Amicus Curiae Brief — Smith v. Texas

No. 05-11304 | —

IN THE

Supreme Court of the United States

LAROYCE LATHAIR SMITH,

Petitioner,

Vv.

STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

BRIEF FOR THE CONSTITUTION PROJECT

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

VIRGINIA E. SLOAN SETH P. WAXMAN

PRESIDENT - Counsel of Record

THE CONSTITUTION DANIELLE SPINELLI

PROJECT WILMER CUTLER PICKERING

1025 Vermont Ave., N.W. HALE AND DORR LLP

Third Floor 1875 Pennsylvania Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20006

(202) 580-6923 (202) 663-6000

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TABLE OF CONTENTS

Page

po OF iy | ee ii

INTEREST OF AMICUS CURIAE 000 cece eceeeeeeeeees 1

ar iinititenetnittcapiiseebatiaiaiingdaimntsetimnapeciindiniamnnesiies 2

REASONS FOR GRANTING THE WRIT ...........cccccsseseseseee 5

I. THE TEXAS COURT OF CRIMINAL APPEALS’

DECISION CONTRAVENES THIS COURT’S REA-

SONED ANALYSIS IN SMITH .........ccccscsccceceesccccecsessccesesesceees 6

II. THIS CASE MERITS THE SAME TREATMENT

AS PAST CASES IN WHICH THIS COURT HAS

REVERSED STATE COURTS THAT ATTEMPTED

TO THWART ITS MANDATES ............cccccccsscesscesecsessverseeseess 12

SS cnpiciscinsvestumestnreenmsentniniigneanmninnpemmannvniti 20

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Ableman v. Booth, 62 U.S. (21 How.) 506 (1859) ............ccs000 14

Ake v. Oklahoma, 470 U.S. 68 (1985)...0......ccccccccsssscseecssseseeesees 12

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

Sarai aecciiecaihecihetthcaneaipittaceapebtiensbdinveniliahtdtbiiedionsiteanetmseniinets 10

Amy v. Desmoines County Supervisors, 78 U.S. (11

Wall.) 136 (1870)... eececesesesenees cinietecsitiibaiaiandecemnnieanepien 14

Barr v. City of Columbia, 378 U.S. 146 (1964) ............cececeeee: 12

Chamberlin v. Dade County Board of Public In-

struction, 374 U.S. 487 (1968) ...........cc.cccccscsssesssseessesseveeees 18

Chamberlin v. Dade County Board of Public In-

struction, 377 U.S. 402 (1964) ........ccccccecscessesessesereceeceees 19

Chamberlin v. Dade County Board of Public In-

~ struction, 160 So. 2d 97 (Fla. 1964)... ecescsessesseeeeeee 19

Chamberlin v. Dade County Board of Public In-

struction, 171 So. 2d 535 (Fla. 1965)............cccscesseeseesseees 19

City of Rock Hill v. Henry, 135 S.E. 2d 718 (S.C.

esas ep ossssecbecsncicutpinitiapnaiitipedntpitiscntinnniitieednuiamsenenvenes 17, 18

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)................. 13

Commodity Futures Trading Commission v.

Schor, 478 U.S. 833 (1986) .............ceccccecsrecsersseesecsererererseres 19

Cooper v. Aaron, 358 U.S. 1 (1958) ............ccccsceseceeesseesseseeesenes 12

Deen v. Hickman, 358 U.S. 57 (1958) .0.........cccccccecseeseeseeee 15,17

Enterprise Irrigation Dist. v. Farmers Mutual Ca-

OE Cg, I ie TG GI ei ccrcectintnitoringpcinmintectiaeicnnsestonnion 11

Ex parte Booth, 3 Wis. 145 (1854) oc. csecsceseseeeeseeseeeeeeseeseeee 14

Ex parte NAACP, 268 Ala. 531 (1959) .........ccccsceccecesescereeceeeee 15

Ex parte Smith, 1382 S.W.3d 407 (Tex. Crim. App.

ST eiisscinisiircesssiieinlteigheieiinibseniieiantanittcebineeiibbeinidineiel 4, 10, 16

Ex parte Smith, 185 S.W.3d 455 (Tex. Crim. App.

PTD iciirecthininitdesinsniitiataitiinavsclatinenionictianinsennnbscengenannie, sim

Fairfax’s Devisee v. Hunter’s Lessee, 11 US. (7

re ee iaiaciirteictiiciccatinitaserentanncescstininenimenientnininenii 13

Ford v. Georgia, 498 U.S. 411 (1991) wee ececeeteeeeteeeseneeneenee 16

Ford v. Georgia, 479 U.S. 1075 (1987) .......ccccccccsceseeeeseeseneees 16

Ford v. State, 257 Ga. 661 (1987) .0...........cccecceccosssseessereceereeceres 16

iii

TABLE OF AUTHORITIES—Continued

Page(s)

General Atomic Co. v. Felter, 436 U.S. 493 (1978) .......... 15, 17

Harper v. Virginia Department of Taxation, 509

as Se Ca cssasencieaichaierniehbstesiaenianimiabineecinntnminimacids 12,19

Henry v. City of Rock Hill, 376 U.S. 776 (1964) .........00+ 17,18

Hunter v. Fairfax’s Devisee, 15 Va. (1 Munf.) 218

(AREER RTERE APE CERO: RSE Aloe Ser ecw eS SDC UOONE One eo 13

Hunter v. Martin, 18 Va. (4 Munf.) 1 (1815)... eee 13

In 1é Booth, 3 Wis. 1 (1864) .......cccccccrcsecrscsseccsseseeccsvsevcesesereseseess 14

James v. Kentucky, 466 U.S. 341 (1984) .....ccccsescceseseeseeseeeees 12

M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821) .........0+ 14

Maguire v. Tyler, 75 U.S. (8 Wall.) 650 (1869) ..........0se0sse0 2,3

Magwire v. Tyler, 47 Mo. 115 (1870)........sssssescssssesesesensesnensenes 3

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)......... 12, 20

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304

(RESPIR SEE SAT ea Prine Om DORE Cn OTe 13

Michigan v. Long, 463 U.S. 1032 (1983) ......ccsssersvsersesererseeeees 11

Miller-El v. Dretke, 125 S. Ct. 2317 (2005) .0........ccccecsseeeeeseeees 15

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

SEERA SPR OT Denon we ee nr re 11, 12,15

NAACP vy. Alabama ex rel. Patterson, 360 U.S. 240

I cherie icineastai ila iat icin iil iiaatainminnpetititennile 10, 15

Oregon v. Guzek, 126 S. Ct. 1226 (2006) ..............scccceeseeeesneeees 11

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) .........cccssceevees 19

Penry v. Lynaugh, 492 U.S. 302 (1989) .......cssessereesseeeesssesesees 4

Penry v. Johnson, 532 U.S.782 (2001) .....cccccsccssesessseeeeeeees 6, 8,9

Riggs v. Johnson County, 73 U.S. (6 Wall.) 166

TIT sccnicchetisiiieitl ai aiatiliainniateiaae inaeabatalabcensicabinaatilel 14

Sibbald v. United States, 37 U.S. (12 Pet.) 488

Sascha icin dada ieinactaciinksahiapeatialipamsiaiaas 11,15

Smith v. State, No. 71,333 (Tex. Crim. App. June 22,

Sri ciistiiehsclisesiattisnietiesiegmdamiecihnibibiaeacitaciephesiaetneiitintintibidipaesas 10

Smith v. Texas, 543 U.S. 37 (2004)... ccccseeseseeseseseesereeee passim

Stanton v. Stanton, 429 U.S. 501 (1977)... caiiiels indeed 17

Sullivan v. Little Hunting Park, Inc., 392 U.S. 657

ERTS ET REN SR SPP Tem ee oT NE ee Ce 16

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

CED viniccnciteinsnceniitdiciaidailnhiainacataliiite liaise’ 16

Sullivan v. Little Hunting Park, Inc., 209 Va. 279

SITE ichsieicinithieciesetipenaintaihnetidilatiiahetieidatainelnsiiad pensectncneniosanensnnsenses 16

Sumner v. Mata, 455 U.S. 591 (1982) ...........ccccccssccessersreceesseeses 5

Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872)..........ccccccsceeseerees 14

Tennard v. Dretke, 542 U.S. 274 (2004)... cc ccsceescenseees 4,6,9

Tyler v. Magwire, 84 U.S. (17 Wall.) 253 (1872)........... 3, 11, 16

Yates v. Aiken, 484 U.S. 211 (1988) .........cccccccssesssecssecssesseeesees 19

Yates v. Aiken, 500 U.S. 391 (1991) .......cccccecsecsesceeserseeseseeees 19

STATUTES AND RULES

Judiciary Act of 1789, 1 Stat. 73 (1789)........ccsssecsessessesenecenes 13

The Fugitive Slave Act of 1850, ch. 60, 9 Stat. 462................ 14

OTHER AUTHORITIES

Fallon, Richard, Jr., et al., Hart and Wechsler’s The

Federal Courts and The Federal System (5th

OR TET ciccinscntcnincsininieeiinpdisastiinnpaininitiaaiiaiataiaissaicatdiiaiidibaeiaiad 13

Stern, Robert L., et al., Supreme Court Practice

Sa i I cicicicocerscsocsctibiinsitesadinetiiitaaiiissianidinuninististimaaa 5

Warren, Charles, Federal and State Court Interfer-

ence, 43 Harv. L. Rev. 345 (1930) .........ssssssessesereeeseereees 14

Warren, Charles, Legislative and Judicial Attacks

on the Supreme Court of the United States—A

History of the Twenty-Fifth Section of the Ju-

diciary Act, 47 Am. L. Rev. 1 (1913)........sscsseseeseeees 12, 13

IN THE

Supreme Court of the United States

No. 05-11304

LAROYCE LATHAIR SMITH,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

Amicus curiae The Constitution Project respectfully

submits this brief in support of the petition for a writ of cer-

tiorari.'

INTEREST OF AMICUS CURIAE

The Constitution Project is a bipartisan non-profit or-

ganization that seeks solutions to contemporary constitu-

tional issues through a combination of scholarship and public

education. The Project’s essential mission is to promote con-

stitutional dialogue. To that end, it creates bipartisan blue-

ribbon committees comprised of former government offi-

cials, judges, scholars, and other prominent citizens to reach

across ideological and partisan lines. The Project is deeply

concerned with the preservation of our fundamental consti-

tutional guarantees and with ensuring that those guarantees

are respected and enforced by all three branches of govern-

' No counsel for a party authored this brief in whole or in part, and

no person or entity other than amicus and its counsel made any monetary

contribution toward the preparation or submission of this brief. Letters

indicating the parties’ consent to the filing of this amicus brief have been

submitted to the Clerk.

2

ment. More specifically, the Project recognizes this Court’s

role as the ultimate arbiter of the meaning of those constitu-

tional guarantees.

In May 2000, the Project’s Death Penalty Ir‘tiative con-

vened a blue-ribbon committee including suppet -rs and op-

ponents of the death penalty, Democrats and Republicans,

former judges, prosecutors, defense lawyers, victim advo-

cates, and others. Although the Initiative does not take a

position on the death penalty, it is concerned that, as cur-

rently administered, the death penalty lacks adequate pro-

_ cedural safeguards and other assurances of fundamental

fairness. In 2006, the Initiative released an updated version

of its 2001 report and consensus recommendations. Manda-

tory Justice: The Death Penalty Revisited describes 32 re-

forms that the committee believes are essential to reduce

the risk of wrongful capital convictions and executions.

This Court’s decision in Smith v. Texas, 543 U.S. 37

(2004), addressed and reinforced one of the most important

procedural protections for capital defendants: the ability to

present all relevant mitigating evidence to the jury and have

the jury consider that evidence. Recommendations 26 and

27 in Mandatory Justice describe the Death Penalty Initia-

tive committee’s belief in the importance of mitigating fac-

~ tors in the jury’s decision-making process. By disregarding

the plain import of this Court’s decision in Smith, the deci-

sion of the Texas Court of Criminal Appeals on remand

threatens to eviscerate that essential protection. More

broadly, it threatens this Court’s authority as the final judi-

cial arbiter of federal constitutional law. The Constitution

Project therefore urges that the petition for certiorari be

granted.

INTRODUCTION

In 1869, this Court reversed the Supreme Court of Mis-

souri in a case involving a dispute over a parcel of land from

the Louisiana Purchase. Maguire v. Tyler, 75 U.S. (8 Wall.)

650, 668 (1869). The Court found that the land in question

had been granted by the Spanish governor to plaintiff John

3

Magwire’s assignor, and had been properly confirmed by

federal commissioners. Jd. at 653-654, 660. On remand, the

Missouri court conceded that this Court had decided the

question of title in favor of Magwire, but refused to give ef-

fect to the judgment. Magwire v. Tyler, 47 Mo. 115, 125-126,

129 (1870). Instead, the court dismissed Magwire’s action on

a state-law ground that had not previously been raised. /d.

at 126-128. On a second writ of error, this Court affirmed its

jurisdiction and again reversed the Missouri court, explain-

ing:

State courts have no power to deny the jurisdiction

of this court in a case brought here for decision and

sent back with the mandate of the court, which is its

judgment. ... [I]t is clear that it was too late to

raise any [additional] question after the whole case

had been decided and the cause remanded for final

judgment.

Tyler v. Magwire, 84 U.S. (17 Wall.) 253, 284-285 (1872).

As Magwire illustrates, throughout this nation’s history,

this Court has confronted cases in which a state or lower

federal court has contravened this Court’s direction—either

openly or through evasive maneuvers such as those em-

ployed in Magwire. In such cases, this Court has repeatedly

asserted its authority to protect the integrity of its mandate

and, ultimately, the supremacy of federal law.

Here, once again, a state court has failed to heed his

Court’s dictates, and this Court should grant review to reaf-

firm that its decisions must be followed.

Petitioner LaRoyce Lathair Smith was convicted of

capital murder in Dallas County, Texas. At sentencing, he

presented evidence that he had learning disabilities and a

low IQ; that his father was a violent drug addict; and that he

was only nineteen when he committed the crime. The jury

was instructed to answer two “special issues”: whether the

murder was deliberate, and whether the defendant was

likely to be dangerous in the future. Under Texas law, af-

firmative answers to those two questions mandated the

4

death penalty. In an effort to comply with this Court’s deci-

sion in Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry D, the

judge gave a supplemental “nullification” instruction direct-

ing the jury that it could respond to petitioner’s mitigating

evidence by answering “No” to one of the two special issues,

even if the evidence otherwise required an affirmative an-

swer. The jury answered “Yes” to both special issues and

sentenced petitioner to death. The Texas Court of Criminal

Appeals rejected petitioner’s request for postconviction re-

lief, reasoning that his mitigating evidence was not constitu-

tionally significant and that the nullification instruction pro-

vided a sufficient vehicle for the jury to consider the evi-

dence. Ex parte Smith, 132 S.W.3d 407, 413-417 (Tex. Crim.

App. 2004); see Smith v. Texas, 543 U.S. 37, 37-38 (2004) (per

curiam) (describing proceedings below).

This Court reversed the Texas Court of Criminal Ap-

peals. Smith v. Texas, 543 U.S. 37. Finding that peti-

tioner’s evidence was relevant for mitigation purposes, it

criticized the Texas court for failing to follow the “plain”

meaning of the Court’s precedent and for relying “on a test

we never countenanced and now have unequivocally re-

jected.” Id. at 45 (citing Tennard v. Dretke, 542 U.S. 274

(2004)). It held that the jury instructions at petitioner’s trial

were “constitutionally inadequate” because they did not al-

low jurors to give appropriate consideration to that mitigat-

ing evidence. Jd. at 48. The Court explained that “peti-

tioner’s jury was required by law to answer a verdict form

that made no mention whatsoever of mitigation evidence.

And ... the burden of proof on the State was tied by law to

findings of deliberateness and future dangerousness that

had little, if anything, to do with the mitigation evidence pe-

titioner presented.” /d. It therefore reversed and re-

manded for further proceedings not inconsistent with its

opinion. /d. at 48-49.

Yet, on remand, the Texas Court of Criminal Appeals

disregarded this Court’s analysis. It interjected a new pro-

cedural obstacle to Smith’s federal claim—one that it had

previously declined to impose—and it justified the applica-

5

tion of that obstacle by reverting to a line of reasoning that

this Court had specifically rejected. Ex parte Smith, 185

S.W.3d 455 (Tex. Crim. App. 2006).: It once again questioned

the relevance of petitioner’s mitigation evidence, id. at 464-

466, and, applying the state’s harmless error standard, con-

cluded that the nullification instruction provided an ade-

quate vehicle through which the jury could consider that

evidence, id. at 468-472. The resulting decision not only is

inconsistent with this Court’s guidance on the precise ques-

tion at issue: even more seriously, it undermines the consti-

tutional authority of the Court.

REASONS FOR GRANTING THE WRIT

This Court should grant the petition for a writ of certio-

rari and summarily reverse the judgment of the Texas Court

of Criminal Appeals, pursuant to Supreme Court Rule 16. In

the alternative, the Court should grant plenary review and

set the case for briefing and argument. It is critically impor-

tant that this Court review the Texas court’s decision, for

two related reasons.

First, the decision of the Texas Court of Criminal Ap-

peals contravenes this Court’s opinion and mandate, disre-

garding the Court’s carefully reasoned conclusions regarding

the constitutional inadequacy of the jury nullification in-

struction. Summary reversal is appropriate to vindicate the

concerns that warranted the Court’s original grant of certio-

rari and to correct the Texas court’s failure to heed this

Court’s clear direction. See, e.g., Sumner v. Mata, 455 U.S.

591, 596-597 (1982) (granting certiorari and summarily vacat-

ing and remanding where the lower court “apparently mis-

understood the terms of our remand” and reached a result

inconsistent with the Court’s prior opinion); Robert L. Stern

et al., Supreme Court Practice 322 n.101 (8th ed. 2002)

(“Summary reversal may . . . be grounded on the inherent

power of the Court . . . to insure compliance with its own re-

mand orders.”).

Second, this Court should grant review, as it has done

repeatedly throughout its history, to affirm its authority un-

6

der the Supremacy Clause to prevent state and lower fed-

eral courts from evading or frustrating its plain direction.

Since the early days of the Republic, the Court’s resolve

when faced with state and lower court resistance to compli-

- ance with its mandates has been essential to maintaining its

authority. Firmness is no less important in this instance.

I. THE TEXAS COURT OF CRIMINAL APPEALS’ DECISION

CONTRAVENES THIS COURT’S REASONED ANALYSIS IN

SMITH

1. When this case was last here, the Court held unam-

biguously that the jury instructions at the penalty phase of

petitioner Smith’s trial were “constitutionally inadequate”

because they disabled the jury from considering his exten-

sive mitigating evidence. Smith v. Texas, 543 U.S. 37, 48

(2004) (per curiam). Nevertheless, the Texas Court of

Criminal Appeals on remand applied its state harmless-error

standard to reject petitioner’s federal constitutional claim,

on the theory that the jury instructions did in fact provide

an adequate vehicle through which the jurors could consider

petitioner’s evidence. According to the court, the petitioner

failed to show “egregious harm” because he failed “to pro-

vide any persuasive argument that the jury was unable to

consider the totality of his extensive mitigating evidence.”

Ex parte Smith, 185 S.W.3d 455, 471 (Tex. Crim. App. 2006).

In so holding, the court on remand disregarded this Court’s

specific findings and contravened the clear import of its de-

cision in two critical ways.

First, the Texas court ignored this Court’s finding that

petitioner’s mitigation evidence did not fit “within the scope

of the special issues” in such a way that the jurors could

properly consider and give effect to that evidence. Smith,

543 U.S. at 46 (quoting Penry v. Johnson, 532 U.S. 782, 799-

800 (2001) (Penry II); see id. at 47-48. Although the Texas

court acknowledged that the “analytical framework” it had

used in concluding that “the jury could fully address this

evidence within the confines of the two special issues” had

been repudiated by this Court in Tennard v. Dretke, 542

7

U.S. 274 (2004), it professed to be “uncertain whether the

Supreme Court also concluded that some of the applicant’s

mitigation evidence was outside the reach of the two special

issues, and, if so, exactly what evidence was beyond the am-

bit of those special issues.” Ex parte Smith, 185 S.W.3d at

464; see also id. at 466.2 Accordingly, it proceeded to “re-

examine” petitioner’s mitigation evidence and concluded

that almost all such evidence was, in fact, “encompassed un-

der the ‘future dangerousness’ special issue,” with the re-

mainder likely covered by deliberateness. /d. at 465-466; see

also id. at 472.

That reasoning flatly contradicts this Court’s analysis.

In Smith, this Court did not leave open the question

whether the special issues fully encompassed petitioner’s

mitigation evidence. Rather, it made perfectly clear that the

special issues were inadequate. After carefully reviewing

the particular mitigation evidence in question, 543 U.S. at

41, 44-45, it concluded that, “[jJust as in Penry 11,” the ques-

tions regarding “deliberateness and future dangerous-

ness... had little, if anything, to do with the mitigation evi-

dence petitioner presented,” id. at 48. The jury instruction,

including the special questions, was “constitutionally inade-

quate,’ id., because it did not “empower the jury with a ve-

? While repeatedly professing its uncertainty about this Court’s

holding regarding the special issues, Ex parte Smith, 185 S.W.3d at 464,

466-467, the Texas court elsewhere declared that “the Supreme Court did

not address our conclusion that the two special issues provided applicant’s

jury with a constitutionally sufficient vehicle to give effect to his mitigat-

ing evidence,” id. at 463 (emphasis added) (internal quotations omitted).

As discussed in text, this statement disregards this Court’s plain holding

that the special issues were inadequate to permit the jury to give effect to

petitioner's evidence. See Smith, 543 US. at 47-48.

> The Texas court then purported to assume “for the sake of argu-

ment, that at least some of the applicant’s evidence was not fully encom-

passed by the two special issues.” Ex parte Smith, 185 S.W.3d at 466-467.

Yet, even after this ostensible concession, the court insisted, at the close

of its opinion, that it was merely “possible” that “the two special issues

may not have fully and completely encompassed every single bit” of the

evidence. Id. at 472.

8

hicle capable of giving effect to that evidence,” id. at 45. In

concluding otherwise, the Texas court ignored this Court’s

specific finding.

Second, the Texas Court of Criminal Appeals disre-

garded this Court’s holding that the nullification instruction

given to the jurors left them in an impermissible ethical di-

lemma. As this Court explained in Smith, it would have

been “both logically and ethically impossible for a juror to

follow both” the instructions relating to the special issues

and the instructions relating to mitigating evidence. 543

U.S. at 46 (quoting Penry IT, 532 U.S. at 799). “Indeed, ju-

rors who wanted to answer one of the special issues falsely

to give effect to the mitigating evidence would have had to

violate their oath to render a ‘true verdict.” Jd. (quoting

Penry Il, 532 U.S. at 800). Furthermore, for Eighth

Amendment purposes, the jury instruction in Smith was in-

distinguishable from the one the Court had previously ruled

unconstitutional in Penry IJ: “[(Tjhe clearer instruction

given to petitioner’s jury did not resolve the ethical problem

.... To the contrary, the mandatory language in the charge

could possibly have intensified the dilemma faced by ethical

jurors. ... [TJhe ‘jury was essentially instructed to return a

false answer to a special issue in order to avoid a death sen-

tence.” Jd. at 47-48 (quoting Penry I], 532 U.S. at 801).

This Court thus held that, on these facts, the nullifica-

tion instruction did not allow the jurors to give consideration

and effect to the mitigating evidence. But, on remand, the

Texas Court of Criminal Appeals did not heed that conclu-

sion. Although it paid lip-service to the Court’s conclusion

that “the nullification instruction intensified the dilemma

faced by ethical jurors in this case,” it went on to dismiss the

ethical dilemma as a mere “possibility,” insufficiently real to

warrant granting petitioner a new penalty trial. Ex parte

Smith, 185 S.W.3d at 468 (internal quotations omitted). Ac-

cording to the Texas Court, there was no “actual” ethical

dilemma because neither the jurors, the parties, nor the trial

judge noted one, and during voir dire the jurors

“Lo]verwhelmingly . . . agreed” that they understood and

9

could follow the nullification procedure. Jd. Moreover, “the

prosecutor never suggested that the jury should ignore or

fail to consider any of [petitioner’s] mitigation evidence,” id.

at 471, and “{ajll of [petitioner’s] mitigating evidence was

admitted, defense counsel did a superb job of weaving all of

that evidence into a compelling theory of the case, and his

attorneys presented a strong, coherent, and persuasive clos-

ing argument on punishment,” id. at 472.

None of the factors on which the Texas court relied can

justify its disregard of this Court’s express holding that, on

these facts, the nullification instruction was constitutionally

inadequate. The Texas court’s reliance on jurors’ state-

ments during voir dire ignores this Court’s holding that, by

its very nature—even if jurors clearly understood it—the

nullification instruction placed jurors in an intractable bind:

it would have been “logically and ethically impossible” to

comply both with the nullification instruction and their oath

to render a true verdict on the specia’ issues. Smith, 543

US. at 46 (quoting Penry I], 532 U.S. at 799). The notion

that the prosecutor’s closing mitigated this dilemma contra-

dicts this Court’s finding that the prosecutor heightened the

jurors’ ethical dilemma when he “reminded the jury that

each and every one of them had promised to ‘follow the law’

and return a ‘Yes’ answer to the special issues so long as the

State met its burden of proof.” Jd. at 48 n.5. And the Texas

court’s assertion that petitioner suffered no egregious harm

from the deficient instructions because he presented a “com-

pelling” and “persuasive” case on mitigation gets it precisely

backwards: as this Court recognized, petitioner was harmed

because he presented powerful mitigating evidence and the

jury had no adequate vehicle to give effect to that evidence.

As this Court explained in Tennard, “the Eighth

Amendment requires that the jury be able to consider and

give effect to a capital defendant’s mitigating evidence.” 542

US. at 285 (internal quotations omitted); see also Penry I,

532 U.S. at 797. State and lower courts may not evade this

principle by imposing a “restrictive gloss” on the Court’s

precedent. See Tennard, 542 U.S. at 283. But that is exactly

10

what the Texas court did here, undermining this Court’s re-

peated holdings regarding the relevance of mitigation evi-

dence and the inadequacy of the nullification instruction.

2. The Texas Court of Criminal Appeals’ invocation of

state harmless-error law does not authorize or excuse its

failure to abide by this Court’s decision. According to the

Texas court, application o. the “egregious harm,” rather

than “some harm,” standard was appropriate because peti-

tioner failed to raise his claim of jury-charge error at the

trial level. See Ex parte Smith, 185 S.W.3d at 463-464, 468

(citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

1984)). Yet, the Texas Court of Criminal Appeals had twice

before rejected the argument-that petitioner failed to pre-

serve his jury charge claim, and had previously addressed

the merits of the claim without imposing any procedural

barriers. See Smith v. State, No. 71,333 (Tex. Crim. App.

June 22, 1994); Ex parte Smith, 132 S.W.3d 407 (Tex. Crim.

App. 2004). Indeed, this Court, when first reversing the

Texas court, expressly noted that the majority had declined

to find petitioner’s claim procedurally defaulted and had in-

stead decided it on the merits. Smith, 543 U.S. at 43 n.3.

Only after the Texas Court of Criminal Appeals received an

unfavorable ruling on the merits from this Court did it de-

vise a theory of unpreserved error.

This Court has repeatedly refused to permit state

courts to apply a state-law procedural ground for the first

time on remand in order to evade this Court’s rulings on a

question of federal constitutional law. See, e.g., NAACP v.

*In any event, there is no basis for the Texas court’s contention that

petitioner failed to raise his objection to the jury instructions in a timely

fashion. In fact, as the court itself acknowledged, petitioner made a timely

claim that the special issues failed to permit full consideration of his miti-

gating evidence, and in doing so he explicitly invoked Penry J. Ex parte

Smith, 185 S.W.3d at 461 n.8. Petitioner’s objection was clearly sufficient

to apprise the trial court of his federal constitutional claim. See id. at 475-

476 (Holcomb, J., dissenting). “[TJhe majority’s reasoning that petitioner

did not preserve error cannot be countenanced, and further, it is not sup-

ported by the record.” /d. at 475.

1]

Alabama ex rel. Patterson, 360 U.S. 240, 244-245 (1959) (cit-

ing Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492

(1838)); Tyler v. Magwire, 84 U.S. (17 Wall.) 253, 284-285

(1872). Nor can courts inconsistently employ a state proce-

dural rule as a means to thwart this Court’s review. See,

e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

456, 457-458 (1958).

Moreover, even assuming that the Texas Court of

Criminal Appeals could, at this late date, invoke the state’s

“egregious harm” standard to deny petitioner relief, under

no circumstances could it apply the standard in a way that

contravenes the essential holding of this Court. Yet, that is

precisely what the Texas court did here. It reasoned that

petitioner suffered no egregious harm because the jury was

able to consider most, if not all, of the evidence. Ex parte

Smith, 185 S.W.3d at 471-472. The Texas court’s harmless-

error ruling was therefore premised on its judgment that

the special questions and nullification instruction together

provided an adequate vehicle for the jurors to give effect to

the mitigation evidence—a judgment that directly conflicts

with this Court’s holding. See Smith, 543 U.S. at 38, 48.°

°The concurring opinion’s assertion that the egregious harm stan-

dard constitutes an independent and adequate state-law ground and

therefore deprives this Court of jurisdiction is without merit. See Er

parte Smith, 185 S.W.3d at 472-473 (Hervey, J., concurring). A state-law

ground is not independent where it is either “interwoven” with the federal

ground “or is not of sufficient breadth to sustain the judgment without”

the use of federal law. Michigan v. Long, 463 U.S. 1032, 1039 n.4 (1983)

(quoting Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., 243

U.S. 157, 164 (1917)). The Texas court’s conclusion that petitioner failed to

show egregious harm was necessarily “interwoven” with federal constitu-

tional law because the error being assessed—by whatever standard—was

federal constitutional error. And, as explained above, the Texas court’s

conclusion that the federal constitutional error at issue failed to meet an

egregious-harm standard was entirely dependent on an analysis of the

effects of that error that revisited and distorted the analysis previously

conducted by this Court. As a result, it cannot be considered an inde-

pendent state-law ground. See Oregon v. Guzek, 126 S. Ct. 1226, 1229-

1230 (2006) (no independent ground where state court relied upon Su-

preme Court mitigation precedents to determine admissibility of evi-

12 -

Il. THIS CASE MERITS THE SAME TREATMENT AS PAST

CASES IN WHICH THIS COURT HAS REVERSED STATE

COURTS THAT ATTEMPTED TO THWART ITS MANDATES

Over the course of the last two hundred years, this

Court has often granted review of state and lower federal

court decisions that have thwarted, evaded, or simply mis-

apprehended its mandates, in order to reaffirm its authority

“to say what the law is.” Marbury v. Madison, 5 US. (1

Cranch) 137, 177 (1803); see also Cooper v. Aaron, 358 U.S. 1,

18 (1958). The Court should do the same here.

1. When the Court was first established in 1790, it was

by no means settled that its judgments would be respected

as binding on state courts. Indeed, in the early years of the

Republic, state courts repeatedly resisted this Court’s au-

thority to review their judgments on matters of federal law.

See Charles Warren, Legislative and Judicial Attacks on the

Supreme Court of the United States—A History of the

Twenty-Fifth Section of the Judiciary Act, 47 Am. L. Rev. 1,

dence); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 100 (1993) (no

independent or adequate ground where state law holding “rested solely”

on a failure properly to apply federal law); Ake v. Oklahoma, 470 U.S. 68,

75 (1985) (“[Wyhen resolution of the state procedural law question depends

on a federal constitutional ruling, the state-law prong of the court’s hold-

ing is not independent of federal law . . . .”).

Moreover, even if the “egregious harm” standard were an “inde-

pendent” ground, it would not be an “adequate” ground. Procedural rules

that are applied inconsistently, as in this case, will not divest this Court of

jurisdiction. See James v. Kentucky, 466 U.S. 341, 348-349 (1984) (only

“firmly established and regularly followed state practice .. . can prevent

implementation of federal constitutional rights”); Barr v. City of Colum-

bia, 378 U.S. 146, 149 (1964) (state procedural rules “not strictly or regu-

larly followed” may not bar review); NAACP v. Alabama ex rel. Patter-

son, 357 U.S. at 457-458 (“Novelty in procedural requirements cannot be

permitted to thwart review in this Court applied for by those who, in jus-

tified reliance upon prior decisions, seek vindication in state courts of their

federal constitutional rights.”). Here, as Justice Holcomb explained in

dissent, the Texas court applied its preservation of error rule “capri-

ciously and arbitrarily” to deny relief to petitioner despite his objection at

trial that the jury instructions failed to comply with Penry /, and despite

its previous decisions to address petitioner’s claim on the merits. Smith,

185 S.W.3d at 477-478. *

13

161 (1913); Richard Fallon, Jr. et al., Hart and Wechsler’s

_ The Federal Courts and The Federal System 479-480 (5th

ed. 2003). Only as a result of this Court’s resolve in the face

of state-court resistance was its supremacy in matters of

federal law established. f

In the most notorious dispute of this Court’s early

years, Virginia’s highest court refused to acknowledge the

authority of the Court to review a decision construing the

effect of a post-Revolutionary War treaty on the rights of

two purported landowners. See Hunter v. Fairfax’s Devisee,

15 Va. (1 Munf.) 218 (1810), vacated, Fairfax’s Devisee v.

Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813), remanded to

Hunter v. Martin, 18 Va. (4 Munf.) 1 (1815), rev’d, Martin v.

Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). According to

the Virginia court, section 25 of the Judiciary Act,° which

conferred upon this Court the authority to exercise appellate

jurisdiction over state courts, was unconstitutional. Hunter,

18 Va. at 58-59. Thus, the state court refused to follow this

Court’s express instructions to enter judgment for the devi-

see of the British subject whose land had been confiscated in

violation of a federal treaty. Jd. In response, this Court did

not yield; instead, it issued another decision affirming its au-

thority and renewed its order to the Virginia court to com-

ply with its first mandate. Martin, 14 U.S. 304. As the

Court made clear, its final judgments are “conclusive upon

the parties, and [cannot] be re-examined” either by the

Court itself or by state courts. Jd. at 355.

; In the years following Martin, as state courts continued

to resist this Court’s judgments, the Court repeatedly made

clear that its decisions on matters of federal law were bind:

ing and must be followed. See Warren, supra, at 12-22, 25,

161-162, 129-186 (detailing state-court resistance to the

Court’s authority); see also Cohens v. Virginia, 19 U.S. (6

Wheat.) 264 (1821) (reaffirming the authority of the Court to

review state-court judgments). For example, the Court re-

peatedly reversed state courts that issued writs of manda-

° Judiciary Act of 1789, 1 Stat. 73, 85 (1789).

14

mus and habeas corpus to federal officials, or that tried to

prevent the execution of federal writs. See Charles Warren,

Federal and State Court Interference, 43 Harv. L. Rev. 345,

350-356 (1930); see also M’Clung v. Silliman, 19 US. (6

Wheat.) 598 (1821) (states have no right to issue a writ of

mandamus to a federal official); Riggs v. Johnson County, 73

U.S. (6 Wall.) 166, 195 (1867) (states lack “all power to re-

strain either the process or proceedings in the national

courts”). “As the Court declared in Amy v. Desmoines

County Supervisors, if state courts had the power to pre-

vent the execution of a federal writ of mandamus, “the Con-

stitution of the United States, and the laws made in pursu-

ance thereof . . . would be subordinated to the authority of

the courts of every State in the Union.” 78 U.S. (11 Wall.)

136, 138 (1870).

In a case involving the Fugitive Slave Act,’ the Court

acted no less than four times in order to stop the Supreme

Court of Wisconsin from discharging a federal prisoner in

violation of this Court’s mandate. Ableman v. Booth, 62 U.S.

(21 How.) 506, 513-525 (1859), reversing In re Booth, 3 Wis. 1

(1854), Ex parte Booth, 3 Wis. 145 (1854). The Court made

clear in its final judgment in the case that

no power is more clearly conferred by the Constitu-

tion and laws of the United States, than the power

of this court to decide, ultimately and finally, all

cases arising under such Constitution and laws; and

for that purpose to bring here for revision, by writ

of error, the judgment of a State court where such

questions have arisen, and the right claimed under

them denied by the highest judicial tribunal in the

State.

Id. at 525; accord Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872).

2. Asa result of these repeated exertions during the

early years of the Republic, this Court’s authority to review

state-court judgments on matters of federal law was, by the

’ The Fugitive Slave Act of 1850, ch. 60, 9 Stat. 462.

15

twentieth century, firmly established. Nonetheless, on nu-

merous occasions during the last century, state courts, as

well as lower federal courts, have ignored, evaded, or misap-

plied this Court’s mandates and its guidance regarding the

proper application of federal law. The cases cover a wide

array of legal issues, from the federal constitutional rights of

criminal defendants, see, e.g., Miller-El v. Dretke, 125 S. Ct.

2317 (2005), to a corporation’s right to assert in a federal fo-

rum its entitlement to arbitration, General Atomic Co. v.

Felter, 436 U.S. 493 (1978) (per curiam). And the lower and

state court decisions at issue have ranged from the overtly

disobedient, see, e.g., Deen v. Hickman, 358 U.S. 57 (1958)

(per curiam), to the covert, devious, or simply wrong-

headed, see, e.g., NAACP v. Alabama ex rel. Patterson, 360

US. at 244-245. Yet, whatever the legal issue or the manner

of the lower courts’ failure to abide by this Court’s decisions,

this Court has taken decisive action to protect the integrity

of its mandates and to affirm its authority as the ultimate

arbiter of federal law.

The maneuvers used by the Texas Court of Criminal

Appeals to evade this Court’s decision in Smith bear a strik-

ing resemblance to tactics of resistance that the Court has

repeatedly discountenanced in the past. On numerous occa-

sions, courts have applied new procedural grounds on re-

mand—as the Texas court did here—in order to reinstate a

ruling this Court had set aside. For example, in NAACP v.

Alabama ex rel. Patterson, this Court reversed a decision of

the Supreme Court of Alabama that upheld a judgment of

civil contempt against the NAACP for failing to comply with

a court order to reveal the names of its members. 357 U.S.

449, 467 (1958). On remand, the state court acknowledged

this Court’s holding, but then proceeded to re-institute its

contempt order on a new ground, based on a different view

of the record. Ex parte NAACP, 268 Ala. 531, 532-533

(1959). On certiorari, this Court again reversed, explaining

that the state court could not employ a new rationale on re-

mand to evade the Court’s mandate. NAACP v. Alabama

ex rel. Patterson, 360 U.S. at 244-245 (quoting- Sibbald, 37

16

US. (12 Pet.) at 492); see also Tyler v. Magwire, 84 U.S. (17

Wall.) at 284-285.

Similarly, in Sullivan v. Little Hunting Park, Inc., this

Court vacated and remanded a decision of the Virginia Su-

preme Court of Appeals holding that petitioner’s failure to

comply with a state procedural requirement barred review

of his racial discrimination claim. 392 U.S. 657 (1968). On

remand, the Virginia court again asserted that the state pro-

cedural ground barred review of petitioner’s claim. 209 Va.

279, 281 (1968). Faced with that attempt to evade the im-

port of its prior ruling, this Court again granted review and

reversed. 396 U.S. 229, 232, 234 (1969). More recently, in

Ford v. Georgia, the Court vacated and remanded a decision

of the Georgia Supreme Court rejecting the petitioner’s

claim of discriminatory jury selection. 479 U.S. 1075 (1987).

_ On remand, the Georgia court for the first time held that pe-

titioner’s claim was procedurally barred. 257 Ga. 661, 663-

664 (1987). Rather than permit the Georgia court thus to

avoid the effect of its prior decision, this Court granted cer-

tiorari and reversed. 498 U.S. 411, 424-425 (1991).*

The Texas Court of Criminal Appeals engaged in similar

sleight-of-hand here. When petitioner’s case was first before

the Texas court, the State argued that his claim was proce-

durally barred, but the majority declined to rule on that

ground and instead addressed the merits; nowhere did the

majority intimate that petitioner had failed to raise his claim

in a timely fashion. See Smith, 543 US. at 43 n.3; Ex parte

Smith, 132 S.W.3d at 410; cf. Ex parte Smith, 132 S.W.3d at

423 (Hervey, J., concurring). Rather, it was only after re-

ceiving an unfavorable decision on the merits from this

Court that the Texas court first invoked petitioner’s pur-

* The Court held in both Sullivan and Ford that the purported state-

law ground of decision did not deprive this Court of jurisdiction because

the state court had not consistently applied it and it therefore was not an

adequate state ground. See Sullivan, 396 U.S. at 234; Ford, 498 US. at

423-424. In this case, as demonstrated above, see supra n.5, the purported

state-law ground for the Texas court's decision is neither independent nor

adequate.

17

ported untimeliness to deny relief. This Court has repeat-

edly refused to permit state courts to evade its rulings by

manipulating state procedural law in this manner.

In other cases, the Court has reversed state or lower

federal courts a second time when, on remand, they refused

to accept that the Court meant what it said initially. See,

e.g., General Atomic Co. v. Felter, 436 U.S. 493 (1978) (per

curiam) (involving entitlement to arbitration); Stanton v.

Stanton, 429 U.S. 501 (1977) (per curiam) (involving sex dis-

crimination in Utah family-law statute); Deen v. Hickman,

358 U.S. 57 (1958) (per curiam) (involving sufficiency of evi-

dence to support a jury award in a Federal Employers Li-

ability Act case), The Court has made clear that it is not

enough to pay lip service to its rulings while disregarding

them in substance; the court to which this Court remands a

case must respect the “thrust” of the Court’s decision. See

Stanton, 429 U.S. at 503. Accordingly, this Court has not

only corrected instances of outright disobedience, where the

state court does “precisely what [the Court] held that it

lacked the power to do,” Felter, 436 U.S. at 496, or under-

takes “its own independent evaluation of the evidence .. .

wholly apart from the judgment of the Supreme Court,”

Deen, 358 U.S. at 57; it has also refused to allow state and

lower courts to evade its judgments on remand based on an

unduly narrow reading of this Court’s case law, or on im-

plausible distinctions between the facts of their cases and

the precedents upon which a remand order was based.

In Henry v. City of Rock Hill, for example, this Court

vacated and remanded a decision of the South Carolina Su-

preme Court that upheld the criminal convictions of indi-

viduals peacefully “assembled . . . in front of the City Hall to

_ protest segregation.” 376 U.S. 776, 777 (1964) (per curiam)

(describing prior decision in 375 U.S. 6 (1963)). On remand,

the state court purported to comply with this Court’s man-

date. City of Rock Hill v. Henry, 135 S.E.2d 718, 718-719

(S.C. 1963). Yet, much like the Texas Court of Criminal Ap-

peals in Smith, the court professed uncertainty about the

true meaning of the Court’s precedent and adopted an un-

18

duly narrow reading of the case law. Jd. at 718-720; cf. Ex

parte Smith, 185 S.W.3d at 464, 466-467, 469-472 (misstating

and dramatically narrowing this Court’s holding in Smith).

Then, after unpersuasively distinguishing the facts of its

case from the precedent upon which remand was based, the

court concluded that its original judgment should stand.

Henry, 135 S.E.2d at 719-720; cf. Ex parte Smith, 185 S.W.3d

at 469-472.°

This Court again granted certiorari and reversed.

Henry, 376 US. at 778. In a terse opinion, the Court made

clear that such manipulation of its precedent would not be

countenanced. As the Court explained, “under the Suprem-

acy Clause,” Supreme Court decisions are “binding upon

state courts as well as upon federal courts,” and although the

Court’s remand order “did not amount to a final determina-

tion on the merits,” it did “indicate that we found [prior

precedent] sufficiently analogous and, perhaps, decisive to

compel re-examination of the case.” Jd. at 777. In short, a

state court cannot pay lip service to the mandate, while

evading its clear import.’

* The state court acknowledged “the power and authority of the

United States Supreme Court to reverse a State conviction for proper

reasons or grounds based on the provisions of the Federal Constitution,”

City of Rock Hill v. Henry, 135 S.E. 2d 718, 718 (S.C. 1963), and it claimed

it was “endeavor{ing] to carry out the mandate of the United States Su-

preme Court,” id.; see also id. at 719. Yet, the court found “that the light,

if any, shed upon [the] instant case by the [Supreme Court’s earlier] case

is not readily or easily discernible,” id. at 718. Just as the state court in

Smith concluded that Penry I] presented more egregious facts than the

instant case, 185 S.W.3d at 472, the Henry court explained: “We have

reviewed the facts in this case, which we find more aggravated than those

in the . . . case [upon which remand was based], and conclude that there is

nothing in th{at] . . . case to require a reversal of [the] instant case,”

Henry, 135 S.E.2d at 720.

'° Two reversals were also necessary before the Florida Supreme

Court complied with the mandate of the Supreme Court in Chamberlin v.

Dade County Board of Public Instruction, 374 U.S. 487 (1963). On the

first grant of certiorari, the Court vacated the state court’s decision,

which had upheld various religious exercises in public schools, and re-

manded for reconsideration in light of two recent decisions. Jd. at 487. On

19

Similarly, a state court’s assertion that it has “acqui-

esc[ed]” in this Court’s conclusion will be rejected when the

state court applies the wrong harmless-error standard or

misreads the record to which the standard is applied. See

Yates v. Aiken, 500 U.S. 391, 399 (1991). Furthermore, an

opinion that is only partially “responsive” to this Court’s

mandate will not stand. See Yates v. Aiken, 484 U.S. 211,

214 (1988) (granting certiorari because state court had not

“fully complied” with the mandate). And, a state court can-

not, as a means to evade this Court’s mandate, use state law

where the application of federal law is required: “The Su-

premacy Clause does not allow a federal retroactivity doc-

trine to be supplanted by invocation of a contrary approach

to retroactivity under state law.” See Harper v. Virginia

Dep’t of Taxation, 509 U.S. 86, 100 (1993) (reversing where

state court failed to apply federal retroactivity doctrine

when applying the Court’s decision regarding preferential

tax benefits for state and local government employees).

The Court has applied the same principles when review-

ing decisions by lower federal courts. Like state courts,

lower federal courts may not fall short in their “attention to

{this Court’s] explanation of the governing legal standards.”

Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999). Nor may

they engage in “dismissive and strained interpretation” of

evidence or case law to evade the clear guidance of this

Court. Miller-El, 125 S. Ct. at 2339; see also Commodity

Futures Trading Comm'n v. Schor, 478 U.S. 833, 847-849

(1986) (reversing Court of Appeals for second time where

appellate court read precedent unduly narrowly). In short,

remand, the Florida state court, like the Texas court in Smith, purported

to “read with care” the Supreme Court decisions cited in the remand or-

der. 160 So. 2d 97, 98 (Fla. 1964). But it went on to critique the precedent

as providing no “clear course for [the state courts] to follow,” to distin-

guish its case from the Court’s precedent, and to reach the same conclu-

sion it had reached the first time it heard the case. Jd. at 99. The Court

again granted certiorari and reversed and remanded. 377 U.S. 402, 402

(1964) (reversing in part and dismissing in part). Only when the Florida

Supreme Court considered the case for the third time did it comply with

the Supreme Court’s mandate. See 171 So. 2d 535, 538 (Fla. 1965).

20

this Court’s cases over the last two hundred years have

made clear that, whether state or federal, all lower courts

must respect the integrity of this Court’s mandates and the

authority of this Court “to say what the law is.” Marbury, 5

US. at 177.

Yet, that is precisely what the Texas Court of Criminal

Appeals failed to do. Instead of following this Court’s rea-

soned analysis, the Texas court concocted a new state-law

procedural barrier it had previously declined to employ. It

then ignored the specific findings of this Court and adopted

an unduly narrow construction of the Court’s holding, in or-

der to reinstate the same result that this Court had previ-

ously rejected as inconsistent with the Eighth Amendment’s

dictates. The Texas court’s decision thus undermines this

Court’s authority and contravenes its plain direction. This

Court should reaffirm that it meant what it said in Smith

and that state and lower courts must respect its decisions.

CONCLUSION

The petition for a writ of certiorari should be granted

and the judgment of the Texas Court of Criminal Appeals

should be summarily reversed. In the alternative, the Court

should grant plenary review and set this case for briefing

and argument.

Respectfully submitted,

VIRGINIA E. SLOAN SETH P. WAXMAN

PRESIDENT Counsel of Record

THE CONSTITUTION DANIELLE SPINELLI

PROJECT WILMER CUTLER PICKERING

1025 Vermont Ave., N.W. HALE AND DORR LLP

Third Floor 1875 Pennsylvania Ave., N.W.

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SEPTEMBER 2006