte Smith,

132 S.W.3d 407 (Tex. Crim. App.), rev'd,

TSE A 3

Summers v. Dretke,

431 F.3d 861 (Sth Cir. 2005), petition

for crt. filed, _US.L.W.__ (U.S. Apr. 2006)

ST ne Se 9, 18, 19, 20

Tennard v. Cockrell,

284 F.3d 591 (Sth Cir. 2002), rev'd sub nom.

Tennard v.

Dretke, 542 U.S. 274 (2004) ............. Dsiictechidedtihenoniabssiiaahis 3,4

Tennard v. Dretke, 542 U.S. 274 (2004)..........cccccceeee passim

Ex parte Tennard,

960 S.W.2d 57 (Tex. Crim. App. 1997) (en banc)...... 3,4

vii

TABLE OF AUTHORITIES ~ continued

Page(s)

Woodson v. North Carolina,

420 U.S. 280 (1976) .............. sssesusseressssessncssnesuscesaneenesene 11

Statutes

Tex. Code Crim. Proc. Ann. art 37.071 § 2(e)(1)

eee 6

BRIEF OF DERYL MADISON, RONALD CHAMBERS,

BILLY COBLE, FERNANDO GARCIA, CHARLES

MINES, BILLY NELSON, JONATHAN REED,

STEVEN RODRIGUEZ, AND ROY SMITH

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE'

Amici curiae are inmates currently incarcerated on

Texas's death row.’ Amici curiae were sentenced under the

pre-1991 Texas death penalty statute and have habeas

petitions pending in federal court that challenge the

constitutionality of their death sentences based on the Court’s

decisions in Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry

I’), Penry v. Johnson, 532 U.S. 782 (2001) (“Penry Ir’),

Tennard v. Dretke, 542 U.S. 274 (2004), and Smith v. Texas,

543 U.S. 37 (2004) (per curiam). Contrary to the decisions

of this Court, the Fifth Circuit has once again adopted a

reading of Penry I that does violence to this Court’s rulings

and has and will result in an unconstitutional resolution of

Penry claims. The correct application of the Court’s death

penalty jurisprudence is literally a matter of life and death for

amici curiae.

SUMMARY OF ARGUMENT

For more than a decade, the Fifth Circuit applied its

“constitutional relevance” test to deny relief to almost every

federal habeas petitioner asserting a Penry claim. See

Robertson v. Cockrell, 325 F.3d 243, 256 (Sth Cir. 2003). In

no uncertain terms, this Court rejected the constitutional

relevance test, finding that it “has no basis in our

' No attorney for any party has authored this brief in whole or in part, and

no person or entity other than the amici curiae and their counsel made

any monetary contnbution to the preparation or submission of this brief.

? Deryl Madison, Ronald Chambers, Billy Coble, Femmando Garcia,

Charles Mines, Billy Nelson, Jonathan Reed, Steven Rodriguez, and Roy

Smith.

2

precedents.” Tennard, 542 U.S. at 287. The Court’s

decisions in Tennard and Smith simply reaffirm the Court’s

consistent holding that “full consideration of evidence that

mitigates against the death penalty is essential if the jury is to

give a ‘reasoned mora/i response to the defendant’s

background, character, and crime.”” Penry /, 492 U.S. at 328

(quoting Franklin v. Lynaugh, 487 U.S. 164, 184 (1988)

(O’Connor, J., concurring) (plurality opinion)). Despite this

Court’s command that the punishment phase jury in a capital

murder case must be permitted “to give ‘full consideration

and full effect to mitigating circumstances’ in choosing the

defendant’s appropriate sentence,” Smith, 543 U.S. at 38

(quoting Penry II, 532 U.S. at 797), the Fifth Circuit has

continued to apply an unconstitutionally narrow reading of

Penry I and its progeny. While different panels of the couri

have created confusion by relying on varying bases for

rejecting Penry claims, the consistency lies in the essential

refusal to implement the decisions of this Court. For these

reasons, the Court should grant review in these cases.

ARGUMENT

I. This Court’s Penry Jurisprudence Requires the

Punishment Phase Jury to Have a Meaningful Vehicle

to Consider and Give Effect to All of a Defendant’s

Mitigating Evidence.

In Penry I, the Court sustained an as-applied challenge to

the pre-1991 Texas death penalty statute brought by a

defendant who presented evidence that he was mentally

retarded, had been abused as a child, and consequently had

“poor impulse control and an inability to leam from

experience.” Penry I, 492 U.S. at 308. The Court held that

in cases where “the jury [is] unable to fully consider the

mitigating evidence introduced by a defendant in answering

the special issues,” id. at 321, even if such evidence has some

relevance to the special issues, see id. at 322, a separate issue

allowing the jury to give mitigating effect to all of the

3

defendant’s evidence in determining punishment must be

submitted. /d. at 328.

In the years after Penry ] was decided, the Fifth Circuit

honored the decision more in the breach than in the

observance. Although this Court reviewed and redressed the

tests that developed in the lower courts in the wake of Penry

I, a brief review is necessary here to set the framework for

the discussion revealing the similarities in the appellate

court’s pre- and post-7ennard jurisprudence.

The primary method used to reject Penry claims was the

“constitutional relevance” test. Under this “screening test,”

Tennard, 542 U.S. at 283, a federal habeas petitioner

asserting a Penry claim was required to show that he suffered

from a uniquely severe permanent handicap through no fault

of his own and that there was a nexus between this handicap

and his crime. Tennard v. Cockrell, 284 F.3d 591, 595 (Sth

Cir. 2002), rev'd sub nom. Tennard v. Dretke, 542 U.S. 274

(2004).*

Few petitioners were able to meet the erroneous standard

the Fifth Circuit applied to Penry claims. See Robertson,

325 F.3d at 256 (noting that between 1992 and 2002, of the

forty-seven death penalty cases in which the defendant

asserted a Penry claim, the Fifth Circuit rejected Penry

claims forty-six times). Of the forty-six petitioners

* Aggravating the damage done by the federal court, the Texas Court of

Criminal Appeals followed the Fifth Circuit's lead, weighing the

mitigating evidence presented by a habeas petitioner to determine

whether he had presented evidence of abuse and mental impairment as

severe as that suffered by Penry. See Ex parte Smith, 132 S.W.3d 407,

413-14 (Tex. Crim. App.) (following the Fifth Circuit’s two-part

“uniquely severe” and “nexus” test), rev'd, 543 U.S. 37 (2004); see also

Tennard, 542 U.S. at 279 (discussing the analysis used by the Texas

Court of Criminal Appeals in reviewing Tennard’s state habeas petition).

* See also Ex parte Tennard, 960 S.W.2d 57, 64 (Tex. Crim. App. 1997)

(en banc) (Meyers, J., concurring) (noting that “[iJn cases too numerous

to mention, this Court has rejected” Penry claims premised on

4

identified in Robertson, 39 have been executed. See Texas

Department of Criminal Justice, Executed Offenders, at

http://www.tdcj.state.tx.us/stat/executedoffenders.htm (last

visited July 15, 2006). }

Tennard was one such case. The only evidence Tennard

presented at the punishment phase of his trial was testimony

from his parole officer that Tennard had a 67 IQ. Tennard,

542 U.S. at 277. During punishment phase closing

arguments, defense counsel’s primary argument was that

Tennard’s low intelligence and gullibility mitigated his

culpability. /d. at 277-78. The Fifth Circuit rejected

Tennard’s Penry claim on the grounds that Tennard had

failed to establish a nexus between his low intelligence and

his crime and his mitigating evidence was not sufficiently

similar to Penry’s. Tennard, 284 F.3d at 597; see also Ex

parte Tennard, 960 S.W.2d 57, 62-63 (Tex. Crim. App.

1997} (en banc).

This Court soundly rejected the restrictive screening test

employed by the Fifth Circuit and held that the two statutory

special issues that were submitted to Tennard’s jury did not

give the jury an adequate vehicle to consider and give effect

to Tennard’s evidence of low intelligence. Tennard, 542

U.S. at 287-88. This Court concluded that “the Fifth

Circuit’s screening test has no basis in our precedents and,

indeed, is inconsistent with the standard we have adopted for

relevance in the capital sentencing context,” id. at 287, and

emphatically rejected both the “uniquely severe permanent

handicap” and “nexus” elements of the Fifth Circuit test. /d.

at 289.

The Court reaffirmed that decision in Smith, which came

to the Court after the Texas Court of Criminal Appeals

(“TCCA”) denied state post-conviction relief. Smith

presented mitigating evidence of organic learning disabilities,

“alcoholism/drug abuse, troubled background, and certain types of mental

illness” including schizophrenia and manic depression).

5

speech handicaps, a 78 1Q, placement in special education

classes, and his father’s drug addiction, involvement in gang

violence, and theft of money from other family members.

Smith, 543 U.S. at 41. The Court noted that Smith’s

mitigating evidence was relevant to the appropriateness of

the death penalty regardless of the severity of his mental

health problems. /d. at 44. The Court also held that by

requiring Smith to demonstrate both a severe disability and a

nexus between his mitigating evidence and his crime, the

TCCA had “relied on a test we never countenanced and now

have unequivocally rejected.” Jd. at 45 (emphasis omitted).

Tennard and Smith underscore the decision made fifteen

years earlier in Penry /. Under the standard set forth in

Penry I, a court addressing a claim that the jury was unable

to give effect to a defendant’s mitigating evidence need only

determine whether the jury could have believed that the

mitigating evidence “diminished [the defendant’s] moral

culpability and made imposition of the death penalty

unwarranted” but “would be unable to give effect to that

conclusion.” Penry I, 492 U.S. at 323; see also Tennard, 542

U.S. at 287-88. An appellate court should not substitute its

judgment for that of the jury in weighing the defendant’s

mitigating evidence to determine whether he has presented

proof of childhood abuse or mental health problems severe

enough to warrant a sentence less than death. Tennard, 542

U.S. at 286. Instead, as long as the defendant’s mitigating

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

death,” id. at 287 (quoting Skipper v. South Carolina, 476

U.S. 1, 5 (1986)), and has “mitigating dimension beyond the

impact it has” on the statutory special issues, or could only

be considered as an aggravating factor under those issues, a

habeas petitioner is entitled to Penry relief.” Id. at 288.

* Amici curiae are not suggesting that a separate mitigating instruction is

required in all cases. Johnson v. Texas, 509 U.S. 350 (1993), Franklin v.

Lynaugh, 487 U.S. 164 (1988) (plurality opinion), and Jurek v. Texas,

428 U.S. 262 (1976) (plurality opinion), plainly foreclose such a

6

Il. The Fifth Circuit’s Pre-Tennard Treatment of Penry

Claims Limited Penry / to Its Facts.

In the post-Penry /, pre-Tennard era, the Fifth Circuit has

consistently rejected, ignored, or misconstrued the mandate

of Penry I. This has primarily been. accomplished through

the application of the “constitutional relevance” screening

test soundly rejected by this Court in Tennard. 542 U.S. at

283 (“This test for ‘constitutional relevance,’ . . . appears to

be applied uniformly in the Fifth Circuit to Penry claims.”).

Through the application of that unconstitutional screening

test, the lower court denied relief to Texas death row inmates

whose juries may not have been given an appropriate vehicle

for the consideration of mitigating evidence that may have

served as the basis for a sentence less than death. Attempting

to characterize this Court’s denials of petitions for a writ of

certiorari as affirmations of its treatment of Penry claims, the

Fifth Circuit neatly summarized the effects of the

constitutional relevance test in Robertson: In the period

between the lower court’s decision in Graham v. Collins, 950

F.2d 1009 (Sth Cir. 1992) (en banc), aff'd, 506 U.S. 461

(1993) (January 3, 1992) and the end of 2002, of the forty-

seven cases addressed on the merits, only one—Michael

Blue—was deemed to warrant relief. See Robertson, 325

F.3d at 256; Blue v. Cockrell, 298 F.3d 318 (Sth Cir. 2002).

In the period between this Court’s decision in Penry I (June

26, 1989) and January 3, 1992, of the six cases the Fifth

Circuit addressed, even peremptorily, on.the merits, Penry

relief was granted in only one, Mayo v. Lynaugh, 893 F.2d

683 (Sth Cir. 1990).° In the year and a half following the

contention. However, it is equally plain from Penry / and its progeny that

a separate mitigating evidence instruction is required in some cases. The

Texas legislature solved the problem in 1991 by requiring the submission

of a general mitigating evidence instruction in all cases. See Tex. Code

Crim. Proc. Ann. art. 37.071 § 2(e)(1) (Vernon Supp. 2005).

* On remand from this Court, a panel of the Fifth Circuit also granted

Penry relief in Graham v. Collins, 896 F.2d 893 (Sth Cir. 1990). On

rehearing en banc, the Fifth Circuit vacated the panel's decision and

7

Robertson Court’s tally, (January 1, 2003 until Tennard), five

Penry claims have been addressed on their merits, with one

grant of relief in Bigby v. Dretke, 402 F.3d 551 (Sth Cir.

2005), cert. denied, 126 S. Ct. 239 (2005).’ Thus, of the

roughly fifty-eight cases identified by the lower court and

undersigned counsel where Penry claims were addressed on

their merits, relief has been granted in a total of three cases

(not counting Graham).®

While the sheer numbers are themselves notable, when

combined with the recognition that the lower court has based

their decisions on the uniform application of a screening test

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

Tennard, 542 U.S. at 283-84, those numbers become

increasingly frightening and call for the scrutiny of this

Court. Ultimately, the Fifth Circuit’s pre-7ennard Penry

jurisprudence, which refused to apply Penry / in any context

that varied even slightly from the facts of that case,

represents, at best, a significant misunderstanding of the

principles on which Penry J was based and, at worst, an

effort to affirm death sentences without regard to the

requirements of the Constitution or the dictates of this

Court’s precedents. This trend has continued even after this

Court’s explicit holdings in Tennard and Smith.

reinstated the district court’s denial of relief. Graham v. Collins, 950

F.2d 1009 (Sth Cir. 1992).

’ This does not and cannot account for the cases pending in the lower

court on requests for a COA or petitions for rehearing or cases pending in

this Court on petitions for a writ of certiorari.

* More recently, Penry relief has been denied despite evidence of

childhood head injuries, low IQ, and possible retardation, Smith v.

Cockrell, 311 F.3d 661 (Sth Cir. 2002), childhood abuse and substance

addiction, Robertson v. Cockrell, 325 F.3d 243 (Sth Cir. 2003), and

schizophrenia, Hernandez v. Johnson, 248 F.3d 344 (Sth Cir. 2001), to

name a few.

8

Ill. The Fifth Circuit’s Post-Tennard Jurisprudence Also

Fails to Apply Penry IJ in a Manner Faithful to This

Court’s Decisions.

In narrowing the categories of evidence—both

quantitatively and qualitatively—that qualified as “Penry”

evidence in the fifteen years following Penry /, the Fifth

Circuit and the TCCA upheld scores of death sentences using

a test that has “no basis” in this Court’sjuftsprudence.

Tennard, 542 U.S. at 287. Regardless of whether the Fifth

Circuit’s refusal to apply Penry / was the product of a

misreading of this Court’s death penalty jurisprudence or a

conscious effort to reach a particular outcome regardless of

the decisions of this Court, this pattern has continued in the

Fifth Circuit’s post-Tennard decisions.

Since Tennard the Fifth Circuit has repeatedly rejected

Penry claims raised by petitioners with evidence of serious

mental health problems and dysfunctional childhood

environments by focusing on the possibility that the

petitioner might receive treatment, minimizing the extent of

the petitioner's mental health problems or dysfunctional

upbringing, and relying on its pre-Zennard Penry

jurisprudence, often without a critical analysis of the effect

Tennard and Smith had on that body of law. See Coble v.

Dretke, 444 F.3d 345 (Sth Cir. 2006); Brewer v. Dretke, 442

F.3d 273 (Sth Cir. 2006) (per curiam), petition for cert. filed,

__U.S.L.W. ___ (U.S. May 30, 2006) (No. 05-11287); Nelson

v. Dretke, 442 F.3d 282 (Sth Cir. 2006); Cole v. Dretke, 418

F.3d 494 (Sth Cir. 2005); Draughon v. Dretke, 427 F.3d 286

(Sth Cir. 2005), cert. denied, 126 S. Ct. 1577 (2006). As

with its pre-Tennard approach to Penry claims, the reasons

put forward by the Fifth Circuit to explain its unwillingness

to apply Penry / to petitioners suffering from mental health

problems or raised in dysfunctional childhood environments

is without basis in this Court’s precedents. See Tennard, 542

U.S. at 287.

9

A second group of post-Tennard Penry cases that does

not deal with mental health problems or dysfunctional

childhood environments also highlights the narrow view the

Fifth Circuit has continued to take when considering Penry

claims. See Jackson v. Dretke, 450 F.3d 614 (Sth Cir. 2006);

Summers v. Dretke, 431 F.3d 861 (Sth Cir. 2005), petition for

cert. filed, _US.L.W. __ (U.S. Apr. 27, 2006) (No. 05-

11074); Bower v. Dretke, No. 03-40980, 2005 U.S. App.

LEXIS 16891 (Sth Cir. Aug. 11, 2005) (per curiam), cert.

denied, 126 S. Ct. 1144 (2006). The narrow approach the

Fifth Circuit has taken towards these petitioners’ Penry

claims demonstrates a continuing unwillingness to adhere to

this Court’s understanding of what the Eighth Amendment

requires in capital sentencing procedures.

A. The Fifth’s Circuit’s Post-Tennard Approach to

Penry Claims Based on Mental Health Problems

or a Dysfunctional Childhood Upbringing Is Still

Without a Basis in this Court’s Precedents.

1. The Fifth Circuit Has Improperly Drawn a

Distinction Between Treatable and Untreatable

Mental Health Problems.

Nothing in this Court’s analysis of Penry claims supports

the “treatable-untreatable” distinction used by the Fifth

Circuit to deny relief in the vast majority of cases. As was

true in the pre-7ennard era, the artificial distinction the Fifth

Circuit has drawn between treatable and untreatable mental

health problems also ignores the fundamental mitigating

thrust of this type of evidence, “‘the belief, long held by this

society, that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional

and mental problems, may be less culpable than defendants

who have no such excuse.’”” Penry J, 492 U.S. at 319

(quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O’Connor, J., concurring)). Thus, like the now defunct

“constitutional relevance” test, the Fifth Circuit’s

“untreatability requirement” has no basis in the precedents of

10

this Court and is contrary to the basic principles underlying

this Court’s death penalty jurisprudence. See Tennard, 542

U.S. at 287-88.

The Fifth Circuit’s distinction between treatable and

untreatable mental health problems appears to have been

derived from Penry’s complete inability to learn from his

mistakes, which necessarily would have caused the jury to

view his evidence of intellectual and emotiona] impairment

solely as aggravating. See Cole, 418 F.3d at 506-07 & n.54

(relying on Penry J to hold that because “Cole’s mitigating

evidence did not suggest that he was unable to learn from his

mistakes,” Cole’s evidence of low IQ and an abusive

background “fits well within the broad scope of the future

dangerousness special issue”). Although the Court identified

Penry’s inability to learn from his mistakes as one of. the

reasons the pre-1991 special issues were constitutionally

inadequate in his case, Penry /, 492 U.S. at 323-24, nothing

in Penry I, Tennard, or Smith suggests that a petitioner’s

inability to learn from experience is a prerequisite for Penry

relief. To the contrary, although Tennard, like Penry, had

low intelligence, there is no suggestion in the Court’s opinion

that he was unable to learn from his mistakes. See Tennard,

542 U.S. at 277-78, 288-89. Similarly, although Smith

suffered from learning disabilities and a low IQ, there was no

evidence that he was completely unable to learn from his

mistakes. See Smith, 543 U.S. at 41, 43-45. In addition,

although Penry was unable to learn from his mistakes, Penry

/ contains no indication that his antisocial tendencies could

not have been controlled or ameliorated by medication or

counseling. See Penry I, 492 U.S. at 307-10.

In Johnson v. Texas, 509 U.S. 350, 369 (1993), the Court

did draw a distinction between the transient nature Johnson’s

youth and Penry’s inability to learn from his mistakes.

However, neither Jennard nor Smith cited Johnson for the

proposition that only permanent disabilities warrant Penry

relief. In addition, youth, although indisputably relevant to

1]

the appropriateness of the death penalty, id at 367, is

fundamentally different than other types of mitigating

evidence. The purpose of the punishment phase of a capital

murder trial is to make an “individualized assessment of the

appropriateness of the death penalty” based on the “personal

culpability of the criminal defendant.” Penry I, 492 U.S. at

319. Youth, however, is a universal condition, the opposite

of the “diverse frailties of humankind” that may warrant a

sentence less then death based on the uniqueness of each

individual defendant. See Woodson v. North Carolina, 428

U.S. 280, 304 (1976) (plurality opinion). Thus, although

Johnson’s youth was relevant to the future dangerousness

inquiry, see Johnson, 509 US. at 368, it had no other

legitimate mitigating significance.’ Because of the unusual

nature of youth as a mitigating factor, Johnson cannot be

read as creating a bright line distinction between treatable

and untreatable mental illnesses. Thus, neither Penry’s

inability to learn from his mistakes nor Johnson’s discussion

of the transient nature of youth provides a convincing

rationale for the Fifth Circuit’s approach to Penry claims

premised on mental health problems.

Aside from having no basis in the sii: of this

Court, the Fifth Circuit’s distinction between treatable and

untreatable mental health problems would also have

encouraged bizarrely inverted trial behavior. Defendants

would have had an incentive to argue that they were

untreatable psychopaths in hopes of earning a general

mitigating evidence instruction. On the other hand, the

prosecution would have attempted to present evidence that

the defendant’s mental health problems were treatable, while

still contending that the defendant would pose a threat to

others regardless of his. prospects for treatment. The Fifth

* A particular juror might have been inclined to impose a sentence less

than death because of Johnson's youth solely on the basis of mercy or

sympathy, but this is not an appropriate basis to refuse to impose a death

sentence. See Johnson, 509 U.S. at 371-72.

12

Circuit’s emphasis on treatability would have promoted this

counter-intuitive, if mot perverse, approach to the

presentation of mitigating evidence, and it highlights a

significant flaw in the Fifth Circuit’s analysis of Penry

claims premised on a petitioner’s mental health problems.

Because the Fifth Circuit’s requirement that a habeas

petitioner demonstrate that his mental health problems are

not susceptible to treatment before obtaining Penry relief has

no foundation in the decisions of this Court, the Court should

grant review to remedy the lower court’s systemic analytical

errors in this entire class of cases. |

2. The Fifth Circuit Has Minimized the Effects of the

Petitioners’ Mental Health Problems and

Dysfunctional Childhood Environments to Deny

Relief Even Though Tennard Specifically Rejects

Such an Analysis.

In rejecting the Fifth Circuit’s constitutional relevance

test, this Court held that “to say that only those features and

circumstances [of a defendant’s character or crime] that a

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

alone ‘uniquely severe’) could have such a tendency [to

mitigate the defendant’s culpability] is incorrect.” Tennard,

542 U.S. at 287. Nevertheless, the Fifth Circuit has

implicitly resurrected a severity test in analyzing Penry

claims based on mental health problems and a dysfunctional

childhood environment.

For example, the Fifth Circuit rejected Coble’s Penry

claim because he failed to present evidence of the same

“harsh physical abuse” to which Penry had been subjected.

Coble, 444 F.3d at 362-63. In Brewer, the Fifth Circuit

denied relief in part because it felt that Brewer’s evidence of

mental health problems-was not “especially strong,” even

though Brewer had apparently been suicidal and had been

voluntarily committed for depression only three months

before his crime. Brewer, 442 F.3d at 275 n.1. The Fifth

Circuit also denied Brewer relief based on his history of

13

abuse because the abuse to which Brewer was subjected did

“not rise to the level of that at issue in Penry,” even though

Brewer’s father hit him “‘numerous’ times” when he was a

teenager. Jd. at 279 n.16. Similarly, in Nelson the Fifth

Circuit characterized Nelson’s evidence that he suffered from

borderline personality disorder as “trivial” and “scanty,” even

though it was supported by expert testimony. Nelson, 442

F.3d at 287. It also concluded that Nelson’s abandonment by

his mother was distinguishable from Penry’s evidence of

“severe physical abuse.”'° Jd. at 286. In contrast, in Bigby

the Fifth Circuit granted Penry relief, emphasizing that

Bigby’s paranoid schizophrenia was “severe, caused him to

suffer delusions with respect to the actions and motivations

of the people around him, . . . and significantly impacted his

interpersonal relationship abilities.” Bigby, 402 F.3d at 571.

The court also noted that Bigby had even “irrationally tried to

take the trial court judge hostage in the presence of armed

bailiffs.” Ibid.

The Fifth Circuit’s focus on the severity of a petitioner’s

mental health problems and dysfunctional childhood

environment and the quantity of the evidence supporting

them, is inconsistent with Tennard and Smith. The gullibility

Tennard demonstrated while committing a previous rape and

the single IQ test that supported his claim of low intelligence,

° The Fifth Circuit also denied a Penry claim based on “abuse as a child

and ‘dysfunctional upbringing” in Draughon because it believed

Draughon’s evidence could be given effect under the future

dangerousness special issue. Draughon v. Dretke, 427 F.3d 286, 298 (Sth

Cir. 2005), cert. denied, 126 S. Ct. 1577 (2006). Draughon presented

evidence that his step-father “for many years viciously beat his mother

and sexually assaulted his sister” and expelled Draughon from the house

on several occasions when he was a teenager, forcing him to fend for

himself. Draughon v. Texas, 831 S.W.2d 331, 339 (Tex. Crim. App.

1992) (en banc), cert. denied, 126 S. Ct. 1577 (2006). The Fifth Circuit

devoted little attention or analysis to Draughon’s Penry claim,

presumably because the court had already determined that he was entitled

to a new guilt-innocence trial on an unrelated ineffective assistance of

counsel claim. See Draughon, 427 F.3d at 297.

14

Tennard, 542 U.S. at 277-78, could hardly be described as

“especially strong.” See Brewer, 442 F.3d at 275 n.1.

Tennard’s mitigating evidence, which was not supported by

any expert testimony, see Tennard, 542 U.S. at 277, was also

much weaker than the “scanty” evidence of mental illness at

issue in Nelson. See Nelson, 442 F.3d at 287. Similarly,

Smith’s IQ, which was between 75 and 78, Smith, 543 U.S.

at 41, was significantly higher than Penry’s IQ of 50-63.

Penry I, 492 U.S. at 307-08. Nor is there any indication that

Smith’s learning disabilities, Smith, 543 U.S. at 41, were

comparable to Penry’s mental health problems. See Penry /,

492 U.S. at 308. Smith’s evidence that his father was a drug

addict and a gang member who frequently stole money from

other family members, Smith, 543 U.S. at 41, was also not

nearly as horrifying as Penry’s evidence of severe beatings

and neglect at an early age. See Penry I, 492 U.S. at 308-

09.

Nothing in Penry I, Tennard, or Smith suggests that these

cases were intended to set forth a minimum level of mental

impairment or childhood abuse or neglect a petitioner must

demonstrate before obtaining Penry relief. To the contrary,

Tennard explicitly rejected the idea that federal judges

should reweigh a petitioner’s mitigating evidence to

determine whether, in their opinion, it warrants a sentence

less than death. See Tennard, 542 U.S. at 287. The evidence

of serious mental health problems and dysfunctional

childhood environments presented by the petitioners in

Coble, Brewer, Nelson, Cole, and Draughon is hardly as

trifling as evidence of the number of times a prisoner will

shower. See Tennard, 542 U.S. at 286 (citing Skipper, 476

'' Because of the significant difference in the factual records of the

respective cases, Graham v. Collins, 506 U.S. 461 (1993), is not

analogous to Coble, Brewer, Nelson, Cole, and Draughon. For example,

although Graham lived with his grandmother off and on when he was a

child, he presented no evidence of physical abuse, neglect by his

caretaker, or complete abandonment by his mother. See Graham, 506

U.S. at 464.

15

U.S. at 7 n.2). The Fifth Circuit’s continued focus on the

severity of a petitioner’s mental health problems and

dysfunctional childhood environment to deny Penry relief is

inconsistent with Tennard and Smith and reminiscent of the

constitutional relevance test this Court explicitly rejected.

B. The Fifth Circuit has Frequently Relied on Its

Pre-Tennard Penry Decisions to Deny Relief,

: Sometimes Without Analyzing the Significant

Impact Tennard and Smith had on That Body of

Law.

Since Tennard, the Fifth Circuit has continued to rely on

its pre-Tennard cases to reject Penry claims, often without a

critical analysis of the effect Tennard and Smith had on its

pre-7ennard jurisprudence. This suggests that the Fifth

Circuit either remains confused as to the scope of Penry J and

its progeny or is simply unwilling to implement this Court’s

mandate.

For example, in Coble, the court acknowledged that

Tennard and Smith “significantly altered our circuit’s

analysis of mitigating evidence offered by a defendant in a

capital case.” Coble, 444 F.3d at 358 n.11. However, the

court then relied on two of its pre-Tennard cases, Lucas v.

Johnson, 132 F.3d 1069 (Sth Cir. 1998), and Robinson v.

Johnson, 151 F.3d 256 (Sth Cir. 1998), to hold that Coble

was not entitled to Penry relief because his mental health

problems could be treated. See Coble, 444 F.3d at 361-62.

The court did not discuss whether Lucas and Robinson

remained good law after Tennard and Smith. Ibid. Nelson,

in turn, simply relied on Codb/e to reject Nelson’s Penry claim

based on his borderline personality disorder. See Nelson,

442 F.3d at 287. The Fifth Circuit also rejected Nelson’s

" The Fifth Circuit has granted a COA in two cases raising Penry claims

specifically to consider the effect Tennard and Smith had on the court’s

Penry jurisprudence. See Smith v. Dretke, 422 F.3d 269, 287 (Sth Cir.

2005); Mines v. Dretke, No. 03-11137, 2004 U.S. App. LEXIS 26259, at

*30 (Sth Cir. Dec. 16, 2004).

16

claim for relief based on maternal abandonment on the basis

of Graham and several pre-Tennard cases without

mentioning Smith or the type of dysfunctional childhood

environment involved in that case.’ See id. at 286. In

Brewer, the Fifth Circuit cited Lucas and Hernandez v.

Johnson, 248 F.3d 344 (Sth Cir. 2001), for the proposition

that a treatable mental illness does not require Penry relief.

Brewer, 442 F.3d at 280 & n18. The Brewer court

dismissed Tennard, reasoning that Tennard “overturned only

Fifth Circuit methodology for determining what mitigating

evidence is constitutionally relevant,” id. at 280 n.18, without

addressing Tennard’s conclusion that Tennard’s mitigating

evidence, like Penry’s, had a mitigating dimension beyond

the deliberateness and future dangerousness specia) issues.

See Tennard, 542 U.S. at 288-89. Brewer also failed to

discuss, or even mention, Smith.

The Fifth Circuit’s often cursory and uncritical analysis

of the continuing validity of its pre-Tennard Penry cases

suggests that the lower court continues to be confused about

or is unwilling to accept Penry I, Tennard, and Smith.

Tennard and Smith did fundamentally alter the Fifth Circuit’s

approach to mitigating evidence under the pre-199! statute, a

reality the Fifth Circuit seems unwilling to acknowledge.

See Smith, 543 U.S. at 45; Tennard, 542 U.S. at 287-88.

C. The Fifth Circuit’s Most Recent Penry Decision

Applies a Novel Estoppel Theory to Deny Relief

and Departs from the Precedents of Both This

Court and the Fifth Circuit Itself.

In Garcia v. Quarterman, No. 03-11097, slip op. at 12-13

(Sth Cir. July 13, 2006), the Fifth Circuit denied relief to a

petitioner who asserted a Penry claim based on evidence of

'? The Fifth Circuit did briefly discuss Tennard. \t noted that because the

Fifth Circuit cases on which it relied did not use the constitutional

relevance test to deny the petitioners’ Penry claims based on childhood

neglect or abandonment, those cases remained good law. See Nelson,

442 F.3d at 286 n.6.

17

numerous incidents of sexual abuse that occurred before the

age of ten and untreatable psychological defects.'* Jd. at 10-

11. However, the majority’® denied Garcia relief because his

attorney did not argue in closing that the jury should give

“independent mitigating effect” to Garcia’s history of sexual

abuse and psychological defects beyond the scope of special

issues. See id. at 15. Essentially, the Garcia majority

rejected Garcia’s Penry claim because defense counsel] failed

to premise his closing argument on a general mitigating

evidence instruction the trial court had already refused to

submit, id. at 27-28 (Benavides, J., dissenting), or the

nullification instruction that admittedly would not have cured

any constitutional defect in the special issues. /d. at 32-33

(Benavides, J., dissenting); see also id at 19 n.13

(acknowledging that the nullification instruction would not

have cured any deficiencies in the special issues). The

majority’s estoppel theory is completely unsupported by

precedent. /d. at 34 (Benavides, J., dissenting) (“[T]he

majority cannot cite a single authority, Supreme Court or

otherwise, in support of its estoppel theory . . . .”).

In addition, Garcia’s psychological defects were

“permanent and involuntary,” id. at 18, and the State offered

unrebutted expert testimony that Garcia would probably not

respond to treatment. See id. at 10-11. Under the Fifth

Circuit’s own precedent, the untreatability of Garcia’s

condition would require relief. See Bigby, 402 F.3d at 571.

Nevertheless, the Fifth Circuit concluded that Garcia’s

condition could not be viewed as “morally mitigating of

guilt.” Garcia, No. 03-11097, slip op. at 18. Pedophilia

understandably inspires horror and loathing, but to the extent

it is an involuntary condition that causes a defendant to have

‘* Both the State and the defense expert diagnosed Garcia as a pedophile.

Garcia v. Quarterman, No. 03-1 1097, slip op. at 12 (Sth Cir. July 13,

2006).

'* Garcia was authored by Chief Judge Jones, the same judge who wrote

Robertson, which explicitly adopted the constitutional relevance test.

18

an “uncontrollable compulsion to commit” antisocial acts,

see ibid., it is mitigating, even though it does not inspire

sympathy.'® Garcia cannot be viewed as anything other than

a results oriented decision that contravenes the precedents of

both this Court and the Fifth Circuit itself.

D. The Fifth Circuit Has Also Adopted a Narrow

Reading of Tennard and Smith in Other Contexts.

The Fifth Circuit has imposed a narrow interpretation of

Penry, Tennard, and Smith on mitigating evidence other than

mental health problems and a dysfunctional childhood

environment. Unlike the Fifth Circuit’s current approach to

Penry claims based on mental health problems and childhood

abuse, abandonment, or neglect, the Fifth Circuit’s decisions

in this latter class of cases applies a narrow reading of Penry

I that is symptomatic of the lower court’s reluctance to

abandon its previous approach to Penry claims and indicates

continuing refusal to follow this Court’s guidance with

respect to the scope of Penry / and its progeny.

Summers and Bower, for example, both dealt with

evidence of the petitioners’ positive character traits.

Summers presented evidence of “his nonviolent nature and

general good character” and “his grief for his parents’

death.”’’ Summers, 431 F.3d at 882. Bower presented

evidence that “he was a good and decent family man, who up

until his arrest, had never been in trouble with the law.”

Bower, 2005 U.S. App. LEXIS 16891, at *16. The Fifth

'® “Mitigation” and “sympathy” are not synonymous. See Johnson, 509

U.S. at 368, 371-72 (observing that the defendant's evidence of youth

was mitigating and moving and that the jury should not be permitted to

“dispense mercy on the basis of a sympathetic response to the

defendant”).

'? Summers also presented evidence of his “ability to conform to prison

life.” Summers, 431 F.3d at 882. However, this evidence appears to be

indistinguishable from the petitioner’s clean prison disciplinary record in

Franklin, 487 U.S. at 177-80, in which this Court found that the two pre-

1991 special issues were constitutionally adequate.

19

Circuit rejected both Summers’s and Bower’s Penry claims

relying principally on Coble, Boyd v. Johnson, 167 F.3d 907

(S" Cir. 1999), and Barnard v. Collins, 958 F.2d 634 (Sth

Cir. 1992). See Summers, 431 F.3d at 882-83; Bower, 2005

U.S. App. LEXIS 16891, at *16-17. Summers also cited

Graham extensively. Summers, 431 F.3d at 883. In both

cases, the court concluded that good character evidence

simply shows that the defendant’s crime was an atypical

aberration from his normal behavior that was unlikely to

recur and thus could be given adequate consideration under

the future dangerousness special issue. See id. at 882;

Bower, 2005 U.S. App. LEXIS 16891, at *17. The Fifth

Circuit is apparently under the impression that its conclusion

in these cases is consistent with Graham. See Graham v.

Collins, 506 U.S. 461, 476-77 (1993). However, this Court

has never addressed the application of Penry / to good

character evidence outside the narrow confines of the

retroactivity analysis involved in Graham. See Graham, 506

U.S. at 472.

Jackson also addressed the limits of Penry J. In Jackson,

the trial court refused to allow Jackson to introduce evidence

of the effect his execution would have on his friends and

family. Jackson, 450 F.3d at 615. Without discussing

Tennard and over a vigorous dissent by Judge Dennis, the

Fifth Circuit upheld Jackson’s death sentence. However,

testimony from a defendant’s friends and family that they

value the defendant’s life and would mourn his death permits

an inference that the defendant had some connection to

civilized society. Thus, Jackson’s “execution impact”

evidence, ibid., was certainly admissible under Tennard’s

broad view of relevance. See Tennard, 542 U.S. at 284

(holding that evidence is relevant at the punishment phase of

a capital murder trial if it has “‘any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence’” (quoting McKoy v.

North Carolina, 494 U.S. 433, 440 (1990))). In addition,

20

when extensive victim impact evidence is introduced, as it

was in Jackson, execution impact evidence may be necessary

“to avoid ‘unfairly weighting the scales in a capital trial’”

against the defendant. Jackson, 450 F.3d at 621 (Dennis, J.,

dissenting) (quoting Payne v. Tennessee, 501 U.S. 808, 822

(1991)).

Summers, Bower, and Jackson demonstrate that the Fifth

Circuit continues to struggle with Penry / and its progeny

and the relationship of that line of cases to Jurek v. Texas,

428 U.S. 262 (1976) (plurality opinion), and the other cases

from this Court that have upheld the constitutionality of the

pre-199] Texas death penalty statute. Although the number

of individuals this body of law effects continues to shrink, to

the inmates who were sentenced under the pre-1991 Texas

death penalty statute, the proper determination of these issues

remains of critical interest.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

CHRISTOPHER J. RICHART DAVID R. Dow

Mayer, Brown, Rowe Counsel of Record

& Maw LLP University of Houston Law

700 Louisiana St., Ste. 3600 Center

Houston, TX 77002 100 Law Center

(713) 238-3000 Houston, Texas 77204

713-743-2171 (voice)

713-743-2131 (facsimile)

Counsel for Amici Curiae

JULY 17, 2006